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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH
Raj Shekhar Attri, President; Mrs. Padma Pandey & Mr. Rajesh K. Arya, Members
Amit Chhokra – Complainant
Versus
DLF Homes Panchkula Pvt. Ltd.
& Ors. – Opposite Parties
Consumer Complaint No. 31 of 2020
Decided on 11.06.2021
Counsel for the Parties:
For the Complainant:Sh.Narender Yadav, Advocate
For the Opposite Parties :Sh.Kunal Dawar, Advocate
IMPORTANT POINTS
(1) Builder ceases to have rights or interest over the property after selling it.
(2) Previous allottee is not beholden to the property after selling his interest in it.
(3) Existence of arbitration clause not bar to judgment of the commission.
(4) Agreement terms cannot be unconscionable and unchallengeable before the Forum.
Headnote:
(A) Consumer Protection Act, 2019 – Section 47 – Complaint - Complainant contested transfer fee as invalid as it is in violation of Haryana Govt. order dt. 22.06.2018 capping Transfer Fee at Rs. 10,000 – Opp. Party raised objections against jurisdiction of the Forum regarding modification of the purchase agreement, existence of arbitration clause, the purpose of purchase of flat and non-joinder of previous allottee – Distt. Forum held that Joinder of previous allottee is not required as he surrendered all interests to subsequent Allottee –Existence of arbitration clause not bar to complaint before commission - Matter within territorial jurisdiction–Transfer fee held unconscionable and in violation of Haryana Govt. order–Amt. paid by Complainant in excess of Rs. 10,000 as Transfer fee to be returned with 9% interest from date of payment with Rs. 50,000 as costs and Rs. 50,000 for mental agony.
(Paras 1, 2, 5, 6, 9 & 10)
(B) Transfer of Property Act, 1872 - Unfair (Procedural & Substantive) Terms in Contract - Complainant/Subsequent allottee purchased a flat from the previous allottee by paying Rs. 42,34,599.72 to respondent and was charged exorbitant “Transfer Fee” of Rs. 4,13,236 based on arbitrary clause in contract. (Para 9)
Result: Complainant awarded refund with interest, cost and damages
ORDER
Padma Pandey, Member— In brief, the facts of the case, are that the Opposite Parties developed a residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka – Pinjore Urban Complex. Initially Sh.Alok Kumar Roy booked a flat in the project of the Opposite Parties on 30.03.2010 and paid amount of Rs. 6 lakhs. He also entered into Independent Floor Buyer’s Agreement dated 01.12.2010 (Annexure C-1) with the Opposite Parties, whereby, a unit bearing No.C-3/45 GF (Ground Floor) alongwith parking No.P-GF was allotted. The total price of the unit was fixed as Rs.42,34,599.72. The Opposite Parties received more than Rs.12 lakhs after booking and before entering into Agreement from the previous allottees. Thereafter, the complainant entered into an Agreement with the previous allottee on 07.10.2018 of the unit, in dispute and paid all the amounts. The complainant submitted all the documents for transfer of the said unit but the Opposite Parties had not mentioned the transfer charges/fee anywhere in Agreement. It was stated that when the complainant submitted the documents for transfer, the Opposite Parties refused to transfer the same, till the complainant paid the transfer charges/fee of Rs.4,13,236/- to the Opposite Parties. The complainant was agitated and sent protest letter dated 24.04.2019 (Annexure C-2) as well as email to the Opposite Parties (Annexure C-3). The complainant paid the total amount of Rs.47,86,313/- to the Opposite Parties and received possession of the unit, in question, on 26.04.2019. It was further stated that the Opposite Parties arbitrarily charged Rs.4,13,236/- as transfer charges without any justification and the conduct of the Opposite Parties was also in violation of the Haryana Government Notification dated 22.06.2018 Rule 32 saying that only Rs.10,000/- will be charged in case of sale of apartment and such society shall also modify the bye-laws accordingly and get the modified bye-laws approved from the District Registrar, to which, the complainant suffered a lot. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act (in short the ‘Act’ only), was filed.
2. The Opposite Parties in their written statement took up certain preliminary objections, inter alia, that the complainant being a subsequent allottee has not made the first/original allottee a party in the present complaint, as such, the complaint may be dismissed for non joinder of the necessary party ; the complainant, being investor, had purchased the unit from original allottee for earning profits, as such, he would not fall within the definition of a consumer ; that in the face of existence of arbitration clause in the agreement this consumer complaint is not maintainable; that this complaint is also not maintainable before this Commission as the complainant is seeking modification/re-writing of terms and conditions of the agreement and as such it can be adjudicated by civil court only; that this Commission did not vest with territorial jurisdiction.
On merits, it was admitted that the complainant purchased the unit, in question, from the original allottee. It was stated that the complainant is a subsequent allottee as he purchased the said property from one Mr.Alok Kumar Roy and the complainant had the full knowledge about the Agreement dated 01.12.2010 executed between the parties and got the said property transferred in his name on 26.04.2019. It was further stated that the original allottee settled all his grievances by executing the settlement deed on 01.08.2018 and also indemnified the Company from any further litigation etc. It was further stated that the complainant had already taken physical possession on 18.03.2018. It was further stated that t
