Chandigarh

StateCommission

CC/740/2017

Nirmal Singh Rooprai - Complainant(s)

Versus

DLF Homes Panchkula Private Ltd., - Opp.Party(s)

H.P.S. Ghuman Adv.

12 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	740 of 2017
Date of Institution	:	13.10.2017
Date of Decision	:	12.03.2018

 

1. Nirmal Singh Rooprai S/o Gurbax Singh Rooprai R/o #102, Village Kalsera, P.O. Bass, Tehsil Nangal, Distt. Ropar.

 

2. Raj Kumari Rooprai wife of Nirmal Singh Rooprai R/o #102, Village Kalsera, P.O. Bass, Tehsil Nangal, Distt. Ropar.

                                             .........Complainants.

V e r s u s

 

DLF Homes Panchkula Pvt. Ltd., SCO No.190, 191 & 192, Sector 8-C, Chandigarh through its authorized representative.

 

IInd Address:-

 

DLF Homes Panchkula Pvt. Ltd., Office at 12^th Floor, DLF City, Phase-3, National Highway-8, Gurgaon – 122002, Haryana through its authorized Representative.

 

..........Opposite Party.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by:

 

Sh. H. P. S. Ghuman, Advocate for the complainants.

Sh. Arjun Sharma, Advocate for the Opposite Party alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

 

PER DEV RAJ, MEMBER

            In brief, the facts are that the complainants booked a flat in DLF Valley project of the Opposite Party on 25.02.2010 and they were allotted an independent floor bearing No.F-7/11, Second Floor, measuring 1267 sq. ft. Independent Floor Buyer’s Agreement was also executed between the parties on 25.12.2012 (Annexure C-4), after about 2 years and 9 months, which was deficiency in service. The complainants paid in all an amount of Rs.30,92,324.58 uptil 16.02.2015, against the agreed amount of Rs.32,18,999.69. As per Clause 11(a) of the Agreement, possession was to be delivered within 24 months from the date of execution of the said agreement i.e. up-to June 2012 excluding 3 months from booking. It was further stated that the Opposite Party delayed the delivery of flat for more than 4 years and letter offering possession was received on 15.11.2016. It was further stated that since the Opposite Party failed to deliver possession within the given time, the complainants sold the unit, in question, to someone else in the month of June 2017. It was further stated that the complainants are entitled to interest on the amount paid by them to the Opposite Party and also for rebate of 5% of the amount of the unit, in question.

2.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Party, to pay interest on the deposited amount from the respective dates of payments at the prevalent rate; pay reasonable sum as compensation for unnecessary harassment, mental tension, agony and other suffering, grant rebate of 5% & refund the amount with interest and also pay Rs.55,000/- towards litigation expenses.

3.         The Opposite Party, in its written statement, took a specific preliminary objection that the present complaint has become infructuous as the complainants have already sold the unit, in question, to Mr. Narinder Kumar Chadha and Mrs. Neera Chadha vide Agreement to Sell dated 12.06.2017, as admitted by the complainants in their complaint.

4.         Apart from above objection, various other objections as regards the parties being bound by terms and conditions of the Agreement; making baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement to invoke jurisdiction of this Commission; the complainants being not consumers as the floor, in question, was purchased by them for investment purposes and earning profits; as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, the complainants shall be referred to the Arbitration, have also been taken.

5.         On merits, it has been reiterated that offer of possession was sent to the complainants on 15.11.2016 but instead of taking possession, they sold the said property to above mentioned persons (Mr. Narinder Kumar Chadha and Mrs. Neera Chadha) on 12.06.2017. It was further stated that the subsequent allottees had already taken possession of the said unit on 27.10.2017 and after substitution of name(s), the complainants have no lien on the said property. It was further stated that the subsequent purchasers have furnished undertaking that they shall not be eligible for any delay compensation etc. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

6.         The parties led evidence in support of their case.

7.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

8.         The core question, which falls for consideration, is, whether the complainants are consumers or not in view of the fact that they had already sold the unit, in question, in June 2017, qua which, they have sought relief in this complaint? It is admitted case of the parties that initially, Flat bearing No.DVF-E7/11-SF was allotted to the complainants and an Independent Floor Buyer’s Agreement was executed between them and the Opposite Party on 25.12.2012. According to the complainants, possession of the unit, in question, which was to be offered by June 2014, was offered by the Opposite Party to the complainants on 15.11.2016 (Annexure R-3). However, instead of taking possession, the complainants sold the allotted unit in June 2017. No doubt, the subsequent allottees, namely, one Mr. Narinder Kumar Chadha and Mrs. Neera Chadha took the actual physical possession of the unit, in question on 27.10.2017 vide possession certificate (Annexure R-4). A similar issue has already been settled by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled “Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr.’, Revision Petition No.2562 of 2012, decided on 25.09.2013. In the case before the National Commission, similar objection was raised by the Counsel for the petitioners that as the vehicle had already been sold during pendency of the complaint before District Forum, as such, complainant was not a consumer for the purpose of Consumer Protection Act, 1986. Counsel for the petitioners also cited Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini, I (2008) CPJ 249 (NC), to support his contention, wherein in Para 12, it was held as under:-

“12.     Another issue which has been agitated before us is that the plot in question has since been sold for a consideration of Rs. 10 lakh out of which way back in 2001, the complainant has received Rs. 6 lakh and the balance Rs. 4 lakh later on having transferred his right during the pendency of the complaint. In these circumstances whether the complainant would still remain a consumer or not? We have our serious reservation on this point. Having disposed of the property during the pendency of the complaint, in our view, the complainant would cease to be a consumer.”  

 

9.         In Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini’s case (supra), the Hon’ble National Commission, while accepting the appeal filed by the Improvement Trust and dismissing that of Major Amrit Lal, held in Para 21 as under:-

“21. In the aforementioned circumstances, firstly, we do not find the complainant to be a consumer as already discussed for two reasons firstly, since he had already opted for a certain route for redressal of a grievance relating to per sq. yard price of plot, and such a view has been taken by State Government on his representation, we cannot be an Appellate Authority against any order passed by the State Government on representation from the complainant. Secondly, he was no more the owner of the plot. During the pendency of the complaint, having passed on the interest of the plot to somewhere else in our view, he will not continue to be a consumer. More so, when the permission to transfer land to a third party was given upon his undertaking to withdraw the case duly supported by the affidavit which according to the complainant he withdrew later, but there is no evidence to this effect.”

 

10.       Settling the controversy to rest, the Hon’ble National Commission in Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr.’s case (supra), held in Para 15 that the complainant did not remain a consumer after sale of vehicle and he had sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands. No doubt, in the instant case, the complainants after selling the unit, in question, have disclosed factum of its sale in the complaint. However, the fact remains that after sale of the unit, they would cease to be consumer and, therefore, the present complaint is not maintainable.

            Not only this, when the unit, in question, was transferred in the name of Sh. Narinder Kumar Chadha and Mrs. Neera Chadha, the complainants in their joint affidavit dated 12.06.2017 (at page 177 of the written statement) in Para 2, stated that they shall not have any lien on the property in question.  Further the complainants in their letter dated 12.06.2017 (at Page 173 of the written statement), while requesting the Opposite Party to substitute the name of aforesaid nominees, submitted all original documents to the Opposite Party. In this communication, the complainants also stated as under:-

“After substitution of the name of the said nominee Sh. Narinder Kumar Chadha S/o Sh. Paras Ram Chadha and Smt. Neera Chadha W/o Sh. N. K. Chadha, I/We shall have nothing to do with the said Allotment nor do we have any lien/right on the captioned property.”

 

11.       The subsequent allottees (Sh. Narinder Kumar Chadha and Mrs. Neera Chadha) also gave an undertaking on 12/13.06.2017 (Page 188-189 of written statement) to the following effect:-

“4. That I/We fully understand and are well versed with Clause 15 of the Independent Floor Buyer Agreement, that only the original allottee and not anyone else shall have the claim over compensation on account of delay, if any. I/We undertake that I/We am/are not entitled for any compensation/claims on account of delay possession on the said Independent Floor as agreed upon with the First Allottee/s and all the relevant paras in this regard in the Application form/Independent Floor buyer’s Agreement/Plot/Villas become null and void.”

 

12.       It may also be stated here that when the subsequent allottees, in whose name the unit was transferred, are not entitled to compensation before the date of transfer, by no stretch of imagination, compensation for the aforesaid period can be admissible to the original allottees who transferred all their rights and lien in the property. The complainants got profit in the sum of Rs.6,29,597.42, while transferring the unit, in question, as is evident from their letter dated 12.06.2017 (at Page 174 of the written statement).

13.       In view of aforesaid position and the law settled by the Hon’ble National Commission in Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Raj & Anr.’s and Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini’s cases (supra), the complainants are not consumers and the complaint filed by them is not maintainable.

14.       For the reasons recorded above, the complaint, being not maintainable, is dismissed with no order as to costs.

15.       Certified copies of this order be sent to the parties, free of charge.

16.       The file be consigned to Record Room, after completion.

Pronounced.

12.03.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

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