Chandigarh

StateCommission

CC/31/2020

Amit Chhokra - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. - Opp.Party(s)

Narender Yadav & Vineet Yadav Adv.

11 Jun 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

 

Consumer Complaint  No.	31 of 2020
Date of Institution	27.01.2020
Date of Decision	11.06.2021

 

Amit Chhokra S/o Sh. Kewal Krishan Chhokra r/o Khui Khera, Fazilka, Punjab – 152121.

                                                       .…Complainant

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh – UT, Pin - 160009 through its Manager/Authorised Signatory/Officer- in- charge /Director  Sales & Marketing.

          Registered Office Address :

     DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF   Gateway   Tower, Second Floor, DLF City, Phase III,        Gurgaon – 122002, Haryana, India through its   Manager/Authorized        Signatory/Officer-    in-charge/     Director Sales & Marketing.

2. Rajeev Singh, Additional Director, DLF Gateway Tower, Second Floor, DLF City, Phase III, Gurgaon – 122002, Haryana, India.
3. Vishal Gupta, Director, DLF Gateway Tower, Second Floor, DLF City, Phase III, Gurgaon – 122002, Haryana, India.

…..Opposite Parties.

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER

 

Present through video conferencing:    

 

For the complainant                : Sh.Narender Yadav, Advocate

For the Opposite Parties  : Sh.Kunal Dawar, Advocate

 

PER 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 the transfer fee was charged as per the conditions and clauses of the Agreement, to which, the complainant had agreed without any coercion. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

3.             The Parties led evidence, in support of their case.

4.             We have heard the Counsel for the parties, and have gone through the evidence, record of the case as well as written arguments, carefully.

5.             First, we will deal with the objection raised by the opposite parties that the complainant did not fall within the definition of ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the Opposite Parties to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of units/flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer. Objection taken in this regard, as such, stands rejected. 

6.             As far as objection taken to the effect that the complainant has not made the original allottee as party to this complaint, it may be stated here that once all the rights stood transferred in the name of the complainant, there was no need to implead original allottee as a party. Since, the original allottee neither remained any beneficiary of the complainant nor he bagged any right in respect of the property in question, after transfer of the unit in question. As such, he has no relation whatsoever, as far as the present case is concerned. Even in the present case, since the transfer fee has been paid by the complainant and he has disputed the same, by way of filing this complaint, this complaint is maintainable.

7.             Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In this case, it is clearly evident that Independent Floor Buyer’s Agreement dated 01.12.2010 in respect of the unit in question was executed between the original allottee and the Opposite Parties at Chandigarh. Not only as above, even the possession letter dated 26.04.2019 (Annexure C-5) issued by the Opposite Parties from their Chandigarh office i.e. SCO No.190-91-92, Sector 8-C, Chandigarh - 160009. As such, objection taken with regard to territorial jurisdiction stands rejected. 

8.             As far as objection taken by the Opposite Parties to the effect that in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

9.             As far as objection taken to the effect that this consumer complaint is not maintainable because the complainant is seeking rewriting/modification of the contract and that only the civil court has the  power to adjudicate the matter is concerned, it may be stated here that it is a simple case of adoption of unfair trade practice, negligence and deficiency in providing service on the part of the Opposite Parties, as they have charged heavy transfer charges from the complainant without any justification, which has been challenged by the complainant by filing this complaint, as such, the present consumer complaint is maintainable.

10.           Now coming to receipt of heavy amount of Rs.4,13,236/- towards transfer fees is concerned, it may be stated here that the Opposite Parties have failed to place on record any Rule/Regulation or any law which entitled them to receive transfer such a huge transfer fee. Even this much has not been proved by way of placing any cogent and convincing material that they can even charge such transfer fees. It is significant to mention here that the basic sale price of the unit in question is Rs.33,87,524.97 (as mentioned in page No.29 of the file) and the Opposite Parties have charged Rs.4,13,236/- towards transfer fee, which is equal to 12% of the basic sale price, which in our considered opinion is very unfair being highly excessive. It has not been clarified by the Opposite Parties, as to why they need more than Rs.4 lacs as transfer fee, for only issuance of one No Objection Certificate of one page, which in our considered opinion will hardly take less than 30 minutes to issue the same after going through the file pertaining to the unit in question maintained by their office only. 

                It may be stated here that the State of Haryana, vide notification dated 22.06.2018 has ordered the Society to receive only Rs.10,000/- as transfer fee towards the apartments/flats. In our considered opinion once the State Government of Haryana has laid down some rules/regulation pertaining to the transfer of flats etc. which is Rs.10,000/- only that in no manner, it can be said that charging of Rs.4,13,236/- by the Opposite Parties towards transfer fee is justified, irrespective of the fact that it is a private builder, especially, in the face of the reason that a transfer of property, passes forthwith to the transferee, all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. According to the said Transfer of Property Act, 1882, the owner alone holds the full right to property and the builder has no right, title or interest over the property post registration of the property in the name of the owner.

                   In view of facts and circumstances of the case, it is held that in the absence of any rules/regulations etc having been notified by the Govt. concerned, the Opposite Parties adopted unfair trade practice in charging such a huge amount towards transfer fee from the complainant. If a party has received certain amount from the consumer, it is duty bound to give justification for the use thereof and mere writing in an Agreement to the effect that the company is entitled to charge as per its discretion, is nothing but a harsh, oppressive and unconscionable clause, which this Commission is not bound to rely upon because it is settled law that a court can strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power. The consideration or object of an Agreement is unlawful inter-alia if it is of such a nature that, if permitted, it would defeat the provisions of any law or if the court regards it as immoral or opposed to public policy. If the object of terms and conditions of Agreement is unlawful, the same are deemed to be void. Our this view is supported by the judgment passed by the Hon'ble Supreme court in the case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Ors. (1986) 3 SCC 156 wherein it has been clearly held that the courts can strike down the terms of a contract. The Hon'ble Court has held that "......this principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power...." The draft legislation provided by the Law Commission of India in its 199th Report which addresses the issue of 'Unfair  (Procedural & Substantive) Terms in Contract' has stated  that "A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."  

                The above view has been reiterated by the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. vs. Gouvindan Raghavan Civil Appeal No.12238/2018 wherein in paragraph nos. 3.8, 6.3, 6.6 & 6.7, it has been clearly held that if the terms of contract are harsh, oppressive and unconscionable to one of the parties, such a contract cannot be relied upon and Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power.

                   In our considered opinion, the Opposite Parties should not have charged more than Rs.10,000/- as transfer fees from the complainant, which amount would have been said to be reasonable and fair.

11.           For the reasons recorded above, this complaint is partly accepted, with costs and the Opposite Parties, jointly and severally are directed as under:-

1. To refund the transfer charges, as paid by the complainant after deduction of Rs.10,000/-, to the complainant, alongwith interest @9% p.a. from the respective date of payment of transfer charges, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 12% p.a. (9% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

12.         Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

11.06.2021                                                              Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

[PADMA PANDEY]

MEMBER

Sd/-

[RAJESH K. ARYA]

MEMBER