1.       Heard learned Counsel for the Complainants and the learned Counsel for the DLF/Opposite Parties. The three Complainants have come up praying for several reliefs which are enlisted from clause (a) to clause (k). However, when the arguments commenced it was pointed out by learned Counsel for both the parties that these issues have been dealt in other cases as well.

2.       It is undisputed that the Complainants herein are subsequent purchasers from the original allottee. This agreement of subsequent purchase is dated 26.04.2012 on which date the Complainants are stated to have deposited a sum of Rs.2,72,674/- as transfer charges in conformity with clause 34 of the original agreement. Clause 34 is extracted herein under:

“34. Agreement not assignable

The Allottee agress that this Agreement is not assignable for a period of one year from the date of execution of this Agreement nor the name of the Allottee can be substituted and/or deleted without prior written consent of the Company. The Company may, at its sole discretion, on such terms and conditions and subject to applicable laws and notifications or any governmental direction, permit the Allottee to get the name of his nominee substituted, added and/or deleted in his place. The Company at the time of granting permission may impose such terms and conditions and charges as per its discretion. The Allottee shall be solely responsible and liable for all legal, monetary or any other consequences that may arise from such assignment, deletion and/or substitution.”

3.       The contention raised is that the said clause is arbitrary and open ended without any limitations and hence no amount charged thereunder can be permitted to be sustained.

4.       It is however undisputed that the amount on 26.04.2012 paid by the Complainants was done voluntarily and without any protest till the Complainants state that they came to know from a newspaper cutting on 24.04.2016 that such charges cannot be levied and are liable to be refunded. The said newspaper cutting is at page 138 of the paper book with reference to some order passed by the District Consumer Disputes Redressal Commission of Panchkula, Haryana.

5.       Based on the said information, the Complainants state that they tendered a request for refund of the transfer fee on 12.02.2016, a copy of the said communication has been filed along with record.

6.       It may however be pointed out that even though this issue has been pleaded in paragraph 13 of the complaint yet no prayer or relief in respect of the said refund is available in the prayer clauses of the complaint that have been referred to herein above.

7.       It is in this background that the learned Counsel for the Complainants has submitted that apart from this claim of refund of transfer amount, the Complainants are entitled to delay compensation as has been decided in several cases by this Commission and upheld by the Apex Court. He has cited the judgement passed by the Apex Court in the case of “DLF HOMES PANCHKULA PVT. LTD. VS. D.S. DHANDA (2020) 16 SCC 318”. Learned Counsel has invited the attention of the Bench to paragraph 18.5 of the said report which is extracted herein under.

“18.5. In case, the original allottee has transferred the flat, the transferee shall be entitled to interest @9% from the expiry of three years from the agreement or from the date of transfer, whichever is later.

Civil Appeals Nos. 4942-45 of 2019 [arising out of SLPs (C) Nos. 4363-66 of 2019]”

8.       It is undisputed that the present is also a case of possession and not of refund. Countering the said submissions Mr. Pravin Bahadur, learned Counsel for the DLF submits that there is no relief prayed for in respect of refund of transfer charges even though there is an allegation and which has been denied in the written version. It is also submitted and the Complainants are not entitled to seek any such refund keeping in view the binding nature of clause 34 of the agreement referred to above. He contends that the Complainants are estopped from raising this plea without there being any prayer in the complaint that too even at this stage of final hearing. He submits that the law of limitation will be attracted inasmuch as the cause of action if any had arisen to the complaint way back on 26.04.2012 when the amount was paid. The limitation provided under Section 24 (2) (a) of the Consumer Protection Act, 1986 provides for filing of any complaint for deficiency in service or unfair trade practice within two years. He submits that the present complaint was instituted on 24.01.2017 which is almost about five years from the date of the cause of action which could have been made the basis for raising such a complaint if permissible in law.

9.       Learned counsel submits that there is no explanation as to why the Complainants did not choose to include this as a prayer in the complaint or even otherwise raise such a complaint within the limitation prescribed under the Consumer Protection Act, 1986. He therefore submits that such relief cannot be claimed being barred by time. He further submits that apart from this the question of refund of transfer does not arise as this was also voluntarily agreed to by the Complainants when this offer was made by the original allottee and the Complainants had promised to discharge all such liabilities regarding transfer charges under the said agreement with the original allottee. Learned Counsel has invited the attention of the Bench to clause 8 of the agreement to sale between the original allottee and the present Complainants which is as follows:

“8. That the Nomination charges and/or any other charges demanded by M/s DLF Home Panchkula Pvt. Ltd. For effectuating the nomincation, shall be to the account of the Vendor and shall be paid by the Vendor to them.”

10.     Coming to the merits of the delay compensation Mr. Pravin Bahadur urged that even though in the case of D.S. Dhanda (Supra), the rate of interest awarded was 9% yet in a subsequent case dealt with by this Commission by another coordinate Bench in the case of “Jatin Aggarwal Vs. DLF Homes Panchkula Private Limited” regarding the same project of DLF Valley has been pleased to award 6% interest. A copy of the order in CC/2041/2016 decided on 05.01.2015 has been placed before the Bench to buttress the said submissions. Learned Counsel submits that the same had taken into account the judgement of the Apex Court in the case of “Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512”  to award the said rate of interest.

11.     The Complainants in that case preferred Civil Appeal No. 3651 of 2023 including a relief for enhanced interest but the appeal was dismissed, according to the learned Counsel, with a speaking order extracted herein under:

“ORDER

1. Application seeking permission to appear and argue-in-person is allowed.
2. Delay condoned.
3. We have heard the petitioner-in-person and perused the material placed on record.
4. The National Consumer Disputes Redressal Commission, New Delhi while following a decision of this Court, has granted compensation to the appellant in the form of interest @ 6% per annum on the entire amount deposited by him.
5. Keeping this in view, we are not inclined to interfere with the impugned order dated 05-01-2023 passed by the National Consumer Disputes Redressal Commission, New Delhi.
6. The Appeal is, accordingly, dismissed.”

12.     He submits that the rate of interest was also made an issue before the Apex court but the same was not accepted and 6% interest as awarded by this Commission was upheld. He therefore submits that the plea for 9% cannot be accepted and the 6% rate should be adhered to and not higher than that.

13.     On the issue of transfer charges, he has invited the attention of the Bench to the decisions of this Commission in the case of “Sanjay Goel Vs. Greater Noida Industrial Development Authority in CC/1709/2016 decided on 04.01.2018”, order of this Commission in the case of “Sunil Kumar Joshi & Anr. Vs. M/s. Hanumant Builders & Land Developers & Ors. in RP No. 1577 of 2019 decided on 05.12.2019” to contend the levy of transfer charges has been upheld and the request for refund thereof has been declined.

14.     Having considered the submissions raised the issue of delay compensation therefore remains no longer res-integra and has been settled by the Apex Court in the case of D.S. Dhanda (Supra) referred to herein above. The period for which the delay compensation is payable has also been settled therein and reference he had to paragraph 18.5 extracted herein above. What remains to be mentioned is the date from which the present Complainants would be entitled to the same. Here the learned Counsel for the Complainants has raised an oral argument that they are at least entitled to the interest from 26.04.2012 which is the date on which they had deposited the entire amount including the transfer charges and therefore the date of transfer should be treated to be 26.04.2012. This has been countered by the learned Counsel for the Opposite Parties contending that the transfer has taken place on 28.01.2013 and therefore the date cannot be extended beyond the said period inasmuch as a mere payment of transfer charges or other amount does not in law amount to a transfer, keeping in view the fact that the said transfer has actually taken place on 28.01.2013. Learned Counsel for the Complainants alleges that this delay from 26.04.2012 to 28.01.2013 deserves to be compensated as there is no fault which can be attributed to the Complainants for this delay of formal assignment on 28.01.2013.

15.     Having considered the submissions raised the issue with regard to the date of transfer has to be construed in the light of what has been said by the Apex Court in the case of D.S. Dhanda (Supra). The date of transfer cannot be presumed to be an earlier date on which the payment was made or the transfer charges were tendered by the Complainants. The date of transfer in law would remain 28.01.2023. Consequently, for all the aforesaid reasons, the Complainants would be entitled for compensation for a period of three years with effect from 28.01.2013 at the rate of 6% keeping in view the fact that the said rate now stands upheld in the latest decision of the Apex Court in the case of Jatin Aggarwal Vs. DLF Homes Panchkula Pvt. Ltd. (Supra). The said payment therefore shall be made to the Complainants within one month from today.

16.     So far as the issue of transfer charges is concerned, the same being a matter of contract and having been agreed to, the said charges are not refundable more so keeping in view the fact that there is no prayer in the complaint to that effect and even otherwise if there is a pleading in paragraph 13, the same also appears to be barred by time as this claim could not have been instituted within two years from the date of cause of action which was 26.04.2012 or latest 28.01.2013. No such claim was filed and it is in 2016 on the discovery of a newspaper information that this claim was raised. In my opinion, the claim is belated and therefore cannot be permitted to be raised at this point of time. With the aforesaid observations and directions the present complaint stands finally disposed off.