Haryana

Panchkula

CC/159/2014

REHKA SIHAG - Complainant(s)

Versus

DLF HOMESPANCHKULA.PVT.LTD. - Opp.Party(s)

RAJVIR SINGH SIHAG.

09 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	159 of 2014
Date of Institution	:	21.08.2014
Date of Decision	:	09.04.2015

                                                                                          

Rekha Sihag wife of Rajvir Singh Sihag, R/o GHS-27, Flat # 111, Sector-5, MDC, Panchkula.                                                                                          

 ….Complainant

Versus

 

1.       The DLF Homes Panchkula Private Ltd. having its registered office at 2^nd Floor, DLF Gateway Tower, DLF City Phase-III, National Highway-8, Gurgaon-122002, Haryana and its correspondence address at DLF Universal Ltd., SCO 190-191-192, Sector 8-C, Chandigarh-160009 through its Managing Director.

2.       Manju Singla, R/o House No.316, Sector 51-A, Chandigarh.

 

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Mr.Rajvir Singh Sihag, Adv., for the complainant. 

                             Mr.Avinit Awasti, Adv., for the OP No.1.

                             OP No.2 already ex-parte.

 

ORDER

(Anita Kapoor, Member)

 

1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that she alongwith Mrs.Neelam Gill-her sister-in-law (not arrayed in party) purchased an independent floor bearing No.DVF D4/1 SF in DLF Valley, Panchkula from the Op No.2 with the consent and approval of Op No.1. At the time of purchase, OP No.2 has paid only part of initial 3 installments in order to transfer/purchase, were being made by the complainant and Mrs.Neelam Gill. The complainant and Mrs. Neelam Gill deposited a sum of Rs.2,03,700/- to Op No.1 in compelling circumstances for getting transfer in their favour as without payment, the transfer was not being effected by the Op No.1. The officials of Op No.1 informed the complainant that at present, the transfer charges is Rs.125/- per sq. ft. and later it should be enhanced to Rs.200/- per sq. ft. alongwith applicable service tax and after January, 2013, the Op No.1 enhanced the transfer charges at the rate of Rs.200/- per sq. ft. Prior to making transfer, the complainant alongwith Mrs. Neelam Gill were making the payment of flat to the Op No.1 on behalf of the Op No.2. The Op No.1 has taken the charges from the complainant @ Rs.125/- per sq. ft + service tax @ 12.36%, the total amount of Rs.2,03,700/- which were highly and unjustified. After that, the Op No.1 vide its letter dated 28.03.2013 addressed to all customers, waived the transfer charges @ Rs.200/- per sq. ft. + service tax @ 12.36% (Annexure C-4). The Op No.1, without offering any corresponding service except the administrative exercise of changing the name of allottee in their records, on account of transfer has charged huge amount of Rs.2,03,700/- from the complainant. The complainant made the questions to Ops regarding charging the transfer charges and requested for refund the amount in future installments but the Op No.1 refused for the same and stated that they were entitled to levy the charges without giving anything in writing to justify the same. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. In reply, the Op No.1 filed written statement by taking some preliminary objections and submitted that the complainant has nowhere mentioned the purpose of applying the property in the township i.e. DLF Valley, Panchkula, developed by the Ops. It is submitted that the complainant applied for the allotment in the project in order to obtain the profit only. It is submitted that the complainant has breached the terms & conditions of the application form and buyer’s agreement by not complying with the terms & conditions as agreed between the parties. It is submitted that the complainant signed the agreement after understanding each and every clause contained in the application form/buyer’s agreement. It is submitted that neither the complainant was forced nor influenced by the Op No.1 to sign the agreement. It is submitted that as per clause 33 of the application for allotment, it was agreed between the parties that all disputes arising out of the agreement should be settled amicably, failing which they should be referred to Arbitration. It is submitted that as per the application for allotment, the complainant has agreed to pay the total price of the floor with the payment plan and also liable to pay all other amounts, charges, taxed & cess and any other dues mentioned in the agreement. It is submitted that the flat No.D-4/1-SF measuring 1450 sq. ft. was originally allotted to Op No.2 on 18.10.2010 after the payment of booking amount of Rs.4,00,000/- on 21.09.2010 vide cheque No.639504. It is submitted that the Op No.2 also opted for the construction linked payment plan and as per the payment plan, the payment was to be made in a period of 24 months. It is submitted that the application for allotment was executed on 29.09.2010 and the independent floor buyer agreement was executed on 27.06.2011. It is submitted that during the period of payment under the construction linked payment plan and after execution of Independent floor buyer’s agreement, the Op No.2 chose to transfer her property to the complainant and Mrs.Neelam Gill on 22.01.2013. It is denied that the Op No.1 has wrongfully and malafidely charged the transfer fee @ Rs.125/- per sq. ft. + service tax @ 12.36% i.e. Rs.2,03,700/- as transfer charges. It is submitted that the flat No.D-4/1-SF stood transferred from the original allottee i.e. Op No.2 to OP No.1 and Mrs. Neelam Gill on 22.01.2013. It is submitted that the complainant applied for transfer of the flat on 11.01.2013 with the Op No.1 and at the time of application for transfer of the allotment from Op No.2 to the complainant, no objection was raised by the complainant regarding the transfer fee charged by the OP No.1. It is submitted that as per clause 34 of the Independent floor buyer’s agreement dated 27.06.2011, the allottee agreed that the agreement was not assignable for a period of one year from the date of execution of the agreement and that the company at its sole discretion permit the allottee to get the name of his nominee added or substituted or replaced in his name and further that the company at the time granting permission may impose such terms and conditions and charged at its discretion. The clause 34 of the buyer’s agreement is reproduced as under:-

“34    Agreement not assignable:           The allottee agrees that the 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, no 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.”

It is submitted that the abovesaid transfer fee was also applicable to all other customers in the month of January, 2013 who had opted for transfer of the allotment in the name of their nominees. It is submitted that Op No.2 had made the requisite payments uptil 2012 and the application for allotment dated 29.09.2010 and the builder buyers agreement dated 27.06.2011 were executed in favour of the OP No.2. It is submitted that the complainant made the request for transfer of the allotment from OP No.2 to complainant on 11.01.2013 and the Op No.1 transferred the allotment in favour of the complainant on the basis of affidavits produced by the complainant & Op No.2 and also on the basis of which General Power of Attorney of Mr.Rajiv Singh Sihag and it was only after the transfer fee of Rs.2,03,700/- was made by the complainant that the allotment of flat No.D-4/1-SF was made in favour of the complainant. It is submitted that at the time of transfer, no objection was raised by the complainant with regard to the transfer charges @ Rs.125/- per sq. ft. It is submitted that the letter dated 28.03.2013 regarding waiver of transfer charges of Rs.200/- per sq. ft. was as per the Baisakhi Offer of the Op No.1-Company. Thus, there is no unfair trade practice and deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint.

3. Notice was issued to Op No.2 through registered post but none has appeared on behalf of the Op No.2. It is deemed to be served and the Op No.2 was proceeded against ex-parte vide order dated 05.12.2014.
4. Rejoinder to the written statement of Op No.1 filed by the counsel for the complainant.
5. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-4 and closed the evidence. On the other hand, the counsel for the Op No.1 has tendered into evidence by way of affidavit Annexure OP1/A alongwith documents Annexure OP1/1 to OP1/4 and closed the evidence.
6. We have heard the learned counsel for the parties and have also perused the record.
7. It would be evident from a perusal of the quoted pleadings of the parties, the controversy for adjudication by this forum lies in a narrow compass. The complainant has a precise grievance that the OP No.1 could not have charged the transfer fee (for validating the purchase of the flat in dispute by the complainant from OP No.2), particularly when it had waived the levy of transfer fee in certain other cases.
8. On the other hand, the pure and simple plea raised by OP No.1 to claim entitlement to charge transfer fee draws sustenance from Clause-34 of the documentation (‘Independent Floor buyer’s agreement’) between it and the original allottee i.e. OP No.2 herein. For facility of reference, Clause-34 is extracted hereunder: -

“34. Agreement not assignable: The allottee agrees that the 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 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”

9. OP No.1 did not, however, contest the averment that it did waive the transfer charges “as per the Baisakhi Offer of the answering respondent”.
10. We have given our conscious consideration to the point in issue. We are of the considered view that OP No.1 could not have validly discriminated in the matter of waiver of transfer charges. Every documentation containing the terms and conditions of the agreement between the parties is the source which can give a cue to a such like controversy. While Clause-34 would appear to authorise OP No.1 to levy transfer charges, there is nothing in the documentation to authorise it to waive the charges in favour of any allottee. The levy of transfer charges has to be on a uniform and non-discriminatory manner. There is indeed a waiver clause i.e. Section – 39, Clause (a) whereof provides that “the company may, at its sole option and discretion, waive in writing the breach by the Allottee of non making payments as per the schedule of payments given in Annexure-IIIbut on the condition that the Allottee shall pay to the company interest which shall be charged for the first ninety (90) days after the due date @ 15% per annum and for all periods of delay exceeding first ninety (90) days after the due date an additional interest @ 3% per annum (total interest 18% per annum only). It is made clear and so agreed by the Allottee that exercise of discretion by the Company in the case of one Allottee shall not be construed to be a president and/or binding on the company to exercise such discretion in the case of other Allottees”       
11. While there can be no controversy that the Clause extracted in the preceding para does validate waiver by the company but it is equally clear that the waiver could come about only in case the discretion exercised relates to a default in the adherence to the schedule of payment. The documentation in entirety and the Clause-39A in particular would not authorize any waiver of transfer charges. In that view of things, OP No.1 could not have waived the transfer charges in case of indicated allottees, while billing the complainant therefor.
12. While there can be no dispute that OP No.1 is a private builder but it is equally bound by the documentation which is uniform in the case of all buyers. When the documentation pointedly provides that the builder can waive a default in the schedule of payment, it follows therefrom that waiver at the hands of the builder in any other context cannot validly come about.
13. We have, thus, no hesitation in upholding the grievance made by the complainant. While, thus, allowing the complaint on a finding of adoption of unfair practice on the part of OP No.1, we would direct: -

     (a)     OP No.1 to refund the amount charged as transfer fee from the complainant. OP No.1 may, in the alternative, adjust that amount towards the installment payable by the complainant towards the purchase of the flat.

     (b)     OP No.1 shall pay interest @ 9% on the amount aforementioned from the date of deposit thereof till its refund/adjustment comes about.

     (c)      OP No.1 shall pay a sum of Rs.20,000/- for the mental agony and harassment caused to the complainant due to the adoption of unfair practice and arbitrary attitude on the part of the former.

     (d)     OP No.1 shall pay a sum of Rs.5,000/- as the cost of litigation.

14. OP No.1 shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

Announced                     (Anita Kapoor)                       (Dharam Pal)

09.04.2015                     Member                                   President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Anita Kapoor                                                                                             Member