Delhi

East Delhi

CC/385/2021

VISHAL MAHAJAN & ORS. - Complainant(s)

Versus

MAHAGUN REAL ESTATE - Opp.Party(s)

13 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.385/2021                                                                     Date;13.09.2022                                                  

1	Mr. Vishal Mahajan S/o Mr. Amar Chand Gupta R/o 1035 Milano, Mahagun Moderne, Sector 78, Noida	….Complainant   No. 1
2	Ms. Seema Kanga Mahajan W/o Mr. Vishal Mahajan R/o 1035 Milano, Mahagun Moderne, Sector 78, Noida	….Complainant   No. 2
3	Mr. Gaurav Bakshi & Ms. Rupinder Kaur Through its Power of attorney Holder Mr. Vishal Mahajan S/o Mr. Amar Chand Gupta R/o 1035 Milano, Mahagun Moderne, Sector 78, Noida	….Complainant   No. 3
4	Mr. Rajamani Raghunandan & Ms. Veena Raghunandan Through its Power of Attorney Holder Mr. Vishal Mahajan S/o Mr. Amar Chand Gupta R/o 1035 Milano, Mahagun Moderne, Sector 78, Noida	….Complainant   No. 4
5	Mr. Achinto Bose & Ms. Vartika Bose Through its Power of Attorney Holder Mr. Vishal Mahajan S/o Mr. Amar Chand Gupta R/o 1035 Milano, Mahagun Moderne, Sector 78, Noida	….Complainant   No. 5
6	Mr. Rahul Sagar Sahay S/o Sh. S.K. Sahay, R/o House No. R-100 3rd Floor, G.K. Part-1, New Delhi – 110048	….Complainant   No. 6
7	Ms. Rachika Agrawal Sahay W/o Mr. Rahul Sagar Sahay R/o House No. R-100 3rd Floor, G.K. Part-1, New Delhi – 110048	….Complainant   No. 7
Versus
1	Mahagun Real Estate Pvt. Ltd. Through Its Directors B-66, 1st floor, Vivek Vihar, Delhi - 110095	……OP1
2	Noida Authority Through Its Chairman Administrative Complex, Sector 6, Noida – 201301 District Gautam Budh Nagar, Uttar Pradesh	……OP2

Order;

13.09.2022.

1. By this order I shall dispose off the argument w.r.t admission of the complaint filed by the Complainants against OPs.
2. Brief facts as stated by the Complainants in the complaint, are that the Complainants i.e. Complainant No. 1 to Complainant No. 7 have/had purchased respective Flats/Shops from the OP1, who is a Private Company incorporated under provision of Companies Act 1956 and OP2 is a Government Authority constituted under UP Industrial Development Act who grants sanction for the construction of the residential and commercial projects as are being developed by OP1. 
3. The Complainants purchased the said flats in one of the projects of the O.P. No.1, Mahagun Moderne in Noida as follow i.e.

	Name of the Complainants	Flats details
	Mr. Vishal Mahajan	Shop No. 04, Tower Mart Lower Ground Floor, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Ms. Seema Kanga Mahajan	Shop No. 04, Tower Mart Lower, Ground Floor, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Mr. Gaurav Bakshi and Ms. Rupinder Kaur	Flat No. 238, Osimo Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Mr. RAjamani Raghunandan and Ms. Veena Raghunandan	Flat No. 602, 6th Floor, Tower Mantova, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Mr. Achinto Bose and Ms. Vartika Bose	Flat No. 1575, Ferrera, Osim, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Mr. Rahul Sagar Sahay	Flat No. 515, Bock-Manchester Street -06, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.
	Ms. Rachika Agrawal Sahay	Flat No. 515, Bock-Manchester, Street-06, Mahagun Moderne, Plot No. GH-02, Sector-78, Noida.

 

4. The Complainant subsequently decided to further sell their said respective Shops/Flats to subsequent buyers and during compliance with the lengthy procedure of registration of the sale deed they came to know that certain transfer charges are to be paid to the OP2 at the time of seeking permission for selling the said Shops/Flats to the subsequent buyers who in turn, after taking the such transfer charges would issue a transfer certificate of mortgage to the Complainant.  Money for transfer charges has to be paid by the owners or by the subsequent buyers on behalf of the owners and thereafter the Transfer Certificate of Mortgage (TCM) would be issued after obtaining NOC from the OP1 and to obtain NOC from OP1, the Complainant had to pay again to OP1 certain charges and as such before transferring /selling their respective Flats/Plots/shops a handsome amount of money is to be paid to the OP1 as follows:

	Name of the Complainants	NOC charges paid to OP1
	Mr. Vishal Mahajan	Rs. 3,05,853/-
	Ms. Seema Kanga Mahajan	-Do-
	Mr. Gaurav Bakshi and Ms. Rupinder Kaur	Rs. 2,46,655/-
	Mr. Rajamani Raghunandan and Ms. Veena Raghunandan	Rs. 2,08,286/-
	Mr. Achinto Bose and Ms. Vartika Bose	Rs. 1,66,600/-
	Mr. Rahul Sagar Sahay	Rs. 4,00,000/-
	Ms. Rachika Agrawal Sahay	-Do-

5. It is further stated that only after payment of this amount, the NOC would be issued and it is submitted that the Agreement of sale nowhere mentions about the transfer charges or NOC charges, to be paid at the time of re-sale of the flats.  It is further submitted that in the allotment letter clause 3 of Section 5 it is however inter alia mentioned that the Allottee cannot transfer the said Flats/Shops without prior written consent of the Company and the company in its sole discretion may allow the transfer of allotment, however subject to payment of transfer fee of 4% of the total sale price which is stated to be one sided clause in the allotment letter and in fact OP was not entitled to demand any transfer fee after the execution of conveyance deed. It is further submitted that although the said clause is one sided and is being challenged being in contraventions of the terms of allotment letter but under the compelled circumstances Complainants have ended up paying hefty amount to the OPs as mentioned here in above and has sold the property to the subsequent buyers.
6. After making the payment, obtaining the NOC and TCM, and after seeking the Complainant wrote an email to the OPs thereby seeking the refund of the amount paid towards NOCs and raising queries with respect to NOC and OP1 failed to reply to the said email since the NOC charges as taken by OP1 are one sided, OPs are duty bound to return the amount so taken by them, In this regard, it is submitted that in Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd. 1 (2016) CPJ 131 (NC) has clearly held as under:

“That the same reflect the wholly one-sided terms of the Apartment Buyer’s Agreement, which are entirely loaded in favour of the Developer, and against the Allottee at every step.  The court held that the terms of the Apartment Buyer’s Agreement are oppressive and wholly one-sided, and would constitute an unfair and restrictive trade practice under the Consumer Protection Act, 1986”.

7. It is further submitted that once the Complainant have become the owner of the Flats/Shops there is no purpose of claiming NOC from OP1 as the Complainants have become owner and are not required to take permission from OP1 in order to resale as no other person can interfere with the right of the ownership of the complainant and therefore the transfer charges paid to OP1 in order to obtain NOC were absolutely illegal, arbitrary and unreasonable and excessive.  Similarly, transfer charges being charged by OP2 are also arbitrary and unreasonable and therefore, it is prayed that the OP1 and OP2 be directed to refund the amount of NOC charges and transfer charges as taken by them along with compensation of Rs. 5,00,000/- and Rs. 10,00,000/- towards cost of litigation. 
8. Arguments have been heard at length from the Ld. Counsel of the Complainants.  The written arguments filed by the Complainant have also been gone through.  Before issuing the Notice to the OPs the Commission has adverted to section Section 2 (7) of the Consumer Protection Act, 2019, which reads as under:

“Consumer” means any person who-

1. Buys and goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. 

Explanation:- For the purposes of this clause-

1. The expression “commercial purpose” does not include use by a person of goods bought and used y him exclusively for the purpose of earning his livelihood, by means of self-employment;
2. The expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

9. In the present case the Complainant claims to be the previous owner of the property as mentioned in the complaint and at present they have sold the property.  The issue therefore, which arises is, as to whether the Complainants are still the Consumer of OPs, as at present after selling the property they have left with no locus or interest in the sold out property of which they were earlier having ownership.
10. The Commission has not come across any direct judgment on this aspect but in Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des RAjji Chela Baba Dewa Singhji (Radha Swami), 2013 SCC Online NCDRC 883. It has been held that:-

Further, 15 “In the light of above observations, we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands. Complaint is liable to be dismissed and revision petition is to be allowed.”

        Further, In M/s. Honda Cars India Ltd. Vs. Jatinder Singh Manda 2013 SCC Online NCDRC 934. It has been held that:- “6. We have held in R.P. No. 2562 of 2012 Tata Motors Ltd. & Anr. Vs. HaZoor Maharaj Baba Des Rajji Chela Baba Deva Singh ji (Radha Swami) & Anr. Decided on 25.09.2013 that once vehicle is sold during pendency of the complain, the Complainant does not remain consumer for the purposes of Consumer Protection Act. In that Judgment, we have placed reliance on I (2008) CPJ 249 (NC) Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini and judgement dated 23.4.2013 passed by this Commission in Appeal No. 466 of 2008 Mr. Rajiv Gulati Vs. Authorised Signatory M/s. Tata Engineering & Locomotive Co. Ltd. & Ors. In this case, as vehicle has been sold by complainant during pendency of appeal which was filed in the year 2007 and decided in the year 2012. Complainant ceases to be a consumer under C.P. Act and complaint is liable to be dismissed. Had Respondent No. 1 brought this fact to the notice of State Commission learned State Commission would not have directed petitioner to replace the steering wheel and gear box assembly and other connected parts because Respondent no. 1 was not possessing vehicle at the time of passing the judgment. and

In M/s. General Motors India Pvt. Ltd. Vs. A Jayakrishna @ Animon & 2 Ors. 2015 SCC Online NCDRC 3286. It has been held that :- 

“Learned counsel for the parties present. Arguments heard

        It has now transpired that the consumer/petitioner/A. Jayakrishnan@ Animon has sold the car in the year 2014. Consequently, he is no more a consumer. The case of the petitioner is not maintainable.

        Therefore, we set aside the orders passed by for a below and dismiss the complaint. However, liberty is given to the petitioner to approach the civil court for redressal of his grievances, as per law.

The revision petition stands disposed of.”

11. The crux of the matter therefore is that once the complainant have sold the product which he had purchased from the OPs, he/she ceases to be a consumer, therefore in the considered opinion of this Commission the Complainant is no more a consumer at present and therefore the complaint case of the Complainant is not maintainable before the consumer Commission. Therefore, in the present complaint since the complaints no more fall within the definition of consumer no notice can be issued to the OP and as such it is held this the complaint case Under Consumer Protection Act is not maintainable. The Complainant is accordingly dismissed. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 13.9.2022.

Delhi

 

 

(Ritu Garodia) Member

(Ravi Kumar) Member

(S.S. Malhotra) President