DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 298/2008

1. Shri Rupinder Singh Oberoi,

S/o Shri Manmohan Singh Oberoi,

B-6/55, Safderjung Enclave,

New Delhi-110029                                                     

2. Ms. Tejinder Kaur Oberoi

W/o Rupinder Singh Oberoi

B-6/55, Saferjung Enclave

New Delhi-110029                                        ….Complainants

Versus

1. M/s Gulab Farms (P) Ltd.

21/48, Malcha Marg,

Diplomatic Enclave.

New Delhi.

2. M/s Sweet Peas Farms(P) Ltd.

21/48, Malcha Marg,

Diplomatic Enclave,

New Delhi.

3. Mahindra Gesco Developers

UGF, The Great Eastern Plaza

2-A, Bhikaji Cama Place,

New Delhi-110066 . ….Opposite Parties

                                                  Date of Institution      : 12.05.2008    Date of Order                : 28.04.2018

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Case of the Complainants, in nutshell, is that they had booked an apartment bearing No. J-1102 in Building Tower No. J on 11^th Floor in the Group Housing Colony named as “Central Park” situated at the Main Sector Road, Sector-42, Gurgaon, Haryana (in short ‘property in question’) with the OPs. On the query raised by the complainants inter-alia about the procedure to be followed in case the complainants decided to sell the property in question, the OP thorugh their executives …. tha tin the case of the sale of the apartment by the complainants, the transfer charges payable, would be the nominal, necessary administrative charges required for making the transfer, as specified in clause No. 11 of the Apartment Buyer Agreement. He was specifically told that administrative charges for transfer would be an amount of calculated @ Rs. 25/- per Sq. ft. and would not be in any case more than that. Though, the same to be unjustified by the complainants. .. transfer charges could not be more that Rs. 1,000/-. According to the complainant, they had entered into an agreement property in question with Ms. Archana Luthra on 24^th February, 2006 and   OP-3 told the complainants to pay the transfer charges @ Rs.200/- per sq. ft. amounting to Rs.5,66,800/- towards the transfer charges for making the necessary transfer in its record. The complainant told that they were orally informed and assured that the Necessary Administrative Charges could not possibly be more than that calculated @ Rs.25/- per sq. ft. but, however, OP-3 did not agree to accept the demand on the part of the complainant the nominal administrative charges as specified by OP-3 at the time of the signing of the agreement and asked the complainant to pay Rs.5,66,800/-  in case they wanted to get the property transferred in the name of the purchaser Ms. Archana Luthra. Ultimately, the complainants and Ms. Archana Luthra mutually agreed to make the said amount of Rs.5,66,800/- with the OP to get the property in question in the name of Ms. Archana Luthra and that in case OP-3 failed to make the refund in six months then then Ms. Archana Luthra the purchaser undertook to bear 50% of the transfer charges amounting to Rs.2,83,400/- and to make the said amount tot eh complainant. Complainant deposited an amount of Rs. 5,66,800/- with OP-3 on 02.06.2006 and get  the property transfer in the anme of Ms. Archana Luthra. However, OP-3 did not fail to refund the amount to the complainant. Complainant have filed a suit for recovery of Rs.2,83,400/- against Ms. Archana Luthara. Hence, pleading deficiency in service and unfair trade practice on the part of the OPs the complainants have filed the present complaint for issuing the directions to the OPs to refund the transfer charges of Rs.5,66,400/-, to pay Rs. 1,00,000/- towards compensation and Rs. 5000/- towards cost of litigations.

In the reply OP-1 and OP-2 have inter-alia pleaded that the relationship, if any, between the complainants and OP-1 and OP-2 came to an end as soon as these OPs executed the conveyance deed in favour of Ms. Archana Luthra and handed over the peaceful vacant possession to her on 22.03.2007. It is denied that OP-1 at any time had informed the complaint that administrative charges for transferring the apartment would be an amount calculated @ Rs.25 per sq. ft. and not more. Reliance has been placed on clause-11 of the Apartment Buyers Agreement. It is prayed that complaint be dismissed.

In the reply OP-3 had denied that the OPs had at any time indulged in oral communications or assurances or commitments in any manner whatsoever with regard to the matters having essentially financial repercussions. Averments made in the complaint have been denied. OP-3 has prayed for dismissal of the complaint.

Complainants have filed rejoinder and reiterated the averments made in the complaint.

Complainant No. 1 has filed his own affidavit in evidence. On the other hand affidavit of Shri Vikram Kumar AR on behalf of OP-1 and OP-2 and affidavit of Shri Aniket Kumar attorney on behalf of OP-3 have been filed in evidence.

Written arguments have been filed on behalf of the OPs.

Notice of pairavi was issued to the complainant on 16.02.2018 for 17.04.2018, however, no appeared on behalf of the complainant on that date.

We have heard the oral arguments on behalf of the OPs and have also gone through the file very carefully.

          We have gone through clause-11 of the Apartment Buyers Agreement. He does not stay anything about the quantum of fee which could be charged by the OPs for transferring the property in question in favour of the third person including. Therefore, the contention of the complainant that they were assured by the executives of the OPS at the time of booking that the transfer charges could not be more than Rs. 25,000/- per sq. ft. in any case. When there is a written agreement between the parties, no parties can be allowed to lead any evidence to reflect the terms of written agreement. Mutual agreement if any, between the complainants and ms. Archana Luthra with regard to the payment of the transferring charges of Rs. 60,000/- to OP-3 towards transfer charges property in question in favour of the Ms. Archana Luthra. So not bidng upon the OPs since the OPs were not parties to that mutual understanding for mutual agreement executed by the agreement offer the agreement complainants themselves that  they have already faile the suit of recovery of Rs. …… against Ms. Archana Luthra. Therefore, we even otherwise to not interest to ask the OPS for refund of Rs. 566,800/- to them and even otherwise in our considered opinion as soon as the complainants paid the said amount Rs. 566,400/- to the OPS and the OPS executed conveyance deed and handed over the vacant possession of the property in question to Ms. Archana Luthra to relation with the buyer and purchaser between the complainants and the OPS. Hence, complainants are not ‘Consumer’ as defined in the Consumer Protection Act.

In view of the above discussion, we do not find any merit in the complaint and accordingly we dismiss it with no order as to cost.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 28.04.2018.