We have heard Mr. Love Kumar Sharma, learned counsel for the complainants and Mr. S. K. Dubey, learned counsel for opposite parties on the question of maintainability of the present complaint. This complaint was filed in this Commission on 24.11.2009 and was listed for preliminary/admission hearing on 3.12.2009. On that date, notice was ordered to be issued to the opposite parties returnable on 22.3.2010. When the matter came up for hearing in presence of learned counsel for both the parties, this Commission has made an observation that “prima facie, complaint is not maintainable under the provisions of Consumer Protection Act, 1986. List on 7th April 2010 for admission. Papers pertaining to nomination referred to in the complaint, be filed by the complainants before this date.” Afterwards the matter was adjourned from one date to other and the complaint was dismissed for default as also for -3- non-prosecution. It was, however, later restored and thereafter some documents prefaced as ‘indemnity bond’ which the complainant ‘nomination papers’ have been filed. The complaint alleges deficiency in service on the part of the opposite party-builder in respect of flat No. “14-00-02”, “The Close South” in Nirvana Country, Gurgaon, Haryana in not handing over the possession of said flat. The parties to the agreement to purchase the flat were with Smt. Pammi Handa wife of Mr. Jagdish Kumar Handa, who had entered into agreement with the opposite party-M/s Unitech Ltd. and had paid certain amount. According to the complainant at some later point of time, i.e. in October, 2006, the said Smt. Pammi Handa had transferred her right and interest in the said flat in favour of the present complainant, namely, M/s Devansh Real Estates & Developers Private Limited. They have stepped into the shoes of Smt. Pammi Handa and have acquired all the rights and liabilities which Smt. Pammi Handa had in relation to said flat. Since the complainants themselves are builders and developers, we enquired from the learned counsel for the complainants as to how the complainant can maintain the present complaint against another builder for the alleged deficiency in service because the loss or injury, if any, had been occasioned to the original buyer, Smt. Pammi Handa and there is no privity of contract between the complainant and opposite parties. In any -4- case, there is no tri-partite agreement between the original buyer-Smt. Pammi Handa, complainant and the opposite party-builder. Learned counsel states that the flat in question was acquired by the complainant-company for the use of one of its Directors. There is nothing on record to fortify the same. In any case, in view of the embargo placed by Section 6 of the Transfer of Property Act, which prohibit the transfer of a mere right to sue, the complainant has no right to maintain the present complaint. We accordingly hold that the present complaint is not maintainable and we dismiss the complaint. However, the right of the complainant to work out its remedy before any other court or fora in accordance with law is preserved. We order accordingly. |
