Haryana

StateCommission

A/437/2015

DLF HOMES PANCHKULA PVT.LTD. - Complainant(s)

Versus

REKHA SIHAG AND OTHERS - Opp.Party(s)

AVINIT AVASTHI

27 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      437 of 2015

Date of Institution:      12.05.2015

Date of Decision :       27.07.2015

 

DLF Homes Panchkula Private Limited 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 Limited, SCO 190-191-192, Sector 8-C, Chandigarh-180009 through its Managing Director.

                                      Appellant-Opposite Party No.1

Versus

 

1.      Rekha Sihag w/o Sh. Rajvir Singh Sihag, Resident of GHS-27, Flat # 111, Sector-5, MDC, Panchkula.

Respondent-Complainant

 

2.      Manju Singla, Resident of House No.316, Sector 51-A, Chandigarh.

                                      Respondent-Opposite Party No.2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Present:               Shri Avinit Avasthi, Advocate for appellant.

                             Shri R.S. Sihag, Advocate for respondent No.1.

                             (Respondent No.2 - Performa)

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal has been preferred against the order dated April 9^th, 2015, passed by District Consumer Disputes Redressal Forum (for short ‘District Forum’), Panchkula, in complaint No.159 of 2014.      

2.      Briefly, Rekha Sihag-complainant (respondent No.1) filed complaint with the allegations that property bearing No.DVF D4/1 SF in DLF Valley, Panchkula, was initially booked by Manju Singla. She paid three instalments with respect to the price of flat to DLF Homes Panchkula Private Limited-(hereinafter referred to as ‘the builder’)-Opposite Party No.1). Thereafter, the complainant alongwith Neelam Gill purchased the above said flat and necessary changes were made in the record of the builder. It was submitted that the builder charged 2,03,700/- as transfer fee. The complainant and her co-purchaser when inquired about the transfer charges, the builder asked them not to act in haste stating that though presently Rs.125/- per square ft were charged as transfer fee, the same was enhanced to Rs.200/- per square ft alongwith service-tax. Not only that, the builder also enhanced the transfer fee at the rate of Rs.200/- per square ft. It was further submitted that the act of charging transfer fee was arbitrary and malafide because vide letter dated March 28^th, 2013 addressed by the builder to all its customers, it was intimated that transfer charges had been waived. The complainant sought refund of the transfter charges stating the same to be not in accordance with the letter dated 28.03.2013.

3.      The opposite party-builder contested the complaint by filing reply raising preliminary objections though admitting the property to be initially allotted to Manju Singla and later the said agreement being assigned to complainant and Neelam Gill. The builder pleaded that it charged the transfer fee at the rate of Rs.125/- per square ft and service-tax at the rate of 12.36% in view of Clause 34 of the agreement. It was submitted that the builder had waived of the transfer charges vide letter dated March 28^th, 2013, in terms of its policy and the complainant paid the amount without any objection.

4.      After evaluating the evidence of the parties, the District Forum vide impugned order allowed the complaint directing the builder as under:-

“(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.”

5.      The impugned order has been assailed by the learned counsel for the appellant-builder while referring to clause 34 of the agreement which is reproduced below:-

“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 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.”

6.      It was stated that it gave absolute discretion to the appellant-builder to charge transfer fee and also gave sole discretion regarding the amount to be charged.

7.      The builder does not dispute having waived of the transfer charges vide its letter dated March 28^th, 2013. The only defence raised was that it was on account of ‘Baisakhi Offer’. If the transfer fee has to be charged, then it has to be charged from every transferee, otherwise it would be discriminatory to some of the transferees.  Besides in clause 34, though discretion has been given, however, it has been qualified with the applicable laws and notifications or any government directions. The clause itself contains wording “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”.

8.      This clause by itself though gives discretion but with certain restrictions. This would mean that though transfer fee is at the discretion of the builder but there has to be provision by some law applicable and notification or government directions.

9.      Learned counsel for the appellant-builder admits that there is no evidence of any government directions, instructions etcetera permitting them to charge transfer fee. Certainly, as the builder does not transfer any title in the property and it is only an assignment of agreement, therefore, it could not charge any transfer fee.  

10.    The other contention raised was that Neelam Gill, the co-purchaser has not been made a party. It is a single unit property with joint applicants. Any benefit/liability accruing would be for the benefit/responsibility of all the allottees, therefore, if the transfer fee charged was refundable, it would be for Neelam Gill co-allottee also. Therefore, this argument does not hold good.

11.    A contention was also raised that since the complainant has been compensated with interest, the compensation could not have been allowed. we feel that the order needs to be modified to this extent.

12.    In view of the above the appeal is partly accepted. The impugned order qua awarding compensation of Rs.20,000/- per relief clause (c) is set aside and rest of the order is upheld.

13.    The impugned order is modified in the manner indicated above and the appeal stands disposed of.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondent No.1 (complainant) against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 27.07.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL