BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.365 of 2021

      Date of Instt. 25.10.2021

      Date of Decision: 19.03.2024

Mahesh Sanan son of Joginder Pal resident of House No.21, Tanda Raod, Vikaspuri, Industrial Town, Jalandhar also resident of Flat No.F6-104, Jalandhar City.

..........Complainant

Versus

1.       The Directors, Nitishree Infrastructure Ltd., B-III, Sector-5,      Noida, Gautam Budh Nagar, U. P.

2.       The General Manager, Nitishree Infrastructure Ltd., Shourya    Greens, Jalandhar.

….….. Opposite Parties

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Ramit Arora, Adv. Counsel for Complainant.

Sh. Pranav Handa, Adv. Counsel for OPs. (Join Proceedings.)

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the original allottee bought the flat in 2006. The complainant bought the flat in resale a few years later. The complainant applied for a transfer of allotment. The OPs demanded a hefty and unjustifiable transfer fee of Rs.100/Sq. Ft. (Rs.1,50,000 for his flat). The complainant, having been a commission agent with the OP, for many years, pointed out to them that the transfer charges are always nominal, particularly for first transfers. Upon investigation, the complainant also found out that the Jalandhar Improvement Trust reserves the rights to transfer flats, not the OPs. The OPs have been refusing to transfer the flat in the name of the complainant on this basis. In addition, the OPs told the complainant that it will unilaterally change the original terms and conditions of the allotment/agreement entered into with the first purchaser. This is illegal and coercive.          The complainant visited the office of the OPs hundreds of times with his request for transfer and for keeping the original terms of the allotment intact, but to no avail. Several GMs came and went, but the complainant's work was not done, causing him severe mental agony and anxiety. The tower in question has still not been built fifteen years after the purchase. The OPs issued a demand letter against the flat several years back. The demand letter was unjustifiable because the construction work has remained stalled for years. The exposed steel in the foundation, etc., has rusted. The opposite parties threatens to charge interest on due payments, although no payments are due. The complainant would like to get his flat transferred in his name without being extorted in the name of transfer fees and keep the original allotment intact by all means. The complainant also served a legal notice dated 2.7.2021 upon the OPs through registered post but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to transfer the flat in the name of the complainant and to pay a compensation of Rs.10,00,000/- for causing mental tension and harassment to the complainant and Rs.55,000/- as litigation expenses alongwith interest @ 18%.

2.                Notice of the complaint was sent to the OPs, but despite service both the OPs failed to appear and ultimately, both the OPs were proceeded against exparte. Thereafter the counsel for the OPs filed an application for joining the proceedings, which was allowed with the condition that the OPs have only right to argue the case and have no right to file written statement and not to lead evidence.

3.                In order to prove his respective version, the counsel for the complainant has produced on the file his respective evidence.

4.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

5.                The complainant has alleged the deficiency in service by the OP alleging that the complainant bought the flat in resale few years after 2006 when the plot was originally allotted to somebody else. He has alleged that he has made request to the OP to transfer the flat in his favour on the ground that the OP cannot demand hefty transfer fee i.e. Rs.100 Sq. Ft. as they have no right. The land is of improvement trust and it is the improvement trust who can charge the transfer fee. He has alleged deficiency in service by the OP in refusing to transfer the flat in his name despite visiting the office and making request number of times. He has further alleged that the project has not been completed as yet by the OPs. Therefore, he is entitled to get the flat transfer in his name.

6.                The complainant has proved on record the payment receipts Ex.C-1 to Ex.C-6. Perusal of all these receipts show that payment has been made by Adish Sharma to the OP. The complainant has nowhere mentioned the name of the purchaser in his complaint nor the present complaint has been filed by Adish Sharma. The original allottee was Adish Sharma as per allotment letter Ex.C-10 to Ex.C-12. The complainant has alleged that he has purchased the flat from Adish Sharma. He has produced on record the agreement to sell Ex.C-9 between Adish Sharma and Vikas Sharma. Perusal of this document shows that Adish Sharma has allegedly sold the flat to Vikas Sharma after obtaining the amount of Rs.5,84,010/-. Ex.C-9 shows that this document bears the signatures of Adish Sharma only and alongwith it there are signatures of Mahesh Kumar as a witness, who is, the present complainant. He is the commission agent of OP also as per his own admission, but this document nowhere bears the signatures of Vikas Sharma, who has allegedly purchased the flat from Adish Sharma nor anyone on his behalf put his signature on this document nor this document is registered one. Therefore, in the eyes of law, this document has no value. Even this document nowhere finds the date when this document was executed though the cheques dated 23.05.2014 allegedly received by Adish Sharma from Vikas Sharma, but no date finds mentioned on Ex.C-9. Similarly, the document Ex.C-8 between Vikas Sharma and Mahesh Sanan i.e. complainant has no value as the complainant has failed to prove that Vikas Sharma has agreed to purchase the flat from Adish Sharma. Even this document nowhere finds reference of the agreement to sell between Adish Sharma and Vikas Sharma. Once Vikas Sharma has not been proved to be purchaser and owner, then he cannot transfer his rights to the complainant with an agreement to sell, which is not a registered document. As per Section-17 of Registration Act, this document requires compulsory registration. ‘Clause 1 (b) and (c) of Section-17 of Registration Act defines that these documents require compulsory registration. (b) non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest.’ Thus, the alleged agreements create rights in favour of the complainant and Vikas Sharma are not registered documents. More so, no document has been filed on record by the complainant to prove that he has ever moved to the OP or the Improvement Trust to transfer the flat in his name nor the Improvement Trust has been made party in the present complaint as the Improvement Trust is the owner of the land. Since, the complainant has failed to prove that he has purchased the plot from OP, thus he has failed to prove that he is consumer. So, from all the angles the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus, the complaint is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

7.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

19.03.2024         Member                          Member               President