Per Shri Dhanraj Khamatkar, Hon’ble Member
This appeal takes an exception to an order dated 09/08/2010 passed by Addl. District Forum, Pune in consumer complaint No.143/2009.
2. The facts leading to this appeal can be summarized as under :-
The complainant has purchased a flat No.11 in ‘B’ building constructed by opponent Nos.1&2 on the land bearing No.111/12/B/1, Kalewadi, Rahatani, Pune. At the time of purchase of said flat, opponent No.1 who is power of attorney holder of opponent No.2 who is builder/developer had represented to the complainant that the flat is free from all encumbrances, charges, interest and liabilities. Believing on the assurances and representations made by opponent No.1 who was power of attorney holder of opponent No.2, complainant entered into an Agreement to Sale and the said agreement was registered on 04/01/2008 between the complainant and opponent No.1 and opponent No.2. Consideration of the flat was Rs.12,06,000/-. The complainant has paid the consideration amount by availing loan facility from the Cosmos Co-operative Bank, Pune. It is the contention of the complainant that on 09/06/2008 opponent No.1 issued a possession letter to the complainant with an assurance that the Sale Deed would be executed in the nearest future. The complainant further stated that on or about October 2008 when the complainant went for taking possession of the flat, he found that the flat was preoccupied by unknown person. The complainant further stated that after inquiry it is revealed that the flat was sold to one Mr.Agarwal and the incumbent staying in the flat was tenant of Mr.Agarwal. The complainant further stated that he tried to contact opponent No.1. However, opponent No.1 was absconding and it is revealed that after selling said flat to the complainant, subsequently, he had sold the same flat to Mr.Agarwal. The agreement entered into with Mr.Agarwal is dated 12/09/2008 and this is after the agreement to sale entered into with the complainant. It is further stated by the complainant that on enquiry it was revealed that earlier the said flat was sold to one Mr.Awale on 17/05/2006. The complainant further stated that in all these transactions, opponent No.1 has acted on the basis of power of attorney executed by opponent No.2 in favour of opponent No.1 and hence, opponent Nos.1&2 are jointly and severally responsible for the deficient service provided to the complainant. Alleging deficiency in service on the part of opponent Nos.1&2, the complainant filed consumer complaint praying that opponents be directed to pay the amount as stated in the statement of claim i.e. Rs.17,16,000/- together with interest @ 18% p.a. till realization.
3. Opponent No.1 was duly served by paper publication. However, he remained absent and hence, District Forum proceeded ex-parte against opponent No.1.
4. Opponent No.2 contested the complaint by filing written version contending therein that the complainant has not purchased the flat from opponent No.2. However, opponent No.2 has admitted that opponent No.1 was his power of attorney holder. Opponent No.2 also admitted that he has developed the property. He has further admitted that he has executed a General Power of Attorney in the name of opponent No.1. Opponent No.2 further contended that he has cancelled the power of attorney given to opponent No.1 by paper publication in “Daily Prabhat” on 16/12/2008. Opponent No.2 further stated that since he has cancelled the power of attorney executed in favour of opponent No.1 and opponent No.1 has executed the Agreement to Sale in favour of complainant, there is no deficiency in service on his part and hence, prayed that complaint may pleased be dismissed in respect of opponent No.2.
5. The complainant has filed his rejoinder along with affidavit to the written version filed by opponent No.2 denied the contentions of the opponent No.2 in the written version.
6. District Forum after going through the complaint, written version filed by opponent No.2, rejoinder filed by the complainant to the written version filed by opponent No.2, evidence filed by both parties on affidavits and pleadings of the Advocates came to be conclusion that there is deficiency in service on the part of opponents holding them responsible jointly and severally, directed the opponents to pay an amount of Rs.12,06,000/- to the complainant along with interest @ 10% p.a. from 29/02/2008 till realization thereof, within a period of two months and cost of Rs.3,000/-. It is against this order, opponent No.2 has preferred the present appeal.
7. We have heard Advocate Ms.Rashmi Manne i/b. Advocate Mr.Uday Wavikar for the appellant and Advocate Mr.Manoj Patil for respondent No.1. None present for respondent No.2 though duly served.
8. Admittedly, respondent No.1 had entered into an Agreement to Sale with opponent Nos.1&2 on 29/02/2008 for flat No.11 in ‘B’ building located at Saishraddha Garden. It is also an admitted fact that the building was constructed by opponent No.2. It is also an admitted that the appellant has executed Power of Attorney in favour of respondent No.2/original opponent No.1. Respondent No.1/original complainant has paid the entire consideration of the flat to the power of attorney holder of opponent No.2/appellant. It is also on record that in respect of same flat, original opponent No.1/respondent No.2 had entered into an Agreement to Sale with three different persons. Learned Counsel of the appellant has admitted all the facts. However, contended that the original opponent No.1/respondent No.2 had cheated the appellant and appellant has cancelled and terminated the Power of Attorney executed in favour of original opponent No.1/respondent No.2 and the same is published in the “Daily Prabhat” on 16/12/2008. The General Power of Attorney executed by the appellant in favour of respondent No.2/original opponent No.1 is registered on 13/04/2006 and in clause No.(12) of the said General Power of Attorney states :-
“This GENERAL POWER OF ATTORNEY in respect of the said Flat shall ALWAYS REMAIN IRREVOCABLE. It is without consideration and shall come to an end when the final conveyance Sale of the said flats is completed in favour of the prospective Purchaser/s and/or whom our Attorney deems fit”.
9. The agreement with respondent No.1 is executed on 29/02/2008. At the time of Agreement to Sale, respondent No.2/original opponent No.1 was General Power of Attorney holder of the appellant/opponent No.2. Though the appellant has cancelled the General Power of Attorney executed in favour of original opponent No.1/respondent No.2 on 16/12/2008 by publishing the same in the daily newspaper “Prabhat”, the transaction entered into by opponent No.1/respondent No.2 will be binding on the appellant till he terminated the General Power of Attorney. Thus, the present appellant is also equally responsible for the liabilities created by original opponent No.1/respondent No.2. The District Forum after going through the facts and circumstances of the case has passed the impugned order. We do not find any irregularity or illegality in the order passed by the District Forum. We hold accordingly and passed the following order :-
-: ORDER :-
1.Appeal stands dismissed.
2.In view of peculiar facts and circumstances of the case, no order as to costs.
3.Copies of the order be furnished to the parties.
Pronounced
Dated 16th September 2014.
