A/11/237 Dated 18/7/14

1. The original complainant has filed this appeal challenging the order dated 4/2/2011 passed by the District Forum, Nagpur disposing of the Consumer complaint bearing No. 211 of 2010 without deciding the complaint on merits.
2. Complainant Mr. Krishna Rambhau Nandanwar has filed Consumer complaint alleging deficiency in service and unfair trade practice against the opposite party for short (OP) M/s Revati Construction, sought for execution of sale deed and possession of plots bearing Nos 466 and 467 as per the agreement  with full construction of Banglow executed between complainant Mr. Krishna Nandanwar and OP M/s Revati Constructions and Developers through its partner Deepak Madhaorao Nilawar, and further compensation of Rs. 18,00,000/- for deficiency and 1,00,000/- towards mental and physical harassment and Rs. 50,000/- towards cost of proceedings.
3. The facts as laid down in the Consumer complaint were that the complainant and the OP had executed an agreement on 9/8/2005 in respect of plot No. 466 and 467 admeasuring 2422 sq.feet situated at survey No. 50, Taluka Hingna, District Nagpur and to construct bunglow admeasuring 800 sq. feet for total consideration of Rs. 5,85,000/-. The complainant had paid Rs. 4,91,000/- to the OP till 15/4/2006. The OP by letter dated 5/9/2006 informed the complainant that he is ready to complete the construction of bunglow and handover possession to the complainant by 30/10/2006 provided the complainant paid Rs. 246760/- The complainant informed the OP that as per the agreement executed between the parties only Rs. 94,000/- remained balance to be paid. The OP failed to take steps. Therefore the complainant filed a Consumer complaint as aforesaid.
4. The OP resisted the complaint and denied all the adverse allegations of the complainant and specifically submitted that the OP was ready to execute the sale deed and handover the possession of the Bunglows if the complainant paid the amount as demanded by the OP. The OP however admitted that an agreement was executed between the parties and the complainant had filed a frivolous complaint which was barred by limitation also and therefore it deserves to be dismissed.
5. The Forum after hearing both the sides and perusing the documents on record observed that the OP was a power of attorney holder of the plot owners and the OP is only a developer. In the event of directions to be given for execution of sale deed and handing over of possession the plot owners are the necessary parties and in absence of necessary party it will not be proper to pass any order against the developer. With these observations the Forum disposed of the complaint without giving any findings on the merits of the case.
6. Feeling aggrieved by the impugned order, the original complainant has filed this appeal. We heard counsels for both the sides and perused the written notes of arguments, copy of complaint, written version and other documents filed on record. On perusal of copy of Special power of attorney executed by the owners of the agricultural land situated at Khasara No. 50, Tah. Hingna, Distt. Nagpur in favour of Deepak Madharao Nilawar. Clause 3 of the  said Special power of attorney reflect “ to give the possession of all plots/ tenaments to the prospective purchasers upon execution of agreements of sale, sale deeds and conveyance” Therefore the only inference that can be drawn is that the plot owners have executed the power of attorney in favour of the OP and they are bound by every act of the power of attorney holder as assigned by the said documents and executing sale deed and handing over possession is included in the said documents. Therefore in our opinon in the event of any order/ directions passed in the Consumer complaint, it would also bind the owners of the plot. Therefore disposing of the Consumer complaint without recording any findings on merits of the case cannot sustain in law.  The Forum below has not decided complaint on merits. Therefore in our opinion the appeal deserves to be remanded with directions.
7. In the result we pass the following order.

ORDER

1. The appeal is partly allowed.
2. The complaint is remanded.
3. The Consumer complaint bearing No. 211 of 2010 is restored on the file of the District Consumer Forum, Nagpur.
4. The Forum to decide the Consumer complaint bearing No. 211 of 2010 on merits after giving opportunity of hearing to both the parties.
5. The Forum to decide the Consumer complaint within 2 months of receipt of this order.
6. In the peculiar facts and circumstances of the case, parties to bear their own cost.
7. Parties to appear before the Forum on 19/8/2011.