Per Shri D.N.Khamatkar, Hon’ble Member: 

          This is a matter remitted back by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi  vide its order dated 26/11/2008 for decision on merits.  Facts of the case in brief can be summarized as under:-

          The respondent/org.complainant had filed a complaint bearing no.720/2002  in District Consumer Redressal Forum, Kolhapur  (Forum below in short) praying that the appellant should handover flat no.1 in Divyaraj Laxmi apartment constructed by Shivmudra Construction.  If it is not possible, then flat similar to flat no.1 or as per development agreement dated 06/10/2002 a terrace flat or the amount paid by the complainant/respondent with interest @  % p.a. and for compensation and cost Rs.10,000/- be paid.  Ld.Forum below after hearing both the parties have passed an order dated 09/09/2005 directing to handover the possession of flat no.1 in Divyaraj Laxmi apartment constructed by Shivmudra Construction. As per agreement dated 30/05/1989 or if the possession of the flat no.1 is not possible, then a flat similar to flat no.1 be given within period of 30 days and Rs.98,000/- as compensation for hiring the residence.  If the appellants are not in a position to hand over the possession, they individually or collectively pay Rs.1,28,000/- with interest @18% p.a. since 29/04/1991 within period of one month.  Similarly, the appellant to pay individually or collectively an amount of Rs.10,000/- also.  Present appellant challenged the order vide A.No.1952/2005. 

The State Commission vide its order dated 19/06/2006 dismissed the appeal for default for non-appearance.  Again the appellant filed restoration application, however, the same is also dismissed on the ground of limitation and thereafter, appellant filed revision petition in the National Consumer Disputes Redressal Commission, New Delhi  and National Commission had remitted back the matter for decision to the State Commission . 

Ld.Counsel had contended that the claim of the respondent/complainant is based on the agreement dated 30/05/1989 alleged to have been executed by Sambhaji Ghorpade.  Alleged agreement is false and fabricated and is executed by a person without the authority.  The owner of the property bearing no.22-1-A/1-A is Mrs. Sarlabai Ghorpade and Sambhaji Ghorpade has nothing to do with the property.  He has further drawn our attention to the development agreement dated 12/01/1990.  The original owners had executed a irrevocable power of attorney in favour of the appellants on 05/08/1991.  The development agreement as well as the power of attorney was singed by Sarlabai Ghorpade as well as by Mamata Ghorpade through her guardian Sarlabai Ghorpade and Shivaji Ghorpade through his power of attorney holder Sambhaji Ghorpade.  All the flats constructed in Divyaraj Laxmi apartment were disposed of in the year 1994 and the FSI available is purchased by the appellant and the alleged flat booked in the name of respondent/complainant is transferred to Sarlabai  with the knowledge of Sambhajirao through which  respondents/complainants has booked the flat. 

Counsel further drawn our attention to the fact that respondents/complainants had not approached to the appellant till filing of the complaint and not a single document filed by the respondent shows that he was pursuing the matter with Sambhajirao.  Ld.Counsel further pointed out that the agreement dated 30/05/1989 executed by Sambhajirao is not binding on the appellant as he was not a partner to Shivmudra Construction.  Further the Counsel has stated that application filed by the respondents/complainants is also not in limitation.  Further the Counsel pointed out that the alleged agreement does not specify the particulars of the property, does not prescribe time limit and the person executed the agreement was not authorized person.  Ld.Counsel further contended that the respondents/complainants in collusion with Sambhajirao prepared false and fabricated receipts.  Counsel further pointed out that in the agreement it is stated that respondents/complainants had seen the plan while executing the agreement however; the plan is submitted to the Corporation on 08/11/1990.  Ld.Counsel had pointed out that Shivmudra Construction is a partnership unregistered firm  and it has came into existence on 12/11/1991 and before that there was no firm in existence.  The terrace and the FSI are already purchased by the appellant and the original owners have no right on the terrace and FSI.  Therefore, Counsel requested that appeal may please be allowed and the order of the District Consumer Redressal Forum be set aside.

          The respondent/complainant had filed his written notes of arguments which are in appeal compilation.  Both the parties have filed various authorities in support of their case.  The respondents/complainants had prayed that the appeal may please be dismissed and order of the Forum below be confirmed.

          Admittedly, the property which is a subject matter of the present litigation is owned by Sarlabai Ghorpade, Shivaji Ghorpade and Mamata Ghorpade.  The appellants are closely related with each other.  Subhash  Laxman Saple is son in law of Sarlabai Tukaram Ghorpade.  Surekha Saple is wife of Suresh Saple and daughter of Sarlabai.  Shivajorai Ghorpade, Sambhajirao Ghorpade and Mamta Ghorpade are sons and daughter of Sarlabai Ghorpde and Sambhajirao Ghorpade is power of attorney for Sarlabai Ghorpade and in development agreement dated 12/01/1990 he is power of attorney holder for Shivaji Ghorpade.  It is the case of the appellant that on 30/05/1989 Shivmudra Construction was not in existence and the firm Shivmudra Construction has came into existence on 12/11/1991.  In lower court papers there is important document of evidence.  Respondent/complainant has filed a invitation card of foundation laying ceremony of Divyaraj Laxmi apartment wherein the name of Sivmudra Construction is there and Subhash Laxman Saple and Sambhajirao Ghorpade are shown as organisers.  The function was held on 26/01/1991.  Hence, it is  clear and established fact beyond doubt that previously Shivmudra Construction was in very much in existence and Sambhajirao was one of the proprietors.  We do not know why the appellant have came with new partnership firm on 12/11/1991.  In the newly formed firm also the Sambhajirao is power of attorney holder.  Again there is power of attorney in favour of Sambhajiraao dated 19/07/1989 executed by Sarlabai Ghorpade.  Taking into consideration the relationship between the appellant and Sambhajirao, there is no doubt that in a Shivmudra Construction old and new also he is the authorized person.  As regards the development agreement and irrevocable power of attorney in favour of the appellant these are the subsequent developments and hence, the agreement executed on 30/05/1989 by virtue of which the complainant/respondent has booked a flat cannot take away the right of the respondent/complainant and liability of the appellant.  Before the Forum below the respondent/complainant had proved his case beyond doubt.  As regards the point of limitation raised by the appellant it is clarified that hear the cause of action is continuous one and respondents/complainants is trying  and fighting for his lawful claim.  The Forum below has taken into consideration the facts and circumstances of the case, evidence filed by both the parties and has arrived at the conclusion which is just, reasonable and fair and hence, we pass the following order:-

                                                :-ORDER-:   

1.                 Appeal stands dismissed.

2.                 Order passed by the District Consumer Redressal Forum , Kolhapur is hereby confirmed.

3.                 No order as to costs.

4.                 Copies of the order herein be furnished to the parties.