Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member
M/s. Ravi Foundation and Ors. – Appellants
versus
Bhavesh S. Sheth and Ors. – Respondents
First Appeal No.71 of 2014 and First Appeal No.249 of 2014
Decided on 21.1.2022
(A) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Real Estate – Appeal has been filed against order of State Commission whereby appeal was partly allowed directing the opposite parties, jointly or severally to furnish a copy ‘Occupancy Certificate” and hand over vacant and peaceful possession of the Flat – State Commission proceeded on the premises that Power of Attorney dated 10.04.2002 was a registered document, but it does not make any difference as Power of Attorney is not required to be registered under the law – Whether Power of Attorney dated 10.04.2002 created interest and was revocable – Power of Attorney dated 10.04.2002 was neither revoked on 10.04.2002 as alleged nor it was revocable M had full authority to execute registered agreement for sale dated 19.07.2002, in favour of the complainants in respect of Flat No.902 which is binding upon the builder – In the present case, last portion of Power of Attorney dated 10.04.2002, shows that some flats were given in the share of M/s. Mangesh Construction as such interest was created in his favour. As such Power of Attorney dated 10.04.2002 was irrevocable.
Held: Supreme Court in Loon Karan Sethiya Vs. Ivan E. John, AIR 1969 SC 73, held that if power of attorney is coupled with an interest, then it is irrevocable under Section 202 of Contract Act, 1872.
The builder took the plea that Power of Attorney dated 10.04.2002 was revoked through letter dated 17.06.2002. The counsel for the complainants submitted that this letter was ante-dated. The complainants have filed information obtained from MTNL Mumbai dated 05.09.2014 (Annexure-R-1/4) to his reply in First Appeal No.71 of 2014, showing that eight digit landline phone numbers were introduced from September, 2002, for the first time in Mumbai. The revocation letter dated 17.06.2002 was typed on the Letter Pad, which contained eight digit landline phone number. Further the letter dated 17.06.2002 was send ‘Under Certificate of Posting’. There is manipulation in the stamp put by Postal Department in the year, which is apparent. The portion where year is stamped, has been blurred, to show as ‘2’. The builder has not given any plausible explanation of these arguments. No public notice was ever published, in newspaper relating to revocation. There is one more circumstance to show that Power of Attorney dated 10.04.2002 was not cancelled on 17.06.2002, i.e. Jayesh T. Shah (opposite party-2) admitted execution of registered Deed of Confirmation dated 17.07.2009, by which, an unregistered agreement for sale executed by Mangesh Tukaram Sawant dated 23.06.2003, in favour of Haresh N. Singhavi and Mrs. Veena Haresh Singhavi of Flat No.502 in “Gaurav Palace” was acknowledged and confirmed. [Paras 12 to 14].
(B) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – Maharashtra Ownership of Flats Act, 1964 – Real Estate – Delay in delivery of Flats – buyer is entitled to delayed compensation for delay in possession, in the shape of interest @ 6% per annum. The complainants are entitled for delayed compensation on their deposit, from the 19.07.2004 till the possession of the Unit, complete in all respect, is delivered to them.
Held: As per the provisions of Maharashtra Ownership of Flats Act, 1964, if possession date was not clear in the agreement, in that case, the builder would be liable to handover possession within 2 years of the agreement. The Agreement for Sale was executed on 19.07.2002 as such due date of possession would be 19.07.2004. State Commission ought to have awarded compensation for delay in offering possession to the complainants – Appeal is allowed, the builder is directed to pay delayed compensation in the shape of interest @6% per annum on the deposit of the complainants, from 19.07.2004 till the possession of the Unit, complete in all respect, is delivered to them. [Para 16].
Result: Appeal is partly allowed.
ORDER
Ram Surat Ram Maurya, Presiding Member.—Heard Mr. Amit Kumar, Senior Advocate, assisted by Ms. Vandana Sehgal, for M/s. Ravi Foundation and Jayesh T. Shah and Mr. Arun Panickar, Advocate, for Bhavesh S. Sheth and Hardik S. Sheth and Mr. Viraj Kadam, Advocate, for Mangesh Tukaram Sawant, in both the appeals.
2. Aforementioned appeals have been filed from the order of State Consumer Disputes Redressal Commission Maharashtra, Mumbai, dated 23.12.2013, passed in Consumer Complaint No. 185 of 2010, partly allowing the complaint and directing the opposite parties, jointly or severally to furnish a copy ‘Occupancy Certificate” and hand over vacant and peaceful possession of the Flat no. 902, on the 9th Floor of “Gaurav Palace”, constructed on C.T.S. No.100, S. No.96, Hissa No.3, Malad, situated at Kandivali, Taluka Borivali, district Mumbai to the complainants, to pay Rs.50000/- as the compensation for mental tension and agony and Rs.25000/- as the litigation cost to them. The complainants and the developer, both, have filed their separate appeals. As both the appeals arise out of the same order in one complaint, as such, it were consolidated and heard together.
3. The office has reported that First Appeal No. 249 of 2014 has been filed with the delay of 75 days. The appellants have filed I.A. No. 2629 of 2014, for condoning the delay in filing the appeal. It has been stated that the appellants had received certified copy of the impugned order dated 23.12.2013 on 07.01.2014 but Bhavesh S. Sheth (appellant-1) was suffering from Sciatica pain at that time and was advised for rest. On feeling better after 25.03.2014, he approached his counsel, then the appeal was drafted and the papers of the appeal were sent through post on 11.04.2014. Due to illness of appellant-1, the appeal could not be filed in time. Cause shown is sufficient. Delay in filing the appeal is condoned.
4. Bhavesh S. Sheth and Hardik S. Sheth (the complainants) filed Consumer Complaint No. 185 of 2010 for directing M/s. Ravi Foundation, Jayesh T. Shah and Mangesh Tukaram Sawant (the opposite parties), jointly and severally (i) to furnish a copy of the “Occupation Certificate” and hand over vacant and peaceful possession of flat no.902, in “Gaurav Palace” at Kandivali (West) in Mumbai in good and habitable condition; or in alternative, to purchase another flat with balcony of similar construction and with similar amenities, having equivalent carpet area of 1690 sq.ft, in the same locality and handover it to the complainants, (ii) to pay an interest @9% per annum from the date of each deposit till handing over possession, (iii) to pay Rs.50000/- as compensation for mental agony and physical harassment, (iv) cost of the litigation and (v) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed.
5. The facts, as stated in the complaint and emerged from the documents attached with it, are that M/s. Ravi Foundation, a partnership firm, was engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. M/s. Ravi Foundation launched a project of residential complex in the name of “Gaurav Palace”, at C.T.S. No. 100, S.N. No.96, Hissa No.3 of village Malad, Kandivali, Taluka Borivali, district Mumbai. Later on, they realized that they would not be able to complete the project timely. Therefore, M/s. Ravi Foundation through its partner Jayesh T. Shah entered into an agreement with Mangesh Tukaram Sawant to complete the said project in joint venture, according to the sanctioned layout plan. Jayesh T. Shah, as a partner of M/s. Ravi Foundation executed an Irrevocable Power of Attorney dated 10.04.2002, authorising Mangesh Tukaram Sawant, proprietor of M/s. Mangesh Construction, to do construction works, to obtain necessary approvals from the authorities, to deposit tax/fee etc., to obtain connections of the amenities, to get vacated the tenants of the prop
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
