Oral Order: (B.N. Rao Nalla, President)
This is an appeal filed by the opposite party aggrieved by the order of the District Forum-II, Hyderabad dated 15.05.2015 made in CC No.610 of 2013 directing the opposite party to pay Rs.1,00,000/- towards compensation for not providing the amenities as assured and pay a sum of Rs.3,000/- towards costs.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the opposite party assured the complainants that it would complete the construction of all the houses in the venture within the schedule time frame and also assured to develop the said colony into one of the best colonies in Hyderabad. Basing on the said assurances the complainants purchased a house bearing No.72, in Silpa Brudavan Layout, Shamshiguda promoted by opposite party vide under doc.No.6709/2006 and doc.No6710/2006 by paying a sum of Rs.57.06 Lakhs Plus extra amount as and when demanded by the opposite parties towards power, water, amenities etc. The opposite party even though collected all the amounts payable to him towards sale consideration together with charges for providing amenities and facilities, failed to provide the amenities and create facilities. The opposite party also failed to construct the house as per the promises made at the time of booking. They promised to construct 200 houses with uniform design but till date, they constructed only 80 houses and the remaining 132 houses were not constructed and abandoned the project. In the printed brochure supplied to all house owners and in the Xerox copy of the plan enclosed to the sale deed, the area between plots 100 and 104 on the left and 105, 106, 107 on the right, admeasuring 1733 Sq.yards was shown as open area and an area equal to 1156 Sq.yards was shown as amenities. That even in the original plan approved in 2004, the said area is shown as place for amenities and Tennis and shuttle Court, but in the revised plan submitted by the opposite party to HMDA, the said area is made in to plots with altogether new numbers 104/A to 104/E and 107/A to 107/E etc which is total deviation from the original numbering. That in the revised plan dated 8th January 2013, the area originally shown as 'amenities, Shuttle Court and Tennis Court' equivalent to 2889 Sq.yards is converted into 10 plots as stated above. The area of 2889 Sq.yards belongs to all 202 house/plot owners, meant for common use and each house owner/plot owner has proportionate share and legal right in that area (2889/202) which is equivalent to 14.30 Sqyards. The complainants and other house owners are deprived of common facilities. Complainants paid Rs.57.06 Lakhs for the purchase of house which includes the cost of this undisputed share in common area equivalent to 14.30 Sqyards for which the complainant paid Rs.3,57,500/- @ Rs.25,000/- per Sq.yard. The amount of Rs.3,57,500 is worth today Rs.6,15,000/- with 12% simple interest calculated from the date of payment. Due to deceptive practice adopted by the opposite party, the complainants lost their share of undivided land worth of Rs.6,15,000/-.Hence, the complaint praying to direct the opposite party to refund an amount of Rs.3,57,000/- collected for the undivided proportionate share corresponding to the area of the house with 12% interest amounting to Rs.6,15,000/- and further interest; to pay lump sum amount of Rs.2lakhs for his deception and dishonest intention, unfair trade practice of selling the open plots after inducing the complainant to buy a house, giving an impression of a beautiful gated community and further interest; to pay compensation of Rs.20,000/- towards mental agony and to pay a sum of Rs.3,000/- towards costs of the complaint.
4. The opposite party resisted the case contending that the complaint is barred by limitation. It is also contended that the complainant No.2 filed the present complaint in two capacities i.e., as GPA Holder of complainant No.1 and also as complainant No.2. In such a case, the complainant has to seek permission of this Forum by filing an affidavit u/r.32 which is not filed and also submitted that the complainant failed to implead the vendor and other owners of the property who are proper and necessary parties to the complaint. The opposite party further contended that the land owner obtained tentative layout vide layout permit No.47.MP2/HUDA/04, dt.17-09-2004 wherein, the land owners provided roads, open area and amenities area in the layout and the remaining area was developed as open plots as per layout sanction Rules as such, the competent authority i.e, the GHMC approved and released the final layout. The opposite party also contended that the land tentatively earmarked as mortgaged plots near the Club house were converted into open space area and developed in the form of Tennis Court and the open space area tentatively provided at the other end in the layout were converted into open plots in accordance with the layout rules. They provided all the facilities at one place around the club house for the convenience of all house owners therefore, there was no deviation in respect of roads, open space and amenities area and the revisions are in conformity with the rules for issuance of final layout, and accordingly the GHMC approved and released the final layout vide proceedings No.G1/9555/2011/110, dt.8/10.01.2013. Hence, the opposite party prayed for dismissal of the complaint.
5. In proof of the case the complainants, the complainant no.1 has filed his affidavit and got Exs.A1 to A24 marked. The opposite party neither filed affidavit nor got marked any documents.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.610 of 2013 by orders dated 15.05.2015 granting the reliefs, as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The the Appellant/ Opposite party preferred this appeal contending that the forum below (a) failed to consider the documents in proper perspective and came to wrong conclusion; (b) failed to consider the fact that the complaint filed in the capacity of GPA holder is not maintainable as the GPA contains no description of property to file a complaint against the appellant; (c) ought to have seen that the complaint is not filed by the aggrieved party; (d) ought to have seen that the Respondent No.1 became owner of Plot No.72 w.e.f. 12.07.2006 on individual name but not represented by GPA holder in any legal documents, hence, the Respondent No.2 has no power and locus standi to file any complaint against the appellant; (e) the respondent/complainant already filed C.C.No.109 of 2012 against the same appellant claiming the same relief in respect of his plot and both the parties have preferred the appeal against the order passed the appellant/opposite party also preferred appeal F.A.No.475 of 2014 against the order in the said complaint before this Commission. There is also another C.C.No.171 of 2015 was filed against the same appellant for refund of Rs.15,45,000/- collected in the name of the gated community with interest and punitive damages. The respondents/complainants are chronic litigants and filed various complaints for changing the reliefs which already claimed in the first complaint CC No.109 of 2012. (f) ought to have seen that the complaint is barred by limitation, hence, prayed to allow the appeal and set aside the orders of the forum below.
8. Counsel for the appellant present and was heard. No representation for the respondents. Written arguments of the respondent not filed though sufficient time was granted for filing the written arguments of the respondents. However, respondent parties, in person, present and were heard.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner? To what relief.
10. It is not in dispute that one G.Vamsidhar (complainant No.1) had purchased the subject property for a valid sale consideration from the builder (opposite party). It is also not in dispute that the purchaser had paid the entire amount of consideration. The only dispute is that the complaint is filed by the father of the purchaser in the capacity of GPA holder instead of the purchaser himself and that the GPA does not contain the particulars of subject property so as to claim it as GPA and that after the execution of the said GPA, the purchaser has entered into construction agreement and the sale deed on his own, hence the GPA entered into on 21.06.2006 is non-est and unenforceable. In that regard, the counsel for Opposite party drawn the attention of this Commission towards the provisions of Section-2 of the Consumer Protection Act, 1986.
11. Before going into the merits of the case, it is necessary to examine whether the complaint filed by the complainant No.2 for himself and on behalf of Complainant No.1 as GPA holder is maintainable. Section-2 of the Consumer Protection Act deals with various definitions. Among which, the definition of 'complainant' and 'consumer' are more important in this appeal.
'2 (b) "complainant" means-
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government,
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;
2(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.- For the purposes of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
12. From the above provision, it is crystal clear that the complaint which is under challenge in this appeal was filed by the Complainant No.2 as GPA holder of complainant No.1 as also for himself. From the perusal of contents of the complaint, the entire allegations are with regard to the subject property purchased from the Opposite party builder. Admittedly, the property in dispute was purchased by the Complainant No.1 and the complaint is filed by Complainant No.2 in the capacity of GPA holder. Complainant No.2 neither availed any services nor hired any services from the opposite parties as such, he is not a necessary party to the complaint. In so far as the complainant No.1 is concerned, the complaint is filed by the Complainant No.2 in the capacity of general power of attorney holder. The general power of attorney which is sought to be executed by the Complainant No.1 is marked as Ex.A1. A perusal of the Ex.A1 goes to show it does not contain anything as to the subject property nor it authorizes the complainant No.2 to file any complaint against the Opposite party builder. Admittedly, the subject property was purchased by way of sale deed dated 12.07.2006 by the Complainant No.1 himself but not through GPA holder. Be that as it may, the property was purchased subsequent to execution of the GPA. Hence, no credence can be given to the GPA which is bereft of any particulars as to the subject property or the particulars of the builder against whom the remedies are sought.
13. We may state that a power of attorney is a written authorization to represent or act on another’s behalf in private affairs, business or some other legal matter, sometimes against the wishes of the other. The person authorizing the other to act is the principal, grantor, or donor (of the power). The one authorized to act is the agent or, in some common law jurisdictions, the attorney-in-fact. The equal dignity rule is a principle of law that requires an authorization for someone performing certain acts for another person to have been appointed with the same formality as required for the act, the representative is going to perform. This means, for example, that if a principal authorizes someone to sell the principal’s house or other real property, and the law requires a contract for the sale of real property to be in writing, then the authorization for the other person to sign the sales contract and deed must be in writing too. Under Ex.A1, nothing is contained as to the subject property giving power to the agent i.e., complainant No.2 to act for and on behalf of the principal i.e., complainant No.1.
14. We may state that nothing is authorized
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by the principal i.e., complainant No.1 in favour of the agent i.e., complainant No.2 either to initiate any proceedings against the opposite party builder, more particularly, in respect of the subject property, so as to claim the power as attorney to maintain the complaint before the forum below. The very complaint filed by the complainant No.2 for himself and also on behalf of complainant No.1 in the capacity of GPA holder is not maintainable. Hence, it is unnecessary to go into the merits of the case. Be that as it may, it is to be stated pertinently that the complaint of the complainants was also barred by limitation in view of the fact that the construction shall be completed within 18 months from the date of Construction Agreement (under Ex.A23). Admittedly, the construction agreement was entered into on 12.07.2006 and the period of 18 months concluded on 12.01.2008 and the present complaint is filed before the forum below on 02.09.2013. For the reasons best known, the forum below failed to consider these aspects and rendered its finding by orders dated 15.05.2015 as stated at paragraph No.1, supra, which suffers from illegality and infirmity. For the foregoing reasons, we answer the point framed for consideration at paragraph No.9, supra, in favour of the appellant/opposite party and against the respondent/complainant. In the result the appeal is allowed by setting aside the order of the District Forum-II, Hyderabad dated 15.05.2015 made in C.C.No.610 of 2013. Consequently, the complaint is dismissed without costs.