M/s. Mujaddady Estates (P) Ltd. and others vs Mohd. Ashraf and others

Appellant(s) was the opposite party before the State Commission where five separate complaints were filed against them alleging deficiency in service. Brief facts necessary to appreciate the case are that:- F.A. Nos. 294/94, 295/94, 296/94 and 297/94: 2. An agreement was entered into by the owners of plot Nos. 1 and 2 in survey Nos. 284 and 284/2 situated at Guddi Malkapur Mehdipatnam, Hyderabad, the Developer M/s. Mujaddady Estates Pvt. Ltd. (the Appellants before us) being the first party, and the Respondent complainants Mohd. Ashraf, Mohd, Shakeel, Idris and Mohd. Rafiq, the second party for purchase of flats in the complex called "Majaddady Apartments" for certain consideration, part of which was paid at the time of signing of the agreement which was done in 9-3-1994 in all cases, the balance amount was payable in instalments including the last instalment which was payable at the time of executing the Sale Deed. It is admitted position that all payments were made in each case as per the terms of the agreement except the last instalment which was to be paid at the time of executing the Sale Deed. Since it was never executed the last instalment was never paid. Since possession of the property was not being given as per terms of the agreement according to which possession was to be delivered by 3-5-94, five separate complaints were filed by the Respondents before us. The State Commission after hearing the parties, through a single order allowed the complaint and directed the Appellant(s) to deliver possession after receipt of last instalment due from the Respondent/Complainants and also directed payment of liquidated damages as per Clause 4 of the Agreement as they stood on 10-11-96 as also pay interest @ 24% p.a. on the amounts deposited by the Complainants from 11-11-96 till the date of payment and cost of Rs.2,500/- in each case. It is against the order that the appellant M/s. M/s. Mujaddady Estates Pvt. Ltd. and others have filed these five appeals before us. F.A. No. 298 of 2002: 3. A tripartite agreement was entered into by 21 persons owning property bearing Nos. 22-8-288, 289 and known as Mumtaz Hotel and Kitchen. Yousuf Bazar at Nayapool, Hyderabad, Appellant being the second party and the Respondent/Complainant being third party, for sale (by the 2nd party Appellant being the developer and General Power of Attorney holder) to the Complainant an area of 2200 sq. ft. on the second floor of the said building for a consideration of Rs. 5.5 lakhs of which Rs. 2.5 lakh were accepted as paid at the time of signing of the agreement balance being payable in instalment of Rs. 1 lakh each on 31-3-94 and 15-4-94 and last 1 lakh at the time of execution of sale deed. It is pertinent to note that the Appellant was a party to this Agreement as also the GPA holder on behalf of 21 persons owning the said property Admittedly, all amounts were paid to the Appellant except the last Rs. 1 lakh possession of completed building was to be given on 15-5-94 as per term 6 of the Agreement failing which the first and second party damages @ Rs.800/- per day for the delayed period in giving the possession. It is argued by the Ld. Counsel for the Appellant (s) that owner of the land(s) have not been made a party. Agreement was only a show piece and was never meant to be acted upon. Amounts paid by the Complainants were not towards purchase of flats/properties. This was to be a loan for the appellant to start the work for construction of said apartments and the usual pleas the Complainant is not a consumer as also the matter requires adjudication by Civil court. Maximum emphasis is on the contents of discussion on tape, a transcript of which has been filed before us at appeal stage and the last ditch argument is that the owners have since revoked the power of attorney, hence, Appellant is in no condition to deliver the flats in view of which order of the State Commission to the extent of delivering the possession of the flat to the Complainant cannot be executed. On all these grounds, the order of the State Commission need to be set aside. The Ld. Counsel for the Appellant on instructions of Appellant was candid enough to agree to refund the deposited amount along with interest @ 18% p.a. On the other hand it was argued by the Ld. Counsel for Mohd. Ashraf that order of the State Commission is correct and is as per terms of the Agreement from which the Appellant cannot get away. As far as revocation of GPA is concerned, they are not covered by their document as their property in Appeal No.294/2002 is not covered by the revoked of G.P.A. as revocation relates to other properties and not his. On all these grounds, the appeal needs to be discussed. 4. We have seen the material on record and heard the arguments. We are unable to sustain the first objection of the Appellant as the dealings were with Appellant, he received the money for the complainants. He was the developer, promoter and builder of the apartments named after him as also held the G.P.A from the property owner. All other points including the ones relating to the agreement not meant to be executed and taped conversation raised by the Appellant before us, except the one relating to power of attorney, have already been gone into by the State Commission and we agree with the reasoning on these issues advanced by the State Commission. The only major issue raised before us is that the General Power of Attorney has since been revoked by the owners of Property hence, they are not in a position to deliver the possession of the property as directed by the State Commission. It is admitted position that the property owner''s (relating to F.A. 294-297/2002) namely; Gumel Mohammed Javeed and Gulam Mustafa Shaheed had executed to irrevocable General Powers of Attorney in favour of the Appellant. Description of property was given on the schedule. We see no schedule on record to prove that indeed the GPA related to the property in question. G.P.A.''s were executed on 26-12-1990 and are shown to be revoked on 13-11-1997 and 23-9-1997, respectively. We see that the shelter under revoked GPA is taken for the first time before us through an additional affidavit filed on 12-3-2003. Even though G.A.P are reported to be revoked in 1997, there is no reference to it in the affidavits filed before the State Commission by the Appellant in 1999. No other material is on record to show that it was before the State Commission. In our view, for reasons best known to the Appellant, this reported revocation of GPA''s was never mentioned before the State Commission. So much so, that even in the appeals filed before us as late as 14-8-2002, there is no reference to the revocation and it has not been pleaded at all, when the fact of revocation was within the knowledge of the Appellant and he had all the opportunity to bring them to the notice of the Consumer Forums after its revocation in 1997. His non-mentioning of this at any stage till March, 2003, leaves us with no option but to draw an adverse inference and to state that the Appellant has not come with clean hands before the consumer fora especially before us where we see no schedule of property referred to in the G.P.A. The cancelled G.P.A. gives details of the property plot numbers and survey numbers. It is not possible to co-relate the revocation with the G.P.A. in his absence of the schedule, referred to in G.P.A. We are unable to find that whether cancellation relates to the same properties. We are unable to accept the plea that the agreement was not for sale of flats. A mere reading of the Agreement they are unable to deliver the possession, whatever we are not satisfied about the position of G.P.A. makes it clear as to what it was, a plain simple agreement to give flats to the complainants for which consideration was recovered except the last instalment. On the plea of the Appellant that in view of the revocation of G.P.A. They are unable to deliver the possession, we are not satisfied with this plea in view discussion on the point earlier. However, when we see the agreement between the parties property is the same i.e., Plot Nos. 1 and 2 in Survey No. 284 and 284/2 respectively and they are the same properties which are referred to in the revoked G.P.A. On the basis of this we can not but conclude that the Appellant is in no position to deliver possession of these properties. With a view to avoid further litigation we would consider equitable if the amounts awarded as liquidated damages in each case (F.A.''s, 294-197/2002) are upheld and the Appellant is directed to refund the deposited amount alongwith interest @ 18% p.a. from 11-11-96 alongwith costs of Rs.5,000/- in each case. F.A. No. 298 of 2002: 5. As far as this appeal is concerned, we see that the property involved in Municipal Nos. 228, 288, 289 and 276 known as Mumtaz Hotel and Kitchen, Yousuf Bazar situated at Nayapool, Hyderabad in an area measuring 911 sq. mts. Even though plea has been taken by the Appellant about revocation of power of attorney and his consequent inability to delivery the possession yet neither the power of attorney nor its revocation later on, relating to this property has been produced before us. What has been produced is a mechanical reproduction of what was done in other cases, forgetting that this case is a ''stand alone case''. Clause 5 of the Agreement is in pertinent: "That at present the scheduled property is in possession of a tenant and the 1st and 2nd shall deliver vacant and peaceful possession of the same to the 3rd party by the time of execution of the sale deed, by evicting the tenant." 6. This leaves us no doubts that it was for the Appellant along with other who was to deliver the vacant possession of the stated property to the third party. Money was received by the Appellant and yet possession has not been delivered, which is a clear case of deficiency. In this case we see no merit in the appeal filed by the Appellant and is dismissed with costs of Rs.5,000/-. The order of the State Commission in respect of this case is affirmed. Appeals disposed accordingly.