F.A. No. 64 of 2014. Case: Narendra Bhiku Kerkar Vs Narayan Bhikaji and Ors.. Uttaranchal State Consumer Disputes Redressal Commission
| Case Number | F.A. No. 64 of 2014 |
| Counsel | For Appellant: P. Sawant, Advocate |
| Judges | N.A. Britto, J. (President) and Jagdish G. Prabhudesai, Member |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rule 8; Code of Civil Procedure, 1908 (CPC) - Order IX Rule 9(1); Code of Civil Procedure, 1908 (CPC) - Order XXII Rule 2; Code of Civil Procedure, 1908 (CPC) - Section 11; Consumer Protection Act, 1986 - Sections 13(7), 24A |
| Citation | III (2015) CPJ 168 (Goa) |
| Judgement Date | July 15, 2015 |
| Court | Uttaranchal State Consumer Disputes Redressal Commission |
Order:
N.A. Britto, J. (President)
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The Builder, the Opposite Party in CC No. 31/2009, has filed this appeal, and it is directed against final order dated 30.6.2014 of the South Goa District Forum. Some facts are required to be stated to dispose off this appeal and for that the parties hereto are being referred to in the names as they appear in the cause title of the said complaint.
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The Complainant/Respondent No. 1 is dead and gone and his name ought not to have found place in the cause title either of the complaint or this appeal. Complainant/Respondent No. 2's name ought to have been Damodar Narayan Naik who is also the attorney of other complainants except complainant Nos. 14 and 15. As attorney he was duly served with notice of this appeal prior to Adv. Mr. S.K. Naik put his appearance on behalf of Complainants/Respondent Nos. 3, 5 to 12.
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The original complainant Nos. 2 to 15 are the children and/or their spouses of late Narayan Bhikaji Naik and his wife late Smt. Jayu Naik, who had entered into an agreement of sale with the opposite party dated 22.7.1996. By this agreement the said Narayan Bhikaji Naik and Smt. Jayu Naik, as vendors agreed to sell to the opposite party, as purchaser, Plot No. 30 admeasuring 371.5 square metres for a price of Rs. 1 lac and in exchange for a flat (No. F-3?) having a built-up area of 70 square mtrs. on the 1st floor of the building to be constructed by him (to be named as Nikhil Apartments) having flats and shops. As per the terms of the said agreement of sale dated 22.7.1996, the opposite party was to pay a sum of Rs. 50,000 in cash to the said owners Narayan Bhikaji Naik and Smt. Jayu Naik and Rs. 50,000 by cheque at the time of the execution of the said agreement and the said flat was to be handed over to them within a period of 1/2 year and in case it was not handed over, the opposite party was liable to pay to them Rs. 3,000 per month for each month beyond the period of 1 1/2 year which was the time stipulated for completion of the said building. In other words, the flat was to be delivered to the said Narayan Bhikaji Naik and Smt. Jayu Naik by 21.9.1998.
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The complainants sent notice dated 12.2.2001 through their Advocate, to the opposite party stating that the site was found abandoned and the project was lying incomplete. The same was replied to by the opposite party, by reply dated 3.3.2001. In this reply the opposite party admitted that the building was to be completed by 21.9.1998 in terms of the agreement but could not be completed within the agreed time on account of delay caused in obtaining licenses, approvals, etc. The opposite party also stated that upon the death of Smt. Jayu Naik a fresh Power of Attorney was required to be executed for the purpose of expediting the work of the building and to enable the opposite party to deal with the prospective customers. Another notice followed dated 10.4.2001 which was replied to, on behalf of the opposite party, by reply dated 6.5.2001. Then the complaint came to be filed on 26.6.2001, being CC. No. 41/2001 and which came to be dismissed for default of appearance of the complainants on 22.10.2007.
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By notice dated 17.2.2009 the opposite party was informed that the legal heirs of the said Narayan Naik and his wife Jayu Naik had executed a power of attorney and had appointed Damodar Narayan Naik as their power of attorney and was asked to collect the copy of the said power of attorney from the office of the said Advocate.
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The complainants then issued another notice dated 17.2.2009 and filed the present complaint on 27.5.2009 which was admitted by the Leaned District Forum on...
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