REKHA B GANDHI Vs. MAHAVIR CORPORATION

JUDGEMENT

(1.) -WE have heard the parties Counsel.

(2.) PETITIONER No. 1 was the complainant. Under an agreement dated 23. 2. 1993, she purchased flat No. 2 on the first floor in Sonam Apartments at Carter Road No. 3, Borivali (E), Mumbai-400066 for a sum of Rs. 1,71,765 from the respondent opposite party. At the time of execution of agreement, amount of Rs. 11,111 was paid by means of a cheque. Thereafter, from time-to-time further payments of Rs. 86,111 were made to the respondent leaving the balance of Rs. 85,654. Possession of the flat was agreed to be given in 1. 3. 1994. Petitioner alleged that she also gave cheque of Rs. 75,000 on 23. 1. 1995 towards the balance price which was not presented for encashment by the respondent. Said agreement was cancelled by the respondent by the letter dated 27. 9. 1994 on ground of non-payment of balance amount. Attributing deficiency in service, petitioner No. 1 was filed complaint claiming possession of the said flat along with compensation, etc. against the respondent/opposite party which was contested by it. In short, the plea taken by respondent was that as petitioner No. 1 failed to pay the balance amount it was justified in cancelling the agreement. By the order dated 18. 8. 2005, the District Forum ordered refund of the amount of Rs. 86,111 along with interest @ 9% p. a. Cancellation of flat by the respondent was held to be proper. Aggrieved by the Forum's order, petitioner No. 1 field FA 1822 of 2005 while respondent preferred FA No. 1817 of 2005. Respondent-Builder's appeal was accepted and the complaint was dismissed. State Commission was of the view that with the dismissal of complaint, appeal of petitioner No. 1/complainant did not survive. It is this order dated 6. 11. 2007 of the State Commission which is being challenged in this revision.

(3.) AS may be seen from the order of State Commission in view of execution of irrevocable power of attorney dated 1. 6. 1996 by petitioner No. 1 in favour of petitioner No. 2-R. D. Arora, the petitioner No. 1 was held to be not having any interest in said flat No. 2 as also locus standi to file the complaint. Copy of said irrevocable power of attorney is at pages 67 to 73. Clause Nos. (i) and (ii) thereof recite of the petitioner No. 1 having purchased flat No. 2 in Sonam Apartments from the respondent and same being ready for occupation in due course. In Clause No. (iii), it is stated that due to personal reasons and for reasons of convenience, the petitioner No. 1 has sold the flat to Rakesh D. Arora impleaded as petitioner No. 2 in the revision under an agreement dated 14. 3. 1996 and has received full consideration from him. Further, para Nos. 1, 4, 6, and 7 of this irrevokable GPA which are material, read thus: