LATA CONSTRUCTION Vs. RAMESHCHANDRA RAMNIKLAL SHAH

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 22nd November, 1995 passed by the National Consumer Disputes Redressal Commission, New Delhi (for short, 'the National Commission').

(2.) The respondents had approached the Commission with the complaint that the appellants who were developers and had promised, under a written agreement dated 27-1-1987, to provide a flat to them, had failed to do so and, therefore, they were guilty of "deficiency in service". It was indicated in the complaint that the respondents who were, at that time, in Libya and wanted to settle in India, had entered into an agreement dated 27-1-1987 with M/s. Lata Construction, the appellant No. 1, which stipulated that the appellants would develop, construct and hand over possession of flat No. AG-2 on the ground floor with an area of 670 sq. ft. situated in a building named "Madhusudan", on Plot No. 138, T.P.S. 11 and C.T.S. No. 1166 and 1166(1) in Vile Parle, Bombay 400057. It was indicated that the appellants had earlier entered into a development agreement on 9-12-1985 with the owners in respect of the said property to develop, construct and to sell flats in the proposed building which was to be constructed on ownership basis. On 27th of January, 1987, the respondents had paid a sum of Rs. 3,38,000/- to the appellants in cash but without any receipt and a sum of Rs. 32,000/- by cheque against receipt. The respondents also paid to the appellants on various dates, as and when demanded by them, a further sum of Rs. 2,00,000/- against receipt. In June, 1988 when the respondents returned from Libya, they requested the appellants to deliver, on payment of balance amount of sale consideration, possession of the flat to them as the construction of the building was complete but the appellants refused to accept the payment and deliver possession on the plea that the building was still under construction particularly as the electricity, plumbing, tiling and fencing work was in progress. The appellants, however, assured the respondents that as and when the building would be completed in all respects, they would accept the balance amount of sale consideration and deliver possession to them. In April, 1990, when the respondents again came back from Libya on a short visit to India and visited the building, they found that the flat was locked and outside the main door of the flat, a name plate of "Indira Joshi" had been put up. The respondents returned from Libya in January, 1991 and when they demanded the possession of the flat, the appellants expressed their inability to give possession of the flat to the respondents in compliance of the agreement dated 27-1-1987. The appellants, however, entered into a fresh agreement with the respondents on 23-2-1991 agreeing to pay to the respondents a sum of Rs. 9,51,000/- in lieu of the flat in three instalments on or before 30-5-1991 as under:-

(3.) Learned counsel appearing on behalf of the appellants has contended that the claim instituted by the respondents before the Commission was beyond time inasmuch as it was filed beyond the period of two years prescribed under Section 24-A of the Consumer Protection Act, 1986 (for short, 'the Act'). It is contended that since the respondents had entered into a fresh agreement with the appellants under which the entire amount of Rs. 9,61,000/- had to be paid on or before 30th of May, 1991, the respondents, if the amount was not paid, could have instituted the claim petition before the Commission within the period of limitation starting from 31-5-1991, and since the claim was filed in July, 1993, it was clearly beyond time. This plea has been negatived by the Commission on the ground that since the right under the agreement of 1987 had not been given up by the respondents, there was a continuing cause of action running against the appellants and the claim was, therefore, not beyond time.