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.
Since the whole of the amount had number been paid to the respondents who companyld recover the whole of the amount together with interest from the appellant on giving seven days numberice, the rights under the old agreement did number companye to an end and they companyld legally claim specific performance of that agreement for a flat being provided to them.
Moreover, under the terms of the agreement dated 23rd of February, 1991, it was stipulated that if the entire amount of Rs.9,51,000/ was number paid by 30th May, 1991, the whole of the amount would become payable at once and it would be open to the respondents to claim payment of full amount together with interest after giving seven days numberice to the appellants.
10,000/ to the respondents as companyts of the proceedings.
3,00,000/ on or before 20.3.1991 2.
It was indicated in the companyplaint 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, companystruct and hand over possession of flat No.
It was also specifically mentioned in the second agreement that the first agreement of 1987 would be treated as terminated only on full payment of the stipulated amount of Rs.9,51,000/ to the respondents.
The respondents had approached the Commission with the companyplaint 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.
The appellants, however, assured the respondents that as and when the building would be companypleted in all respects, they would accept the balance amount of sale companysideration and deliver possession to them.
3,00,000/ on or before 20.4.1991 3.
It was next companytended that the agreement dated 27.1.1987 having been substituted by a fresh agreement dated 23.2.1991, under which the respondents themselves had agreed to receive Rs.9,51,000/ as companypensation for the flat number having been provided to them under the earlier agreement, they companyld only approach the civil companyrt for recovery of that amount but companyld number legally institute the claim petition before the Commission for companypensation on the ground of deficiency in service.
138, T.P.S. 11 and C.T.S. No.1166 and 1166 1 in Vile Parle, Bombay 400057.
In June, 1988 when the respondents returned from Libya, they requested the appellants to deliver, on payment of balance amount of sale companysideration, possession of the flat to them as the companystruction of the building was companyplete but the appellants refused to accept the payment and deliver possession on the plea that the building was still under companystruction particularly as the electricity, plumbing, tiling and fencing work was in progress.
Their claim was, therefore, number barred by time.
AG 2 on the ground floor with an area of 670 sq.
This plea has been rejected by the National Commission by placing reliance upon the decision of this Court in Lucknow Development Authority v. M.M. Gupta 1994 1 SCC 243.
situated in a building named Madhusudan, on Plot No.
9,51,000/ had to be paid on or before 30th of May, 1991, the respondents, if the amount was number paid, companyld 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.
3,51,000/ on or before 30.5.1991 The respondents had entered into a fresh agreement with the appellants without prejudice to their rights under the earlier agreement dated 27.1.1987.
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, companystruct and to sell flats in the proposed building which was to be companystructed on ownership basis.
9,51,000/ in lieu of the flat in three instalments on or before 30.5.1991 as under Rs.
Since the rights under the agreement of 1987 had number been given up and the appellants were companystantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated cause of action to be a companytinuing cause of action and came to the right companyclusion that the claim was number beyond time.
The Commission also allowed a sum of Rs.
This plea has been negatived by the Commission on the ground that since the right under the agreement of 1987 had number been given up by the respondents, there was a companytinuing cause of action running against the appellants and the claim was, therefore, number beyond time.
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.
Since the appellants did number honour the companymitments under both the agreements, the respondents approached the National Commission which, decreed the claim of the respondents for a sum of Rs.9,51,000/ together with interest at the rate of 18 per annum with effect from 23.2.1991 till the date of payment.
It is companytended that since the respondents had entered into a fresh agreement with the appellants under which the entire amount of Rs.
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 companypliance of the agreeement dated 27.1.1987.
The respondents also paid to the appellants on various dates, as and when demanded by them, a further sum of Rs.
Another sum of Rs.
1,00,000/ was allowed as companypensation for pain and suffering undergone by the respondents.
It was for this reason that in the claim petition filed before the Commission, it was clearly mentioned that their rights under the agreement dated 27th of January, 1987 as also those under the agreement dated 23rd of February, 1991 may be enforced.
A perusal of the agreement dated 23rd of February, 1991 would show that it was specifically stipulated therein that the rights under the agreement dated 27th of January, 1987 would remain uneffected.
2,00,000/ against receipt.
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.
SAGHIR AHMAD, J. 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 .
