The appellant, M/s. Tolani Shipping Co. has challenged the order of the Maharashtra State Consumer Disputes Redressal Commission in Complaint Case No.CC/11/224. The complaint has been dismissed at the stage of admission itself on the ground of limitation. According to the State Commission, the cause of action had arisen in the year 2002 while the complaint was filed on 29.8.2011. The State Commission has made the following observations:-
“This letter of 2002 must be taken as the date on which cause of action accrued to the complainant company. By this letter no compliance was made for the demand made by M/s. Tolani Shipping Co. and from that day within two years this complaint should have been filed. But this complaint came to be filed on 29/08/2011 alleging that since Time Share Agreement permitted M/s. Tolani Shipping Co. employees to use Holiday Resorts as per membership given to them by M/s. Sterling Holiday Resort (I) Ltd. upto 2094-95, the complaint is having continuing cause of action and, therefore, it is within limitation. However, we should not forget the letter dated 27/02/2002 sent by the complainant to opponent company wherein demand for refund of 28,00,000/-, besides the liquidated damages of 30,00,000/- and compensation of 10,00,000/- aggregating to 68,00,000/- was made and it was not paid at all by the M/s. Sterling Holiday Resort (I) Ltd. When this is so, in our view the complainant company should have filed consumer complaint within two years from 27/02/2002 and since it is not filed in the year 2004 and since it is filed for the first time on 29/08/2011, in our view the complaint as filed by the complainant is absolutely barred by limitation.”
2. Counsels for the Appellant and for the respondent have been heard and the records produced have been perused carefully.
3. Counsel for the appellant has argued that subsequent to the above mentioned letter of 27.2.2002 from the Complainant to the OP/Sterling Holiday Resort (I) Ltd, the latter had been acknowledging its liability and assuring to fulfil its obligations. Thereby the limitation has continued to run as the OP did not discharge its liabilities till the complaint was filed. In this behalf, learned counsel referred to the letter of 8.9.2010 from AGM (Customer Service) of the OP to Director (Legal and Secretarial) of the Complainant. The letter reads as follows:-
“We are in receipt of your letters dated 4.9.2009 and 3.08.2010 with regard to your memberships at Lonavala. We have already explained the situation vide letter dated 29th July 2009 due to which the delay in constructing our own resort at Lonavala has occurred. Having shown patience all this while we would request you to bear with us for one more year as we are taking all possible efforts to construct our-resort at Lonavala.”
4. The appellant counsel forcefully argued that this letter has the effect of extending the cause of action till 8.9.2010. He also sought to rely upon the decision in Lata Construction and others Vs. Dr. Rameshchandra Ramniklal Shah and Anr., (2001) 1 SCC, 586. In this case, under an agreement of 27.1.1987 the developers had undertaken to provide a flat to the Complainant, but had failed to do so despite receiving payments towards the same. In 1991 the developers entered into a fresh agreement with the Complainant, agreeing to pay a sum of Rs.9.51 lakhs, in lieu of the flat. The respondent/Complainant entered into the fresh agreement with the appellant developers without prejudice to their rights under the agreement of 1987. The developers failed to act as per the commitment under both the agreements. Therefore, respondent/Complainant approached the National Commission, which awarded a sum of Rs.9.51 lakhs in favour of the Complainant, with interest from the date of the agreement in 1991. Hon’ble Supreme Court of India upheld the decision of the National Commission observing that since rights under the agreement of 1987 had not been given up, the developer was under continuing obligation to provide a flat to the Complainant. It was observed that:-
“11. In the instant case, the rights under the original contract were not given up as it was specifically provided in the subsequent contract that the rights under the old contract shall stand extinguished only on payment of the entire amount of Rs.9,51,000. Since the amount was not paid the appellants as stipulated by the subsequent contract, the rights under the original contract were still available to the respondents and they could legally claim enforcement of those rights. Obviously, under the original contract, the appellants were under an obligation to provide a flat to the respondents. This right would come to an end only when the appellants had, in pursuance of the subsequent contract, paid the entire amount of Rs.9,51,000 to the respondents. Since they had not done so, the respondents could legally invoke the provisions of the earlier contract and claim before the Commission that there was “deficiency in service” on the part of the appellants.”
5. The above facts stand on a very different footing from those in the matter before us. It has been argued by the respondent counsel that no novation of contract was involved. In fact, alternative facility, offered at other locations, had also been availed by the appellant. Therefore, it was contended that the question of refund would not arise.
6. Learned counsel for the respondent also relied upon the decision State of Kerala Vs. T.M. Chacko, (2000) 9 SCC 722. This was a matter in which the respondent, as a successful bidder in auction, had acquired a right to collect and remove the forest produce from the given area, on or before 31.3.1974. Only a part of it had been collected by him when fire broke out on 21.2.1974 and destroyed the remaining uncollected forest produce in the concerned area. On the representation of the respondent to reduce the bid amount on the ground of the fire, the Forest department granted him further time of 45 days to remove the produce. The respondent neither removed the produce nor paid the balance bid amount. The Government cancelled the contract and ordered auction at the risk and loss of the respondent. The respondent filed a civil suit claiming compensation and refund of the bid amounts. The trial court and the High Court both came to the conclusion that the suit was not barred by limitation as the appellant, State of Kerala, had acknowledged the liability, in the concerned two communications, one rejecting the prayer for remission of balance of the bid amount and the other communicating confiscation of the un-removed forest produce.
7. The Supreme Court disagreed with the above view and allowed the appeal of the State of Kerala. It was held that for treating a writing signed by the party as an acknowledgment, the person acknowledging must be conscious of his liability and the commitment should be made towards that liability. In this case, neither the claim for refund of the bid amount was under consideration of the department of Forest nor could the two communications from the department of Forest be treated as acknowledgment of the liability under the refund claim of the respondent. Hon’ble Supreme Court therefore, rejected the contention that in view of the fact that period to perform the contract had been extended by the State of Kerala till 10.8.1974, the failure date i.e. the date for seeking refund should also be taken as extended till 10.8.1974.
8. We need to consider the case of the appellant/ Tolani Shipping Company, in the light of the two decisions of Hon’ble Supreme Court of India detailed above. The cause of action, as rightly pointed out by the State Commission, arose on 27.2.2002 when the appellant/Complainant wrote to the respondent/Sterling Holidayh Resort (I) Ltd. that :-
“As per the terms and conditions of the Time Share Agreement you are liable to pay to us liquidated damages for delay in providing the holiday resort at Lonavala.
Under these circumstances, we hereby demand payment of the principal sum of Rs.28.00 lakhs besides liquidated damages of Rs.30.00 lakhs computed at 18% per annum and compensation of Rs.10.00 lakhs aggregating to Rs.68.00 lakhs.
It is very disparaging to note that instead of developing the resort at Lonavala your Company is adopting ways and means to hoodwink the customers.
We are not agreeable to the allotment at “Kodai Valley View” resort and we once again demand the amount of Rs.68.00 lakhs, failing payment of which, appropriate proceedings for recovery of amount and winding up of the company will be adopted at your risk and consequences.”
9. As seen from the record, this was followed by correspondence between two sides but the consumer complaint came to be filed only in 2011, not within the period two years computed from the letter of 27.2.2002. The appellant has sought to rely upon the letter of 8.9.2010 written to it by the respondent, discussed earlier in this order. Clearly, this letter does not even mention the claim for refund and interest thereon. Therefore, in our view, this letter cannot be treated as acknowledgment of a liability of Rs.68 lakhs, the issue raised in the Complainant’s letter of 27.2.2002. Therefore, the question of cause of action having continued from 27.2.2002 till 8.9.2010 or having arisen again on the later date, would not arise at all.
10. In conclusion, we find ourselves in complete agreement with the view of the State Commission that the complaint filed on 29.8.2011 is barred by limitation. Consequently, the First Appeal No. 430 of 2012 is held to be devoid of any merit and is dismissed as such. No order as to costs. | 
