Per Hon’ble Mr.P.N.Kashalkar, Presiding Judicial Member
This complaint has been filed by the complainant company -M/s.Tolani Shipping Co. against M/s.Sterling Holiday Resort (I) Ltd. alleging deficiency in service on their part. Complainant is the company. It had availed services of M/s.Sterling Holiday Resort (I) Ltd. and it had purchased Time Share Units from the opponent company for its employees for the location at Lonavala near Pune. Time Share purchases were made in 1995 and opponent company had agreed to provide the facility of right to stay in Twin/Regular/Compact Apartments in the allotted Holiday Resort, which would be constructed and made ready by January, 1996. Accordingly, M/s.Tolani Bulk Carrers Ltd. purchased 40 timeshare units of the opponent at their Holiday Resort at Lonavala by paying total consideration of `24,79,500/-. The said 40 Time Share units were transferred by opponent to the complainant in the year 1997 and 40 Time Share Certificates were issued by the opponent company in the name of the complainant company under the Common Seal of the opponent on 08/07/1997. Time Share Units gave facility to the employees of the complainant company to stay in Sterling Holiday Resort at Lonavala and this agreement was put in force right upto 2094-2095. However, it was found by the complainant company that the Holiday Resort at Lonavala was not constructed at all and the company failed to provide services as per Time Share Agreement. Time and again the complainant company requested them to provide accommodation for its employees at Lonavala, but the same was not provided by the Sterling Holiday Resorts by constructing such tenements. On finding that the company was dragging its fit by not constructing the Resorts at Lonavala, notice was given by M/s.Tolani Shipping Co. Ltd. on 27/02/2002 to the opponent company and by that notice complainant company called upon M/s.Sterling Holiday Resort (I) Ltd. that as per terms and conditions of the Time Share Agreement, they should have either provided accommodation at Lonavala or since they failed to provide accommodation as per Time Share Agreement, they should pay liquidated damages for the delay in providing the holiday resort at Lonavala. By the said letter they had demanded return of principal sum of `28,00,000/-, besides the liquidated damages of `30,00,000/- computed @ 18% p.a. interest and compensation of `10,00,000/- aggregating to `68,00,000/-. This letter was replied by letter dated 06/06/2002 by M/s.Sterling Holiday Resort (I) Ltd. and another letter dated 21/11/2002, where same promises were given to provide holiday resort at Goa and Kodaikanal but not at Lonavala. So opponent company had written to the complainant company to decide upon alternate property. Then again in 2004 letter was written by M/s.Tolani Shipping Co. asking the opponent company that temporary arrangement offered by them was not acceptable to them and once again they were called upon to pay them (complainant company) a sum of `80,00,000/- by its letter dated 29/01/2004.
There is another letter dated 24/07/2009 written by M/s.Tolani Shipping Co. Ltd. to M/s.Sterling Holiday Resort (I) Ltd. again asking for refund of `28,00,000/- with interest @ 18% p.a. within 10 days of receipt of this letter. This letter was sent on 24/07/2009. It was replied on 29th July 2009 by M/s.Sterling Holiday Resort (I) Ltd. All these letters are clearly showing that the complainant company was every now and then demanding back the amount of `28,00,000/- paid by them to purchase Time Share Certificates and every time reply was sent by M/s.Sterling Holiday Resort (I) Ltd. What we are finding that letter dated 27/02/2002 by M/s.Tolani Shipping Co. Ltd. to opponent company specifically mentions that since they had not constructed Sterling Holiday resorts at Lonavala, and since they were not giving Time Share facility at Lonavala to their employees, they were demanding payment of principal sum of `28,00,000/-, besides the liquidated damages of `30,00,000/- computed @ 18% p.a. interest and compensation of `10,00,000/- aggregating to `68,00,000/-.
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. So at the stage of admission itself, consumer complaint will have to be rejected being barred by limitation as it is not supported by condonation of delay application.
Another point was raised as to whether consumer complaint can be filed on the basis of Time Share Agreement entered into with M/s.Sterling Holiday Resort (I) Ltd. In the case of T.V. Sunderason & another v/s. M/s.Sterling Holiday Resort (I) Ltd., Hon’ble National Commission clearly held that dispute pertaining to ‘property time share’ which is subject matter of sale deed between holiday resorts and consumer, is maintainable and by allowing the appeal filed by original complainants, the National Commission has remanded the consumer complaint to State Commission for fresh consideration on merits. So we hold that though consumer complaint as filed by the complainant company is tenable in law and can be entertained, the complaint having not been filed within limitation, is required to be rejected. Hence the following order:-
ORDER
Consumer complaint stands rejected at the stage of admission itself.
Inform the parties accordingly.
Pronounced on 3rd May, 2012.
