O R D E R  

 PRESIDENT  

1)        By this complaint the Complainant has prayed that the Opposite Party be directed to pay Rs.16,00,000/- by way of damages/compensation.  It is also prayed that the Opposite Party be directed to offer the Complainants regular apartment at Lonawala to prevent and stop recurring mental tension and agony.  The Complainants have further prayed that the Opposite Party  be directed to pay the complainants Rs.2,16,480/- including interest thereon as per clause 24 of the Agreement at Exh.‘A’ to the complaint.  

2)        According to the Complainants, the Complainants and the Opposite Party entered into an agreement dtd.20/05/1995 known as Sterling Vacation Time Share Agreement for Lonawala Regular Apartment. The copy of which is marked as Exh.‘A’.  It is submitted that the Complainants have paid Rs.66,000/- as per agreed terms.  It is submitted that the Opposite Party failed and neglected to provide any vacation time sharing facilities at Lonawala Regular Apartment as agreed.  It is the case of the complainants that instead of it the Opposite Party offered holiday apartment at Kodaikanal, Manali Yeargaud and such other distant places.  The copy of the said letter of the Opposite Party dtd.01/03/02 is marked as Exh.‘B’.  It is stated that the Complainants thereafter kept on reminding the opposite party regarding Lonawala Regular Apartment as agreed.  However, the Opposite Party did not provide it and it created mental tension and agony to the complainants.  It is submitted that the Complainants could not get the facility from the Opposite Party of Lonawala Regular Apartment as intended and desired by them.  It is alleged that the same is deficiency in service on the part of the Opposite Party.  It is submitted that on the other hand the Opposite Party forwarded debit notes dtd.02/04/07 and 22/12/07 for Rs.6,875/- and Rs.8,250/- to the complainants respectively.  The copies of which are at Exh.‘C’ & ‘E’. The Complainants also issued notice to the opposite Party as per Exh.‘D’ dtd.02/07/07.  The Opposite Party did not send reply to the said notice nor offered the payment as claimed by the Complainants vide notice dtd.02/07/07.  It is alleged that the Opposite Party is liable to pay damages as per clause 24 of the Agreement at Exh.‘A’ as the Opposite Party did not complete construction as per agreement and also liable to pay damages at 18% p.a. on the said amount.  The Complainants have alleged that they had paid Rs.66,000/- to the Opposite Party and the Opposite Party is liable to pay interest @ 18% p.a. from 01/01/96 onwards.  The said amount comes to Rs.1,50,480/- upto 26/08/08.  According to the Complainants as there is deficiency in service and cheating by the Opposite Party, the same is liable to pay damages and indemnify Complainants for mental tension and agony caused to them and also caused cruelty by sending debit notes as referred above and therefore, the Opposite Party is liable to pay sum of Rs.16,00,000/- by way of damages/compensation.  It is alleged that the complaint is filed within the period of limitation from the last letter of debit note dtd.22/12/07 which was received by the Complainants on 08/02/2008.  It is thus, submitted that the complaint be allowed as prayed in para one of this order.  

3)        The Opposite Party contested the claim by filing written statement.  It is admitted that the Complainants are members of the Opposite Party.  It is submitted that as per the terms and conditions the complaints were asked to enjoy their holidays from the beginning itself but the complaints refused to enjoy their holidays for their own reasons.  It is submitted that when the Resort at Lonawala was functioning as per the Membership Annual Amenity Charges were asked from the complainants and they refused to pay for their own reasons. It is contended that 18% compensation cannot be paid as alleged by the Complainants. According to the Opposite Party, if any alternative facilities are not provided to the Complainants at Lonawala as per their written requests for their birth week then only 18% compensation is liable to be paid to them.  The Opposite Party contended that as per the Consumer Protection Act, 1986 (Referred to as the Act), the complainants ought to have filed the complaint within 2 years from the date on which the cause of action has arisen.  The membership of the Complainants started from the year 1996 from their Lonawala Resort, they should have filed the compliant within limitation period as per the Act.  They have filed the present complaint after 12 years. In the year 2002, the Opposite Party started equivalent facility at Lonawala as per the terms of the agreement.  The Opposite Party sent circulars and raised debit notes and all the members requesting them to pay the annual amenity charges to enjoy the holidays.  The Complainants should have filed the compliant within 2 years of when they were asked to pay the said charges for enjoying the holidays in the year 2002.  It is denied that the Opposite Party failed to observe the terms and conditions at Exh.‘A’. It is denied that there is deficiency in service on the part of the Opposite Party and the Complainants are entitled for damage and compensation of Rs.16,00,000/- and entitled for Rs.2,16,480/- as claimed.  It is contended that the complaint is time barred and is liable to be dismissed with cost as provided under Sec.26 of the Act.  

4)        The Complainant has filed rejoinder, affidavit.  The Opposite Party did not file the affidavit.  Both the parties filed their written argument. We heard the Ld.Advocate Shri. M.A. Shukla for the Complainants and Shri. Shashant Thatte for the Opposite Party. The Ld.Advocate for the Complainants made submission that as per the Agreement at Exh.‘A’ it is agreed by the Opposite Party that the facilities mentioned in the said agreement will be provided to the Complainants upto the year 2094 from the year 1996.  He also drew our attention to clause No.24 of the Agreement at Exh.‘A’ and submitted that as the Opposite Party did not provide Resort at Lonawala as agreed at Exh.‘A’ and thereby the Opposite Party has committed default in providing the services to the Complainants.  He therefore, made submission that the Opposite Party is liable to pay damages/compensation and the reliefs as claimed in the complaint.  He made submission that the Opposite Party has issued debit note as the Exh.‘C’ & ‘E’ and therefore the complaint is within limitation. In support of his submissions he relied the judgments in the case of Ramesh Chaudhari – son of Sh. Kesardas V/s Sterling Holiday Resort, decided by the Hon’ble State Commission of Chandigarh in First Appeal No.993/2006 dtd.29/04/2011 and Ramanandha Raju  Alluri V/s. Managing Director, Bush Betta Resort Management Co. decided by the Hon’ble State Commission, Hyderabad in First Appeal No.903/2008, decided on 05/07/2010 and submitted that the claim made by the Complainants is liable to be granted as prayed for.   

5)        The Advocate for the Opposite Party Shri. Thatte made submission that the Complainants by their letter dtd.22/02/02 which is filed on record have specifically informed the Opposite Party that for many years have already passed the Complainants did not hear anything regarding the progress made in the construction of Holiday Resort.  The Complainants have further informed that they have not so far availed of any benefits as per the said agreement and now they are not interested in the project of the Opposite Party and demanded return of the amount of Rs.66,000/- with interest at 18% p.a. on the said amount from the date of payment.  He thus, submitted that the claim made by the Complainants in view of the aforesaid letters cannot be said within limitation as the complaint is filed on 01/09/08 i.e. more than 2 years from the demand made in the aforesaid letter dtd.22/02/02.  In support of his submission he relied on the judgments as follows –

            1.  M/s. Tolani Shipping Co. Ltd. V/s. Sterling Holiday Resort (I) Ltd.  Complaint Case No.11/224, decided by the Hon’ble Maharashtra State Commission.

            2.  Tolani Shipping Co. Ltd. V/s. Sterling Holidays Resort (I) Ltd., reported in III (2013) CPJ 389 NC.

            3. The Managing Director, Sterling Holiday Resorts (India) Ltd. V/s. Amita Poddar, First Appeal No.09/135, decided by the Hon’ble State Commission West Bengal on 20/11/2009 and submitted that as observed in the aforesaid judgments as the complaint is not filed within 2 years from 2002, the complaint is liable to be dismissed.  

6)        While considering the objection raised by the Opposite Party that the complaint is barred by limitation it must be taken into consideration that the Complainant by letter dtd.22/02/2002 made the demand of return of amount of Rs.66,000/- with interest @ 18% p.a. from the date of payment to the Opposite Party.  This letter of 2002 is required to be taken as the date on which cause of action accrued to the Complainants.  The Opposite Party upon receipt of the said letter did not make compliance for the demand made by the Complainants and from that date within 2 years this complaint should have been filed but this complaint came to be filed on 01/09/2008 alleging that since Time Share Agreement permitted to the Complainants to use Holiday Resorts as per membership given to them by the Opposite Party upto 2094, the Complainants are having continuing cause of action and therefore, it is within limitation. It is pertinent to note that we should not forget the letter dtd.22/02/2002 sent by the Complainants to the Opposite Party wherein demand for return of Rs.66,000/- besides that 18% interest per annum on the said amount from the date of payment was made and it was not paid at all by the Opposite Party.  Therefore, in our view the Complainants should have filed consumer complaint within 2 years from 22/02/2002 and since it was not filed in the year 2004 and it is filed for the first time on 01/09/2008 in our view the complaint as filed by the Complainants is absolutely barred by limitation.  The Hon’ble State Commission of Maharashtra in Complaint Case No.11/224 decided on 03/05/2012 has taken the same view and dismissed the complaint filed by M/s. Tolani Shipping Co. Ltd. on the similar grounds.  The said decision of the Hon’ble State Commission, Maharashtra appears to have been challenged before the Hon’ble National Commission and the Hon’ble National Commission also upheld the judgment and order of the Hon’ble State Commission of Maharashtra.  In our view, though the Opposite Party sent some debit notes thereafter as per Exh.‘C’ & ‘E’ that would not extend the period of limitation as the same are not the acknowledgments of the dues or the demand made by the Complainants.  The authorities relied by the Advocate for the Complainants cited supra in our view cannot be said applicable to the facts of this case as the same are on different footings.  Furthermore, the Hon’ble State Commission of West Bengal in First Appeal No.09/135 cited supra have also held that as the Opposite Party had failed to provide the Time Share facility within the stipulated period and the complaint is filed in the year 2007 could not be based on such cause of action of 1998.  It is therefore, held that there was no deficiencies on the part of Opposite Party in the facts of the case which had arisen within the period of limitation requiring consideration on the present complaint.  Considering the identical facts of the present complaint and the aforesaid judgments relied by the Opposite Party we hold that the submission made by the Ld.Advocate for the Complainant for grant of claim in the complaint are devoid of merits.  In the result we hold that the complaint is liable to be dismissed as the same is barred by limitation.  We therefore, pass the following order – 

O R D E R

i.                    Complaint No.162/2008 is dismissed with no order as to cost.

ii.                 Certified copies of this order be furnished to the parties.