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TABLE OF CONTENTS

1. List of Abbreviations -----------------------------------------------------------------2

2. Index of Authorities-------------------------------------------------------------------3
Statutes-----------------------------------------------------------------------------------3
Cases--------------------------------------------------------------------------------------3
Books Referred--------------------------------------------------------------------------3
Dictionaries ------------------------------------------------------------------------------3
3. Statement of Jurisdiction--------------------------------------------------------------4

4. Statement of Facts---------------------------------------------------------------------5-6

5. Issues Raised ----------------------------------------------------------------------------7

6. Written Submission----------------------------------------------------------------10-15

7. Prayer ------------------------------------------------------------------------------------16

LIST OF ABBREVIATIONS

----------------------------------------------------------------------------------------------------------------- Section
---------------------------------------------------------------------------------------------------------------- Paragraph
& ----------------------------------------------------------------------------------------------------------------and
%--------------------------------------------------------------------------------------------------------------- Percentage
AC ----------------------------------------------------------------------------------------------------------Appeal Case
AIR--------------------------------------------------------------------------------------------------- All India Reporter
Edn-------------------------------------------------------------------------------------------------------------- Edition
i.e. ---------------------------------------------------------------------------------------------------------------That is
Ltd. -------------------------------------------------------------------------------------------------------------- Limited
MANU-------------------------------------------------------------------------------------------------------Manupatra
Ors. -------------------------------------------------------------------------------------------------------------- Others
p. ----------------------------------------------------------------------------------------------------------------- Page
Para.
------------------------------------------------------------------------------------------------------------Paragraph
Pvt. --------------------------------------------------------------------------------------------------------------- Private
SC ---------------------------------------------------------------------------------------------------------Supreme
Court
Sec ---------------------------------------------------------------------------------------------------------------Section
SCR -------------------------------------------------------------------------------------------Supreme Court
Reporter
V. ---------------------------------------------------------------------------------------------------------------- Versus
Vol. ---------------------------------------------------------------------------------------------------------------Volume
Co.
---------------------------------------------------------------------------------------------------------------Company

Act ------------------------------------------------------------------------------ the consumer protection


act

INDEX OF AUTHORITIES AND STATUTES

- Indian Contract Act, 1872.


- The Consumer Protection Act, 1986
-Constitution of India, 1950.

BOOKS REFERRED

- Mulla Dinshah Firdunji, The Indian Contract Act, Lexis Nexis Buttersworth, Wadhwa, (13th

edn).
- Chitty on Contracts.

DICTIONARIES

- The Concise Oxford English Dictionary, Oxford University Press (10th Edn. 1999).
- Blacks Law Dictionary, 9th Edition.

STATEMENT OF JURISDICTION

The petitioner humbly submits before the Honble Supreme Court, the memorandum .This
appeal is directed against the judgement and order dated 22nd November, 1995 passed by the
National Consumer Disputes Redressal Commission, New Delhi (for short, 'the National
Commission') in favour of respondents.

The present memorandum sets forth the facts, issues and arguments in the present case of Lata
Construction & Ors vs Dr. Rameshchandra Ramniklal Shah .

STATEMENTS OF FACTS

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:- 1. Rs. 3,00,000/- - on or before
20.3.1991 2. Rs. 3,00,000/- - on or before 20.4.1991 3. Rs. 3,51,000/- - on or before

30.5.1991.
Since the appellants did not honour the commitments 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. Another sum of Rs.
1,00,000/- was allowed as compensation for pain and suffering undergone by the
respondents. The Commission also allowed a sum of Rs. 10,000/- to the respondents as
costs of the proceedings.

ISSUES RAISED
The points, in the main, therefore, that arise for adjudication are :
1. Is the claim contended by the respondents before the commission was within the time
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') ?

2. Whether respondents have the right to claim petition before the commission for the
compensation on the ground of "deficiency of service" , since 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 compensation
for the flat not having been provided to them under the earlier agreement ?
3. Is the contract that was agreed upon was of public in nature or not?

ARGUMENTS ADVANCED
1. Is the claim contended by the respondents before the commission was within the time 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') ?
:-- The appellants who were developers, had promised, under a written agreement dated
27.1.1987, to provide a flat to the respondents. 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 agreeement 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:1. Rs. 3,00,000/- - on or before 20.3.1991 2. Rs. 3,00,000/- - on or before 20.4.1991 3. Rs.
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.But the appellants did not
honour the commitments under both the agreements.
Since the appellants did not honour the commitments 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. Another sum of Rs. 1,00,000/- was allowed as compensation for pain and
suffering undergone by the respondents. The Commission also allowed a sum of Rs. 10,000/- to
the respondents as costs of the proceedings.
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').

Section 24A in the Consumer Protection Act, 1986


91

[24A. Limitation period.

1. The District Forum, the State Commission or the National Commission shall not admit a
complaint unless it is filed within two years from the date on which the cause of action has
arisen.
2. Notwithstanding anything contained in sub-section (1), a complaint may be entertained after
the period specified in sub-section (1), if the complainant satisfies the District Forum, the State
Commission or the National Commission, as the case may be, that he had sufficient cause for not
filing the complaint within such period: Provided that no such complaint shall be entertained
unless the National Commission, the State Commission or the District Forum, as the case may
be, records its reasons for condoning such delay.]

It is contended that since the respondents had entered into a fresh agreement with the
appellants under which the entire amount of Rs. 9,51,000/- 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.

2. Whether respondents have the right to claim petition before the commission for the
compensation on the ground of "deficiency in service" , since 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 compensation for the flat not
having been provided to them under the earlier agreement ?
It was contended by the appellants 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 compensation for the flat not having been provided to them under the
earlier agreement, they could only approach the civil court for recovery of that amount but could
not legally institute the claim petition before the Commission for compensation on the ground of
"deficiency in service."

In June, 1988 when the respondents returned from Libya,on their 2 nd visit to India to take the flat
on basis of written agreement dated 27.1.1987, to provide a flat to them 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.
The respondents after this visit could have filed a petition at this time for the deficiency in
service against the appellant but they never did.
What is meant by deficiency in service - Section 2(1)(g) of the Act provides that,
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.
Reading the above definition by breaking it into elements, we get
(a) Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance.
(b) Such quality and manner of performance of service should have been required to be
maintained by or under any law for the time being in force or undertaken to be performed
by a person in pursuance of a contract or otherwise.

(c) The deficiency must be in relation to a service - The words ....in relation to any service in
the definition signifies that the deficiency is always in terms of service. Thus if the grievance
pertains to a matter which does not fall in the definition of service, the concept of deficiency
would not apply.
3. Is the contract that was agreed upon was of public in nature or not?
The ambiguity of whether the contract was of private or public nature remains unresolved as the
expression contract of personal service is not defined under the Act. In common parlance, it
means - a contract to render service in a private capacity to an individual. The idea is that under a
personal service relationship, a person can discontinue the service at any time according to his
will, he need not approach Consumer Forum to complaint about deficiency in service.
There are two types of personal contract contract of personal service and contract for personal
service. In case of contract of personal service, the service seeker can order or require what is
to be done and how it should be done. Like a master can tell his servant to bring goods from a
particular place. And in a contract for personal service, the service seeker can tell only what is
to be done. How the work will be done is at the wish of the performer. Like when a person gives
a suit to the tailor for stitching, he does not tell him which method he should use to stitch it.
Note: That it is contract of personal service is excluded from the definition of service,
contract for personal service is recognized as service under the Act.

PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:
1.That the claim contended by the respondents before the commission was not within the time
as it was filed beyond the period of two years prescribed under Section 24-A of the Consumer
Protection Act, 1986 .
2. That the respondents dont have the right to claim petition before the commission for the
compensation on the ground of "deficiency of service" , since 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 compensation for the flat not having been
provided to them under the earlier agreement.
3. That the contract that was agreed upon was of public in nature or not.

And pass any such order, writ or direction as the Honorable Court deems
fit and proper, for this the appellants shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY


SUBMITTED

COUNSEL FOR THE APPELLANTS


RATNESH KUMAR PANDEY
SEMESTER I
SECTION C

ROLL NUMBER 118