9911796707
TMI Blog1999 (8) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 9,51,000 in lieu of the flat in three installments on or before 30.5.1991 as under: 3. The respondents had entered into a fresh agreement with the appellants without prejudice to their rights under the earlier agreement dated 27.1.1987. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27th of January, 1987 would remain unaffected. 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. 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 ₹ 9,51,000 to the respondents. Since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated "c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciency in service. 8. This plea has been rejected by the National Commission by placing reliance upon the decision of this Court in Lucknow Development Authority v. MM Gupta AIR1994SC787 . 9. We have already held above that the rights under the earlier agreement of 1987 were kept alive even after the second agreement. The rights under the first agreement had not been given up and there was no substitution of the earlier agreement in its entirety by the new agreement. 10. We may, at this stage, refer to the provisions of Section 62 of the Indian Contract Act which provides as under: If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. 11. This p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount of ₹ 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. 14. We may also point out that the appellants had filed only a written statement before the Commission but had not produced any evidence in support of their pleas. Even an affidavit in support of what they had stated in the written statement was not filed before the Commission. Their case, thus was not supported by any evidence and the Commission, in the facts and circumstances of the case, was justified in decreeing the claim of the respondents. 15. Learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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