Mr. Justice S.S. Chadha, Member—This First Appeal is directed against the Order dated 16.2.95 passed by the Goa State Commission in Complaint Case No. 58/93 directing the opposite party, Appellant herein to pay the balance amount of Rs. 15,050/- together with the interest at the rate of l8% on the sum of Rs.41,000/-from 2.5.84 upto the date of full payment and interest at the rate of 18% on Rs. 15,000/- from 28.5.93 till the date of payment.

2. The filing of the appeal is delayed by a period of 7 days and it is accompanied by an application supported by an affidavit for condonation of delay in filing the appeal. It is deposed that the Appellant entrusted all the relevant documents in the case to his local Counsel Mr. K.V. Vyas for taking steps for filing the appeal before the National Commission but the Counsel fell ill and could not take timely action and subsequently died on 23.6.95 at Goa. As there is no fault on the part of the Appellant and there is no inaction, the delay is condoned. The appeal is entertained.

3. The complainants have also filed cross objections which according to the consistent view by this Commission, are not maintainable and are hereby rejected.

4. The facts may briefly be noticed. The Appellant herein is carrying on construction activity under the name and style of M/s. Kavita Housing Construction. According to the complainants they entered into an agreement on 7.4.84 with the opposite party for the purchase of a flat admeasuring 63m2 in the ground floor of the building to be identified as Kavita Housing Complex proposed to be constructed for a consideration of Rs. 1,26,000/- out of which an amount of Rs. 10,000/- was paid on 2.4.84 and another sum of Rs. 31,000/- was paid on 2.5.84. The possession of the flat was agreed to be delivered within 24 months after the commencement of construction, but the date of commencement has not been specified in the agreement. Subsequently the parties entered into another agreement on 2.10.87 by which the complainants agreed to purchase a Duplex Bungalow admeasuring 80m2 in Caranzalem, another scheme of construction proposed by the opposite party for a consideration of Rs. 2,35,000/- and the possession was to be delivered within 15 months of the commencement of the construction. According to the complainant the Bhoomi Puja was performed in October, 1987 and once again on 24.3.93 where after they said Rs. 5,000/- on 31.3.93 and Rs. 10,000/- on 25.5.93 making a total payment of Rs. 56,000/-. The complainants alleged that the opposite party failed to commence the construction and wanted the complainant, to execute one more agreement for another flat in another scheme of the opposite party but the complainants refused and called upon the opposite party to deliver possession of the flat under the agreement dated 2.10.87. The complainants alleged that as the opposite party neglected and failed to perform the service of construction and handing over the possession of the flat, they are guilty of deficiency in service.

5. The opposite party in its written version before the State Commission admitted the execution of the agreement dated 7.4.84 by them with the complainants for the flat for construction for Rs. 1,26,000/- as also the second agreement signed by the parties on 2.10.87. It is however, stated that the complainants did not keep up their commitments in terms of payment as agreed with the result the agreement was cancelled for non-performance of the payment schedule. It is further alleged that the opposite party on completion of the land development somewhere in 1991 informed the complainants to accept a single bed room flat on first floor of Flat No. 1 which was approved by the authorities in February, 1991 and construction was about to be started in 1993 but the complainants did not agree and insisted for a two bed room apartment. Thereafter, according to the opposite party, they started construction work in S. No. 71/6 and offered the complainants a flat at the