BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 490 OF 2013 AGAINST C.C.NO.428 OF 2011 DISTRICT CONSUMER FORUM-II HYDERABAD
Between
- M.Gopala Swamy S/o M.Narayan Rao
Aged about 58 ears, Occ: Retd. Defence Personnel
R/o H.No.141/1, Prashanth Nilayam, Road No.17,
Green Park Colony, Saroornagar Post,
Hyderabad-500 035
(Died rep. by his Legal Heirs
- Smt M.Anuratha W/o late M.Gopala Swamy
Aged about 60 years, Occ: Housewife
R/o H.No.141/1, Prashanth Nilayam, Road No.17
Green Park Colony, Saroornagar Post,
-
- Smt Aruna Latha K D/o late M.Gopala Swamy
Aged about 41 years, H.No.1-1-18, Old Alwal
- M.Kalaish Raj S/o late M.Gopala Swamy
Aged about 38 years, R/o H.No.141/1
Prashanth Nilayam Road No.17, Green Park
Colony, Saroornagar Post,
-
- Hema Nalini C D/o late M.Gopala Swamy
Aged about 36 years, H.No.12-15-996
Manikeshwari Nagar, University, Tarnaka
-
- M.Amar Raj S/o late M.Gopala Swamy
Aged about 36 years, Occ: C-141 Rd.No.17
Green Park Colony, Saidabad, Hyderabad
(Appellants No.2 to 6 were impleaded as LRs
As per the orders in I.A.No.1650/2014 dt.24.04.2017)
Appellants/complainants
AND
- The Senior Manager
Country Vacations & Country Club
D.No.3-6-12/13, 4th Floor, Al Samad Bldg.,
Himayatnagar, Hyderabad-500029
- The Country Club (India) Ltd.,
Rep. by its Managing Director
D.No.6-3-1219, Begumpet,
Respondents/opposite parties
Counsel for the Appellants M/s V.Gourisankara Rao
Counsel for the Respondents M/s S.Rajesh Jaiswal
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE TWENTY THIRD DAY OF APRIL
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the complainant dissatisfied with the orders dated 08.03.2013 of the District Forum-II, Hyderabad made in C.C.No.428 of 2011 in dismissing the complaint.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the Complainant in the month of March 2005 received a call from the representative of the opposite parties who informed that he won a gift and asked to visit along with his wife to the opposite party on 20.03.2005 at Amrutha Castle Hotel and collect the gift. Accordingly the complainant visited Amrutha Castle where the representatives of opposite party lured the complainant no.1 stating that if he joined their club he would get the facilities viz., 50% of flight charges if they travel out of country, free accommodation for one week any where in the world and free transportation from airport to the hotel and they forced the complainant no.1 to deposit an amount of Rs.40,000/-. Thereafter the representative of the opposite party compelled the complainant no.1 to purchase plot by paying Rs.1,10,000/- and accordingly the complainant no.1 paid the same. On receipt of the said amount the opposite party did not allot any plot. On repeated requests the opposite party has registered a plot No.1107 admeasuring 1089 sq.ft at Sheebi AGrahara Village, Karnataka through the Gift Deed. The opposite party instead of allotting a plot at the resort of opposite party near Hyderabad they registered the said plot in Karnataka State. The complainants submitted that as a member the complainant no.1 never benefited from the opposite party club by availing facilities which were promised by them. Hence, the complainant no.1 filed the complaint praying to direct the opposite parties to pay Rs.1,60,000/- with interest and costs.
4. The opposite parties resisted the case and contended that the complaint is not maintainable. The complaint is barred by limitation as the complainant filed the complaint on 07.04.2011 i.e., after 5 or 6 years of the cause of action. The complainant no.1 himself has become the member of the country club voluntarily and paid the membership fee on his own interest and no body forced him to become the member of the club and the plot was registered as a gift to the complainant on becoming a member of the club. Club membership card was also issued to the complainant and the complainant is not entitled for the refund of any amounts as claimed in the complaint. There is no agreement or any contract for the refund of the club membership fee paid by the complainant to the opposite parties on any ground. Hence, the opposite parties prayed for dismissal of the complaint.
5. In proof of his case, the complainant no.1 filed his evidence affidavit and got marked Ex.A1 to A12. On behalf of opposite parties, the Manager and the authorized signatory has filed his evidence affidavit and no documents have been marked.
6. The District Forum after considering the material available on record, dismissed the complaint bearing CC No.490 of 2013 by orders dated 08.03.2013 as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite party no.1 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The complainant contended that the opposite parties contrary to allotting plot at Hyderabad allotted the plot in Karnataka State after collecting the amount of Rs.1,50,000/-. The complainant have not utilized the benefits of the membership. During the pendency of the complaint, the opposite parties gave an assurance to the complainant that they would refund the amount in 3 installments but failed to pay the same. Therefore, the complainants prayed to set-aside the order of the District forum and appeal be accepted.
8. Counsel for the appellant and Mr.C.M.Sridhar, Asst. Manager (Legal) of opposite party no.1 who also represents on behalf of the opposite party no.2 were present and were heard. Written arguments of the respondent/complainant filed.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
Top of Form
10. At the outset it is to be noted that, the Opposite Parties have contended that the claim of the Complainant is barred by limitation. As per Section 24-A of the Act, 1986 the period of 2 years is prescribed for lodging a complaint from the date on which the cause of action has arisen to a complainant. In the present case the Membership Purchase Agreement was entered into between the parties on 20.10.2005 and the present complaint was filed on 07.04.2011. In this regard, it is to be noted that, after the agreement the Opposite Parties allotted a complementary plot to the complainant in the month of May, 2007 and that thereafter the Complainant had booked for accommodation for 22.12.2006 to 29.12.2006 and 26.12.2006 to 03.01.2007 but the Opposite Parties failed to provide the said facilities. Thereafter when the Complainant found the complementary plot not in-accordance with the promises made by the Opposite Parties, they started correspondence by addressing letters to the opposite parties. Even otherwise the Purchase Agreement dated 20.20.2005 is for a period of 30 years. When these dates are taken into consideration with the date of filing of the complaint, in our considered opinion, it is a continuing cause of action. Therefore, it cannot be said that the complaint was barred by limitation.
11. Further, during the pendency of the complaint, the complainant no.1 wrote a letter dated 13.8.2012 to the opposite parties requesting them to take back the plot given by them to him and pay the amount paid by him. He also agreed to give permission to the opposite parties for deduction of registration charges towards conveyance of the gift deed in favour of the company. The opposite parties on the said letter at the bottom of the same endorsed by mentioning as under:
Dear Sir, As per company norms the formalities are going to be completed around 90 working days of time. Once plot is registered on Company name the formalities are going to be completed which are going to be fulfilled in three installments.
12. The said endorsement was dated as 13.08.2012 was signed by the representative of the opposite parties and also bear the stamp of the opposite parties. The opposite parties themselves agreed to take back the plot and refund the amount in three installments during the pendency of the complaint and now taking different stand that the complaint is barred by limitation is not sustainable. But, unfortunately the learned District Forum did not consider this aspect in the impugned order. However, this being a mixed question of law and fact, it can be agitated and considered even in the appeal and in our view there is no need to remit back the matter to the District Forum for the said purpose when no additional evidence is necessary to consider it. Therefore, we thought it just and expedient to deal with the point in the present appeal.
13. It is not in dispute that the Complainant paid a sum of Rs.1,50,000/- on different dates in the year 2005 towards membership fees and also towards cost of the plot as evidenced by Exs.A1 to A4. It is also not in dispute that the opposite parties issued executed Purchase Agreement dated 20.10.2005. The case of the complainant no.1 is that he joined as a member in the opposite parties club as they promised to provide facilities like discount of 50% flight charges in international flights, free accommodation for one week anywhere in the world and also free transportation from airport to the hotel. The opposite parties also promised to allot plot in and around Hyderabad but contrary to that they allotted plot in Karnataka State.
14. On the other hand, the opposite parties contended that the complainant no.1 himself has become the member of the country club voluntarily and paid the membership fees on his own interest and nobody forced him to become the member of the club and the plot was registered as a gift to the complainant on becoming a member of the club. There is no agreement or any contract for the refund of the club membership fee paid by the complainant no.1 to the opposite parties on any ground.
15. The complainant no.1 after joining as a member addressed letter Ex.A8 to the opposite parties wherein it was mentioned that as assured by the representatives of the opposite parties the complainant no.1 sent his son to a foreign country but the opposite parties failed to provide the facilities as assured by them hence the complainant no.1 requested for refund of the amount. It is also mentioned in the letter which reads as under:
Again when I contacted for an accommodation for 22-12-2006 to 29.12.2006 and 26.12.2006 – 03.01.2007 I was denied saying NO VACANCY and always deprived of my entitlement, even during 2005 also. If this is the case then what is the benefit of taking membership. I have lost financially. The plot assured by you also not registered so far. Without allotting neither an accommodation nor any facility, I was asked to pay maintenance charge of Rs.3,000/-. I don’t understand the logic behind it. In case it is not possible, please refund of my money i.e. Rs.1,60,000/- (150000+10000/- for registration of plot). I have never visited your club so far.
16. The complainant no.1 addressed a letter dated 22.01.2009 to the opposite parties reiterating the contents mentioned in the above said letter and also a reminder dated 13.03.2009. Though the opposite parties received said letters but failed to give any reply to the said letters. Further, the opposite parties stated to have been given a plot in Karnataka State as a gift to the complainant no.1 but the complainant no.1 stated that the representatives of the opposite parties compelled him to purchase plot by paying Rs.1,10,000/- to the opposite parties. It is a common sense that if any person paid the amount towards the cost of the plot believing that the opposite parties should allot plot in the area where the complainant resides why should he agree for the plot which was given by the opposite parties in Karnataka State in a remote area. When the complainant no.1 requested several times about free accommodation, discount in flight charges, etc., and the opposite parties did not provide the same even though they promised to do the same. The opposite parties never cared to give any reply to the letters addressed by the complainant no.1. This lapse on the part of the Opposite Parties, in our considered opinion, certainly amounts to deficiency in service and that as such they are held liable to refund the amount of Rs.1,50,000/- as evidenced by Exs.A1 to A4 to the complainant with interest @ 9% per annum from the dates of respective payments which will meet the ends of justice.
17. In view of the above said discussion, we hold that the appeal is fit to be allowed by setting aside the order of the District Forum in the light of the above said observations. The point is answered accordingly.
In the result, the appeal is partly allowed setting aside the order of the District Forum and directed the opposite parties to refund Rs.1,50,000/- with interest @ 9% per annum from the dates of respective payments till the date of realization together with costs of Rs.5,000/-. The complainants are directed to execute the conveyance deed in respect of the plot in question in favour of the opposite parties on receipt of payment of the above said amount. The opposite parties shall bear the registration charges thereof. Time for compliance four weeks.
PRESIDENT MEMBER
23.04.2018
