O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Ops in brief is, that the second Op represented to him that they are the largest club chain in India and invited him to become its member offering membership together with Condos situated at Coconut Grove, Tumkur to be allotted at cost of Rs.13.00 lakhs. That he has in all paid Rs.8.00 lakhs and found at the spot where the site was offered to be allotted had not been improved that is layout formation was not done and finding the delay he addressed a letter to the Ops on 30/07/2009 demanding for refund of his money. That they were not even able to locate any sites or condos which were offered to be allot in favour of the members and finally they found that no immovable property was owned by Ops at Tumkur. The complainant referring to complaints filed by several members to the Ops in not forming layout has by attributing deficiency to the Ops in not keeping up their promise of providing sites and Condos and also in not refunding his money despite demands has prayed for a direction to Ops to refund Rs.8.00 lakhs paid by him with interest @ 24% p.a and also to direct the Ops to allot Condos and complementary sites measuring 1089 sq. ft and to award compensation of Rs.3.00 lakhs towards mental agony and hardship.<br /> <br /> Ops have appeared through an advocate and filed version contending that the allegations of the complainant are false and frivolous and the transaction being a commercial one, the complaint is not maintainable. The Ops further admitted to have been carrying on club activities and also admitted to had extended cool card membership to the complainant on his paying Rs.2.00 lakhs through cheque on 28/01/2007 and have empathetically denied payment and receipt of all other monies as alleged by the complainant. The Ops specifically admitted receipt of Rs.2.00 lakhs but denied the receipt of any other amounts and have contended that membership fee is not refundable and that complainant has not paid the balance amount and they on the complainant paying balance amount ready to hand over the Villa and to provide all other facilities as promised by them. The Ops further denying allegations of the complainant have prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaint, the complainant and one Vijay D.P. on behalf of Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. Complainant along with the complaint has produced Xerox copy of brochure of Op club, copies of few cheques alleged to had been given to the Ops, copies of few letters of Op. Ops have not produced any documents. We have heard the counsel for both parties and perused the records.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that there had been a contract or understanding between himself and Ops under which Ops had agreed to allot a site at Coconut Grove and develop it by constructing Condos and deliver possession to him and in that regard he has paid Rs.8.00 lakhs to the Ops.<br /> 2. Whether he further proves that the Ops have caused deficiency in their service in not providing the service as indicated above.<br /> 3. To what relief the complainant is entitled to?<br /> <br /> Our findings are as under:<br /> <br /> Point No.1 : In the negative<br /> Point No.2 : In the negative<br /> Point No.3 : See the final order<br /> <br /> REASONS<br /> <br /> Answer on point No.1 & 2 : The complainant has claimed that he after becoming cool card member of Ops, Ops had offered him membership together with Condos at Coconut Grove, Tumkur for a price of Rs.13.00 lakhs and in that regard till date he has paid Rs.8.00 lakhs but the Ops have not at all developed the site nor shown any progress in construction. The Ops as against this allegation in their version and also in the affidavit evidence admitted to have extended cool card membership of their club and have further admitted receipt of Rs.2.00 lakhs only through a cheque on 29/01/2007 and have empathetically denied the receipt of other payments as contended by the complainant and have made a specific denial of receipt of Rs.8.00 lakhs in all as on this day. In view of this categorical stand of the Ops, the complainant is required to prove the allegation and discharge, the burden caste on him under point No.1 raised for determination.<br /> <br /> The complainant except making this allegation has not at all produced even a piece of paper leave alone any agreement or Memorandum of Understanding or an undertaking of the Ops to provide him a site and then put up construction on it and deliver possession to him for a total cost of Rs.13.00 lakhs. Of course, Ops in the version and also in the affidavit evidence after admitting receipt of Rs.2.00 lakhs have admitted to had agreed to provide plots or villa on payment of the balance amount by the complainant. The Ops here have not stated about the agreed amount. Further, Ops have stated that they are already to hand over the Villa on payment of balance amount. As against this the complainant is required to prove that he had paid the balance amount to the Ops.<br /> <br /> The complainant along with the complaint as stated by us above has produced a Xerox copy of a cheque alleged to had been issued in favour of one Hema Prasad and it is not clear who is that Hema Prasad to whom that cheque was issued and also not proved whether this cheque amount of Rs.5.00 lakhs is debited to his account and gone to the account of the Ops. The complainant has also produced another Xerox copy of the cheque drawn for Rs.50,000/- issued in favour of Country Club. The Ops have denied the receipt of this payment. Similarly the complainant has not proved this payment also by producing any another document in support of it. Then he has produced a Xerox copy of the letter which is in letter head of OP alleged to had been issued by Senior Manager of Op Club acknowledging Rs.5.00 lakhs showing the balance of Rs.8.00 lakhs. Then he has produced two more Xerox copy of cheques both drawn on 29/12/2007 payee name is left blank and here again the complainant has not proved having had paid this amount namely Rs.2.00 lakhs and Rs.50,000/- to the Ops. Ops have denied the genuineness of these documents and receipt of monies shown in them. The Ops as referred to above after admitting receipt of Rs.2.00 lakhs have issued a receipt for which is produced by the complainant himself. Except these documents, the complainant has neither produced any documentary evidence nor acceptable oral evidence in proof of the payment. He has also not chosen to convince us as to the authenticity of the letter issued by a Senior Manager acknowledging receipt of Rs.5.00 lakhs. These documents in our view do not inspire the confidence of the forum to accept the say of the complainant about payment of Rs.8.00 lakhs as on today. The complainant has therefore failed to prove the payment of balance amount as agreed with the Ops, then he can not ask for performance from the side of the Ops. At the time of hearing the arguments of this case, the counsel for the complainant submitted to produce documents evidencing payment but has not produced any such documents. The complainant himself is in default as such cannot complain against Ops. Thus, we find that the complaint filed by the complainant is not a bonafide one on the contrary it is malafide one and the complainant is not approached this forum with clean hands. As such, for the reasons stated above the complainant has failed to prove any deficiency of the Ops. With the result, we answer point No.1 and 2 in the negative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own cost.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 2nd August 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />