Complaint filed on: 20-02-2010 <br /> Disposed on: 10-08-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT <br /> CONSUMER DISPUTES REDRESSAL FORUM,<br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 <br /> <br /> C.C.No.383/2010<br /> DATED THIS THE 10th AUGUST 2010<br /> <br /> <br /> PRESENT<br /> <br /> SRI.D.KRISHNAPPA., PRESIDENT<br /> SRI.GANGANARASAIAH., MEMBER<br /> SMT. ANITA SHIVAKUMAR. K, MEMBER<br /> <br /> Complainant: - <br /> Sri.Puttahanumantharayappa<br /> Alias Putta H.Rajappa, <br /> S/o. Narasimhaiah, <br /> Aged about 45 years,<br /> R/o. No.701, Revanna Building, <br /> Laggere Road, 1st stage,<br /> Bangalore-58<br /> <br /> V/s<br /> <br /> <br /> Opposite party: - <br /> 1. Amrutha Estates,<br /> Divisional of country club, <br /> Branch office, No.478,<br /> Maha Padma, 1st Main, <br /> 1st Stage, Indiranagara, <br /> Bangalore-38<br /> Represented by its Manager<br /> 2. The Country Club India Ltd,<br /> Bangalore, Southern<br /> Regional office, No.847/1,<br /> 100 ft Road, Adj. to Indira<br /> Nagar post office, <br /> Indira Nagar, Bangalore-38<br /> Represented by Chief <br /> Executive officer <br /> <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> Smt.Anita Shivakumar.K., Member<br /> <br /> The grievance of the complainant against the Ops in brief is, that the Op 2 represented to him that they are the largest club chain in India and invited him to become its member offering membership together with a site measuring 1089 sq.ft situated at Coconut Grove and sandalwood trees, Tumkur to be allotted at cost of Rs.1,25,000/-. Since it is under inaugural offer the cost is reduced to Rs.1,00,000/- . With all such assurances given by Op2 representatives, Complainant became Mr.cool card member of OP2 bearing no: COOLCG4223. Accordingly, Complainant paid the amount of Rs.30,000/- on 9/10/2006, Rs.50,000/- on 17/3/2007 through cheques and balance amount including registration charges was also paid by the Complainant subsequently in cash. Op had issued receipt for them .That he has in all paid Rs.1,30,000/- 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. After the receipt of the said letter of the Complainant, Op sent allotment letter (site bearing no: 147) in the first week of August 2009 which is dated 22/12/2007 itself. It was not forwarded to Complainant till he demand for refund. That they were not even able to locate any sites 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 also in not refunding his money despite demands has prayed for a direction to Ops from courts . Hence, Complainant approached this forum to direct the OP’s to refund Rs.1,30,000/- paid by him with interest @ 24% p.a and also to direct the Ops to allot complementary site bearing no:147 which is measuring 1089 sq. ft and to award compensation of Rs.2.00 lakhs towards mental agony and hardship.<br /> 2. 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.80,000/- through cheque on two different dates i.e on 9/10/2006 and 17/3/2006 and have empathetically denied payment and receipt of balance of Rs.50,000/- as alleged by the complainant. The Ops specifically admitted receipt of Rs.80,000/- 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 physical possession of site 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 /> 3. 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, copy of details of offers announced by Ops, copy of receipts issued to Complainant, copies of few letters of Op. Complainant also filed an interrogatories regarding receipt of balance amount of Rs.50,000/- received by an executive of Ops which is denied by the OP. Ops have not produced any documents. We have heard the counsel for both parties and perused the records and also written arguments filed by the counsel for Complainant.<br /> <br /> 4. On the above contentions, following points for determination arise.<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 deliver physical possession to him and in that regard he has paid Rs.1.30 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 /> 5. Our findings are as under:<br /> Point No.1: In the affirmative<br /> Point No.2: In the affirmative<br /> Point No.3: See the final order<br /> <br /> REASONS:<br /> 6. For point No.1 & 2 : The complainant has claimed that he after becoming cool card member of Ops, Ops had offered him membership together with a site at Coconut Groove and sandal wood trees, Tumkur measuring 1089 sq.ft for a price of Rs.1.30 lakhs. Though Complainant was told to pay Rs.1.00 lakh under inaugural offer instead of Rs.1.30 lakh, he has paid full amount of Rs.1.30 lakhs but the Ops have not at all developed the site nor shown any progress in identifying the land. 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 stated to have received Rs.80,000/- only through cheque on 9/10/2006 and 17/3/2007 and have empathetically denied receipt of RS.50,000/- which was paid in the form of cash to by Mr.Manider.Shetty, one of the executives of Op-2 as contended by the complainant. 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 /> 7. The complainant has produced the receipts for RS.80,000/- issued by the Op2, but there is no material document to prove the further payment of Rs.50,000/- which has paid in the form of cash and no receipts are issued by the Ops. There is no dispute about the initial payment of Rs.30,000/- paid by the Complainant on 9/10/2006 . In pursuant to that Op sent communication to remit remaining Rs.85,000/- on 14/10/2006 i.e immediately within a week time. In the month of March 2007 Complainant paid some amount through cheque and as he contended that some amount by cash. Here Op is denying that amount which is paid in the form of cash is not received by them. As we peruse the allotment letter issued by OP dated 22/12/2007 regarding allotment of site no: 147 at coconut groove phase XI which is measuring 1089 sq.ft, Op had intimated Complainant to pay only Rs.15,000/- towards registration and administrative charges for the said site. In case the Complainant is due for Rs.50,000/- as contended by OP, OP could have demand payment of balance sital value in that letter but has not claimed. If the complainant had not paid the full sital value OP would not have allotted site and demand for payment of registration fee of Rs.15,000/- only. <br /> <br /> 8. The Complainant requested OP to refund the amount of Rs.1,30,000/- which was paid when he found no progress in the offer of OP. In the letter dated 30/7/2009 has mentioned the details and mode of payments which are to be refunded by OP. Complainant had clearly mentioned payments made through cheques and Rs.50,000/- paid to Mr. Maninder.Shetty, executive of OP2. Letter has been acknowledged by OP. Op neither replied to the letter nor protested against the content of the letter, which shows that Op accepted the statement of Complainant and agreed that Op has received the said amount as detailed in that letter.<br /> <br /> 9. Due to this, controversy regarding payment of RS.50,000/-, complainant had filed interrogatories which has to be answered by the Ops but Ops has not replied to those interrogatories. In the absence of reply to interrogatories Op failed to justify their contention.<br /> <br /> 10. The Complainant personally travelled to Tumkur for identification of site, but complainant was unable to trace the layout. If we carefully look at this offer, the offers in our view appears to be an uncertain and non-existing. Because it is not clear where exactly that coconut grove and sandalwood trees exists. In this way it is found that the Op has offered such type of free plot to attract the people to become their members by paying heavy amount. Similarly the offers made in this case also exhibit uncertainty. It is found that the complainant became a member on 17/3/2007 by paying full amount. He has repeatedly stated the despite approaching the Op they did not allot plots. <br /> <br /> 11. Op has neither register the site as assured nor refunded his amount though Complainant requested by submitting written requests. Op has not even come forward to prove that they have formed any layout or sites at all leave alone execution of documents. Through the developments that have taken place in this case, we are of the view, the claim of the opponents do not inspire confidence in us and also in the complainant. Therefore under these circumstances complainant opted for taking back his membership fee which cannot be denied.<br /> <br /> 12 The Ops have contended that membership fee is not refundable. But it is not their case that the complainant after becoming a member has used any sort of their service like club service and other facilities offered through their offering letter. Therefore when the complainant has absolutely not availed any service of the Op and Op has not exhibited their interest in keeping their promises and sincerity in showing some progress in the formation of layout and allotment of plots they cannot plead for non-refundability and retain complainant’s money. Hence, complainant in our view is entitled for the relief as prayed for. With the result, we answer point No.1 and 2 in the affirmative and pass the following order.<br /> <br /> <br /> <br /> <br /> <br /> OR D E R<br /> <br /> Complaint is allowed.<br /> <br /> Ops are directed to pay Rs.1,30,000/- to the complainant within 45 days from the date of this order.<br /> <br /> Ops are further directed to pay 16% interest p.a from the date of deposits till it is repaid. <br /> <br /> Ops directed to pay Rs.3,000/- towards cost.<br /> <br /> <br /> Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 10th August 2010.<br /> <br /> <br /> Member Member President<br />