Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Appeal No.237 of 2003
Sterling Holiday Resorts (I) Limited through
its Managing Director, Sri P.N. Mohan, B-10,
Sector-16, Noida, District, Gautambudh Nagar.
…Appellant.
Ashwini Kumar Bajaj s/o N.K. Bajaj,
R/o 56, Model Town, Ghaziabad. …Respondent.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Vikas Saxena, Member.
Sri S.P. Pandey, Advocate for appellant.
Sri Rajesh Chaddha, Advocate for respondent.
Date 23.6.2022
JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been filed by the appellant Under Section 15 of The Consumer Protection Act, 1986 against the judgment and order dated 31.12.2002 passed by Ld. District Forum, Gautambudh Nagar in Complaint Case no.247/2001 (678/1999).
The main grounds of the appeal are that, that the Ld. Forum has passed the impugned order on the basis of presumption and conjecture and has misinterpreted the laws and case laws. The ld. Forum has failed to appreciate that the appellant offered private services to the complainant after providing him membership of a Gold Club. The complaint filed by the complainant/respondent was not maintainable. The ld. Forum has erred in entertaining the complaint of the complainant as the appellant has to provide personal service to the complainant and the
(2)
personal service is exempted under section 2(1)(o) of the Consumer Protection Act, 1986.
The appellant has clearly stated that the appellant has not provided service as mentioned under section 2(1)(o) of the Consumer Protection Act, 1986. The ld. Forum has failed to appreciate that there was litigation between J.P. Groups and appellant, before the MRTP Commission and due to litigation, the time share was not sorted out. On any account services rendered by the appellant cannot be treated as deficient. The ld. Forum has failed to appreciate that the transaction between the parties is of membership/ time share in immovable property and purchase of interest in immovable property in not a consumer dispute. The ld. Forum has failed to appreciate that the present dispute relate in membership/time share and is not in respect of purchase of goods. The ld. Forum has failed to appreciate that the complainant being a purchaser of time share in an immovable property, is not a consumer. The ld. Forum has adopted a procedure which is not in accordance with the procedure contained in the U.P. Consumer Protection Rules, 1987. Therefore, it is most respectfully prayed that this Hon’ble Commission may kindly be pleased to allow this appeal with cost.
We have heard the learned counsel for the appellant Sri S.P. Pandey and ld. Counsel for the respondent Sri Rajesh Chaddha. We have perused the pleadings, evidence and documents available on record.
We have seen the complaint in which the complainant has stated that appellant/opposite party announced that it
(3)
was going to establish a club in the name and style of “Sterling Grand Golf and Country Club” in 1996 and announced different memberships on payment of difference charges. The complainant opted for family membership of the above club which was accepted by the opposite party vide its letter dated 25.4.1996 and for this membership a sum of Rs.2.50 lacs was payable by the complainant and the complainant paid Rs.2.40 lacs which was accepted by the opposite party. The opposite party in their brochure provided the following facilities to the members of the club.
- 18 hole Gold Course followed by a second 18 holes course
- Two restaurants
- Private Club
- Family Centre.
The opposite party claims to have completed only 9 holes Golf Course instead of 18 holes. A period of more than 3 years elapsed since announcement of the scheme and thus, the opposite party failed to honour its commitment and the opposite party admitted this deficiency by its reply dated 24.7.1999.
For providing above facilities a period of one year may be regarded as sufficient but the opposite party failed to provide the same even after a lapse of 3 years. In fact, the 9 holes Golf Course is still incomplete. The complainant has become disappointed by neglect on the part of the opposite party in discharging their obligation. On account of deficiency in service, the complainant is
(4)
entitled for refund of money paid by him amounting to Rs.2.40 lacs along with interest @18%.
We have seen the impugned judgment and order. The ld. Forum has discussed every aspect in length. The respondent/complainant has deposited Rs.2.40 lacs for the family membership and the appellant did not provide the assured facilities. Hence, the appellant committed deficiency in service. The appellant has also accepted that it failed to provide many facilities to its members which shows that it has shown deficiency in service and also is its act comes under unfair trade practice.
The ld. Forum allowed the complaint with 12% interest. The appellant has stated that the ld. Forum has levied a higher interest rate and the amount has already been deposited.
We considered the rate of interest which seems towards higher side. The rate of interest should be 8% instead of 12%. From the date of default, it will be 12% instead of 15% as directed by the ld. Forum. If the any amount is deposited by the appellant that will be adjusted to the final amount.
ORDER
The appeal is partially allowed. The rate of interest will be 8% in place of 12% and in default, the rate of interest will be 12% in place of 15%. Rest part of the judgment is confirmed.
If the any amount is deposited by the appellant that will be adjusted to the final amount.
(5)
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh)
Member Presiding Member
Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Vikas Saxena) (Rajendra Singh)
Member Presiding Member
Jafri, PA II
Court 2
