COMPLAINT FILED ON: 20.05.2010
DISPOSED ON: 29.12.2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 29TH DECEMBER 2010
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT No.1145/2010
Complainant OPPOSITE PARTY | Dr. Vijay Umashankar Mishra, 403, Amity Palace, Divanarapalya 9th Cross, Gokula 1st Stage, Mathikere, Bangalore – 560 054. Karnataka. In Person V/s. Chairman & Managing Director, Country Club (India) Ltd., No.847, Adjacent to Post Office, 100 Feet Road, Indiranagar, Bangalore – 560 038. Karnataka. Advocate: Sri. G.A. Gopi |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to refund Rs.2,20,000/- along with interest at 20% p.a. from 22.10.2008 till realization and compensation of Rs.3,00,000/- for mental agony and harassment against OP on the allegations of deficiency in service.
2. The brief averments made in the complaint are as follows:
The executives of the OP approached the complainant with an attractive offer of free vacation trips to several locations and offered complimentary sites along with country club membership. On the basis of the promise made by them complainant in September – 2008 became Mr. Kool-4757 member of OP club and paid Rs.1,30,000/- on 22.10.2008 and Rs.15,000/- on 22.10.2008 and Rs.40,000/- by way of cheque dated 06.07.2009. Totally complainant paid Rs.2,20,000/- to OP. OP issued the receipts OP never provided any services as promised. Complainant personally went to office of OP. OP took several months after making full payment to get some documents stating that complainant is a member of country club and got allotment letters for four sites after more than a year later. Whenever the complainant approached the club sites either in Yalahanka/Sarjapur Road no utilities were in a condition that can be called as satisfactory services. There is no response from the executives of OP on the phone. OP even after several written communications with customer care office of OP there is no satisfactory answers. No attention was given to the complainant. OP promised so money offers such as complimentary VIP passes, One week free stay in RGBC, 5 Star Resort at Goa with one way air ticket with accommodation, food and beverages absolutely free. 4 Nights and 3 days free stay at Bush betta Wild Life, 3 days and 2 nights holidays and free one way air ticket, free Spa Health Club Membership free complimentary sites; registration of site would be done within 40 days after full payment. OP will provide all support, services and documentation regarding the sites as promised. Even after repeated request OP failed to offer the promises made and never shown any response to the complainant. Whenever complainant approached OP for the same no assurance is given from OP regarding existence of the sites. The registration provided by the OP seems to be fraudulent as it is done on non-judicial stamp paper. The plan of the proposed layout is changed on papers against what was promised. OP has agreed to charge Rs.30,000/- for registration of four sites but unethically charged Rs.75,000/-. Apart from making innumerable call to customer care office of OP, paying several visits and written communications through emails, there was no response from OP till date. Hence complainant felt deficiency in service on the part of the OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.
3. On appearance OP filed its version mainly contending that as per its promise OP has already registered complimentary plots in favour of the complainant vide Gift deed dated 28.04.2009 registering sites bearing No.160,161,190 and 191 in favour of the complainant in the year 2009 itself. Complainant cannot seek for refund of the amounts without seeking for cancellation of the registered documents; which cannot be done in summery proceedings. Such being the case any order of refund amount to cancellation of registered documents and virtually amounts to overruling of the specific relief Act, Indian Registration Act and suit valuations Act; this Forum has no jurisdiction to order for cancellation of any registered documents. Hence complaint is liable to be dismissed as not maintainable. Registered documents in favour of the complainant have been personally collected by the complainant. Complainant if at all has any grievance over the same, should have approached the Hon’ble Forum within a reasonable time. However the complainant filed present the complaint after lapse of more than a year from the date of registration of the complimentary site, which clearly shows that the complainant has no grievance over the same and the filing of the present complaint is only an after thought and no consideration has been paid by the complainant towards complimentary sites since allotment of site are complimentary to the membership. Hence complaint is not maintainable. The complainant has become a member of OP club for the purpose of enjoying the club facilities and not for the purpose of getting complimentary site as alleged in the complaint. Complainant utilized all the services and now seeking for refund of the membership fee on false and baseless grounds. The place of allotment of the complimentary site has been informed to all the members by the OP there are several phases in Coconut Groove and Vedic Spa/Banyan Tree several phases of Coconut Goove is located in different parts of the Tumkur District and also near Hindupur/Penukonda. Membership fee paid by the members is non-refundable, since the same has been utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable loss to OP wherein thousands of people are earning their livelihood. OP is a Company incorporated under companies Act 1956, and carrying on the hospitality business and established several clubs and resorts across the country and abroad and has been providing good services to its members. OP has offered many facilities to its members like country club cool life membership, complementary plot, holiday package of two nights three days stay in the Bandipur, Bushbetta, health packages, access to all the clubs in India and other facilities. Thus a life time member would get several benefits for more than the membership fee paid by him. Complainant has cooked up of the stories to suit his needs and enjoyed of the service provided by the OP. Complainant having accepted the complimentary plot is now indulging to arm twisting tactics and harassing the OP to succumb to his unethical demands. Registration and maintenance charges for the complimentary plot is Rs.15,000/- for each plot allotted under MGM scheme, the said charges would be Rs.20,000/-. Hence complainant has deposited a sum of Rs.75,000/- towards one site allotted for his membership and three sites allotted under MGM. Gift deed has already been registered in favour of the complainant; correspondence made by the complainant is from March 2010 i.e. after more than a year from the execution of gift deed. Prayer for interest at rate of 20% p.a. from 22.10.2008 till realization and compensation of Rs.3,00,000/- cannot be granted. OP has already registered the complimentary plots in favour of the complainant. Among other grounds OP prayed for dismissal of the complaint.
5. To substantiate the complaint averments, complainant filed his affidavit evidence and produced copies of the attested four gift deeds, correspondence made through email, copy of the membership card, terms and conditions copy of the layout, order copy of the district forum. On behalf of OP Mr. Vijay D.P., Senior Manager, Customer care of OP filed his affidavit evidence and produced copy of the membership application form, copy of the letter dated 05.12.2008, 30.10.2008, copy of the gift deed. Heard arguments from both sides.
6. From the above pleadings, the points now that arise for our consideration in this complaint are as under:
Point No. 1 :- Whether the complainant has Proved
the deficiency in service on the part of
the OP?
Point No. 2 :- If so, whether the complainant is
entitled for the relief’s now claimed?
Point No. 3 :- To what Order?
7. We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:
Point No.1:- In Affirmative
Point No.2:- Affirmative in part
Point No.3:- As per final Order.
R E A S O N S
8. At the out set it is not in dispute that the complainant attracted by the offers made by the OP Scheme became the member of the OP called. Mr. Kool life membership bearing No.KOOL 4751. Complainant paid Rs.1,45,000/- on 21.10.2008 and Rs.40,000/- on 06.07.2009 towards registration. The complainant has produced the receipts issued by OP. From the evidence of the complainant and from the copy of the offer letter issued by OP as per Annexure-C it is clear that OP has offered two sites of 1089 Sq.ft. at Banyan tree 1 hour drive from Devanahalli International Airport after Bagepalli; Hyderabad Highway NH-7 by paying Rs.1,45,000/-. The registration fee includes of Rs.15,000/- for first plot and for second free plot is Rs.20,000/- of total area of each 1089 sq. ft. at Coconut Groove Tumkur Highway or Banyan Tree. Registration charges includes of both the plots taxes, registration fee, stamp duty charges, sales tax, service tax and any other taxes at the time of registration, 40 ft. tar road, drainage, water facilities, electricity and 24 hours security, club facilities, telephone facilities, internet facilities and layout development charges. No additional charges will be asked till next fifteen years from the date of registration of site. We have perused the allotment letter dated 24.03.2009 produced by the complainant. The said letter issued by Country Condo’s Ltd., reveals that site Nos.160, 161, 190, 191, at Vedic Country Spa project-II Kool is allotted, demanded to pay a sum of Rs.20,000/- towards site confirmation administrative charges which includes at the time of registration, the stamp papers fees, registration expenses and along with maintenance charges for a period of 30 months; that letter of allotment was valid for a period of 30 days from the date of the letter. It is relevant to note that complainant was assured to allot a complimentary plot at Coconut Groove, Tumkur, highway or Banyan Tree, but the allotment letter is in respect of site situated at Vedic Country Spa, Project-II Kool. There is no response to the emails of the complainant dated 25.03.2010, 27.03.2010 and 10.04.2010 requesting the OP to arrange to have been look on the sites to know the location of the sites. Further the four registered gift deeds dated 28.04.2009 and 10.08.2009 in respect of plots Nos.160, 161 and 191 are executed, plots are situated Hindupura SRD of penukonda, Andra Pradesh. In the gift deeds it is shown that the vendors S.Sreenivasa Reddy and Jitendra Kotecha are executing these gift deeds through their General Power of Attorney V.Somanna Setty and it is stated that on the basis of agreement of sale cum General Power of Attorney these gift deeds are executed in respect of plots. At the time of execution of these gift deeds, the complainant was not present in person. It appears that photographs and finger prints of the complainant as required; as per Section 32(A) of registration Act 1908 was taken by OP and one Raghavendra Pachouri as representatives of complainant has accepted the gifts of the sites. The complainant still is not aware of the location of the sites and OP has not produced any documents regarding formation of duly approved layout, conversion order of the land and title deed. Therefore on the basis of these gift deeds OP cannot permitted to contend that as per the assurance the sites are given to the complainant.
9. There is no merit in the contention of the learned counsel for the OP that only Civil Court can set aside the gift deeds, the Forum has no jurisdiction to entertain the complaint. The registered gift deeds executed in respect of the sites which are not duly formed in the approved layout cannot be considered as a valid gift deeds. Under these circumstances we are of the view that OP failed to allot and register the complimentary free sites at Coconut Groove, Tumkur or Banyan Tree as assured and also failed to provide the assured services to the complainant, the same amounts to deficiency in service on the part of the OP. OP has not denied the receipt of total amount of Rs.2,20,000/- from the complainant. Out of the said amount an amount of Rs.7,250/- has been refunded to the complainant towards 5% cash back offer through cheque dated 03.12.2008 copy of which has been produced by OP. After deducting the said amount the complainant is entitled for the refund of the balance amount of Rs.2,12,750/- with interest at 9% p.a. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is allowed in part. OP is directed to refund an amount of Rs.2,12,750/- with interest at the rate of 9% p.a. from the respective date of payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainant within four weeks from the date of communication of this order.
Send the copy of this order to both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 29th day of December 2010.)
PRESIDENT
MEMBER MEMBER
Snm:
