COMPLAINT FILED ON: 20.04.2011

DISPOSED ON: 16.09.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

^{16th SEPTEMBER - 2011}

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI.M.MUNIYAPPA                          MEMBER

       COMPLAINT NO. 757/2011

O R D E R

SMT. M. YASHODHAMMA, MEMBER

          This is a Complaint filed U/S. 12 of Consumer Protection Act of 1986, by the complainant, seeking direction to the Opposite party (herein after called as O.P) to pay  Rs.1,55,000/-  paid towards membership fees and registration expenses with interest at 18% p.a., on the allegations of deficiency in service on the part of the O.P.

The brief averments made in the complaint are as follows:

2.                In the year 2007 executive of OP approached the complainant informed about the Country club membership.  Attracted by the offers complainant became the member of the scheme offered by OP.  OP accepted the membership of the complainant and offered Cool Card membership No. COOL CG 8157.  Complainant paid Rs.1,55,000/- on different dates starting from 27/3/2007, 13/09/2007, through cheques and credit card to OP. The receipts issued by OP are produced.  Next day he went to office  and searched in the internet about the OP Company and found bad articles of fraud, mis communication by the OP and staff.  Same day Complainant requested Manager Anil kumar to refund  the amount paid.  Mr. Anil Kumar refused to return the amount.  Hence there was no option but to pay rest of the amount and get the site registered.  Op issued letters requesting payment of amount for registration within 30 days. If money is not paid site will not be given.  Hence complainant paid Rs.40,000/- without seeing the site.  OP failed to show the location till date; land is not developed though money collected in the year 2007.  Sites are not worth of Rs.3000/- each.  After collecting hard earned money the executive of OP disappeared for many months. They are not responding to phone calls.  Complainant forced many times  to go from Peenya to Indiranagar office of O.P..  After many weeks of struggle OP issued letter of allotting site No.98, phase 7 part B, dated:8-5-2007.  Two allotments made to complainant near NH-4 Tumkur, were diverted to others. Complainant was put into deep trouble and went into depression.  OP replied that sites at Tumkur is not be given but sites will be given near International Airport.  After 4 months Tumkur site allotment was withdrawn and issued  letters allotting the sites located in remote location as per letter dated:5-11-2007.  Complainant personally visited and realized that he is fully cheated by OP in allotting site at 120 Kilo meters away from Bangalore not even close to NH.7, deep  inside 2-3 kilo meters from Hindupur-Penugonda.  Finally OP regretted to provide sites as committed and forced the complainant to have site in some other location and informed the complainant that it is close to International Airport.  OP failed to show the location. OP pressurized the complainant to pay Rs.40,000/- towards registration which was not told earlier and gave in writing that if 40000/- is not paid site would be allotted subsequently time schedule not known.  Totally OP collected 1,55,000/- against  amount of Rs.1,15,000/- which was promised earlier.  Again OP demand Rs.10,000/- for Katha.  Complainant thought to have a look of the site. when complainant visited the site,  Site is 120 Kms away from Bangalore as against promised close to Bangalore International Airport.  Sites have no clarity 2-3 kms inside from Hindupur main road as against promised close to NH7 maps are not clear.  Sites are not worth even Rs.4,000/-.  For stamp fee etc  OP has paid only Rs.1200/-, but OP has collected Rs.40,000/- development work is  not made.  It will take 75 years for the area to develop.  OP has collected towards maintenance annual charges of Rs.10,951/-, though complainant has not got any communication any benefit from 2007 till today from OP club.  OP has failed to offer even a single complimentary passes, tour packages offer, no welcome packages, received till now.  Hence complainant requested  OP to refund the amount. There was no response from OP. Hence complainant felt deficiency in service against O.P.. Under the circumstances he is advised to file this complaint against O.P. for the necessary reliefs.

3.      On appearance OP filed the version mainly contending that  OP has already registered two complimentary plots bearing No.485, vide document No.1845/2007, dated 7-6-2007 at phase III, vedic spa, plot No.195, Vide document No.3577/2007 dated 21-09-2007  at phase IV vedic spa.  Hence complainant cannot seek for refund of the amount without seeking for cancellation of registered documents which cannot be done in a summary proceedings.  Particularly U/S. 31 of Specific Relief Act. Any order of refund amounts cancellation of registered documents and virtually amounts overruling Specific Relief Act, Indian Registration Act and Suits and Valuations Act.  Since this Forum has no jurisdiction to order for cancellation of any registered documents, the complaint is not maintainable.  OP has registered complimentary plots infavour of complainant on 7-6-2007 and on 21-09-2007 itself.  Complainant filed the present complaint after lapse of 3½  years.  It is contended by OP that the copy of sale deed, gift deed are executed infavour of complainant is produced as annexure A & B.  But in fact OP has not produced any documents. The present transaction between OP and complainant is not for purchase of any property, same is for availing the club facility.  No consideration    has been collected for allotted complimentary plots.  Complainant has  to bear registration and maintenance charges.  Several phages in Coconut grove and vedic spa are located in different parts of Tumkur and Hindupur-Penugonda.  Membership fee paid by the members is non refundable.  Since the same is utilized for development maintenance of clubs and resorts in the country.  Refund of the entire amount cannot be granted.  Since OP has provided all the services for which complainant has deposited membership fee.   Any order for refund is against to Consumer Protection Act itself.  Complainant was also allotted with complimentary phase VII, Part B, Site No.98. Sub-sequent to allotment of  the same complainant had sought for allotment of plot at Vedic spa itself.  In furtherance of the same OP has allotted plot at Phage III, site No. 485. OP has denied that complainant sought for refund of membership fee and OP refused to pay the same; complainant was pressurised  to pay the balance amount.  If at all complainant was not happy he would not have paid the further amount towards  registration and maintenance charges and would not got have  plot registered in his favour.  Complaint filed after more than 3 years is barred by limitation.  Complainant was  fully aware of the location of complimentary plot before execution of gift deed.  The plots have been formed with motorable road and drains. Since plots are complimentary, the additional facilities would be provided at the cost of the complainant. Complainant cannot have any grievance over the bills raised towards annual subscription charges and membership fee.  Since every member has to pay annual administration and subscription charges which includes taxes payable to Government.  Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments Complainant filed his affidavit evidence and produced  details of transactions, correspondences, allotment letter date 5-9-2007, date 8-5-2007, 2-7-2007, copy of the gift deeds, date 6-7-2007 and      21-09-2007, receipts 8 numbers. On behalf of OP Venkatesh   Verma C., Asst. Administration Manager filed affidavit in support of  defence version.  O.P. has not produced any documents.  Heard arguments from complainant  and taken as heard from O.P. side.

5.      In view of the above said facts, the points now that arises 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 reliefs now claimed?

      Point No.3:- To what Order?

6.      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

7.      At the out set it is not in dispute that the complainant attracted by the offers made by the executive of OP became the member of the OP club.  OP accepted the membership of the complainant and allotted membership bearing No. COOL CG 8157.  Complainant paid Rs.41,000/- and Rs.20,000/- on 19/4/2007, Rs.15,000/- and Rs.39,000/- on 27/3/2007, Rs.20,000 on 5/9/2007, Rs.5,000/- on 13/09/2007 and Rs.15,000 on 15/5/2007.  Totally complainant paid Rs.1,55,000/- to OP towards membership fees, stamp duty and registration charges.  The receipts issued by OP acknowledging the payment of amount are produced.  Next day complainant came to know about OP company in the internet that OP has cheated the public.  Same day complainant requested Manager, Mr.Anil Kumar to refund the amount paid.  OP refused to refund the amount.  Hence complainant was forced to pay balance amount and get the sites registered.  Now the grievance of the complainant is OP failed to show the location of the sites and till date lands are not developed though money is collected in the year 2007 itself.  Sites are not worth of Rs.3,000/- each.  After collecting the amount there was no response to the phone calls.  Complainant personally visited O.P’s office at Indiranagar from Peenya many times.  After weeks of struggle OP vide its letter dated 8/5/2007 allotted site No.98, phase VII.  The allotments made near Tumkur diverted to others.  After four months OP allotted sites at a remote area i.e. 120 K.m. away from Bangalore.  Hence Complainant sought for refund.  When OP failed to refund the amount complainant approached this Forum for the necessary reliefs.

8.      As against the case of the complainant the defence of the OP  is that OP has already registered two complimentary plots bearing No.195 and 485 at phase III & IV Vedic spa, vide documents No.3577/07 and 1845/07 dated 21/09/2007 and 7/6/2007.  Hence complainant cannot seek for refund of the amount without seeking for cancellation of registered documents.  There is no merit in the defence of OP.  In the sale deed it is shown that the Vendors B.Chandraiah, C.Sumathi, P.Kumara Velu through their Agent and power of attorney holder.  Mr.V.S.Jaya kumar are executing this sale deed.  At the time of execution of the sale deed complainant was not present in person.  In the gift deed, it is shown that the vendors C. Indira devi, Siva paravathi. B.Sobhan Babu through their agent and GPA holder V.S.Jaya kumar are executing this gift deed. At the time of executing the gift deed, Complainant was not present in person.  It appears that photographs and finger prints of the complainant as required, U/Sec.32(A) of Registration Act 1908 was taken by OP and Shetty Sharath Chandra as representative of complainant has accepted the sale of the plots.  OP has not produced any document regarding formation of duly approved layout, conversion order of the land and title deeds.  Therefore on the basis of these sale deed and gift deeds OP cannot be permitted to contend that as per assurance the sites are given to complainant.

9.      Further the defence of the OP is that the complaint is filed after 3½ years of executing the gift deed and sale deed in respect of complimentary sites, the same is barred by limitation. In our view from the affidavit evidence of the complainant it becomes clear that at the time when the sale deed and gift deed were executed on 06.07.2007 and 21.09.2007; the complainant was not shown the location of the sites but he was informed that these sites are located close to International Airport, Bangalore but recently when the complainant visited Penugonda, he came to know that OP has cheated as the sites are situated 120 Kms away from Bangalore, OP misguided the complainant while executing the deeds. Therefore, the cause of action for filing the complaint arose recently just before filing the complaint, after the complainant came to know about the exact location of the sites.  Hence, there is no merit in the contention that the complaint is barred by limitation.

    10.     There is no merit in the contention of OP that the registered deeds executed are to be cancelled only by Civil Court and the Forum has no jurisdiction to entertain the complaint. OP without disclosing the exact location of the sites and taking the complainant to the spot executed the registered sale deed and gift deed, the complainant was under the impression that the sites are situated close to International Airport, Bangalore as represented by OP but in fact those sites are situated 120 KMs away from Bangalore. Without cancellation of the gift deed and registered sale deed we are of the view that the complainant has been misguided by the OP regarding the location of the sites and failed to fulfill its obligation of providing sites near Tumkur as assured earlier or close to Bangalore International Airport. OP has not produced any material to show that the sites in respect of which sale deed and gift deed are executed are formed in the duly approved layout and there is any conversion order regarding the lands. Under these circumstances, we are unable to accept the contention of the OP that the complainant himself sought for allotment of plots at Vedic spa itself. OP failed to allot and register the complimentary sites at coconut grove, Tumkur as assured and also failed to provide the assured service to the complainant, the same amounts to deficiency in service on the part of the OP. Under these circumstances, we are of the considered view that the complainant is entitled for refund of amount paid along with interest at 12% p.a. as compensation and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following

O R D E R

The complaint is allowed in part.

OP is directed to refund Rs.1,55,000/-  with interest at 12% p.a. from the date of respective date of payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within 30 days from the date communication of this order.

Send the copy of this order 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 16^th day of September 2011.)

MEMBER            MEMBER                PRESIDENT

Rk.