COMPLAINT FILED: 27.07.2010

DISPOSED ON: 16.05.2011

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

16^TH MAY 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

       COMPLAINT NO. 1748/2010

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.1,25,000/- along with 18% p.a. interest from the date of claim till realization in alternative to direct OP to allot the site in favour of the complainant along with Rs.10,000/- towards incidental charges and Rs.5,000/- towards cost on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

          Complainant has taken the membership of the OP bearing No. BLGCR 988, thereafter membership was upgraded to gold crown premium. After that complainant paid Rs.5,000/- on 25.07.2005. Subsequently complainant paid Rs.25,000/- on 26.10.2005 and 25,000/- on 10.11.2005. Thereafter complainant paid Rs.55,000/- towards Mr. Cool  privilege card membership. OP allotted new membership No. Cool CG 618 on 12.11.2005. Subsequently complainant paid Rs.20,000/- towards upgradation of final payment to OP on 30.11.2005. OP through its letter dated 22.03.2006 allotted site No.241, at Phase-III through one M/s. Amrutha Estates, Bangalore. On 02.04.2007 OP clarified the allotment of the said site. OP has collected the various amounts from the complainant. Complainant in so far as the service rendered by OP was not satisfactory.  Hence complainant met OP and informed about the cancellation of the membership and to refund amount of Rs.1,25,000/-.  OP neither refunded the aforesaid amount nor allotted any site.  Hence on 16.09.2009 complainant got issued legal notice to OP seeking for allotment of the aforesaid site or in alternative to refund Rs.1,25,000/- along with interest.  OP neither refunded amount nor allotted any site in favour of the complainant. Complainant felt deficiency in service against the OP.  Under these circumstances he is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed the version mainly contending that OP has already issued an allotment letter in favour of the complainant. OP asked complainant to deposit Rs.10,000/- towards registration and maintainance charges as per its allotment letter dated 22.03.2006.  Complainant failed to deposit the said sum due to this reason OP could not register the allotted site in favour of the complainant. Complainant suppressing the said facts has filed this present complaint. OP due to bonafide mistake had thereafter issued one more allotment letter dated 22.04.2007 on the assumption that complainant has not been allotted with complimentary plots; Complainant can claim under only one allotment letter. Complainant has not confirmed the allotment; OP is ready to allot and register the site at phase-15 Extn. situated at Rathnasandra Village, Sira Taluk, Tumkur District.  The plan and conversion order has been obtained by OP. Site is earmarked  in favour of the complainant and could register the same in favour of the complainant as soon as complainant deposits registration and maintainance charges. Copies of the conversion order, sanction plan, MOU are produced; OP admits that complainant was a member under No. BLGCR 988 scheme during 2004 and complainant upgraded his membership to Cool privilege card membership. The total membership fee payable under said scheme was Rs.1,15,000/- but complainant has paid sum of Rs.1 lakh only and still in due of Rs.15,000/-. Complainant falsely contending that he has paid Rs.1,25,000/-. Complainant relying upon welcome letter dated 12.11.2005 in which it is stated that complainant has to pay a sum of Rs.99,000/- towards upgradation charges. On 12.11.2005 and he has paid Rs.55,000/- and still due of Rs.44,000/-; OP admits that complainant has been allotted with complimentary plot bearing No.241 at phase III vide allotment letter dated 22.03.2006 and OP has subsequently issued one more allotment letter dated 02.04.2007 due to bonafide mistake.  Complainant has paid Rs.1 lakh and question of refund Rs.1,25,000/- does not arise at all.  Complainant enjoying the facilities offered by OP.  Complainant not deposited the registration charges inspite of repeated requests. OP is ready to register the site at phase VX, Rathnasandra Village, Sira Taluk, Tumkur District. 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 the receipts issued by OP, allotment letters copy of the legal notice, postal acknowledgement card.  On behalf of OP Sri.Venkatesh Verma C., Assistant Administration Manager filed his affidavit evidence and produced copy of the conversion order and layout plan.  Heard arguments from the complainant. Taken as heard from OP side.

5.      In view of the above said facts, the points now that arises for our consideration in this complaint is 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 now claimed?

       Point No.3:-  To what Order?

6.      We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:

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 became the member of the OP club under membership bearing No. BLGCR 988 letter dated 25.07.2005 and the membership was up graded to gold crown premium card. The complainant claims that subsequently he has paid Rs.50,000/- on 26.10.2005 and on 10.11.2005 Rs.25,000/-. Thereafter OP allotted a new membership No. Cool CG 618 on 12.11.2005. Further complainant paid Rs.55,000/- towards Cool Previlege Card membership upgradation to OP on 28.11.2005. Subsequently complainant has paid Rs.20,000/- towards up gradation of final payment. OP through its letter dated 22.03.2006 allotted the complimentary free site bearing No.241 at phase-3 and demanded complainant to pay Rs.10,000/- towards maintainance, stamp paper and registration expenses. Further OP through its letter dated 02.04.2007 allotted a site bearing No. 241 at phase II to the complainant and demanded complainant to pay Rs.10,000/- towards confirmation administrative charges. The complainant felt service rendered by OP not satisfactory. Hence felt deficiency in service and requested OP for cancellation of the said membership and to refund amount of Rs.1,25,000/- paid. When there is no response from OP, Complainant caused legal notice on 16.09.2009 seeking for allotment of aforesaid site; alternatively to refund Rs.1,25,000/-. Inspite of service of notice there is no response from OP. Hence complainant approached this Forum.

8.      As against the case of the complainant the defence of the OP is that it as already issued allotment letter dated 22.03.2006 in favour of the complainant allotting site No.241 at phase-3, Coconut Grove. In the said letter OP asked complainant to deposit a sum of Rs.10,000/- towards registration and maintainance charges. Complainant failed to deposit Rs.10,000/- due to this reason. OP could not register the allotted site in favour of the complainant. Further it is contended by the OP that due to bonafide mistake OP issued one more allotment letter dated 22.04.2007 allotting a site bearing No.241 at phase II, Coconut Grove and demanded to pay Rs.10,000/- towards registration and maintenance charges on the assumption that complainant not being allotted with complimentary plot. We have perused both the allotment letters issued by OP allotting site at phase II & III and demanding amount of Rs.10,000/- towards maintenance and registration charges. Hence complainant felt service rendered by OP not satisfactory and sought for refund of the amount. From 22.04.2007 till date there is no reply or communication from the OP.  Even though legal notice is served to OP on 16.09.2009 itself OP not bothered to reply the notice and has come forward to allot and register the site.

9.      Further it is in the version by the OP that it is ready to register the complimentary plot at phase XV, Rathnasandra Village, Sira Taluk, Tumkur District. We have perused copy of the conversion order and sanction plan produced by OP. Conversion order produced in respect of Survey No.158/A2 stands in the name of the Tataji Margani S/o Nara Singh Rao who is in no way concerned with OP. Further the allotment letter dated 22.04.2007 produced by OP related to plot No.241 at phase II, Coconut Grove.  Approved layout plan produced by OP is relating to phase XV Extn, Survey No.158/A2, Rathna Sandra Village, Kasaba Hobli, Sira Taluk of plot No.1 to 126 which is not helpful in support of the defence version of OP.

10.    Though OP has received such a huge amount from the complainant in the year 2004-2005 and issued allotment letter in the year 2006-2007 itself but failed to allot and register the complimentary site as promised till today and failed to provide basic information regarding location of the plots.  There is no reply to the correspondence and notice of the complainant.

11.    Complainant claimed refund of Rs.1,25,000/- but has produced receipts only to the extent of Rs. 75,000/-. However OP admits payment of Rs.1,00,000/- towards membership fees. Admitted facts need not be proved.  The rate of interest claimed by the complainant at 18% p.a. is on higher side.  In similar matters against OP rate of interest awarded is 12% p.a. We are satisfied that complainant is able to prove the deficiency in service on the part of the OP.  Under the circumstances complainant is entitled for certain reliefs.  In our view ends of justice would be met by directing the OP to refund whatever the amount it has received from the complainant towards membership fees along with interest and litigation cost.  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 Rs.1,00,000/- along with interest at 12% p.a. from the respective date of payments till the date of realization and pay litigation cost of Rs.1,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

(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 May 2011.)

MEMBER                                  PRESIDENT                                                 

gm.