COMPLAINT FILED: 13.12.2010

DISPOSED ON: 29.04.2011

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

29^TH APRIL 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO. 2902/2010

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 advance amount of Rs.1,73,000/- along with compensation of Rs.25,000/- and interest paid towards credit card payment and cost on the allegations of deficiency in service.

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

          Lured away with the offer made by the executive of OP complainant became member of OP and obtained Mr. Cool Card life membership on payment of Rs.1,25,000/-. OP has promised that after becoming the member of Country Club; Complainant will get many offers and facilities like GYM in many of country club branches, passes to events organized by country club with free of charge and complimentary trip to Goa including Air fairs and a weeks stay free of charge and discount in all the branches of country club all over the India. Based on the assurances complainant paid of Rs.1,25,000/- through his credit card on different dates from 12.10.2007 to 07.12.2009 for which he paid huge interest and still paying interest even after 3 years with no benefits whatsoever. On 01.07.2008 complainant received an allotment letter from OP stating he has been allotted two sites and he must pay Rs.35,000/- towards registration and maintenance charges. Complainant paid Rs.35,000/- through his credit card on 07.12.2009. Afterwards there is no response from OP. There was no answer to the phone calls; when enquired staff had no idea about anything.  OP failed to fulfill its promise to a minimum extent. Hence complainant requested sales department of OP to refund the amount with no other option left to save his investment. Finally on 05.02.2010 OP registered two sites in the name of the complainant. Before proceeding for registration complainant visited the sites. To his surprise there were no sites only one huge parcel of land. The executive of OP promised that layout would be marked and development work would commence by ASAP. Till date in phase-G plot No.782-751 no development work could be seen.  Complainant called OP.  There is no positive answer even though the maintainenance fees has been paid from March 2008. Though there is nothing to maintain but still OP has collected maintenance fees.  It was revealed that the property can be sold only through country club and that too only to a member but before OP assured that it can be sold in the open market and any construction activity must go through country club. This was revealed only at the time of registration, by that time it was too late. OP has dealt with this matter in a most unprofessional manner, a lot of time, energy and money has been spent in this regard. Complainant and his family put to lot of tensions. His dream to own a pieces of land went in vain. Hence he is not interested in pursuing this matter with OP and waits to return the documents pertaining to the site and to get back his hard earned money along with interest, as he has paid interest towards his credit card. Inspite of repeated requests OP failed to settle the matter. Hence complainant felt deficiency in service. Under these circumstances he is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed the version contending that complainant has paid only sum of Rs.1,25,000/- towards membership, registration and maintainenance charges towards which OP has registered two complimentary plots in favour of the complainant. Inspite of the same complainant in the present complaint claims that he has paid a sum of Rs.1,73,000/- and in order to mislead the forum has produced the receipt standing in the name some other person and shown the same payments twice. OP has already registered complimentary plots in favour of the complainant vide gift deeds dated 05.02.2010 in the year 2010 itself. Hence complainant cannot seek the refund of amount without seeking for cancellation of the registered documents which cannot be done in summery proceedings. Any order for refund amounts to cancellation of registered documents and over ruling of specific relief act, Indian Registration Act, and suits and valuations act; This forum has no jurisdiction to order for cancellation of any registered documents. Hence complaint is not maintainable and liable to be dismissed on this ground alone; The present complaint filed after lapse of more than a year from the date of registration of the site; No consideration has been collected for the allotment of the complimentary plots; only registration and maintenance charges has to be borne by the complainant; Complainant having utilized all the services is now seeking for refund of the membership fee.  The several phases of Coconut Groove is located in different parts of the Tumkur district, several phases of Vedic Spa / Banyan Tree are located near Hindupur/Penukonda. The said references are to the knowledge of complainant.  The membership fee paid is not refundable.  Complainant having utilized all the services is now come up with this complaint. Since OP has registered two complimentary sites in favour of the complainant; there is no deficiency in service on the part of the OP.  There is no cause of action for present complaint. Among other grounds OP prayed for the dismissal of the complaint.

4.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of the correspondence made by OP, receipts issued by OP, copy of gift deeds dated 05.02.2010, allotment letter. On behalf of OP Sri.Venkatesh Verma C., Asst. Administration Manager filed his affidavit evidence. OP has not produced any documents. Heard arguments from both the sides.

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

                     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 outset it is not in dispute that the complainant became the member of the OP’s scheme and paid sum of Rs.1,25,000/- towards membership fee. The complainant claims that he has paid Rs.35,000/- towards stamp duty and registration expenses. To substantiate this fact complainant has produced the receipts issued by OP and credit card slips. Now the main grievances of the complainant is OP has registered two sites bearing No.751 and 782 situated at Mandli Village, Penukonda, Hindupur, A.P. by way of two gift deeds dated 05.02.2010 in favour of the complainant. Complainant personally visited the spot.  To his surprise there were no sites only one huge parcel of land. There is no development of any layout till date.  Complainant has paid maintenance fees since March 2008 and further he came to know that property cannot be sold and any construction activity must go through OP only. Hence complainant felt deficiency in service on the part of the OP and approached this forum for appropriate reliefs.

8.      As against the case of the complainant the defence of the OP that it has already registered two complimentary plots in favour of the complainant vide gift deed dated 05.02.2010. Complainant is not entitled for seeking refund of the amount and this forum has no jurisdiction to order for cancellation of any registered documents. This contention of the OP cannot be accepted because there is no developmental work or development of layout. Copy of two registered gift deeds dated 05.02.2010 in respect of plots Nos. 751 and 782 situated at Mandli Village, Hindupur, Penukonda District, Andra Pradesh are produced. In the gift deeds it is shown that the donors (vendors) of the complainant is executing these gift deeds through their G.P.A holder and it is stated that on the basis of agreement of sale cum G.P.A these gift deeds are executed in respect of plots.  Complainant not satisfied with the plots.  Since no developmental work is commenced; no layout is formed.  OP has not produced any documents regarding formation of duly approved layout, conversion order of the land and title deeds of donor (Vendor). Without property title deeds complainant cannot enjoy the property. Therefore on the basis of these gift deeds we cannot hold that as per the assurance the sites are given to complainant. The gift deeds executed in respect of sites which are not duly formed in approved layout cannot be considered as a valid gift deeds.  Hence we are of the view that OP failed to provide the assured service to the complainant. Complainant has proved the payment of Rs.1,60,000/- to OP. Credit card slip towards payment of Rs.10,000/- stands in the name of Irfan Ahmad Dand, the same cannot be taken in to consideration.

9.      We are satisfied that complainant is able to prove the deficiency in service against the OP. Under the circumstances we are of the considered view that the complainant is entitled for refund of Rs.1,60,000/- along with interest at 12% p.a. and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

ORDER

          The complaint filed by the complainant is allowed in part. OP is directed to refund Rs.1,60,000/- along with interest at 12% p.a. from the respective date of payments till the date of refund along with litigation cost of Rs.2,000/- 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 29^th day of April 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.