COMPLAINT FILED ON: 27.04.2011

DISPOSED ON: 14.10.2011

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

^{14th  OCTOBER 2011}

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI.M.MUNIYAPPA                          MEMBER

COMPLAINT NOs.   813/2011,

814/2011, &  815/2011   

COMPLAINT NO. 813/2011                BIJOY KUMAR KESHAN,

COMPLAINANTS                                       S/o Late: Pannalal Keshan ,

                                                                   Aged 59 years,

                                                                   Residing at 5-1-278/2,

                                                                   Old Ghasmandi, Ranigunj,

                                                                   Secunderabad,

                                                                   Andhra Pradesh.

                                                                   Herein represented by his

                                                                   Power of Attorney Holder

                                                                   Smt. Vasudha Jain.

COMPLAINT NO. 814/2011                PUSHPA DEVI KESHAN,

COMPLAINANTS                                       W/o Bijoy kumar Keshan,

                                                                   Residing at 5-1-278/2,

                                                                   Old Ghasmandi, Ranigunj,

                                                                   Secunderabad,

                                                                   Andhra Pradesh.

                                                                   Herein represented by his

                                                                   Power of Attorney Holder

                                                                   Smt. Vasudha Jain.

COMPLAINT NO. 815/2011                VASUDHAJAIN,

COMPLAINANTS                                       W/o Mr.Sidharth Jain,

                                                                   Aged about 32 years,

                                                                   Residing at House No.5,2/3,

                                                                   Canara Layout,

                                                                   Near Amrutha Bakery,

                                                                   Munnekolala,

                                                                   Marathalli,

                                                                   Bangalore- 560 037.

(Adv: Smt.Akhila)

                                                                                    V/s.

OPPOSITE PARTYS                            Country Club (India) Ltd.,

Having Office at #273,

1^st Main, Defence Colony,

HAL II Stage,

Indiranagar,

Bangalore – 560038.

Represented by its

Managing Director.      

( Adv: G.A.GOPI)

C O M M O N O R D E R

SMT. M. YASHODHAMMA, MEMBER

These are the complaints filed U/s. 12 of the Consumer Protection Act of 1986, by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the amount paid towards membership fees along with interest at 18% p.a. and compensation of Rs.1 lakhs towards loss sustained and mental harassment caused by O.P. and costs on the allegations of deficiency in service on the part of O.P.

As the OP in all the complaints is common, the questions involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order.

The brief averments as could be seen from the contents of these complaints are as under;

2.                Complainants being husband, wife and daughter attracted by the offer made by the O.P. thought of becoming the member of the O.P’s Club under the name and style Mr.Super Card Membership.  Each Complainant paid membership fees to O.P.  On various dates as shown in the table below.  O.P. issued the receipts acknowledging the receipt of amount.  O.P. also issued membership cards to each complainant.  Complainant got upgraded their membership.  O.P. allotted new membership No. In C.No.813/2011 complainant paid Rs.1,30,000/- to O.P.  O.P. issued membership card bearing No.S.763.  Thereafter complainant’s wife and daughter also subscribed to Super Cool Membership bearing No.S.757 and S.764.  In C.No.814/2011 complainant paid Rs.1,50,000/- to O.P. O.P. issued membership No.S.763.  In C.No.815/2011 complainant paid Rs.2,30,000/- on different dates starting from 1/2/2007 to 18/2/2008. The receipts issued by O.P. are produced. Since complainant is residing in Bangalore she used to transact with O.P. on behalf of her parents.  Complainants enquired with O.P. regarding allotment of sites.  There was no proper response.  All of a sudden complainant received allotment letters from O.P. stating ten sites allotted in the name of the complainant measuring 2178 Sq.feets each which was contradictory to the offer put forward by O.P. and complainant was informed to pay the registration fees also.  At the time of subscription of the membership complainant was offered that the sale deed will be executed free of cost and complainant was offered site measuring 1089 Sq.ft. each. Copy of the letter issued by O.P. is produced.  O.P. swiped the credit card of the complainant for Rs.16,000/-  without her knowledge.  When complainant was about to file police complaint O.P. requested the complainant for not to take any action.  Complainant paid Rs.1,90,000/- towards registration fees and totally paid Rs.5,20,000/- to O.P.  O.P. assured to adjust the excess amount paid towards registration fees payable by her father. Inspite of repeated request O.P. failed to allot the sites.  Hence complainants sought for refund of amount paid.  O.P. returned Rs.  1 lakh to the complainant.  Complainant sent so many e-mails  but in vain O.P. failed to refund the balance amount Complainants lost faith in O.P.  Complainant filed C.No.1547/2009 before this Forum and same was withdrawn on 11/2/2011 with a liberty to file a fresh complaint.  Inspite of repeated requested O.P. failed to allot the sites or to refund the amount. Hence complainants felt deficiency in service against O.P. under the circumstances they are advised to file these complaints for the necessary reliefs.  For the convenience sake the card membership No., amount paid, receipt No., date of receipt are noted below in the chart.  

3.      On appearance OP filed the version in C.No.813/11 and 814/11 only.  In C.No.815/11 O.P. appeared but failed to file the version in spite of giving sufficient opportunity.  The  Common defence set out by O.P. in both  the complaints.  The brief averments made in the version are as under:

According  to OP it has already  registered the gift deeds  in favour of the complainant in complaint No.813/2011  at project-II, phase-B, Vedic spa in respect of plot bearing No.97 to 99, 108 and 109,  under documents bearing No.910 to 914, dated 2/12/2009,  hence complainant cannot seek for refund.  Any order for refund amounts to cancellation of registered documents.  It is contended by O.P. that copies of the gift deeds are produced as annexure-A. But O.P. has failed to produce any documents.  O.P. admits receipt of amount of Rs.1,30,000/-.  It is stated that Complainant introduced his wife i.e. complainant in C.No.814/2011, who issued two cheques for Rs.1,00,000/- and Rs.50,000/-.  The cheque for Rs. 1 lakh was cerdited to the account of O.P. fully, but on depositing a cheque for Rs.50,000/- only a sum of Rs.30,000/- was credited to the O.P.’s account. It is contended by O.P. that copy of the bank statement is produced as annexure-B but in fact O.P. has not produced any statement. Further on 19/09/2008 complainant requested for clubbing of his wife’s membership with his membership Cool S 763 and to adjust the payment of Rs.1,30,000/- made under his wife’s membership to be transferred to his membership account and to cancel his wife’s (Mr.Pushpa Devi  Keshan in C.No.814/11) membership.  Though it is contended by O.P. that copy of the letter is produced as annexure-C but in fact O.P. has not produced any such documents.  O.P. admits payment of Rs.2,60,000/- towards membership fees.  Further it is contended by O.P. that membership fees payable under Cool membership is Rs.2,30,000/- as such the excess amount of Rs.30,000/- deposited by the complainant was adjusted towards annual administration charges, Which includes taxes payable to the Government.  After full payment of membership fees O.P. allotted 5 plots in favour of the complainant in C.No.813/2011. After allotment of plots complainant’s daughter Mrs. Vasudha Jain (Complainant in C.No.815/11) has paid a sum of Rs.90,000/- towards registration charges for the plot allotted in favour of the complainant and also a sum of Rs.1 lakh towards the plot allotted in her favour,  as per receipts No.7164 & 7165, dated 21/10/2008, through cheque No.082611.  It is contended by O.P. that copy of the receipts are produced but in fact O.P. has not produced any receipts. 

The defence of the OP in complaint No.814/2011 is that the complainant had issued two cheques one for Rs.1,00,000/- and another for Rs.50,000/-. Her husband introduced her to Cool S764 membership. The cheque for a sum of Rs.1,00,000/- issued was credited to OPs account, however on depositing another cheque for a sum of Rs.50,000/- only sum of Rs.30,000/- was credited to the account of the OP. Thus OP received totally Rs.1,30,000/- not Rs.1,50,000/- as alleged by the complainant. Subsequently, the complainant’s husband vide letter dt.19.09.2008 requested for clubbing the complainant’s membership with his membership Cool S763 and to transfer account the payment of Rs.1,30,000/- made by the complainant to his membership and cancel the complainant’s membership. Hence, the complainant’s membership has been cancelled and the complainant is not a member of OP, as such the complaint is not maintainable; the same is liable to be dismissed. Thus OP prayed for dismissal of all the complaints.

4.      To substantiate the complaint averments, each  complainant filed their respective affidavit evidence and produced the receipts issued by O.P., congratulation letter issued by O.P., e-mail correspondences, certified copy of the version filed by O.P., evidence of O.P., order sheet in C.No.1547/09 along with memo. On behalf of OP Venkatesh Verma C. Asst. Administration Manager, filed his affidavit evidence in support of the defence version. O.P. has not produced any documents.  Complainant submitted written arguments in all the 3 complaints.  Heard oral arguments from complainants side 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 these complaints are as under:

       Point No.1:- Whether the complainants have proved           

                           the deficiency in service on the part of

 the OP?

Point No.2:- If so, whether the complainants are

                   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 outset it is not in dispute that complainant being husband, wife and daughter  attracted by the offers made by O.P. became the member of the OP scheme as noted in the chart. The OP accepted their membership fees and allotted Mr.Super Cool membership as shown in the table above to each of the complainant. Now the grievance of these complainant is though O.P. collected the membership fees in the year 2007 but failed to provide the facilities offered to allot and register the complimentary sites in their favour as promised.  Hence complainants approached this Forum for the necessary reliefs.

8.      As  against the case of the each complainant the defence of the O.P. in Complaint No.813/2011 is  that it has already registered five gift deeds in favour of the complainant at project II phase-B, vedic spa, in respect of plot bearing No.97 to 99, 108 and 109, vide documents bearing No.910 to 914 dated 2/12/2009. Though it is contended by O.P. that copy of the gift deeds are produced as annexure but in fact O.P. has not produced any documents.  Hence the defence of the O.P. has no basis.  In the absence any materials we are unable to accept this defence of O.P. that O.P. has executed gift deeds in favour of the complainants.

9.      O.P. admits receipt of Rs.1,30,000/- in C.No.813/2011, Rs.1,30,000/- in C.No.814/2011  Rs.30,000/- was adjusted towards annual administration charges.  In C.No.815/2011 O.P. admits receipt of only Rs.90,000/- towards registration charges towards plot allotted in favour of complainant in C.No.813/2011 and Rs.1 lakh towards the plot allotted in her favour.  O.P. went to the extent of denying its own receipts.  As per the receipts produced by complainant in C.No.815/11 complainant paid Rs.2,30,000/- towards membership fees.  Rs.1 lakh towards charges of stamp duty, registration expenses for plot No., 1316, 1317, 1318, 1319, 1320, 1321, 1322.  Further complainant claims that on 22/10/2008 through her husband complainant paid Rs.1,90,000/- to Amrutha Estates.  To substantiate this fact Complainant has produced copy of the pass book  saving account extract bearing No.5-1XX4XX-X09 standing in the name of her husband Mr.Siddarth Jain.  This fact is not denied by O.P. Totally complainant has paid Rs.5,20,000/- to O.P. out of that amount O.P. has refunded Rs. 1 lakh to the complainant as per the averments made in complaint as well as affidavit evidence.  Hence complainant in C.No.815/11 is entitled for refund of Rs.4,20,000/- from O.P.

10.    In C.No.813/2011 complainant has produced the certified copy of the version and affidavit filed by O.P. in C.No.1547/2009.  The Complaint No.1547/2009 filed by the complainant was withdrawn on 1/2/2011 with a liberty to file a fresh complaint.  In the version filed in C.No.1547/09 O.P. has not contended that the gift deeds were executed in favour of complainant, but O.P. admits refund of amount of Rs. 1 lakh to complainant.

11.     OP has not produced any material to show that the membership of the complainant in complaint No.814/2011 has been cancelled, as per the request letter of her husband and transferred the amount deposited by the complainant to the account of her husband. Therefore, it cannot be said that the complainant is no more member of OP and complaint is not maintainable.

12.    It may be noted that from the affidavit evidence of each complainant it becomes clear that O.P. has accepted the membership fees and registration expenses in the year 2007-08 itself, but failed to allot and register the complimentary sites as assured.  Which amounts to deficiency in service.  In support of its defence O.P. has not produced any documents to show that approved layout has been formed and conversion order and sanction plan has been obtained from statutory authorities.  In the absence of any material we are unable to accept the contention of O.P. that O.P. has formed the layout duly approved and executed the registered gift deeds in favour of complainant in Complaint No.813/2011.  Under the circumstance we are of the considered view that each complainant is  entitled for refund of the amount paid with interest at 12% p.a. as compensation and litigation cost of Rs.2000/- each.  Accordingly we proceed to pass the following

O R D E R

The complaints are allowed in part.

1. In complaint No.813/2011 OP is directed to refund Rs.1,30,000/- together with interest at the rate of 12% p.a. from  the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

2. In complaint No.814/2011 OP is directed to refund Rs.1,50,000/- together with interest at the rate of 12% p.a. from  the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

3. In complaint No.815/2011 OP is directed to refund Rs.4,20,000/- together with interest at the rate of 12% p.a. from  the date of respective payments till realization and pay litigation cost of Rs.2,000/- to the complainant.

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

This original order shall be kept in the file of the complaint No.813/2011 and a copy of it shall be placed in other connected files.

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 14^th  day of October 2011.)

MEMBER                           MEMBER                               PRESIDENT

Rk.