ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under section 12 of the Consumer Protection Act 1986 for the deficiency in service in not completing the flat and not refunding the amount received towards advance sale consideration and for refund of Rs.17,34,850/- along with interest at 6% per annum and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OP is involved in the business development of land and also in the business of hospitality and holidays. It was offering membership in the projects i.e. “The Country Club Golf Village” between Tumkur and Sira. A sum of Rs.5,49,000/- was received by OP and assured to provide two plots of 50 feet X 80 feet in the said golf village. Temporary membership card was also issued.  OPs made repeated request and reminders to pay further amount. The said project was not materialized. Hence complainant  demanded OPs to refund the amount.  At that time, OP offered 8 plots measuring 30X40 each at Palasamudram Andrapradesh and also demanded the complainant to pay sum of Rs.25,000/- per plot and towards the same, he paid Rs.1,25,000/- by issuing a cheque for Rs.25,000/- on 10.03.2013  and Rs.1,00,000/- on 24.02.2015 and inspite of it, even after more than one year, the said project was not materialized. When demanded for refund of the said amount Op offered a flat in “OSADIA GARDEN CITY PROJECT” on Doddaballapura Road by informing that the amount paid would be adjusted towards the said flat and also promised to get it registered within 36 months from 2015.  Left with no other choice complainant accepted the offer and the money deposited by him towards country club golf village was transferred towards advance sale consideration of Flat No.307 in Osadia Garden City Project. The total cost of the flat was agreed at Rs.47,16,250/-. 

3.     In addition to the amount paid already i.e. Rs.5,30,000/- OPs demanded for payment of Rs.5,00,000/- and the same was paid to the OPs and making in all a payment of Rs.11,55,000/-. After paying the amount he sought regular updates regarding the project OP went on assuring to provide the flat, but inspite of it, till filing of the complaint, OP did not execute the agreement of sale. No company executives provided any details regarding the project approval and also the legal documents to verify the legality and feasibility of the apartment building in order to approach the financial institutions and banks to obtain the loan facility. 

4.     Having taken substantial advance amount OPs failed to complete the project and failed to deliver the flat which has caused him severe financial hardship, physical strain, mental agony and anxiety. OPs have cheated and deceived him for Rs.11,55,000/-. Hence he had to issue legal notice on the OPs calling them for refund of the amount along with interest. Inspite of it, neither the same was complied nor the same was replied. Hence the complaint.

5.     Earlier this complaint was filed against 7 Ops. Afterwards complainant made an application under Order 1 rule 10 Civil Procedure Code to delete OP-3, 4 and 7 and by passing an order deleted the name of OP-3, 4 and 7 and proceeded against OP-1, 2, 5 and 6 renumbering them as OP-1, 2, 3 & 4.

6.     Upon the issue of notice OP-1, 3 and 4 appeared before the commission. OP-2 represents OP-1 in the capacity as chairman / managing director of OP-1 and filed the version.

7.     In the version filed by Ops, it is contended that, the complaint is vague, bald, devoid of merits, liable to the dismissed and also filed after lapse of 2 years from the cause of action and hence liable to be dismissed on the ground of limitation. It has admitted that it is a regd. Company having changed its name from Country Club India Ltd to Country Club Hospitality and Holiday Ltd having global gate way via Country Vacation and is the largest chain of family clubs providing state of the art, health club, multi cuisine restaurants, business centers, swimming pool and is a power house entertainment organizing beauty pageants events of Holi, Navarathri, Dasara, Diwali, Chistmas, New year inviting celebrities to perform and provide entertainment.

8.     It is contended that the complainant obtained base membership in the year 2002 by paying Rs.10,000/- and got it upgraded in the year 2006 by paying Rs.1,05,000/- and further got upgraded by paying further amount Rs.2,50,000/- in the year 2007.  Again in 2009 having satisfied with the service provided by OP he got it upgraded to condos membership and paid totally Rs.5,30,000/-. He expressed his inability to pay further amount and got down graded his membership to COOLGV124. As a member he was entitle for two plots. Complainant wanted another two plots and requested for 8 plots instead of four measuring 1089 sq. feet each in Vedic Spa project situated at Hindupur at Ananthpur District Andrapradesh State. Necessary documents were also requested by OP to the complainant to execute the gift deed and also to pay Rs.1,60,000/- for the same against which complainant paid Rs.1,25,000/- only.  

9.     OPs launched a new project called “OSADIA GARDEN CITY” at Doddaballapura.  Complainant having heard the same sought for Flat in the said project the cost of which was Rs.51,46,000/-. Considering the long standing relationship of the complainant with OP special discount was offered for a sum of Rs.47,16,250/- by adjusting the amount of Rs.11,55,000/- paid over the years and demanded the payment of the remaining Rs.35,61,250/-. Instead of paying the said amount, complainant has come-up before this commission by making false, and untenable allegations with a view to have wrongful gain. 

10.   Complainant has purchased the club membership under purchase agreement. Complainant has been explained by various holiday packages after going through the purchase agreement in November 2006 only, he purchased the membership. The membership card was also issued to the complainant inspite of it, even when there is no deficiency in service or unfair trade practice complainant has filed this complaint frivolously. There is no deficiency in service on his part and the nature of the complaint is of civil in nature liable to be decided by Civil Court and hence this Commission has no jurisdiction to decide this complaint. There is no iota of evidence of deficiency in service, unfair trade practice and OPs are not liable to refund any amount much less the amount claimed in the complaint and interest and hence prayed the commission to dismiss the complaint.

11.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

12.   Our answers to the above points are:-

POINT NO.1 :   IN THE AFFIRMATIVE

POINT NO.2 :   PARTLY IN THE AFFIRMATIVE.

                        For the following.

REASONS

POINT No.1:-

13.   Perused the complaint, version, evidence, documents produced by the respective parties. It is not in dispute that the complainant became the member of the OP and obtained a membership fee by paying the amount mentioned in the complaint and further in all has paid Rs.11,55,000/- for which OP agreed to sell a flat bearing No.F-307 at “OSADIA GARDEN CITY”. The total costs of Rs.47,16,250/-.  It is also not in dispute that the OP demanded for the further consideration amount of Rs.34,94,600/-. 

14.   When the both parties are directed to file the recent photos of the state of construction of the flat, they have filed the same. On perusing the same that too the one filed by OPs, the said flats and the complex is still under construction.  It is not made clear as to when the same will be completed and make it convenient for the purchaser to live in.  It appears to us that it takes minimum three to four years to complete the said building subject to the OP making financial arrangements and a “Will” to execute the project. Further the photos produced by the complainant also shows the incomplete construction work. It is all in the shabbi state of affair and the said building are no way in a stage of completion in a near future and it take many more year for completion. Inspite of it, the demand of the OPs for the balance of amount of Rs.34,94,600/- clearly shows the intention of OP that is to have the money without providing the flat which amounts to unfair trade practice and also gross negligence and deficiency in service. Under the circumstances, we hold POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

15.   In view of the above, OPs are bound to refund the amount Rs.11,55,000/- received from the complainant and liable to refund the same along with interest at 12% per annum from the date on which the OPs received the same in installments.  Further the act of OPs made the complainant to file this complaint by engaging an advocate and paying him his professional fee and also devoting his time, money and energy in conducting the case. Hence we are of the opinion that if a sum of Rs.10,000/- towards litigations expenses if OPs are directed to pay to the complainant would be just and proper. Further having Received amount of Rs.11,55,000/- and not refunding the same when demanded and further not completing the construction of the building and not assuring and informing the reasonable date of completion of the building/flat, and not intimating the date of registration put the complainant into lot of mental agony, hardship and stress which cannot be measured in terms of money.  Inspite of it, OPs are bound to compensate the complainant by way of damages. Hence we direct OPs to pay a sum of Rs.25,000/- towards damages to the complainant. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.

2. OPs are jointly and severally hereby directed to refund a sum of Rs.11,55,000/- received from the complainant and liable to refund the same along with interest at 12% per annum from the dates on which the OPs received the same in installments to the complainant till payment of the entire amount.

3. OPs are also directed to pay a sum of Rs.25,000/- towards damages for causing mental agony and strain and further Rs.10,000/- towards litigation expenses.

4. OPs are hereby directed to comply the above order within six months from the date of receipt of this order and submit the compliance report thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 26^th day of November 2021)

MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Annual report of OP.

Ex P2: Copy of the letter written dated 07.11.2016.

Ex. P3: Copy of the card.

Ex P4: Copy of the receipt

Ex P5: Copy of Bank statement.

Ex P6: Copy of the email correspondences

Ex P7: Copy of the Legal Notice

Ex P8: Postal acknowledgment.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Vaseem Ullah Qureshi, Asst. Administrative Manager of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorization letter.

Ex R2: Copy of the amount transferred document.

Ex R3: Copy of the application.

Ex R4: Copy of the demand notice.

Ex R5: Certificate u/s 65B of the Indian Evidence Act.

MEMBER                        PRESIDENT

RAK*