Date of Filing: 22/07/2011
Date of Order: 14/09/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 14th DAY OF SEPTEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1351 OF 2011
Smt. Revathi Rajashekar,
W/o. Sri. Rajashekar,
R/at: No.581, “C” Block,
AECS Layout, Kundalahalli,
Near Brooke Fields,
Bangalore-560 037.
(Rep. by Advocate Sri.H.S.Srinivasa Murthy) Complainant.
-V/s-
Country Club (India) Limited,
No.847/1, Road Next to Indiranagar
Post Office, 1st Stage,
Bangalore-560 038.
Rep. by its General Manager.
(Rep. by Advocate Sri.Sreenidhi.V) Opposite party.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.1,65,000/-, are necessary:-
As per the offer of the opposite party that they are offering residential plot on Bangalore-Tumkur Road in a layout called “Coconut Grove”, if the complainant becomes a member of their club under “Mr. Cool Privilege Card Member” the complainant paid Rs.1,15,000/- to the opposite party on 29.01.2007 wherein the opposite party has stated that they will allot 2178 square feet of land. On 06.02.2007 the opposite party gave the membership number as COOL CG 7290. The opposite party never gave the details of the site nor copies of the title deed, clearance certificate from the authorities. The complainant contacted the opposite party several times in this regard and was demanding the same, but opposite party went on demanding “subscription charges” for maintenance of the site etc.,. but did not deliver the site or its location. The opposite party has written a letter to the complainant on 24.09.2008. The opposite party has written to the complainant stating that the complainant was allotted a site at “Vedic Spa” measuring 1,089 square feet and another site measuring 1089 square feet as “introduction site” and requested the complainant to pay Rs.20,000/- each. This was not acceptable to the complainant. Whether the sites of Vedic-spa is also not mentioned. The complainant demanded the opposite party that he was to be given the site at Bangalore-Tumkur Road. The complainant and her husband visited the opposite party 15 times between 2009 and 2010 demanding the site at Bangalore-Tumkur Road. On 22.06.2011 the complainant was told that site has not been allotted to him at Bangalore-Tumkur road and the complainant has no chance of getting a plot therein and if the complainant wants a site he will be given a site at Vedic spa in Penukonda, Andhrapradesh that too on payment of development charges. This is nothing but an unfair trade practice and deficiency in service. Hence the complainant has issued a notice to the opposite party on 30.06.2011 for payment of interest and compensation. Hence the complaint.
2. In brief the version of the opposite party are:-
The opposite party has introduced a scheme Mr. Cool Card Members. According to which the member will have club facilities, Holiday package facilities to all clubs in India and also a complimentary plot. Accordingly the complainant applied for a membership and paid Rs.1,15,000/- on 30.01.2007. He was given membership bearing No. COOL CG 7290. The opposite party has specifically informed the complainant that the complimentary plot allotted could be registered only on payment of the full membership fee, registration and maintenance charges. The opposite party has informed the complainant to deposit Rs.35,000/- towards registration with respect to two plots along with other charges for maintenance etc.,. The opposite party is ready to execute a Gift Deed in respect of one site in Coconut Groove, 15th Extn. Phase, Ratnasandra Village and another site under MGM Scheme in Vedic Spa Project-1, 7th Phase, Pandiparthy Village, Penukonda, Ananthpur District on payment of registration charges of Rs.35,000/-. The complainant is using the club facility and there is no dispute about the said facilities. There is no deficiency in service with respect to any club facilities. This court has no jurisdiction since the jurisdiction for the court is only in Secunderabad and Hyderabad as per clause-17. All the allegations to the contrary are denied.
3. To substantiate their respective cases, the parties have filed their respective affidavits and documents. The opposite party has filed written arguments. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether there is deficiency in service?
- Whether this Forum has no jurisdiction to entertain the complaint?
- What order?
5. Our findings on the above points are:-
Point (A):In the Positive
Point (B):Has jurisdiction
Point (C):As per the final order
For the following:-
REASONS
POINT (A) to (C):-
6. Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that the complainant had paid Rs.1,15,000/- towards the membership fee of “Mr. Cool Privilege Card Member”. The entire amount is paid by the complainant towards the membership fee. It is also an admitted fact that the person who becomes member are entitled to the following facilities from the opposite party:-
(i) Country Club Cool Life Membership.
(ii) Complementary Plot
(iii) Holiday Package of 2 night 3 days stay in Bangalore, Bush Betta.
(iv) Holiday package to RGBC Goa Goa for 6 nights 7 days
(v) 3 days 2 nights in Country Club De-Goa with one way Air Ticket of couple and even food and pick up and drop is taken care.
(vi) Access to all the Clubs in India and other facilities.
(vii) Non refundable membership fee in this scheme is Rs.1,15,000/-.
That is to say as a member the complainant is entitled to a site, a complementary site, that means, site will be given freely; it will not have any charges to be paid for that site; a member is entitled to a free site.
7. In this regard the opposite party has written a letter to the complainant on 30.01.2007 which reads thus:-
“We congratulate you on becoming the Country Club Member as a part of Mr. Cool Card member. Under (MGM) Scheme you will be getting Complimentary 2178 sq ft of land at Coconut Groove-Tumkur.”
That means the opposite party has assured complementary site of 2178 square feet at Coconut Groove-Tumkur and not at any other place; that means in the Tumkur the sites have been offered as complementary and for that reason the complainant has become the member of the opposite party and not for any site anywhere else. Even if the opposite party offers site at heart of Bangalore or in New Delhi it is not the site at Tumkur. Hence now offering of site at Penukonda or in any other place is nothing but deficiency in service and also unfair trade practice.
8. It is further an admitted fact that on 24.09.2008 contrary to the agreement dated: 31.02.2007 the opposite party has written a letter to the complainant asking her to pay Rs.40,000/- for two sites measuring 1089 square feet each i.e., 2178 square feet at Vedic Spa. It does not say, where this Vedic Spa is situated? What is the dimension of the site? And whey the complainant has to pay Rs.40,000/- ? It is also an undisputed fact that the complainant went on requesting the opposite party for a site at Tumkur which was assured to him as a complementary site. That has not been given.
9. The opposite party now contents that they are prepared to give a site at Coconut Groove, 15th Extn. Phase, Ratnasandra Village and another site under MGM Scheme in Vedic Spa Project-1, 7th Phase, Pandiparthy Village, Penukonda, Ananthpur District, Andhra Pradesh. This is not for which the complainant had invested the money with the opposite party to become member; he had become member as the opposite party has assured a site at Tumkur not at Penukonda in Andhra Pradesh. The opposite party is changing the site from Karnataka to Andhra Pradesh which is impermissible in law. In a similar case between the Country Club (India) Ltd., -V/s- Sri. Sourabh in Appeal No.1489/2009 dated: 13.10.2009, the Hon’ble Karnataka State Commission has held that, “the non-allotment of the site is deficiency in service and the amount has to be repaid and it is deficiency in service.” Hence this is nothing but a deficiency in service and also unfair trade practice.
10. There is no proof to show that the complainant had utilized the services of the club of the opposite party at any point of time after paying Rs.1,15,000/- till date. These allegations are made without any material. Merely the opposite party has certain alienation made and certain layout has been approved in 2011 it does not mean that the opposite party is justified in their action.
11. The parties have citied the decision in II (1993) CPJ 155, III (2004) CPJ 227, I (2003) CPJ 13 and the judgment of our State Commission in a case between the Country Club –V/s- L. Mahadevan and Another in Appeal Nos. 100/2010 and 101/2010 dated: 15.02.2010 there is no dispute above the proposition of law stated therein. These are not applicable to the facts and circumstances of this case. Discussing and distinguishing and quoting is prohibited under Regulation 18(5) of the Consumer Protection Act (2005). Hence it is not quoted.
12. Similar cases are filed against the opposite party in any number of cases before the Forums at Bangalore and also in the State Commission, these similar contentions were negatived by the District Forums and also by the State Commission and the opposite party is complying with the order by paying the amounts to the concerned members who have been not given the sites, who became members on the assurance of the sites and later asking them to go and take the sites elsewhere. These contentions were negatived by the District Forums and the State Commission; even then the opposite party taking the same contention again and again this is nothing but an unfair trade practice. We would have imposed punitive damages, but on the ground of parity we are refraining from imposing punitive damages. If the opposite party continue to take same defense again we may have to reconsider of imposing punity of damages in appropriate cases. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay to the complainant sum of Rs.1,15,000/- together with interest thereon at the rate of 12% per annum from 29.01.2007 until payment within 30 days from the date of this order.
3. The opposite party is also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 14th Day of September 2011)
MEMBER MEMBER PRESIDENT
