BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE (URBAN)

08^TH APRIL 2011

       PRESENT:- SRI.B.S.REDDY                      PRESIDENT           

                         SMT. M. YASHODHAMMA     MEMBER

                         SRI.A.MUNIYAPPA                MEMBER

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 21% p.a., compensation of Rs.1,00,000/- on the allegations of deficiency in service on the part of the OP.

          As the OP in all the complaints is common, the question 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.

          2.    The brief averments as could be seen from the contents of these complaints are as under:

          Complainants being attracted by the offer made by OP thought of becoming members of OP’s Club under the name and style “Mr.Kool Card Membership”. OP accepted their membership and collected the amount towards membership fees. OP promised so many benefits including allotment of free sites; OP failed to keep up its promise. For no faults of their complainants were made to suffer both mental agony and financial loss. Under such circumstances complainants felt deficiency in service on the part of the OP. For the convenience sake the card membership, Membership No. amount paid, Receipt No., date of receipt, are noted below in the chart. When the repeated requests and demands made by the complainants have gone in vain they are advised to file these complaints and sought for the reliefs accordingly.

3.      On appearance OP filed the version. The defence set out in all the complaints is almost identical and same. The brief averments made in the version are as under:

According to OP it has already issued allotment letters in favour of the complainants, allotted complimentary sites mentioned the site no., phase no. area etc. In the said letters OP has asked complainants to deposit registration and maintenance charges of Rs.15,000/- and Rs. 30,000/- respectively within 10 days from the date of issuance of allotments letter, which has not been deposited by complainants inspite of several requests and reminders. Due to the said reason OP could not register the allotted site in favour of the complainants. OP is ready for registration as soon as complainants deposit the registration charges. Inspite of several requests complainants not turned up for registration. Under these circumstances this forum can only direct the OP to register the complimentary plots on receipt of full registration fees. In this scheme complainants cannot seek refund of amount on the alleged ground of not providing of complimentary plots as the same is not part of the facilities assured; complainants having utilized all the facilities are now trying to seek for refund of membership fee paid. This is not permissible under law; the place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; OP never assured to allot the complimentary sites at Bangalore and that they had clearly informed them that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa/Banyan Tree which was formed by the sister Concern of the OP; All the members knew the place of allotment of complimentary sites. Only the site numbers and the phase in which the said sites are located being mentioned in the allotment letter and there is no malafide in not mentioning the details of the place of allotment. The said letter of allotment to the members was issued by the customer care department and not by the legal department. The contents of the said allotment letter could have been different with details of the boundary etc; Membership fee paid by the members is non refundable, since the same would be utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable harm and loss to the OP; Complainants are enjoying the facilities provided by OP in their clubs; Complainants are not consumers and does not satisfy the said definition under the Consumer Protection Act 1986. OP is a company incorporated under Companies Act, 1956 and carrying on the hospitality business and having several clubs and resorts across the country and has been providing good services to its members. OP admits the payments of membership fee in all the complaints; Prayer seeking direction to pay interest at the rate of 21% is commercial in nature and cannot be granted; Prayer seeking compensation of Rs.1 lakh i.e. expenses of Rs.10,000/- and cost cannot be granted for the reason stated here in above; Complainants are not entitled for allotment of any complimentary plots; When the non registration is due to default of the complainants who have not turned up for registration and not paid full registration charges.  Among these grounds OP prayed for dismissal of the complaints.

4.      In order to substantiate the complaint averments, each one of these complainants filed their affidavit evidence and produced receipts issued by OP, copy of letter of allotment, membership applications, copy of the police complaint dated 10.11.2009, receipts for having paid the membership and registration fees and correspondences; the demand notice. On behalf of OP Sri Venktesh Verma C., Assistant Administration Manager, filed his affidavit evidence and not produced any documents. Heard arguments from complainants side and taken as heard from OP 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 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 complainants became the members of the OP’s scheme as noted in the chart. The OPs accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants. Now the main grievances of these complainants are that though OP collected the membership fees, in the year ­­­2006 to 2009, but failed to provide the facilities offered; to allot and register the complimentary sites in their favour as promised.

8.      According to complainants OP promised them to allot complimentary sites; they with a sole intention of getting the complimentary sites became the members of the OP Club and paid membership fees. The receipts issued by the OP are produced. Inspite of repeated requests OP failed to fulfill its promises and extend the services offered. Both affidavit evidence and documentary evidence produced by these complainants support their cases. There is nothing to discard their sworn testimony.

9.      As against this unimpeachable evidence of the complainants; the defence of the OP that whatever club membership fees paid is non-refundable has no basis. It is further contention of the OP that even now OP is ready to register the documents with respect to complimentary sites in favour of the complainants, if the complainants pay the required registration fee and stamp duty. There is no basis for this defence; though OP has stated in his version and affidavit evidence that it had produced the sanction plan and conversion order but infact OP has not produced any documents in support of its defence to show that layout has been formed, sanctioned plan has been obtained from statutory authorities and the sites are readily available at its disposal free from all encumbrances as on today.  Hence the version of the OP cannot be accepted.

10.    In C.No.2547/2010 OP has contended that complainant has failed to deposit full membership fees and paid only Rs.40,000/-. As per the terms and conditions if the member fails to deposit full membership fees within 45 days from the date of allotment of membership then OP can cancel the membership by forfeiting the membership fees paid by the complainants. To invoke the forfeiture clause OP must establish that the sites offered as per their allotment letters are ready at the disposal of the OP free from encumbrances as on that date. Further contention of the OP is that in similar matter Hon’ble National Commission has stayed the order passed by the IInd Additional District Consumer Forum, Bangalore which had directed OP to refund the membership fees, which made part payment. In our view the matters are still pending in Revision Petition No.1191 & 1192/2010; Only on the basis that similar order passed is stayed by the Hon’ble National Commission; it cannot be said that complainants are not entitled for refund of the amount.

11.    Though OP has received such a huge amount from these complainants in the year 2006 to 2009 but failed to allot and register the complimentary sites as promised and failed to provide the basic information regarding the location of the plots, details of the layout approved sanction plan etc., There is no reply to correspondence and notice sent by the complainants since three years.  There is no response from OP. We are satisfied that complainants are able to prove the deficiency in service on the part of the OP. Under these circumstances complainants are 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 these complainants towards membership fees, along with interest and litigation cost. Accordingly we proceed to pass the following:    

O R D E R

The complaints are allowed in part.

1. In complaint No.2543/2010 OP is directed to refund Rs.40,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

2. In complaint No.2544/2010 OP is directed to refund Rs.1,05,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

3. In complaint No.2546/2010 OP is directed to refund Rs.1,15,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

4. In complaint No.2547/2010 OP is directed to refund Rs.40,000/- along with interest at 12% p.a from the respective  date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.

5. In complaint No.2548/2010 OP is directed to refund Rs.2,00,000/- along with interest at 12% p.a from the respective  date of payments till 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 this order.

This original order shall be kept in the file of the complaint No.2543/2010 and copies of it shall be placed in other respective files.

Send the copy of this order 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 8^th day of April 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.