COMPLAINT FILED: 24.03.2011
DISPOSED ON: 10.01.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
10th DAY OF JANUARY-2012
PRESENT :- SRI. B.S. REDDY PRESIDENT
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO. 590/2011
ComplainantS | 1. Mr. M.S. Suresh Kumar, 2. Smt. Kavithasree, Both residing at #230/01, Innovative Flora, ‘B’ Block, G-2, Thimmaiah Garden, Cox Town, Bangalore – 560 005. Adv:Sri. V. Ganga. V/s. |
OPPOSITE PARTIES | 1. Country Vacations, (A Division of Country Club (I) Ltd., # 4, 3rd Floor, S.V. Towers, Krishna Industrial Area, Hosur Road, Koramangala, Bangalore – 560 029. Adv: Sri. Somashekara Reddy 2. Amrutha Estates, #478, “Mahapadma Building”, 1st Main, 1st Phase, Indiranagar, Bangalore – 560 038. |
O R D E R S
SRI. B.S.REDDY, PRESIDENT
The complainants being husband and wife filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to refund an amount of Rs.75,000/- with interest at 12% p.a. and to pay compensation of Rs.20,000/- towards mental agony and harassment on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainants to be stated in brief:
The Sales Manager and the Staff of OP.1 offered the membership to the complainants in Country Vacations (OP.1). The complainants were not interested in purchasing the membership of the club. However, the representatives of the OPs lured the complainants by giving an offer that on becoming the member of the club, they would also be given a complementary site for just Rs.20,000/-, they assured that on the payment of total sum of Rs.55,000/- to OP.1 and Rs.20,000/- to OP.2, in all sum of Rs.75,000/-, the complainants would be given a site. Based on that assurance the complainants with an intention of getting a property, agreed to subscribe to the membership of the club. On payment of an amount of Rs.55,000/- on 28.01.2008 to OP.1 a purchase agreement dated 28.01.2008 with the terms and conditions for allotment of complimentary plot was issued in favour of complainants. On 09.03.2008 a welcome letter was issued by OP to the complainants, on the instructions of OPs the balance amount of Rs.20,000/- was paid through cheque which was encashed on 31.01.2008. The complainants were regularly following up with OPs for the allotment and registration of the site assured to the complainants. Even after the expiry of 18 months from the date of payment of Rs.20,000/- i.e. in November 2008 to May 2010, the OP have not come forward for the allotment and registration of the site assured to the complainants. The complainants have been continuously following up with OP.2 for the purpose of getting the site allotted and registered. The complainants got issued the legal notice dated 12.01.2011, the same was served on OPs. Inspite of legal notice, OPs neither replied nor repaid the amount to the complainants. Hence the complaint.
3. On appearance OP.1 filed the version contending that the complaint is not maintainable, this Forum has no jurisdiction to entertain the complaint, OP.1 reserves the right to refer the matter to the courts in Secunderabad and Hyderabad. There is no deficiency in service on the part of OP.1. The complainants after going through the advertisement with regard to membership approached OP.1 and they were explained about the various schemes. The complainants being impressed with the offers expressed their willingness to become a member with OP.1 by paying a non-refundable sum of Rs.55,000/- to OP.1. The complainants paid a sum of Rs.20,000/- to OP.2. It will be the duty of the complainants to avail all the services and benefits of the club. OP.1 as per its scheme had offered the complainants with many offers and it is the complainant who did not utilize the offers and for the mistake of the complainant for not utilizing the offers, OP.1 shall not be liable. The complainants slept over his right to enjoy the offers provided by OP.1 and now claiming the membership fees for not utilizing the services. The OP.1 is now even ready to allot all the benefits of the scheme as mentioned in the offer letter. The membership fee is non-refundable. OP.2 is ready to execute the complimentary site sale deed as soon the complainant pays miscellaneous charges in favour of OP.2. The site registration process is between the complainant and OP.2 only not for OP.1. The complainant having utilized the club facilities with other such complimentary benefits at its best, taking undue advantage has come up with new plea so as to encash the entire amount paid after having utilized the complimentary benefits. The OP.1 is ready to get register the complimentary plot in the name of the complainant on behalf of OP.2. There is no allegation against the OP.1, the only allegation against OP.2 is that not executing the sale deed in favour of the complaint. Hence it is prayed to dismiss the complaint with costs.
4. OP.2 inspite of service of notice failed to appear, hence placed ex-parte.
5. The complainants in order to substantiate complaint averments, complainant No.1 filed affidavit evidence and produced documents. The Sales Executive (Customer Care) of OP.1 filed affidavit evidence in support of the defence version.
6. Arguments on both sides heard
7. Points for our considerations are:
Point No.1:- Whether the complainants proved the
deficiency in service on the part of
the OPs?
Point No.2:- Whether the complainants are
entitled for the reliefs now claimed?
Point No.3:- To what Order?
8. We record our findings on the above points:
Point No.1:-Affirmative.
Point No.2:-Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
9. At the out set, it is not in dispute that the complainants became members of the OP club by paying an amount of Rs.55,000/- on 28.01.2008. OP.1 had issued the receipt acknowledging the receipt of the said amount and has also executed purchase agreement dated 28.01.2008. OP.2 is sister concern of OP.1. One of the main offers made to become member of OP.1 was allotting a complimentary plot which made the complainants become its members. The main grievance of the complainants is they have paid an amount of Rs.20,000/- towards allotment of the complimentary plot, but OPs have not fulfilled their obligation by executing sale deed. The terms and conditions of allotment of complimentary plot produced reveals that OPs have agreed to register the plot after completing all governmental formalities which are involved while acquiring land such as conversion, survey, layout plans, etc., It is stated that the plot allotted is expected to register within 18 months from the date of full payment of membership fee. The complainants have paid the membership fees on 28.01.2008, but OPs have not produced any material to show that any land has been acquired for the purpose of formation of layout to allot the site to the complainants. There is no merit in the contention of OP.1 that this Forum has no jurisdiction to entertain the complaint and it is only the Courts at Secunderabad and Hyderabad are having jurisdiction to entertain the complaint. The entire transaction had taken place at Bangalore. The documents are executed and the amount has been received at Bangalore only.
10. Further the contention of the OP.1 that it is the responsibility of OP.2 to execute the sale deed in respect of complimentary plot, it has nothing to do with the allotment of the plot cannot be accepted. It is because of the offer made by OP.1 to allot a complimentary plot, these complainants became members by paying an amount of Rs.55,000/-. The amount of Rs.20,000/- was paid to OP.2 towards developmental charges, the OP.2 cannot be solely held responsible for registering the site. Further the terms and conditions for allotment of complimentary plot are executed by OP.1 through its ORD Manager, in view of the same OP.1 cannot escape its liability. The amount of Rs.55,000/- covers the entire membership amount, there is no any amount due to be payable towards membership fee. The act of OPs in not taking any steps to acquire any land for the formation of layout and allotting the complimentary plot and registering the same in favour of the complainants, amounts to deficiency in service. The legal notice dated 12.01.2011 was issued to OPs, no reply has been sent to the same nor OPs have complied the demand by refunding the amount collected from these complainants. Under these circumstances, we are of the view that the complainants are entitled for refund of entire amount of Rs.75,000/- with interest at 12% p.a. as compensation from the respective date of payments till the date of realization. Accordingly, we proceed to pass the following:
O R D E R
The complaint filed by the complainants is allowed in part.
OPs are directed to refund an amount of Rs.75,000/- with interest at 12% p.a. from the respective date of payments, till the date of realization and pay litigation cost of Rs.2,000/- to the complainants.
This order is to be complied within four weeks from the date of this order.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 10th day of January-2012.)
MEMBER PRESIDENT
