BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 05^th DAY OF DECEMBER 2020

CONSUMER COMPLAINT NO.1635/2018

PRESENT:                                                     

Sri.K.S.Bilagi, B.com, M.A., LL.M.….  PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.…   MEMBER

Sri.M.B.Seena, B.A., (Law), LL.B.….  MEMBER

Mr.Rajendra Prasad Pulivarthi,

S/o. Ramesh Babu,

Aged about 34 years,

R/at No.207, 2^nd Floor,

Sannidhi Apartments,

 (Complainant is Rep. by Adv. Sri.Chaluvaraja.G.V)

V/s

OPPOSITE PARTIES:

1. Country Vacations,

(A Division of Country Club

Hospitality and Holiday Ltd.),

Rep. by its Manager,

Reg. Office at Amrutha Castle,

5-9-16, Saifabad, Opp. to Secretariat,

2. Country Vacations,

(A Division of Country Club Hospitality

& Holiday Ltd.),

Rep. by its Branch Manager,

Branch Address:

No.55/1,Varthur Hobli,

Sarjapur Road,

(OPs are Rep. by Adv. Sri.D.Narase Gowda)

= = = = = = = = = = = =

Author SRI K.S.BILAGI., PRESIDENT

******

//JUDGMENT//

1. This complaint has been filed under Section 12 of the Consumer Protection Act 1986 (herein after referred as an Act) to direct the opposite party to refund the deposited amount of Rs.90,000/- with interest at 15% from 23.02.2018, Rs.20,000/- towards legal cost and Rs.30,000/- as damages.

2. The case of the complainant in brief is as under;

On 21.02.2018 the complainant became the member of opposite party club by paying Rs.90,000/- and on 21.02.2018 within a stipulated period of 10 days, he made request for cancellation for agreement and despite acknowledged his request on 23.02.2018 and even after lapse of 120 days, the opposite party failed to refund the amount.

3. It is further case of the complainant that when he contacted opposite party No.2 on 21.07.2018, Mr.Dadapeer who handles the cancellation of Membership, asked the complainant to send email and both opposite party No.1 & 2 failed to refund Rs.90,000/-.  Hence this complaint for deficiency of service and mental harassment. 

4. After receipt of notice, the opposite party No.1 alone appears and files version.  Despite service of notice, opposite party No.2 failed to appear and placed exparte.

5. Opposite party No.1 files a version admitting that the complainant entered into purchase agreement dated 17.02.2018 for having paid Rs.90,000/- against agreed amount of Rs.1,39,000/-.  As per the agreement, the complainant was supposed to pay balance of Rs.49,000/- and in case of nonpayment of balance amount, the opposite party is entitle to deduct some amount and refund the balance.  The opposite party admits terms and conditions of the purchase agreement.  The allegation of the complainant amounts to cheating and breach of trust.  As per the terms and conditions of purchase agreement, the complainant is supposed to approach National Commission at New Delhi only.  Hence opposite party No.1 request this Commission to dismiss the complaint with an exemplary cost.

6. The complainant files affidavit evidence and relies on the documents.  Affidavit evidence of official of opposite party has been filed and 1 document came tobe mark.  Heard the argument and perused the records. 

7. The following points arise for our consideration;

1. Whether complainant proves the deficiency of service on the part of the opposite parties?

2. Whether complainant is entitle to the reliefs claimed in the complaint?

3. What order?

8. Our findings on the above points are as under;

POINT NO.1: In the Affirmative,

POINT NO.2: Affirmative in Part,

POINT NO.3: As per final order for the following;

9. POINTS NO.1 & 2:     Even though opposite party raises an issue with regard to Jurisdiction of this Commission contending that as per the Hire Purchase Agreement, the Courts at Hyderabad alone will have the jurisdiction to entertain this complaint.  It is true that opposite party No.1 office has been established in Hyderabad city.  Whereas, opposite party No.2 office is at Sarjapur Road, Bangalore and complainant is the resident of Bangalore and the sale agreement is signed at Bangalore between complainant and representative of opposite party No.2.  Even though there is a clause about jurisdiction of Hyderabad alone, but when the agreement is at Bangalore between complainant and opposite party No.2 and payment is made at Rs.90,000/-, the clause No.58 of Sale Agreement does not create the bar of entertaining this complaint.

10. It is admitted fact that the complainant executed the agreement by paying Rs.90,000/- on 17.02.2018 to the opposite party No.2 and agreed to pay balance of Rs.49,000/-.  As per the condition at page 1 of the sale agreement, the complainant being second party is liable to pay entire mount within 30 days of the initial payment.  It means, the balance amount of Rs.49,000/- was payable on or before 17.03.2018.  The clause No.34 of the sale agreement is most relevant which reads thus;

11. The above clause clearly indicates that the cooling period of 10 days from the date of signing this agreement and thereafter member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- and after deducting Rs.3,800/- opposite party shall pay the balance within 120 days from the date of invoking of cool off period. The receipt annexed to the agreement indicates payment of Rs.90,000/- on 17.02.2018.  This fact is also proved from the extract of Citibank Rewards.  By letter dated 21.02.2018 the complainant called upon the opposite party to cancel his agreement and refund the amount as earlier as possible.  Whereas, opposite party had send a mail dated Fri, 02^nd March 2018 stating that as per the signed agreement after deducting normal charges of Rs.3,800/- the remaining amount will be refunded within 120 days.  Even though request for cancellation of agreement and refund of amount is made within cool off period of 10 days from 17.02.2018.  Even after expiry of cool off period of 10 days from 17.02.2018 and 120 days from expiry of cool off period, opposite failed to refund the balance amount after deducting necessary charges of Rs.3,800/-.  Once again on 7^th September 2018, the complainant had sent email stating that even after expiry of 155 days, there is no response of the opposite party.  Whereas, opposite party neither refunded the balance amount in response to the request nor tendered the balance amount to the complainant during the pendency of this case.  It means opposite party was liable to refund Rs.86,200/- after expiry of 10 days cool off period and 120 days which takes us to 03.07.2018.  The opposite party has failed to stick on to the terms of agreement which amounts to deficiency of service on the part of the opposite party.  Therefore, opposite party is liable to refund Rs.86,200/- out of Rs.90,000/- after deducting Rs.3,800/- to the complainant.  The complainant claims 15% interest from 23.02.2018 which is exorbitant.  In the year 2018 the rate of interest on fixed deposit was less than 8%.  Therefore, complainant is entitle to at the most 8% interest from 03.07.2018 not from 23.02.2018. The complainant claims Rs.20,000/- towards legal cost.  It is pertinent to note that the complainant has not whispered how much fees he has paid to his advocate and admittedly no fees is paid on the complaint as claim was less than Rs.5 lakhs on the date of complaint.  It is summary proceedings.  Under such circumstances, the cost of litigation is considered as only Rs.2,000/-.  The complainant claims Rs.30,000/- as a damages.  When we are awarding interest at 8% from 03.07.2018 for deficiency of service till payment of Rs.86,200/-, the complainant is not entitle amount as a damages in addition to interest. 

12. POINT NO.3:     In view of the discussion made in the preceding paragraphs, we are of the opinion that complaint requires tobe allowed for Rs.86,200/- towards refund and cost of litigation of Rs.2,000/- only.  The claim for damages has been rejected.  We proceed to pass the following;

ORDER

The complaint is allowed.

The opposite parties are hereby directed to refund Rs.86,200/- (Rupees Eighty Six Thousand Two Hundred only) with interest at 8% from 03.07.2018 till realization.

The opposite parties are also directed to pay Rs.2,000/- (Rupees Two Thousand only) towards cost of litigation.

The opposite parties are directed to comply this order within 30 days from this date.

Supply free copy of this order to both the parties and return spare copies of the pleadings and evidence to the parties.

     (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 05^th day of DECEMBER 2020)

          (M.B.SEENA)            (L.MAMATHA)                   (K.S.BILAGI)    

//ANNEXURE//

Witness examined for the complainants side:

Sri.Rajendra Prasad Pulivarthi, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the Sale Agreement,
2. Copy of Confirmation Letter,
3. Copy of complainant credit card payment statement,
4. Copies of E-mail conversations.

Witness examined for the opposite parties side: 

Mr.Mohammed Akmal Pasha, Manager of the Customer Care Center of Country Vacations, has filed his affidavit.

Documents marked for the opposite party side:

1. Ex.R1: Authorized letter issued by Vice Chairman and Director of Hospitality and Holiday Ltd.,
2. Copy of the Permanent Membership Cards,
3. Copy of the Well come letter.

       (M.B. SEENA)               (L.MAMATHA)                (K.S.BILAGI)