Karnataka

Bangalore 4th Additional

CC/14/2172

Dr. Channabasayya Hiremath and Other - Complainant(s)

Versus

Country Vacations And Others - Opp.Party(s)

M.R. Srinivas

13 Dec 2017

ORDER

Complaint filed on: 19.12.2014

                                                      Disposed on: 13.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.2172/2014

DATED THIS THE 13^th DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

1. Dr.Channabasayya Hiremath S/o Sri.Shankarayya Hiremath, aged about 42 years

 

2. Dr.Smt.Priya C Hiremath

W/o Dr.C.S.Hiremath,

Major

 

Both are R/at no.172/7-1,

12^th cross, 3^rd main road, Mahalakshmi layout, Bengaluru-86.

 

By Adv.Sri.M.R.Srinivas   

 

 

V/s

Opposite party/s

Respondent/s:-

 

1. Country vacations

International Holiday Club Marketed by: Country vacations,

A division of Country Club (I) ltd., Rep. by its Managing Directors

 

2. Sri.Y.Rajeev Reddy,

Chairman and

Managing Director, Major

 

3. Sri.Siddharth Reddy,

C.E.O, Major

 

4. Sri.Varun Reddy,

C.O.O Major

 

All are at no.4, 3^rd floor, S.V.Towers, Krishna

Industrial Area, Hosur Road, Koramangala,

Bengaluru-29.

 

By Adv.Sri.D.Narasegowda

 

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainants u/s 12 of the CP Act against the Opposite parties no.1 to 4 (herein after referred as Op.no.1 to 4 or Ops) seeking direction against them to pay a sum of Rs.1 lakh + interest @ 18% p.a. from the date of payment i.e. 01.04.2009 to 01.04.2014 = 5 years if Rs.90,000/- approximately along with damages to the tune of Rs.1 lakh including interest as damages in total Rs.2,90,000/- from the date of complaint till realization. Further direction to grant costs and such other reliefs as this forum deems fit.

 

          2. The brief facts of the case of the Complainants are that he is the member of Country vacations. In the year 2009, the Ops have approached the Complainant that the Ops have allotted the compliment plot of 10,898 sq. yards each at Ops venture coconut grove at Tumkur and the Ops also state that there is absolutely no consideration for the said complimentary 2 plots. The Complainants submit that, the Ops through a letter dtd.28.02.2009 promised that the Ops would register the plot in the Complainant name after completing all governmental formalities which are involved while acquiring land such as conversions, survey, layout plan etc., and the Ops promised that the plot allotted is expected to be registered in the Complainant name within 18 months from the date of full payment of membership fee, completion of legal formalities and development charges of Rs.40,000/- paid in favour of the Ops sister concern M/s.Amrutha estates. The Ops stated that the construction on the said plots has to be done through Country club (I) ltd., only. The Complainants further submit that as per the terms and conditions for allotment of complimentary plot dtd.28.02.2009 the Complainant paid amount to the Ops company for a sum of Rs.20,000/- on 31.03.2009 receipt no.5028, Rs.13,000/- on 28.02.2009 receipt no.4619, Rs.15,000/- on 11.03.09 receipt no.4736, Rs.52,000/- on 28.02.2009 receipt no.5339, 5040, 3078, 8333 in total of Rs.1 lakh. The Ops company group manager/customer relations officer issued points certificate dtd.16.07.2009. The Complainants further submit that as per the terms & conditions of allotment of site by Op, it has not fulfilled the same. The Complainant personally requested, visited the Ops office and contacted the Ops official. And they have failed to give proper explanations and the Complainant tried to contact the Ops so many times but all of the Ops were not available for comments and further Ops employees gave false assurance and false promises to register the site in the Complainant name, and they also requested to grant some times to register the site on the Complainant’s favour because they have not got permission from the government to form the resident layout. The Complainants further submit that the Ops colluded together giving false promises and false assurance to the general public with mala-fide intention the Ops have collected huge amount from the general public in order to cheat them and all. The Ops misused the funds and diverted the same to other problems. And failed to give the site, thereby the Ops have committed breach of contract, misappropriation of fund and cheating the public and the Complainants. The Complainants further submit that they caused the legal notice to the Ops on 04.11.2014 calling upon the Ops to repay the amount paid by them. Inspite of service of the notice also they are not paid the above said amount to the Complainants. Hence, they filed this complaint.  

 

          3. On issuance of the notice to the Ops, the Op.no.1 to 4 did appear through their counsel and filed version. The version of Ops is denying the allegations made against them and denying with regard to the alleged deficiency of service on its part. The Ops submit that the complaint filed by the Complainant is not maintainable either in law or on facts and it is liable to be dismissed in liming as the Complainant has not approached this forum in clean hands. The complaint is also not maintainable since there is no cause of action, complaint is vague, bald and devoid of merits. The complaint is hopelessly barred by law of limitation. The complaint is not filed well in time. The entire averments made in the complaint are categorically and specifically denied as false and in-correct, except which are admitted by Ops. The complaint of the Complainant is imaginary one and for which there is no evidential value. The Ops further submit that the Complainant has paid a sum of Rs.80,000/- towards the Club membership in terms of the purchase agreement dtd.28.02.2009. The Complainant apart from the above, as against registration charges of Rs.40,000/-, the Complainant has paid only Rs.20,000/- and still due a sum of Rs.20,000/- to the Ops. The Complainant without remitting the said balance amount and by suppressing the true and material facts has approached this forum. The Ops further submitted that the Ops upon receipt of the above said amount has issued the laminated club membership cards to the Complainants. The Complainants have duly acknowledged the membership card issued by the Ops. That apart the Ops also issued the allotment letter dtd.28.02.2009 allotting two plot 1089/- sq. feet each complimentary plot at free of cost situated at Tumkur or Vedic spa, Tumkur and requesting to pay Rs.40,000/- towards registration charges. Though the Complainants themselves produced the allotment letter but for the reasons best known to them have not paid the amount and after lapse of more than six years have come up with the above false and frivolous complaint against the Ops for wrongful gain and nothing else. The Ops further submitted that this forum absolutely has no jurisdiction to try the above complaint as there is no deficiency of service on the part of Ops and even otherwise if any the disputes between the parties is in civil in nature and to be tried thoroughly and cannot be adjudicated summarily.  The Ops further submitted that they have issued the club membership cards in favour of the Complainant. The Complainant has entered into the purchase agreement dtd.28.02.2009 with this Ops. In terms of the agreement clause 9 and 13, there is no provision for cancellation of the club membership or for refund of the amount. However, the Complainant is at liberty to sell or transfer or gift the club membership to any third party. In-spite of that the Complainants for the reasons best known to them have filed this false and frivolous complaint. Therefore this forum has no jurisdiction to try the complaint. The Ops further submitted that there is no cause of action to file the complaint and even there is no deficiency on their part and Ops not rendered any deficiency of service nor engaging in the unfair trade practice at any point of time and this forum has no jurisdiction to try this complaint. The Complainants have not paid the annual maintenance charges all these years and in order to avoid annual maintenance charges has filed this complaint. The Ops further submitted that they are providing best services in their field without any blemish and even in the complaint there is no iota of evidence. But the Complainants suppressing the true facts have filed this complaint.  The Ops further submitted that the averments of the complaint it can be presumed that the Complainants are not an illiterate person and after enjoying the benefits and services of the club membership is trying to get the reimbursement for the expenses incurred by them by filing this complaint. As a matter of fact the Complainants have not paid the annual maintenance charges from last five years. Ops further submit that the main benefits for club membership and a holiday/vacation package. They offered yearly one week accommodation in their property totally free of cost except the service tax, it is more than two star facilities for a period of continuous 5 years either it is in India or abroad and Ops always ready to provide the package to the Complainants but there should be 30 days in advance booking to be made to make necessary arrangements. Further the club membership is for life time and it is transferable to their family members apart from the health club for a period of 5 years. The allegation of the Complainants that the Ops have committed breach of contract and misappropriation of funds and cheating, fraud etc., are baseless and even otherwise in the said circumstances the Hon’ble National Commission held that in the said circumstances the aggrieved party has to approach the competent court of law and Complainants cannot approach this forum. Hence on these grounds and other grounds prays to dismiss the complaint with exemplary cost.

 

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents from Ex-A1 to A17. Manager of the Op company filed his affidavit evidence and got marked the documents from Ex-B1 to B3. Both filed written arguments. We heard both side.

  

5. The points that arise for our consideration are:

1. Whether the claim of the Complainants is barred by limitation ?
2. Is there deficiency of service on the part of Op.no.1 to 4, if so whether the Complainants are entitled for the relief sought for ?
3. What order ?

                   

           

 

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative

Point no.2: In the Negative

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1: No doubt, the Complainants become the member of the club. In this context, there was a complimentary proposal for allotment of two sites at Tumkur without any consideration. As to know, whether the claim of the Complainants is within the time or not, we placed reliance on the contents of document Ex-A3 dtd.28.02.2009. For better appreciation we would like to extract the terms & conditions for allotment of complimentary plots shown in Ex-A3 which reads thus:

Mem.no.DT99#0069                      Date: 28.02.2009

Dear Mrs. & Mr. Dr.Channagasayya Hiremath congratulations on becoming a member of country vacations. As a compliment you would get a plot of 1089 sq.yards each at our venture Coconut grove at Tumkur. There is absolutely no consideration for the said complimentary 2 plots.

We would register the plot in your name after completing all governmental formalities which are involved while acquiring land such as conversions, survey, layout plans etc., Moreover country club will not be responsible for any changes in the policy of government regarding land acquisition, allotment of complimentary plots etc., The plot allotted is expected to be registered in your name within 18 months from the date of full payment of membership fee, completion of legal formalities and development of the project, subject to full payment of registration and development charges of Rs.40,000/- paid in favour of our sister concern M/s.Amrutha Estates. The Venture, phase, dimensions, plot numbers and layout plans are subject to change from the original mentioned in the brochure. Moreover any construction on the said plots has to be done through Country club (I) ltd. only (i.e. construction rights vested with Country club (I) ltd., only) For any assistance and enquires regarding the same please contact us at customercare@countryvacationsmail.com or call Mr.Srinvias 040-66666642 (for plot allotment) Mr.Shiva/Mr.Praveen 040-40044039 You may post your mail on this address: #4, 3^rd floor, S.V.Towers, Krishnanagar Industrial layout, Hosur road, Koramangala, Bengaluru-29.

Free plot is with zero consideration whatsoever and is subject to relocation due to any external factors beyond the control of company on which there shall be no legally enforceable rights of any of the customer/s.

 

For Country Vacations (A Division of  Country club India Ltd.,)   Sd/- Authorized Signatory

I/We hereby accept the above mentioned terms & conditions   Signature of Member   1. Sd/- 2.

 

Note (1) As the said plot is given complimentary basis to the members, the member does not have any rights to demand on the said plot by way of civil, criminal or in any nature.

       (2) If the company does not receive 50% of your total purchase price within four months time from the date of agreement (membership value below Rs.1,50,000/-) within 6 months (membership value above Rs.1,50,000/-), then the above mentioned plot would be taken back by the company and an available suitable plot will be given as compliment to you from any of our ventures once the company receives 50% of your total purchase price.

 

          8. On going through the cursory look of the contents of the above terms & conditions for allotment of complimentary plot goes to show that the plot alloted is expected to be registered in the name of the Complainants within 18 months from the date of full payment of membership fee, completion of legal formalities and development of the project subject to full payment of the registration and development charges of Rs.40,000/-. We have noticed that the Complainant has not paid the remaining registration fees of Rs.20,000/- which is mandatory on the part of the Complainants to get registered the complimentary plots. The last paid amount of Rs.20,000/- was on 31.03.2009 which can be seen on going through the contents of Ex-A8. From that date, till the date of filing of this complaint, the Complainant did not pay the remaining amount of Rs.20,000/- being the registration fees and also the annual maintenance charges. When the Complainants have not taken any proper steps by depositing remaining amount of Rs.20,000/- being the registration/development charges and kept quite till the date of filing the complaint that was on 19.12.2014, under such circumstances, it is held that the complaint filed by the Complainant is clearly barred by time. Accordingly we answered the point no.1 in the affirmative.

 

9. Point no.2: This issue is with regard to the deficiency of service on the part of Op.no.1 to 4. The learned counsel for the Complainants in support of their claim has placed reliance on the three following decisions:

(1) CC.no.347/2014 of Hon’ble National Commission

(2) I (2005) CPJ 478 of Hon’ble State Commission of Delhi

 

(3) II (1992) CPJ 1005 of Hon’ble State Commission of

    Maharashtra 

 

With reference to the said decisions submit that the Complainant is entitled for the relief sought for. Per contra, the learned counsel for the Ops placed reliance on the decision of the Hon’ble State Commission of Karnataka in appeal no.2201/11 dtd.12.07.2012.

 

10. First we have placed reliance on the decision of the learned counsel for the Complainant in CC.no.347/2014 of Hon’ble National Commission. The said decision is with regard to the delivery of the position of the plot. Ongoing through the contents of the entire text of the said decision, with due regard, the same is not applicable to the facts and circumstances of this complaint. In the instant case, the plots offered by Ops are complimentary having no consideration. The other two decisions are with regard to the Delhi State Commission and another one is Maharashtra State Commission, which are in respect of misleading advertisement, discrepancies between advertised system and system purchased and in respect of the physical possession of the bungalow within stipulated time. The facts of these two decisions are also quite different to the present case on hand. The issue involved in this case is with regard to the complimentary plots which have no consideration. Now, we would like to place reliance on the contents of the decision of the Hon’ble State Commission of Karnataka. In the said appeal, the applicant being the Op which is the Country Club (India) Ltd., prepared an appeal no.2201/11, 3119/11 to 3123/11, 3559/11 to 3561/11, 3565/11 & 3567/11, 3675/11 & 3676/11, 3679/11 to 3683/11, 3901/11 to 3905/11 & 127/12 to 130/12, they were decided on 12.07.2012. The claim of the Complainants therein has been considered by the District consumer forum as against the Country Club. The said order has been challenged in the appeal. The Hon’ble State Commission allowed the appeal and set aside the order passed by the District forum. In this context, we extract the relevant portions from para 8 to till the Order:

(8) From the records, as well as from the impugned order it is seen that the agreements came to be executed in favour of each of the Complainants and they are signed by both the parties. The Complainants have gone through the terms & conditions and signed the same with utmost satisfaction. The terms & conditions mentioned in the agreement is binding on the parties. From the averments made by the Complainants before the District forum, it can be stated that most of the Complainants have not deposited the registration fee and maintenance fee as agreed by them as per the terms of the agreements.

(9) The impugned order also indicates that the Complainants have not paid the entire amount for up gradation of their membership and therefore in our view the Complainants are not entitled for the complimentary plot from the Op.

(10) In support of his arguments, the learned counsel for the Op has produced certain citations before this Commission. The National Commission in revision petition no.3123/2011 wide its order dtd.25.01.12 has allowed the revision petition by setting aside the order passed by the State Commission. The appellant also relied upon one more decision of the National Commission reported in 2010 CTJ 768 (CP) (NCDRC) in the case of Sahara India Commercial Corporation Ltd. V P.Gajedra Chary wherein it has been held that the consumer forums are not the courts of plenary jurisdiction.  They cannot strike down the provisions of any Act or Rules or Clauses of any lawful agreement entered into between the parties and accordingly argued that the respondents have signed the lawful agreements entered into between the parties.

(11) The Complainant have not paid any consideration for the complementary plots. The Op admits that they would register the plots in favour of the Complainants only on payment of registration and maintenance charges and whenever the members have paid full membership fee they are entitled for complementary sites. The Complainants are getting the facilities provided by the Op and the club and the same is not in dispute and for the complementary sites to be registered in favour of the Complainants, the Op also issued the public notice requesting the Complainants to contact the Op to do the needful in their favour. The parties are expected to abide by the terms & conditions executed in between them.

(12) After having considered all these facts, under the circumstances of the case and in view of the latest decision of the National Commission referred to above and in view of the submissions made by the Op before this commission, we are of the view that the respondent/Complainants are not the consumers in so far as allotment of free sites/complimentary sites is concerned. But however the Op is at liberty to take a lenient view to do the needful, and they agreed in case of who have paid the registration and maintenance charges. Since we are disposing off these appeals, question of consideration of I.A. for delay does not arise. Accordingly we proceed to pass the following:

:ORDER:

Appeals are allowed. The impugned order passed by the District forum in allowing the complaints is set aside. However, the parties are at liberty to approach the appellant/Op in view of the reasoning recorded above for redressal of their grievance.

The parties are directed to bear their own costs.

The amount deposited by the appellant/Op in these appeals shall be transferred to the District forum to enable the DF to pay the same to the appellant if a memo is filed.

The original of this order is kept in appeal no.2201/2011 and a copy of it shall be placed in the rest of the files.

         Sd/-                                             Sd/-

       Member                                    President

 

11. In the instant case, as we already stated above, the remaining amount of Rs.20,000/- being the registration fees has been not paid by the Complainants. Further, the Complainants are due to pay annual maintenance charges, under such circumstances, they cannot be considered as the consumer in the light of the decision cited supra rendered by the Hon’ble State Commission. Hence, the Complainants are not entitled any of the relief sought for.  Accordingly we answered the point no.2 in the negative.

         

12. Point no.3: In view of our findings on point no.1 & 2, the Complainants are not entitled for any of the relief sought for. Accordingly we passed the following.

 

ORDER

 

          The complaint filed by the Complainants is hereby dismissed.

 

2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 13^th December of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

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

 

Sri.Dr.Channabasayya Hiremath, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Original brochure
Ex-A2	Letter dtd.Nil
Ex-A3	Allotment of complimentary plot dtd.28.02.09
Ex-A4 to A8	Original payment receipt in 4 numbers dtd.28.02.09, in 2 numbers dtd.11.03.09 and 31.03.09 for Rs.13,000/-+52,000/-+15,000/-+20,000/-
Ex-A9	Legal notice dtd.14.11.14
Ex-A10 to A13	Original postal through Courier
Ex-A14 to A17	Original served RPAD

 

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

 

Sri.Girishkumar, who being the Manager of Op company was examined. 

 

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Allotment letter dtd.28.02.09
Ex-B2	Conversion order dtd.07.12.07
Ex-B3	Layout plan

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT