IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> <br /> <br /> CC 480/09 DATED 10.02.2010<br /> ORDER<br /> <br /> Complainant 1. Sri. V.M. Gandhi S/o Late Venkatesaiah.<br /> 2. Smt. Nirmala W/o V,M.K. Gandhi, both residing at No.47, 23rd Block, S.B.M. Colony, 2nd stage, Srirampura, Mysore-23.<br /> <br /> (By Sri. G.S. Umashankar, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, Country Vacations Club, DCC (1) Ltd., 451/4, Vanivilas Road, Chamarajapuram, Mysore. <br /> (By Sri.Mahesh Prasad. D, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 22.12.2009<br /> Date of appearance of O.P. : 06.01.2010<br /> Date of order : 10.02.2010<br /> Duration of Proceeding : 1 Month 4Days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainants have filed the complaint, seeking a direction to the opposite party to refund of Rs.40,000/- with interest at the rate of 18% p.a. and also to award compensation for mental agony.<br /> <br /> 2. In the complaint it is alleged that, in the month of April 2008, the opposite party called upon the complainants over phone intimating that, they have won a gift voucher and collect the same from the office. Believing the same, the complainants went to the office of the opposite party on 24.04.2008 and a gift article worth Rs.100/- was given. The opposite party offered to the complainants to sell a site near Bangalore on installment basis. The opposite party executed an agreement in favour of the complainants. The total agreement amount was 2,95,000/-. The initial payment of Rs.1,40,000/- was collected by the opposite party from the complainants through two cheques, one for Rs.1,00,000/- and another for Rs.40,000/-. The balance was to be paid in 9 monthly EMI’s. Cheque for Rs.40,000/- has been realized and another cheque for Rs.1,00,000/- was not realized. The agreement is in printed papers. It is in English. The opposite party explained the contents of the agreement in Kannada and took signatures from the complainants. The first complainant is an ex-serviceman and he is suffering from ill-health. He was need in financial assistance. Hence, he gave two applications to the opposite party for terminate the agreement and to refund the entire amount. The opposite party has not refunded the amount. The complainants showed the agreement to his friends and relatives and learnt that, it is not for sale of site, but allotment of rooms on discount rates in various places on availability basis on lease for 30 years. At the time of agreement opposite party did not give sufficient time to the complainants and the property as well as document were not shown. The opposite party intentionally misrepresented the complainants and took their signatures to make wrongful gain.<br /> <br /> 3. The opposite party in the version denied almost all the material allegations in the complaint. It is contended that, the complainants approached the opposite party to obtain membership and towards membership of the opposite party, the complainants agreed to pay a sum of Rs.2,95,000/-. The complainants gave two cheques and the cheque for Rs.40,000/- has been encashed, whereas another cheque for Rs.1,00,000/- returned unpaid with an endorsement “Funds Insufficient”. It is stated that, the complainants knew all the contents of the agreement at the time they signed it. There is no deficiency in service on the part of the opposite party. This Forum has no jurisdiction to try this complaint, which has been filed for recovery of money. Further it is contended that, if complainant does not want the life membership of the opposite party, as per the agreement, 80% of the amount has been forfeited and the remaining 20% to be paid. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the first complainant has filed his affidavit and produced certain documents. On the other hand, one Suraj Aswani, the opposite party has filed his affidavit and produced certain documents. We have heard both the learned advocates for the complainant and the opposite party and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainants have proved any deficiency in service on the part of the opposite party and that they are entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Negative<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- The complainants have entered into an agreement with the opposite party. Consideration of the agreement was Rs.2,95,000/-. Initial payment of Rs.1,40,000/- was made and it was paid through two cheques. Remaining amount was to be paid through monthly EMI’s. So for concerned to the case put forth by the complainants in this regard, there is no dispute by the opposite party.<br /> <br /> 8. The complainants alleging that, they are the consumers, as defined under the Consumer Protection Act, have filed present complaint. Merely because the complainants are consumers, the complaint is not maintainable. They shall have to prove deficiency in service on the part of the opposite party. Considering the entire facts alleged in the complaint, no deficiency in service on the part of the opposite party can be made out. As noted in the earlier paragraph, as per the agreement, it is claimed by the complainants that, initial payment was made through cheques and the balance was paid by monthly EMI’s. It is not at all the case of the complainants that, they paid the EMI’s has agreed. On the other hand, it is stated in the complaint that, since the first complainant is ex-serviceman and suffering from ill-health, was in need of financial assistance and submitted application to the opposite party, for termination of the agreement and to refund the amount. This fact, if taken into consideration, no negligence or deficiency in service on the part of the opposite party could be made out. On the other hand, prima-facie, it is made out that, the complainants themselves did not fulfill the terms and conditions of the agreement. More over, admittedly, out of the two cheques given by the complainants only one has been honoured and another cheque has been bounced.<br /> <br /> 9. Above all, most important point that needs to be considered is, the complainants have alleged that, by misrepresentation, the opposite party took the signatures of the complainants on the agreement . We are of the opinion that, in this summary proceedings, the allegation of the complainants that, the opposite party took signatures by misrepresentation or otherwise, cannot be decided.<br /> <br /> 10. The complainants have alleged that, the opposite party agreed to sell certain property, as per the agreement, where as the opposite party has contended that, the agreement entered into between the parties is not sale agreement, but it is an agreement by the complainants to become life member of the opposite party. The first complainant in his affidavit has stated that, the opposite party obtained his signature by misrepresentation and fraudulently. As stated above, this Forum in the summary proceedings cannot decide the alleged fraud and misrepresentation. Under the circumstances, nature of the agreement entered into between the parties that whether it is really an agreement for sale of the property or to become the member of the opposite party, cannot be decided.<br /> <br /> 11. For the reasons noted above, we are of the opinion that, the complainants have not proved any deficiency in service on the part of the opposite party. However, it is made clear that, the complainants are at liberty to approach Civil Court or other appropriate Forum in accordance with law. With this observation, our finding on the point is in negative.<br /> <br /> 12. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> <br /> 1. The complaint is dismissed.<br /> 2. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 10th February 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> <br />