BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE URBAN

    14^th DAY OF JULY 2021

Complainant/s: -                           

Sri.Anantha Naik Nagappa Age 61 years

C/o M.Ramesh Naik

No.3/2, 1^st Main, Mount Joy Extension, Hanumantha Nagar, Bengaluru-19.

Rep. by Sri.M.Ramesh Naik GPA Holder of the Complainant

(Inperson)

V/s

Opposite party/s:-    

1. Country Vacations International Holiday

Club No.15-6-302,

Gold Flinch Complex Bunts Hostel Road, Jyothi Mangaluru-575003.

2. Managing Director

Country Club India Ltd., Amrutha Castle,

No.5-9-16, Saifabad, Hyderabad-500063.

(By Adv.Sri.D.Narasegowda)

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s.12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to refund Rs.77,000/- + Rs.60,000/- + Rs.18,742/- = Rs.1,55,747/- with penal interest; to pay market value of promised site of Rs.6 lakh with penal interest or register the site at Tumkur as promised; to pay damages of Rs.10 lakhs; to issue clarifications; to produce all statutory documents related to registration and bye laws of country vacations; to produce legal document confirming country vacations as a division of country club India; to produce statutory tax and other returns filed by OPs for last ten years; permit his GPA to produce additional documents in future during course of the case; order CBI, SEBI, income tax and Enforcement directorate to conduct enquiry for possible violations of law by OPs.     

2. The brief facts of the complaint are as under:

The Complainant submits that, he was given membership of OP vacations after making payment of Rs.70,000/- and annual maintenance charges of Rs.18,742/- during the year 2010. He was confirmed allotment of complementary plot measuring 1089 sq.ft at Coconut Groove, Tumkur on 10.06.13. OPs collected Rs.60,000/- instead of collecting Rs.25,000/- towards registration. Inspite of many reminders the offered site at Tumkur was not registered till date.  Whenever he tried for booking club for holidays he was told booking was full and he was offered unwanted destinations, thus he could not avail any holiday package. The actual services provided are not as per declaration of the OPs. The said acts of the OPs amount to deficiency of service. Hence being aggrieved with the negligent act of the OPs, he issued legal notice dtd.31.05.16 asking for refund of the paid amount to which he received untenable reply. The registration of the firm, tax registration numbers etc., are not mentioned in the receipts and agreement which he received from OPs. The legal relationship between the OP.1 & 2 is fishy and illegal one. Hence, this complaint.

3. OP.1 & 2 did appear and filed version denying the allegations made against them. OPs in their version submit that, the complaint is filed after lapse of 7 years. The Complainant entered in to purchase agreement dtd.21.11.10 by paying Rs.1,25,000/-. In terms of the said agreement, the Complainant is entitle for 6 nights 7 days holiday vacations in a year for a period of 10 years and club membership is for life time subject to the terms and conditions mentioned therein. OP is always ready to provide the package to the Complainant but there should be 30 days in advance booking to be made to make necessary arrangements. The Complainant has not made any booking for availing of holiday package at any point of time and without booking, providing of holiday vacation by OP does not arise. OP has already issued the allotment letter dtd.10.06.13 allotting complementary plot measuring 1089 sq.ft situated at Tumkur or Vedic Spa, Hindupur subject to receipt of registration charges of Rs.25,000/-. But Complainant failed to remit the registration charges. In terms of the agreement clauses there is no provision for cancellation of the club membership or refund of the amount. However he is at liberty to sell/transfer/gift the club membership to any third party. The Complainant has not paid the annual maintenance charges all these years. In order to avoid annual maintenance charges and for the reasons best known to him has filed this complaint on false and frivolous ground. There is no deficiency of service on their part. Even otherwise if any disputes between the Complainant and OPs is in civil nature and to be tried thoroughly and cannot be adjudicated summarily. Hence on these grounds and other grounds OPs pray for dismissal of the complaint.

4. To substantiate the case, GPA holder of the Complainant filed affidavit evidence and produced the documents which are marked as Ex.A.1 to Ex.A.6 and Doc.A7. OPs filed affidavit evidence and produced the documents which are marked as Doc.B.1 to Doc.B.6.  Both not filed written arguments. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?
2. What order?

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

Point No.1:- Partly in the affirmative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OPs. The relief i.e. claimed by the Complainant is direct the OPs to refund Rs.77,000/- + Rs.60,000/- + Rs.18,742/- = Rs.1,55,747/- with penal interest; to pay market value of promised site of Rs.6 lakh with penal interest or register the site at Tumkur as promised; to pay damages of Rs.10 lakhs; to issue clarifications; to produce all statutory documents related to registration and bye laws of country vacations; to produce legal document confirming country vacations as a division of country club India; to produce statutory tax and other returns filed by OPs for last ten years; permit his GPA to produce additional documents in future during course of the case; order CBI, SEBI, income tax and Enforcement directorate to conduct enquiry for possible violations of law by OPs. The membership fee of Rs.1,25,000/- paid by the Complainant to the OPs is not in dispute. The grievance of the Complainant is that, OPs did not provide the proper service and also failed to execute the sale deed in respect of the complementary plot.  Per contra OPs have taken the contention so OPs are that though it is ready to allot the site situated at Tumkur or Vedhic Spa, Hindupur subject to registration charges of Rs.25,000/-, and also the arrears of annual maintenance charges and also the other charges if any. For registration of the complementary plot, this Commission has disposed off number of similar cases with reference to the decisions of the Hon’ble State Commission and Hon’ble National Commission.  For better appreciation, we would like to extract the said order passed by Hon'ble Karnataka State Commission in Appeal No.1719/14 in the case of Sri.Kishore Kaikini & Other vs. Country Club (I) Ltd., and Other, wherein the relevant para reads thus:

10. In para 14 of the impugned order, the District Forum has observed that in the absence of convincing material evidence by the Complainant, it is unsafe and hazardous to place total reliance on solitary testimony of the Complainant that he is entitled to complementary plots as per the agreement entered in to between the parties. On the other hand, the Complainant had failed to pay the registration charges and maintenance charges as agreed between the parties. In the absence of the same, it can be held that the OPs are not negligent and there is no deficiency of service

11. The counsel appearing for the appellant submitted that plot will be allotted in Vedic SPA, Hindupur Taluk, Ananthpur District subject to payment of registration charges and annual maintenance charges by the respondents/OPs. In view of the undertaking given by counsel for appellants and admittedly payments were made during the year 2006, in the circumstances of the case, the impugned order is hereby set aside. Hence, the following

ORDER

Appeal is allowed and impugned order dtd.04.12.14 passed in CC.No.1127/2011 on the file of Bengaluru Urban District Consumer Disputes Redressal Forum, Bengaluru is hereby set aside and consequently complaint is allowed directing the OPs to execute and register the plots as proposed by them, at Vedic SPA, Hindupur Taluk, Ananthpur District in favour of the Complainants within three months from the date of receipt of copy of this order. Further, Complainants are directed to bear the registration charges for execution of sale deed in their favour and also to pay the annual maintenance charges to the OPs.

10. The Hon'ble National Commission in R.P.No.3123/2011 in the case of Country Club ltd., & anr., vs. K.Dhamodhar, decided on 25.01.12 which RP has been arisen from the order passed by Hon'ble Karnataka State Commission. The relevant para reads thus:

3. In our view, having regard to the limited controversy raised in the two complaints, the State Commission has gone beyond its jurisdiction to grant the kind of relief i.e. refund of the amount along with interest at 18% p.a. as has been granted in the appeal. The impugned order is not legally sustainable and needs to be set aside. In the result, the revision petition is allowed and the order passed by the State Commission is hereby set aside. However, in view of the stand taken by the petitioner even if before this Commission, we direct the petitioner to execute the conveyance deed in respect of the plot in question in favour of the Complainant within a period of two weeks with effect from the date of receipt of amount of Rs.15,000/- which shall be paid by the Complainant within a period of four weeks. If the Complainant/respondent fails to pay Rs.15,000/- it will not be obligatory on the part of the petitioner to execute the sale deed. The revision petition stands disposed off in above terms.

 11. In the light of the said orders, this Commission has no other go except to follow the same principal and to direct the OPs to execute and register the sale deed in respect of site as proposed by them at Tumkur or Vedic Spa, Hindupur in favour of the Complainant  on payment of membership annual maintenance fee and other charges if any in respect of utilization of the said club services.  Complainant is also directed to bear the registration charges for execution of the sale deed in his favour.  We are declined pass order for refund of the membership fee paid by the complainant since it is not refundable.  Accordingly we answered point No.1 partly in the affirmative.

          12. Point No.2: In the result, we passed the following:         

              O R D E R

1. The complaint filed by the Complainant is allowed in part.
2. The OP Nos.1 and 2 are jointly and severally directed to execute and register the site as proposed by them at Tumkur or Vedic Spa, Hindupur in favour of the Complainant within three months from the date of receipt of this order. Further, the Complainant is directed to bear the registration charges for execution of sale deed in his favour and also to pay the arrears of the annual maintenance charges if any, so also the arrears of the membership fee if any to the OPs.
3. Parties are directed to bear their own costs.
4. Supply free copy of this order to both the parties.

   (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 14^th day of July, 2021)

Witnesses examined on behalf of the Complainant dated.20.12.18

Sri.M.Ramesh Naik, GPA holder of the Complainant  

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OPs dated.04.05.19

Sri.Mohammed Akmal Pasha, Manager    

Copies of Documents produced by OPs