Sri. Ashok Kumar J.Dhole,<br /> President,<br /> <br /> 1. This complaint is filed under section 12 of the C.P.Act, 1986, seeking either replacement of the T.V. or refund of the amount, on the ground of deficiency in service.<br /> 2. Notice was duly served on the O.P. who appeared, filed version, and contested the complaint seriously. Both parties were given opportunity to file their respective affidavits, and produced documents. Complainant has filed his affidavit, and produced Xerox copy of the receipt dated 09-01-01, as well as Xerox copy of the warranty card. He has also produced Xerox copy of the letter sent to the O.P., and Xerox copy of postal acknowledgement. O.P. has filed only his affidavit. Heard the complainant in person, as well as the learned counsel for the O.P.<br /> 3. It is important to note that after O.P. filed his version on 02-01-06, the complainant has brought the disputed T.V. with a view to hand over the same to the O.P. But, the learned counsel for the O.P. submitted that this Forum has no jurisdiction to entertain this complaint, and the O.P. is not willing to receive the T.V. from the complainant, for rendering any service. He further submitted that service was required to be rendered only at Mangalore and not at Mysore. In view of this fact, the complainant had taken back the disputed T.V.<br /> 4. Undisputed facts, can be briefly summarized as under:-<br /> Complainant is resident of Goniloppal, which is about 100 KM away from the Mysore. On 09-01-01 he purchased one colour 21” T.V. (Onida company) bearing serial no. 1148. There is no dispute that O.P. has received an amount of Rs.14,900/- from the complainant, issued a receipt no.2088 dated 09-01-01. There is no dispute that in this receipt, there are three conditions noted in the bottom, which reads as under:-<br /> 1. Goods once sold can not be taken back or exchanged.<br /> 2. Subject to Mysore jurisdiction only.<br /> 3. Manufacture Guarantee only.<br /> There is no dispute that the O.P. has issued “Customers warranty card” by affixing the seal of his shop, and mentioning the model, and serial number of the chassis. The O.P. has not signed at the end of warranty card, but affixed the seal of his shop on the top of the warranty card by mentioning date of expiry as 27-12-05. There is no dispute that complainant is using this T.V. at his resident situated at Gonikoppal in Kodagu District.<br /> 5. It is the simple case of the complainant that first time he faced problem in the year 2002, and immediately he gave information to the O.P. In turn, O.P. sent the service engineer and the problem was solved. <br /> 6. It is further contended that 2nd time, though, he was able to receive sound, there was no picture. When complainant gave information to the O.P., this problem was solved by deputing one service engineer. The main problem started in the month of October 2005, the T.V. stopped functioning. The brother of the complainant gave oral information to the O.P., and as per his direction also gave information to the Service Centre at Mangalore. In pursuance of such complaint, one service engineer named Sandeep visited the house of complainant on 14-10-05, and examined the T.V. He repaired the T.V. on the spot, but it was found that the T.V. stopped functioning on the next date that is 15-10-05. The complainant gave information on such problem to the O.P. by sending a letter dated 07-11-05 and the same was duly served by RPAD on 10-11-05. In the meanwhile, service engineer named Sandeep visited the house of complainant on 09-11-05, removed the circuit board from the T.V., and carried away the same. The said service engineer visited the house of complainant on 30-11-05, and replaced the circuit board. Once again, the T.V. stopped functioning from 02-12-05. The complainant being frustrated with approach of the O.P., has filed this complaint on 05-12-05. It is the case of complainant that the T.V. is found to be defective during warranty period, and the same is required to replaced, or in alternative, he is entitled for refund of the price of the bill.<br /> 7. This complaint is not maintainable, as this Forum has <br /> 8. From the above contentions the following points arise for our consideration:-<br /> a) Whether the complaint is barred by time?<br /> b) Whether this Forum has jurisdiction to entertain this complaint?<br /> c) Whether the complainant proves that the O.P.s have rendered deficient service and indulged in unfair trade practice?<br /> d) Whether the 2nd O.P. proves that he has not received any money from the complainant?<br /> e) What relief or order?<br /> 9. We have answered the above points as under:-<br /> 1. Point no.5(a) : In the negative.<br /> 2. Point no.5(b) : In the negative.<br /> 3. Point no.5(c) : In the affirmative.<br /> 4. Point no.5(d) : In the negative.<br /> 5. Point no.5(e) : As per final order.<br /> <br /> REASONS<br /> <br /> 10. Point 5(a):- The 2nd O.P. has taken a specific contention that the complaint is barred by time. The complainant has produced 4 receipts of Rs.5,000/- each. These receipts have been issued for and on behalf of the second O.P. It evidences payments on 1-3-2001, 30-3-2001, 2-5-01 & 6-6-01. There are 2 letters dated 6-6-2001 and 7-1-02 both written by the 2nd O.P. The letters contain the address of the 1st O.P. also, as project office. The first letter acknowledges the receipt of payments. The second letter is in the nature of an explanation detailing the reasons for stoppage of work with a promise that work would commence by February, 2002. The complainant has filed copy of the prospectus / terms and conditions of membership. <br /> 11. Clearly it is a misconceived notion that the cause of action accrued in the year 2001 when the payments were made by the complainant. It is because of such a notion that the defence of limitation has been put forward. Same is the case with the defence that there is no cause of action. It must be understood that a contract came into existence between the parties when the complainant desirous of acquiring life membership of the club made an initial payment. In reality it is an incomplete contract because the life membership fee is Rs.30,000/- if paid in installments and Rs.25,000/- if paid in lump sum. The complainant having paid only Rs.20,000/- has not yet become a full member. His contention that rules were relaxed as a special case to accept him as a life member on payment of Rs.20,000/- only instead of Rs.30,000/- is not supported by any documents. The complainant’s contention that the 2nd O.P. has recognized him as a life member in his letter dated 6-6-01 is not acceptable. There is no such representation. Yet this complaint is maintainable for 2 reasons. Firstly, because the contract which came into existence soon after the first payment casts upon the parties certain obligations. It is the failure on the part of the O.P.s to discharge their obligation which has given raise to this complaint. The duty on the part of the complainant was to pay the membership fee as per the schedule and the obligation on the part of the O.P.s was to commence the operations of the club as per the representation. These are implied obligations. If the complainant wanted to question any term or condition of the contract then probably the limitation aspect would have hampered him. But what is being questioned here is the inordinate delay in commencing the operations of the club. The cause of action arose when the club did not commence within a reasonable period as represented to the fully paid members and / or partly paid members. Such cause of action is continuous and gets stronger with passage of time. The longer the O.P.s take to commence the operations of the club stronger will be the case of the complainant. With neither partly canceling the contract, the limitation aspect does not come into play. Deficiency in service will be weighed with reference to the delay where the cause of action is continuous. If the complainant had terminated his contract and sought refund of the money paid him and if the O.P.s had not refunded the money, then it is not a continuous cause of action. Complaint for seeking refund must be made within 2 years as contemplated under the Consumer Protection Act. Alternatively, had the O.P.s terminated the contract by informing the members that the project has been abandoned and not refund the members then also cause of action is not continuous and section 24(A) bars entertaining such a complaint after 2 years. Shri.Sham Hosadurga (The complainant in C.D.135/03, decided on 15-12-03 by this Forum. A copy of our orders has been filed by the complainant herein) may have though that a delay of 2 years (2001 to 2003) in commencing the club operations is too much. The complainant herein has thought 4 years is a reasonable period to commence the operations of the club. If another person files a complaint in 200 that the club has not commenced operations, the deficiency would be even higher and the complaint is not barred by limitation. Cause of action did not accrue by making payment but it accrued by not commencing the operations within a reasonable period with neither party termining the contract. Hence we answer the point in the negative.<br /> 12. Point 5(b):- It’s an admitted fact that the complainant made payments in Mysore. It’s also an admitted fact that the 2nd O.P. maintained an office at Mysore as can be seen from the letter heads used by him to write letters to the complainant. Further, the address of the resort has been given as # 168 & 169, Brahmapura village, K.R.Mills Post, Bangalroe – Mysore road, Mysroe-570003. These facts are sufficient to conclude that this Forum has jurisdiction to entertain the complaint. Section 11(2) of the C.P.Act deals with the territorial jurisdiction of the District Forum. As aforesaid the cause of action has arisen owing to not commencing the operations of the club within a reasonable period. The absence of 1st O.P. will not take away the jurisdiction. The complainant did not give up his action against the first O.P. Power has been filed on behalf of both parties and both parties have filed common version. Hence, it is covered squarely under section 11(2) (c) of the C.P.Act. Therefore concluding that this Forum has jurisdiction to entertain this complaint, we answer the point in the affirmative.<br /> 13. Point 5(c):- The advertisement given in Star of Mysore, a local English evening daily dated 7-1-02 (a copy of which has been produced by the complainant) represents that the Club house would be ready for the members “shortly”. It is difficult to reconcile that a period of four years is a “short period”. By no stretch of imagination can one conclude that “shortly” means over 4 years. Yet, there is no sight of the club commencing its operations. Despite these things such atrocious defence that no money has been received from the complainant and no receipts have been issued are taken. Further, the second O.P. says that no advertisement was issued, in any local News paper. Non commencement of the facilities coupled with such blatant denial amounts to not only deficiency in service but, also, unfair trade practice. Hence, we answer the point in the affirmative.<br /> 14. Point 5(d):- This point does not require much discussion. We have already concluded that the receipts for the payments made by the complainant have been issued for and on behalf of the second O.P. The letter written by the second O.P. where in the receipts for the payments have been acknowledged further strengthen the case of the complainant. We have also held that such denial amounts to unfair trade practice as defined under section 2(r)(1)(x) of the C.P.Act. Therefore we answer the point in the negative.<br /> 15. This is a fit case to impose penalty for indulging in unfair trade practice. The second O.P. has taken untenable defence and has not proved any of them. He has not come up with any explanation for the delay in commencing the club operations. He certainly owes an explanation to those who have invested their hard earned money by believing his representations. In view of these facts we proceed to pass the following order.<br /> <br /> ORDER<br /> <br /> 1. Complaint is allowed.<br /> 2. The O.P.s are directed to refund the complainant Rs.20,000/- paid by him with interest at the rate of 8% p.a. from the date of their payment, totally amounting to Rs.27,560/-, within a period of two months failing which the total amount shall carry interest at 12% p.a. thereafter till the date of payment.<br /> 3. The O.P.s are directed to pay the complainant Rs.5,000/- as compensation within 2 months failing which the said amount shall carry interest at 10% p.a. thereafter until the date of payment.<br /> 4. The O.P.s are directed to pay Rs.20,000/- for indulging in unfair trade practice out of which Rs.20,000/- is payable to the complainant and Rs.5,000/- to the credit of the account of Consumer Legal Aid Account maintained by the Forum.<br /> 5. The O.P.s shall pay the complainant cost of Rs.2,000/-.<br /> 6. Give a copy of this order to both parties according to Rules.<br />