( Delivered on 21/12/2017)

Per Mr. S.B.Sawarkar, Hon’ble Member

1. The present appeal is filed against the order of the District Forum, Nagpur passed in complaint No. 624/2012 dated 4/6/2015 granting the complaint against opposite party ( in short OPs ) Nos. 1 and 2 together or severally  as below.
   1. OPs to return the amount of Rs. 1,90,000/- to complainant with interest at the rate of 12 percent per annum  from 2/2/2009 till final payment.
   2. OPs to provide the complainant Rs. 15,000/- for physical and mental harassment and Rs. 10,000/- as a cost of the complaint.
   3.  The order to be complied with in the span of 30 days from the date of the receipt of the order.
2. The complainant herein filed a complaint in short that the OP nos. 1 and 2 are the country club of India and its chairmen respectively. Their marketing managers met the complainant and informed about the OP Nos.  1 and 2 setting a luxurious club with all facilities of sports and programs at Nagpur. They requested  complaint to beome a member by paying membership of Rs. 2,50,000/- after which the OP were to provide a family membership card and a holiday package  of ICI in which the complainant was assured of  2 nights and 3 days free package and one way flight ticket. The OP also assured a 2000 sq ft plot free at Kolad, Near Pune to the complainant.

Based on the assurance of the Marketing Managers, the complainant paid Rs. 1,90,000/-  to the OP  upon which the OP gave him allotment letter of plot No. 171 at Kolad and a receipt of receiving Rs. 2,50,000/- from him. However in spite of 3 years after the payment no club as published in the  letter is made available at Nagpur, no plot is provided at Kolad. Hence the complainant gave notice on 8/8/2012 to OP with a request to return the paid amount. As the OP did not reply to the notice, the complainant filed a complaint with a prayer  to declare the act of OP to be deficiency in service. He requested  to return him,  an amount of Rs. 5,30,000/-  paid by him to the OP with interest upon it from the year 2008 and provide him the compensation for physical and mental harassment of Rs. 1,50,000/- and cost of the complaint.

3. On notice OP nos. 1 and 2 appeared and countered the complaint by written version. The OPs submitted that the complainant paid the amount of membership in the year 2008 and filed the complaint in the year  2012. Hence the complaint is beyond limitation. The Ops admitted the contentions  of providing the facilities as per the membership contract  and accepted the responsibilities  to provide them. However the OPs submitted that the plot scheme of Kolad was free but as it did not receive the permission from the government and hence the scheme could not be executed. As the plot was to be given without taking any compensation, complaint regarding it cannot be filed in the Forum. The OPs also denied to have given the assurance to provide free two night and  three days trip package with one way air fare and demanded  the complainant to submit the membership contract given to him.  The OPs denied to have received  any notice from the complainant.
4. The OPs further submitted that the membership fee was to be paid in the span of 45 days which the complainant did not pay. Hence the complainant being incomplete member cannot claim all the benefits assured to him. The Ops denied to have received Rs. 2,50,000/- from the complainant and also denied to have given the various assurances claimed by the complainant. The OPs also claimed that as the complainant did not pay Rs. 2,50,000/- membership fee, he has no right to ask the free plot at Kolad. However if the complainant deposits the entire membership fee, the Ops are prepared to provide him a free plot at village Vedik Spa, Hindupur, Banglore  and had informed the complainant to deposit  the membership fee as well the registration charge which the complainant did not do.
5. The OPs further claimed that the complainant never booked the tour with them and that they  never denied the facilities to the complainant. However the complainant demanded much more facilities than the amount paid by it. The OPs further claimed the dispute is about  dispute  breach of contract and hence the complainant cannot raise the ground before the Consumer Forum. The Ops also raised the ground that as the branch office of the OPs is not in the territorial  jurisdiction of the Forum, the dispute is beyond the jurisdiction of the Forum. Hence he requested to dismiss the complaint.     
6. The learned Forum considered the contentions of both the parties and held that the complainant is a consumer who has paid for the services and the Forum has a jurisdiction to decide  the complaint. Also the cause of action for filing complaint is continuous. Hence it is not barred by limitation.  
7. The learned Forum further held that the complainant paid Rs. 1,90,000/- but the OP did not start the club to provide the facility  and thus committed deficiency in service of not providing the facilities.
8. The learned Forum further held that the OP was to provide the free plot at village Kolad but  the  Government of Maharashtra did not approve the scheme and  the complainant did not pay the entire membership fee of Rs.  2,50,000/- in 45 days. Hence the complainant as has not paid the entire fees cannot claim the free plot and  has also not booked the tour with the OP upon which the OP did not give response. Hence no deficiency in service can be attributed  in this respect. The learned Forum discussed the catena of judgment relied by the OPs and held that they are not applicable to the present dispute. The learned Forum further held that the Ops did not start the club and provide the facilities in spite of taking the amount from the complainant and hence has committed deficiency in service. Therefore the learned Forum holding deficiency and liability to return the taken amount by the OP passed the order supra.
9. Aggrieved against the order the original OP Nos. 1 and 2 filed this  appeal and  hence are referred as appellants. Advocate Mr. A.P.J.P. Dube appeared on behalf of the appellants and filed written notes of arguments. The original complainant is referred as respondent and advocate Mr. Khare appeared on behalf of respondent.
10. On 13/12/2017 i.e. on the day of hearing the appeal, the appellant remained absent. Hence we considered the written notes of arguments filed by him. In the written notes of arguments  the appellant’s advocate raised the same grounds as were raised before the learned Forum and further submitted that the appellants have procured a land in the outskirts of Nagpur where it intends to set up the club and set up the facilities after taking appropriate permissions. The appellant assured that it  would provide all the facilities  to the respondent. The appellants also organized 31^st December celebrations for the members  with prominent film personalities. The appellant have fitness centre in the city of Nagpur for the members who have paid the entire membership fee who are enjoying it. The respondent  with the intention to evade the paying of entire membership fee has filed the sham complaint. He only paid  the non refundable amount as per the agreement of Rs. 1,90,000/- only. The respondent is not a complete member.  
11. The advocate for the appellant submitted that the respondent had not paid the entire membership fee within the stipulated period and  he himself committed breach of contract. Hence cannot now claim the refund of amount.
12. The advocate for the appellant further submitted that the appellant is a well established company providing hospitality services to the members and is  committed to provide the same facilities to all the members  who  have paid the membership fee as per the contract. The advocate for appellant further submitted that  free plot at Kolad near Pune could not be provided as the scheme was not approved by the Government. However the appellant is still prepared to provide the plot at its complex in Banglore and requested the respondent to pay the registration charges which he did not pay. Hence now cannot claim the free plot.
13. The advocate for the appellant further submitted that the respondent never opted for a trip through the appellant and the trip and the plot were offered as free gifts along with the membership and hence cannot be the subject of matter under the Consumer Protection Act, 1986. The advocate for the appellant submitted that the contract was made with the respondent to pay the membership fee in the specific time which he did not pay. The contact stipulated that all the dispute would be referred to the Courts in the jurisdiction of Securandabad. Hence the Forum at Nagpur cannot take cognizance of it.  
14. The advocate for the appellant further submitted that the insufficient payment of membership fee was a non refundable amount and the respondent cannot thus take the benefit of incomplete payment of membership fee.
15. The advocate for the appellant submitted that the learned Forum could not appreciate the conditions of the membership contract opted by the respondent and offered by the appellant. The learned Forum also did not consider the directions given by the Hon’ble National Commission in the matter of revision petition Number 1191/2010 Country Club of India Ltd. Vs. L. Mahadevan and passed the order which is bad in law. The appellants submitted that the respondent cannot claim the non refundable amount which is  directed by the learned Forum in the wrong order. Hence  the order deserves to be set aside being not based  on the proper reasoning. Hence the appeal.
16. Advocate Mr. Amit Khare on behalf of respondent reiterated the contentions of the respondent in complaint and submitted that the respondent paid the amount on various dates from the year 2009 till 2012 on various dates. However from then onwards the appellant has not set up any club and made the facilities available to the respondent. It also accepted the payment of Rs. 1,50,000/- as not provided the assured plot as well the trip assured by it with one way free air passage.
17. The advocate for respondent further submitted that it is the offerer who has to offer the contract facilities first and then demand the consideration of contract from the offeree. When the offerer has not provided the facilities by setting up the club and providing the plot, the learned Forum  is correct in   evaluation of the evidence and passing of the order. Hence the advocate for respondent submitted that the learned Forum has passed the correct order which deserves to be  maintained along with the compensation for physical and mental harassment.
18. We considered the contentions of both the parties. We find that the appellant has given a letter dated 4/7/2008 confirming the Super Cool Global Life Membership with acknowledgment of Rs. 1,50,000/-  from the respondent and confirming to provide the facilities assured by them. However said letter does not specify the date on which the appellant was to start the club. It shows that the assurance will remain operative till the appellant sets up the club in Nagpur. We therefore find that the complaint of the respondent would also be operative till he gets the facilities of the club set by the appellant. It shows that it is continuous cause of action and hence complaint is not barred by limitation.  
19.  The appellant has submitted that they have taken  the land and are in the process of setting up the club. However the appellant has not explained or defined a time schedule by which the club would be set up and the facilities would be made available. We also find that the appellant has given a list of clubs showing their affiliation  with those clubs in which there is a club from Nagpur also. However there is no clarification from the appellant informing the respondent that pending the setting up of the club, the respondent can avail the facilities from the affiliated  clubs.
20. We find that when the appellant wants to exihibit  its sincerity in setting up the club, it was incumbent upon the appellant to keep the respondent informed of the steps taken by them and the alternate programs  organized by them with a view to provide the recreation to the respondent. We do not find the appellant to have shown that they have either informed or notified the respondent regarding the organization of various functions or the club which they are setting up in Nagpur.
21. The appellant has raised the ground that the amount of membership paid by the respondent is non refundable and the respondent had not paid the full membership fee in the span of 45 days as per the condition. Hence cannot be called as a member and a consumer to demand the benefits. However we find that no notice or a written communication was given to the respondent by the appellant with a request to submit the remaining amount of the membership and in failure what shall be the result of it. We therefore find that the appellant has certainly failed to provide proper information to the respondent regarding the facilities and has failed in providing the facilities which it had offered in lieu of membership fee. Hence is squarely responsible for deficiency in service.
22. We find that the learned Forum has properly considered this aspect and has also considered the aspect of providing the free plot as well the free trip to the member. We find that the respondent as did not pay the entire membership fee certainly cannot now claim the free plot as well the facility of trip. There is no evidence that he tried to get the free trip from the appellant and  hence he cannot now be given the free trip compensation.
23. We further find that the learned Forum has rightly considered the case laws submitted by the appellant and rightly found them to be not applicable to the issue present before it to absolve the appellant from the liability of deficiency in service. We find that even if the amount of membership paid by the respondent is claimed to be non refundable in view of the deficiency of not providing the facilities for a reasonable waiting of four years it becomes due to be paid back to the respondent as is ordered by the learned Forum. We also find that as the appellants marketing is in Nagpur, the complaint was triable before the learned Forum.
24. We find that the learned Forum has passed a properly reasoned order which cannot be dislodged by  the arguments of the advocate of  appellant. Hence we confirm it and pass the order as below.

ORDER

1. The appeal stands dismissed.
2. The order of the Forum is confirmed.
3. Parties to bear their own cost.
4. Copy of the order be provided to both the parties, free of cost.