BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of April 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.172/2010
(Admitted on 19.06.2010)
1. Mr.H.S. Rajesh,
So. Late H.Sheena,
Aged about 41 years,
2. Smt.B.S. Savitha,
W/o. H.S. Rajesh,
Aged about 34 years.
Both are residing at
Door No.1 8 509 1,
Daddalkad,
Behind Sri. Matha Service Station,
Post Ashoknagar,
Mangalore 575 006. …….. COMPLAINANTS
(Advocate for the Complainants: Sri.Tashodhar P. Karkera).
VERSUS
1. Mr. Rakesh Kumar Singh,
Country Vacations,
A Division of Country Club P Ltd.,
No.3 6 12 13, 4 Floor, Al-Samad,
Liberty Cross Road,
Opp. T.T.D. Kalyana Mantapam,
Himayath Nagar,
Hyderabad 500 029, Andhra Pradesh.
(Opposite Party No.1: Exparte).
2. The Officer Incharge,
A Division of Country Club (I) Ltd.,
No.15-6-302/12, 1st Floor,
Hotel Gold Finch Complex,
Bunts Hostel Road,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Aruna B.P.)
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainants submitted that, they have visited Opposite Party No.1 at the above address and they were told that they are selected as the members of the Opposite Parties Club and they were allotted a site at District Head Quarters, Indupur District, Andra Pradesh and the site value was Rs.1,00,000/- per unit, which will be having yearly 20% appreciation of the value and they were asked to pay Rs.1,40,000/- out of which Rs.40,000/- to be paid towards the development charges and the same is to be remitted to its sister concern M/s.Amrutha Estate and the balance amount of Rs.1,00,000/- being the purchase price of the site and Rs.5,000/- being the administration fees to be paid to the Opposite Parties. As per the promises made by the Opposite Party Company officials, the Complainants paid Rs.1,50,000/- as stated above and the Opposite Parties acknowledged as per the purchase agreement dated 21.10.2008. Thereafter, the Opposite Parties have not allotted any sites much less the site agreed to be allotted under the said agreement. The Complainants visited the Opposite Parties several times but the Opposite Parties refused to furnish any details with regard to the sites agreed to be allotted to them under the said agreement. It is stated that, thereafter the Complainant requested the Opposite Parties atleast to refund the amount if they are not in a position to allot the sites but the Opposite Parties rejected and refused to refund the amount covered under the said agreement. Therefore, the Complainants have issued a legal notice dated 23.03.2010 by R.P.A.D which was served to the Opposite Parties but the Opposite Parties neither complied nor replied the said notice. It is stated that, the Opposite Parties are bound to allot the site or to refund the amount collected from the Complainants. The Opposite Parties by making false representation, collected the amount and not allotted the site nor refund the amount till this date amounts to deficiency in service and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.1,50,000/- with interest at 12% p.a. from the date of Agreement till payment and also claimed Rs.35,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Party No.1. The acknowledgement placed before the FORA marked as court document No.1.
Opposite Party No.2 appeared through their counsel filed version and stated that, the complaint is vexatious and not maintainable. It is submitted that, the Complainants are the members of the Opposite Party No.2 as per the contract No.DT 90/0094. The Complainants were approached the Opposite Party No.2 to become the members opted the Studio Blue Type Package having validity for a period of 5 years along with two flight tickets free and the terms of payment to become the members of country vacations for availing the benefits of Studio Blue Type Package is mentioned in the said agreement.
It is further stated that, the cost of the said Holiday Package is Rs.1,40,000/- which includes Rs.1,35,000/- towards the purchase price and Rs.5,000/- towards Administrative charges i.e., in total Rs.1,40,000/-. The Opposite Party received Rs.1,40,000/- from the Complainants and also issued receipts for having received the said amount. It is stated that, along with the vacations and two free flight tickets, the Complainants could opt for one plot to be registered in their name upon payment of Rs.40,000/-. The plot allotted is expected to be registered in Complainants 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 sister concern M/s.Amrutha Estates. The Complainants have failed to make payment of Rs.40,000/-, hence the Opposite Party No.2 failed to register the plot in the names of the Complainants. The Complainants agreed for the terms and conditions and signed the purchase agreement on 21.10.2008 and the Complainants without paying the amount towards the development charges of Rs.40,000/- demanded the Opposite Party No.2 to register the plot in the name of the Complainants., the Opposite Parties contacted the Complainants over the telephone and requested to pay Rs.40,000/- but the Complainants have failed to pay the same. In the event of failing to make any payment on the due date the country vacations shall have the right to cancel the agreement and forfeit 80% of the amount paid so far. It is stated that, there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants prove that the Opposite Parties committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.H.S. Rajesh (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainants as listed in the annexure. One Mr.Imran Khan (RW1), Branch-in-charge of the Opposite Party No.2 filed counter affidavit. One Mr.Manjith Singh, present Branch-in-charge of the Opposite Party No.2 answered the interrogatories served on him. The Opposite Party No.2 produced 8 (eight) documents as listed in the annexure. The Complainants filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the main dispute with regard to the allocation of site by the Opposite Party. It is stated that, the Complainants asked to pay Rs.1,40,000/- and the same has been remitted by the Complainants to the Opposite Party’s sister concern M/s.Amrutha Estate, out of the above said amount Rs.1,00,000/- being the purchase price of the site and Rs.5,000/- being the administration fees and Rs.5,000/- as the process fee. As per the promises and assurance made by the Opposite Party Company officials, the Complainants have paid Rs.1,50,000/- as stated above and the same has been acknowledged by the Opposite Party Company. It is stated that, the Opposite Parties after receiving the amount of Rs.1,50,000/- they have not allotted any sites much less the site agreed to be allotted under the said agreement and also stated that, the Opposite Party officials failed / refused to furnish any details with regard to the sites agreed to be allotted to the Complainants under the purchase agreement and hence the Complainants requested to refund the amount but the Opposite Parties neither allotted the site nor refused to refund the amount.
The Opposite Parties in this case took a contention that, as per the terms and conditions of the purchase agreement, Rs.1,35,000/- towards the purchase price of the holiday package and Rs.5,000/- towards administrative charges i.e., in total Rs.1,40,000/- paid by the Complainants but it is denied that the Complainants paid Rs.5,000/- in cash towards the process fee. It is further stated that, the plot allotted is expected to be registered in the Complainants’ name within 18 months from the date of full payment of membership fee, completion of legal formalities and development charge of Rs.40,000/-. It is stated that, the Complainants failed to make payment of Rs.40,000/- hence they have failed to register the plot in their name.
On scrutiny of the oral as well as documentary evidence produced by the parties, wherein the Ex C2 and C3 i.e., the receipt dated 22.10.2008 for Rs.15,000/- and receipt dated 2.11.2008 for Rs.1,25,000/- shows that the Complainants paid in total Rs.1,40,000/-. But the Complainants contended that, a sum of Rs.10,000/- has been paid in two installments of Rs.5,000/- each towards administration fee and processing charges for which no receipts are given. The above said contention raised by the Complainants cannot be believed because without taking any receipts no prudent man will pay the amount that also in cash to the Opposite Parties. In the absence of any documentary proof for having been paid by the Complainants, we are declined to consider that the Complainants paid the amount of Rs.10,000/- in two installments by cash. However, the Complainants and the Opposite Parties in this case executed a purchase agreement. The letter of allotment of complimentary plots and point certificate reveals that, the Complainants on becoming a member of country vacations / country club they have allotted a plot of 242 square yards at Opposite Parties’ venture Vedic Spa at Hindupur. In the terms and conditions for allotment of complimentary plot, it is stated that, “the Opposite Party would register the plot in Complainants’ 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 governmental regarding land acquisition, allotment of complimentary plots etc. and the plot allotted is expected to be registered in Complainants’ name within 18 months from the date of full payment of membership fee”. It is also further stated that, development charges of Rs.40,000/- paid in favour of Opposite Parties’ sister concern M/s.Amrutha Estates. The above said document has been signed by both the parties.
However, we observed that, the Complainants have admittedly paid more than ¾ amount that means Rs.1,40,000/- has been received by the Opposite Parties in the year back 21.10.2008 and 24.10.2008 respectively by way of cheque. As per the terms and conditions the Opposite Parties suppose to register the sale deed within 18 months from the date of full payment of membership fee. As we stated herein above, the Complainants’ admittedly paid more than ¾ amount i.e., Rs.1,40,000/-. According to the Opposite Parties only Rs.40,000/- is due. But in the allotment letter i.e., Ex C4 dated 21.10.2008 reveals that, the allotment of site is absolutely free and in the 1st para of the above said document reads thus:-“There is absolutely no consideration for the said complimentary plot”. We do not understand how the Opposite Parties by printing such statement that there is no consideration for the complimentary plot then how they can expect further payment of Rs.40,000/- for the allotment of sites. It is also seen in this case that, there are as many as 110 questions were put to the Opposite Party No.2 but they have not filed the answers for the same. It is quite natural that when the Complainants having paid so much of amount it is the bounden duty of the Opposite Parties to adhere to the law of the land. The Complainants asked the Opposite Party No.2 to produce certain documents i.e., a trade licence, permission to carry on holiday club business, any statutory recognition, registration under sales tax, commercial tax, professional tax, income tax department, documentary proof as to the owning of any sites to be allotted to the members, any legal experts opinion regarding the title deeds of the property or documents to show the existence of M/s. Amrutha Estate and any documents to show the relationship between M/s. Amrutha Estates and Opposite Parties, relationship between Opposite Party No.1 and 2. Nothing has been produced before this FORA by the Opposite Parties. Just producing the registration certificate under the Company’s Act 1956 is not sufficient. It is the bounden duty of the Opposite Parties to produce the above documents when it is specifically sought by the Complainants in this case. Because it is the definite case of the Complainants that these Opposite Parties are illegally collecting the phone numbers of innocent general public and contacting them over phone and attracting the public in the guise of vacation packages and allotment of free sites and inducing the people to pay this type of amount and thereafter when the sites are sought for registration the Opposite Parties are demanding the amount. There are number of complaints filed before this FORA against the above Opposite Parties it clearly shows that the Opposite Parties are collecting phone numbers from the innocent general public and attracting the people in the guise of allotment of free sites and vacation packages etc. etc. which is against to the principles of natural justice and at the same time it amounts to unfair trade practice. To deal with this type of business one should have a legal entity. But in the instant case, the Opposite Parties are not having any statutory recognition to deal this type of business from the general public. In one breath they state it is a free allotment/ complimentary site without consideration but in another breath they say the members have to pay the amount for registration of site. This attitude of the Opposite Parties definitely gives scope for suspicion in the mind of the general public / consumers. If at all the Opposite Parties wants to make a statutory dealing they should not indulge this type of unfair trade practice. In the instant case, the steps taken by the Complainants are just and proper. The Opposite Parties failed to register the plot till this date which amounts to deficiency in service.
In view of the above discussion, we hold that the Opposite Parties are bound to refund the amount collected by them along with interest. Therefore, the Opposite Parties are jointly and severally directed to refund Rs.1,40,000/- to the Complainants along with interest at 12% p.a. from the date of the receipt of the amount till the date of payment and also pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation and hence separate compensation not allowed in this case.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are jointly and severally directed to refund Rs.1,40,000/- (Rupees one lakh and forty thousand only) to the Complainants along with interest at 12% p.a. from the date of the receipt of the amount till the date of payment and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of April 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Mr.H.S. Rajesh – Complainant No.1.
Documents produced on behalf of the Complainants:
Ex C1 – 21.10.2008: Purchase Agreement.
Ex C2 – 22.10.2008: Receipt for Rs.15,000/-.
Ex C3 – 02.11.2008: Receipt for Rs.1,25,000/-.
Ex C4 – 21.10.2008: Letter of allotment for complimentary plot.
Ex C5 – 10.04.2009: Point certificate.
Ex C6 – 23.03.2010: Notice issued to the Opposite Party No.1 & 2.
Ex C7 – 26.03.2010: Postal acknowledgement for the notice sent to the Opposite Party No.2.
Ex C8 – 29.03.2010: Postal acknowledgement for the notice sent to Opposite Party No.1.
Witnesses examined on behalf of the Opposite Party No.2:
RW1 – Mr.Imran Khan, Branch-in-charge of the Opposite Party No.2.
Documents produced on behalf of the Opposite Party No.2:
Doc. No.1 - 21.10.2008: Work Sheet of the Opposite Party No.2 pertaining to the Complainants.
Doc. No.2 - 22.10.2008 & 02.11.2008: receipts for Rs.15,000/- and Rs.1,25,000/- (2 in numbers).
Doc. No.3 – 21.10.2008: Terms and conditions for allotment of complimentary plot.
Doc. No.4 – 21.10.2008: Purchase Agreement bearing contract No.DT90/0094.
Doc. No.5 - : Fresh certificate of incorporation consequent on change of name.
Doc. No.6 – 28.02.2011: Certificate issued by the Opposite Party No.2 in favour of Mr.Manjit Singh.
Doc. No.7 – 15.10.2008: Trade lincence/registration certificate of establishment issued by the Govt. of Karnataka – Department of Labour.
Doc. No.8 – 14.05.2010: Gift Deed.
Dated:30.04.2011 PRESIDENT
