COMPLAINT FILED: 13.05.2010<br /> DISPOSED ON: 22.11.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 22ND NOVEMBER 2010<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1104/2010<br /> <br /> <br /> COMPLAINANT Venkatesh Narasimha Iyengar<br /> C2-101, RMV Clusters-Phase I<br /> Lottegollahalli, Devinagar,<br /> Bangalore 560 094.<br /> <br /> Retired Finance Manager<br /> From BHEL/EDN/Bangalore<br /> <br /> In person<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTY Mr. Ramachandra (T/F No.080 4162 4258) <br /> Branch Manager, <br /> AJ Interlinks private Limited, Product Managers, <br /> Jayalakshmi Arcade, <br /> 1/B-48, 27th Cross,<br /> 7th Block Jayanagar,<br /> Bangalore 560 082.<br /> <br /> Advocate Pattu M. Gopal<br /> <br /> <br /> <br /> <br /> <br /> ORDER<br /> <br /> <br /> SMT. M.YASHODHAMMA, MEMBER <br /> <br /> This is a complaint filed u/s.12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to immediately enter into an agreement as per the terms and conditions discussed on 23.04.2010 as per annexure-V or if OP is not willing to enter into an agreement to refund Rs.55,000/- which includes Rs.25,000/- paid by the complainant towards membership and Rs.30,000/- which might have transferred from High land Holiday homes Pvt. Ltd., Chennai along with interest at 3% per month and compensation of Rs.25,000/- and costs of Rs.2000/- on the allegations of deficiency in service on the part of the OP.<br /> <br /> 2. The brief averments made in the complaint are as follows:<br /> <br /> On 23.04.2010 the staff of OP contacted the complainant through phone and requested the complainant along with his wife Smt. Shamanthakamani to attend the meeting on presentation of their products at 2.30 pm and to receive a gift. During the 3 to 4 hours long meeting/presentation with OP’s executives Ms. Bhagyalakshmi and Mr. Sahbeez stated to be Marketing Manager and also Mr. Ramachandara, Branch Manager terms and conditions were mutually agreed between the complainant and OP for a membership of 30 years Holiday package. The holiday package offered by OP for a period of 30 years which comprises absolute free accommodation of five stars status Resort / Hotel located in India/Asia for 2 to 10 people for 14 days every year. One time lump sum payment quoted was Rs.86,000/- by OP and after mutual negotiation the final rate agreed to was Rs.70,000/- resulting in discount of Rs.16,000/-. It was mutually agreed that mode of payment would be made as follows. On 23.04.2010 through his debit card complainant paid Rs.25,000/- as per annexure-I and 3 monthly instalments of Rs.5,000/- post dated cheques equalent to Rs.15,000/- OP has agreed to get Rs.30,000/- paid by complainant’s son Sri. V. Jagannathan to Highland Holiday homes Pvt. Ltd. Chennai during May 2003 transferred to OP Company within 2 weeks. On 23.04.2010. The further terms and conditions agreed are.<br /> <br /> a) OP would provide absolutely free accommodation in five star status Resort / Hotel for 2 to 10 people for 14 days every year. <br /> b) Duration of membership will be for 30 years.<br /> c) The investment of Rs.70,000/- will carry interest at 15% p.a. i.e. Rs.10,500/- per year for the entire duration of 30 years. It was mutually agreed that the interest for the first year would be calculated for the proportionate period since the payment was not made at a time. <br /> d) The OP would rent out the accommodation to others at its discretion based on the complainant’s request in case he does not like to utilize the Holiday package in a particular year. For each minimum rental payment payable to the complainant would be Rs.10,000/- p.a. during the membership period of 30 years. <br /> e) Complainant would be permitted to gift accommodation to his friends/relatives/others, or split it or save it or borrow it from future years for utilization in advance, exchange it etc., <br /> f) The membership is transferable. <br /> g) The advance booking for the accommodation could be made at least 48 hours early. <br /> <br /> 3. During the course of discussion OP requested the complainant to make available the following documents for further action; a) post dated three cheques for Rs.5,000/- each payable on 15.05.2010, 15.06.2010 and 15.07.2010 respectively drawn on Canara Bank, Lottegollahalli, (Maruthinagar), Bangalore Branch which were sent to OP on 25.04.2010. b) Copies of the membership card certificate of Membership, Membership details issued by Highland Holiday Homes Pvt. Ltd. Chennai to Complainant’s son V. Jagannathan which were sent to OP office by registered post for getting the amount of Rs.30,000/- transferred to OP Company. All the contractual obligations discussed and agreed during the meeting held on 23.04.2010 were met by the complainant on 25.04.2010 itself. On 25.04.2010 a letter was sent by the complainant requesting the OP to incorporate the agreed terms and conditions in their agreement and to finalize it immediately. There is no action taken by OP for 10 days. Complainant sent one more reminder on 05.05.2010 by speed post to OP to finalize the agreement immediately by incorporating a clause that “subject to realization” of three cheques amounting to Rs.15,000/- and also getting the amount of Rs.30,000/- transferred from Highland Holiday homes Pvt. Ltd., Chennai. Complainant physically visited the OP’s 2 to 3 times and made telephone calls to Mr. Praveen Customer Care Manager of OP. He did not allow the complainant to meet the Branch Manager nor he allowed complainant to talk to Branch Manager on telephone and went on giving evasive replies. Complainant felt that OP is not willing to enter into an agreement duly incorporating the terms and conditions mutually discussed and agreed to on 23.04.2010. Complainant felt apprehension about the safety of Rs.25,000/- paid on 23.04.2010. Hence he made the stop payment of three post dated cheques for Rs.5,000/- each paid to OP drawn on Canara Bank, Lottegollahalli, Bangalore. Complainant felt that OP deliberately misguided the complainant by giving false promises about benefits offered. Hence he felt deficiency in service against the OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.<br /> <br /> 4. On appearance OP filed the version admitting that its staff called the complainant to attend the meeting along with his wife at 2.30 p.m on 23.04.2010 to receive the gift offered by the OP and same was received and accepted by the complainant. During the course of the meeting the OP offered 30 years Holiday package which the complainant agreed and accepted the offer for the 30 years for which contract has to entered into between the parties. As agreed mutually the scheme for 30 years was fixed at 1,35,000/- and not Rs.86,000/- or Rs.70,000/- as averred by the complainant. Complainant has given a false statement as per the agreed terms it was Rs.1,35,000/- upon which the complainant has paid a sum of Rs.25,000/- vide receipt No.465 on 23.04.2010 which is non refundable amount which is very clearly indicated in the receipt issued by OP; Complainant issued three post dated cheques of Rs.5,000/- each. The scheme offered was for a holiday package with free accommodation in Five Star Hotel or Resort condonium International for 7 days for adults as to 2 to 4 members every year. The cheques issued by the complainant not encashed since the complainant had issued stop payment letter to Bank; Complainant promised to enter into agreement with OP Company once he makes an other part payment and had requested the company to prepare a draft of the contract agreement as per terms and conditions agreed between them in their meeting held on 23.04.2010. OP company had never offered for any buy back of the Highland Holiday Homes Private Ltd., membership. OP denied that it had offered 14 days package for 2 to 10 members but actually the offered number of people were 2 to 4 adults and it was for 7 days. OP admits that the duration of membership was 30 years but denies that interest offered at 15% as false; Membership is transferable. OP Company had only discussed about the mode of payment but there was no contractual obligation entered into the between the parties so as to bind the OP. Though OP is ready and willing to execute the necessary contractual agreement if complainant comes forward to get things done. Inspite of persistent calls and requests to the complainant he did not come to their office and sign the contractual agreement. Complainant never shown any interest OP never agreed to get a sum of Rs.30,000/- transferred from Highland Holiday homes Pvt. Ltd., Chennai. OP was always ready and willing to sign an agreement but there was no response from the complainant side as such there was negligence or deficiency on part of the complainant not on OP. Since no contractual agreement entered into the between the parties complainant will not get any right to file this present complaint.<br /> <br /> 5. In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of correspondence made by OP, list on RCI Operational resorts in India, receipts issued by OP, Copy of cheques, Certificate of membership, Charter Membership package, Membership declaration, correspondence made by complainant to OP. On behalf of OP Mr. Ramachandra, Manager of OP filed his affidavit evidence produced price list, Counter foil of the receipt dated 23.04.2010. Complainant submitted written arguments. Heard complainant. Taken as heard from the OP side. <br /> <br /> 6. From the above pleadings the points now that arise for our consideration are as under: <br /> <br /> Point No.1:- Whether the complainant has proved <br /> the deficiency in service on the part <br /> of the OP?<br /> <br /> Point No.2 :- If so, whether the complainant has <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3 :- To what Order?<br /> <br /> <br /> 7. We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on the above points are:<br /> <br /> Point No.1:- In Affirmative.<br /> <br /> Point No.2:- Affirmative in part.<br /> <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 8. At the outset it is not in dispute that on 23.04.2010 staff of OP contacted the complainant through phone to attend the meeting and presentation of their products along with his wife at 2.30 p.m. and to receive the gift. Accordingly complainant along with his wife Smt. Shamanthakamani attended the meeting/presentation with OP Company executive Miss Bhagyalakshmi and Mr Sahbeez, Marketing Manager, Mr. Ramachandra, Branch Manager. The terms and conditions were discussed. OP company executives offered 30 years Holiday package to the complainant who accepted the offer for 30 years for which a contract was yet to be entered into between the parties. It is contended by the complainant that the scheme for 30 years holiday package was originally quoted for Rs.86,000/- and after mutual discussion final rate agreed was at Rs.70,000/- with a discount of Rs. 16,000/-. The mode of payment was Rs.25,000/- paid on 23.04.2010 through Axis Bank debit card. We have perused the receipt issued by OP. Complainant gave three post dated cheques for a sum of Rs.5,000/- each dated 15.05.2010, 15.06.2010 and 15.07.2010 for balance of Rs.30,000/- OP agreed to get transferred from Highland Holiday Homes Pvt. Ltd., Chennai, the membership of complainant’s son V.Jagannathan within two weeks on 25.04.2010. Complainant sent a letter to OP requesting to incorporate all the agreed terms and conditions in their agreement and finalize it. There was no response on 05.05.2010 complainant sent one more reminder letter by speed post requesting to finalize the agreement immediately. Inspite of repeated requests and phone calls there was no response. Hence complainant approached this forum.<br /> <br /> 9. As against the case of the complainant, the defence of the OP is that the scheme of 30 years holiday package was mutually fixed at Rs.1,35,000/- and not for Rs.86,000/- or Rs.70,000/- as alleged by the complainant. Complainant has not produced any records to show that OP has agreed for Rs.86,000/- or 70,000/- and signed by OP. There is no concluded contract between the parties. Hence complainant cannot enforce the same. We are satisfied that complainant has made a payment of Rs.25,000/- to OP. We have perused the receipt issued by OP. The contention of the OP that amount received towards membership fees is non refundable has no basis. Though the term non refundable is mentioned on the receipt, it is unilateral. Complainant has not signed and agreed to that term. Hence it is not binding in the complainant. Regarding post dated cheques, complainant has made the stop payment with regard to the transfer of membership of complainant’s son of high land holiday homes Pvt. Ltd., Chennai. OP has denied that fact. We cannot force OP to enter into an agreement as per the terms discussed on 23.04.2010. When OP is aware that it cannot enter into contract it could have fairly refunded the amount to complainant. Retention of amount by OP inspite of repeated requests amounts to deficiency in service on its part. Hence we are satisfied that complainant is able to prove the deficiency in service against the OP. Accordingly we proceed to pass the following: <br /> <br /> ORDER<br /> <br /> Complaint is allowed in part. OP is directed to refund Rs.25,000/- along with interest at the rate of 9% p.a. from 23.04.2010 and litigation cost of Rs.1,000/- to the complainant within four weeks from the date of communication of this order.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 22nd day of November 2010.) <br /> <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br /> <br /> MEMBER MEMBER <br /> <br /> gm. <br /> <br /> <br /> <br /> <br />