Per – Hon’ble Mr. Dhanraj Khamatkar, Member
This appeal filed by the Appellants/original Opponents takes an exception to an order dated 17/3/2012 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum (hereinafter referred to as ‘the District Forum’ for the sake of brevity) in Consumer Complaint No.420 of 2010, Mrs. Pamela Vishwanath Vs. C.E.O. Country Club (India) Ltd.
[2] For the sake of convenience, hereinafter the Appellants shall be referred to as ‘the Opponents’ and the Respondent shall be referred to as ‘the Complainant’.
[3] The facts leading to this appeal can be summarized as under:-
The Complainant had filed a consumer complaint alleging deficiency in service on the part of the Opponents. The Opponent No.1 is a company providing time share facilities at different tourist spots while the Opponent No.2 is a local branch office of the Opponent No.1 Company. It is the contention of the Complainant that the Opponent No.2 approached the Complainant stating that the Complainant had won a lucky draw and called the Complainant to a venue where the Opponent No.2 tried to market its Country Vacations Membership. On 16/5/2008, the Complainant paid to the Opponent, an amount of `1,000/- towards Membership Payment vide Receipt No.2398. Further, on the even date the Complainant also paid to the Opponent an amount of `2,24,000/- vide Receipt No.2399 by a cheque drawn on the Canara Bank, Versova Branch. The Complainant was allotted Membership No.CV8/0486. The Opponents promised to allot to the Complainant a plot admeasuring 3000 sq. yards at Kolad, District – Raigad. The Opponents, vide a letter dated 19/6/2008, informed the details of the plot to the Complainant and asked the Complainant to pay an amount of `30,000/- towards registration charges and development charges. Accordingly, the Complainant deposited with the Opponents, an amount of `30,000/- towards registration charges on 20/6/2008 as per Receipt No.2701. However, it is the grievance of the Complainant that she has not received the possession of the said plot till date. After reading on internet about the frauds committed by the Opponents and on finding out that the location at Kolad does not even exits, the Complainant asked for refund of money and when the Opponents did not refund the money, the Complainant filed a consumer complaint before the District Forum alleging adoption of unfair trade practice and consequential deficiency in service on the part of the Opponents and claimed refund of an amount of `2,55,000/- together with interest thereon @ 18% p.a., besides an amount of `1,00,000/- by way of compensation and `40,000/- towards costs.
[4] Pursuant to the notice of appearance issued by the District Forum, the Opponents appeared before the District Forum and contested the complaint by filing their written version of defence inter-alia contending that the complaint is not maintainable as there is no cause of action to file this complaint. It is contended that under the membership scheme offered by the Opponents, the Complainants agreed to become a member after fully knowing the scheme and terms & conditions and accordingly, signed the purchase agreement for the membership. Further, it is contended that the registered address of the Opponent No.1 is at Hyderabad and, therefore, it is beyond the territorial jurisdiction of the District Forum. It is further contended that in the present complaint the subject matter is based upon written contract and unilateral termination of written contract is not permissible under the law. It is also contended that allotment of plot was subject to policy of government regarding land acquisition, completion of legal requirements like layout, plotting, necessary conversions and surveys and other necessary Government formalities involved in the process. Further, the plot layout was subject to the approval by the concerned Government/Municipal authorities of which the Complainant was well aware of. Opponents further contended that free plot is a gift which does not have any kind of consideration with the donor and donee and since it is a conditional gift thereby the donee is entitled to get that gift subject strictly adhere various terms and conditions. According to the Opponents, they made necessary applications before the competent authorities for converting the said land into residential zone and thereafter for making plotting and applications are pending before the authorities and permission is beyond the control of the Opponents. On these main grounds and various grounds as set out in the written version, the Opponents prayed that the complaint may please be dismissed.
[5] The District Forum on going through the complaint, written version filed by the Opponents, evidence filed by both the parties on affidavits and pleadings of the advocates, partly allowed the complaint and directed the Opponents to pay to the Complainant an amount of `2,55,000/- together with interest thereon @ 9% p.a., as from 16/5/2008 besides an amount of `15,000/- by way of costs. Being aggrieved by the said order, the Opponents have preferred this appeal.
[6] We heard Adv. Karamsingh Thorat proxy advocate for Adv. Ghanshyam Trivedi on behalf of the Appellants and the Respondent in person.
[7] In the instant case, referring to the complaint, it may be seen that as per the offer made to accept the membership of Country Club (India) Ltd., a total amount of `2,55,000/- was paid to the Opponents by the Complainant. Said membership was for the period of 30 years and in lieu of said membership, by way of compliment, one plot admeasuring 3000 sq. yard at Kolad, District Raigad was offered to the Complainant. Further, the Complainant on her own sweet will, decided not to go with the package and requested the Opponents to refund the amount of contribution paid earlier i.e. `2,55,000/- along with interest.
[8] From the statements made in the complaint itself, even though initial contribution towards the membership including `2,25,000/- was made but the complainant voluntarily declined the offer of membership and requested for refund of `2,55,000/-. Thus, the claim of the Complainant arose out of an unconcluded contract and it has nothing to do with any element of hiring of service and, therefore, basically it is not a ‘consumer dispute’. Complainant has a remedy to recover this amount but not under the Consumer Protection Act, 1986. We have already taken such view in First Appeal No.313 of 2011, The Branch In-charge, Country Vacations and Another Vs. Mr. Mukesh Kumar decided on 12/10/2011. We reiterate our view and, therefore, we hold accordingly and pass the following order:-
ORDER
The appeal is allowed.
Impugned order dated 17th March, 2012 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.420 of 2011 is hereby set aside. Consequently, the consumer complaint stands dismissed. However, the Respondent/original Complainant is at a liberty to approach appropriate Court, if advised for recovery of amounts as per law.
In the given circumstances, parties to bear their own costs.
Pronounced on 11th February, 2013
