COMPLAINT FILED:31.08.2009

                                              DISPOSED ON:04.01.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

4^th DAY OF JANUARY-2012

  PRESENT :-  SRI. B.S. REDDY                   PRESIDENT

                      SRI. A. MUNIYAPPA                  MEMBER

       COMPLAINT NO.2106/2009

O R D E R S

SRI. B.S.REDDY, PRESIDENT

The complainants filed this complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties (herein after called as O.Ps) to execute and register the sale deeds in favour of the complainants in respect of schedule property alternatively to pay an amount of Rs.6,10,272/- with interest at 18% p.a. on the allegations of deficiency in service on the part of the OPs.

2. Initially the complaint was filed by complainant No.1 against OP1 only. Subsequently complainant No.2 impleaded herself and impleaded OP2.

3. The case of the complainants to be stated in brief:

            Ops being a recreational club came up with a proposal of allotment of sites within vicinity of club to all those who want to become the members in their Club, which is Coconut Grove farm land, Phase-IX project, situated at Gowdanahalli Gate, Nelamangala, Bangalore Rural. Ops introduced a brochure of their package to the complainants and offered a special package for Rs.99,000/- to all the members, which includes recreation and free sites for a subsidized rates on 31^st March 2006. The offer letters addressed to the complainants are at Annexures-B & B1. Based on the said commitment from Ops, the complainants availed the membership of Ops vide membership No.COOLCG2200 and COOLCG2260 by remitting the required admission charges of Rs.7,272/- during the year April 2006. The Ops offered complimentary sites to the complainants allotting site No.223, 224, 230, 231, 232, 565, 566, 688 & 689 in Phase IX and Phase XV projects by collecting the subsidized rates. The complainants remitted the amounts through cheques complainant No.1 remitted Rs.10,000/- on 12.07.2006 and Rs.60,000/- on 07.11.2006, the complainant No.2 remitted an amount of Rs.10,000/- on 12.07.2006 Ops issued the receipts. The remaining balance of Rs.80,000/- was paid through cash for the purchase of other sites, as and when Ops asked for and further they used to send their representatives to collect the same from the complainants. The total consideration paid to Ops is Rs.1,60,000/- for the purchase of the sites. The said amount also covers the registration and development charges. The Ops failed to execute the sale deeds in respect of the schedule properties. When the Ops showed their inability to register the sale deeds legal notice dt.29.05.2009 was issued demanding Ops to register the sale deeds. Ops failed to register the sale deeds, the same amounts to deficiency in service, hence Ops are liable to refund the amount with interest at 21% p.a and pay damages of Rs.3,00,000/-. Thus the total amount claimed is Rs.6,10,272/-, hence the complaint.

4.   On appearance, OP1 filed version stating that there is no privity of contract between the complainant and OP1. The complainants made payments to the OP1 at the request of M/s Country Club(i) Ltd (OP2). OP1 accepted the same which is a sister concern of OP2. The complaint is barred by limitation. It is denied that Ops have introduced a brochure of their packaged to the complainants. The documents Annexure A and A1 are not issued by Op1. It is denied that special package for Rs.99,000/- was issued to all the members, which included recreation and free sites for subsidized rates on 31.02.2006, Annexures-B & B1 are not issued by OP1 the same are issued by OP2. Ops 1 and 2 are different entities with different business activities. OP1 has not allotted any sites to the complainants. Annexure D, D1 to D6 are issued by OP1 at the request of Op2. As regards the payment of amount and the issuance of receipts is admitted. The said payments are made at the request of OP2. OP1 is not charging any money for the said plots, the said payments have been made towards the registration charges and maintenance fees only. OP1 can register the sites at the request of OP2. Due to unavoidable circumstances the OP1 could not register the said sites however the OP1 undertakes to register one site each in favour of complainants and undertakes to register the sites within 2 months. Issuance of legal notice was not called for, since the OP1 had informed the complainants that it would register one site each in favour of complainants 1 & 2 and undertakes to register other sites within two months. OP1 denied its liability to refund the entire sale consideration with membership registration charges with interest 12% p.a. The complainants have not furnished the schedule of the property to the complaint to identify the properties. Hence, it is prayed to dismiss the complaint with exemplary costs.

5.   After impleading OP2 as necessary party, in spite of sufficient opportunity given OP2 has not filed the version.

6.   The complainants in order to substantiate complaint averments, both the complainants filed affidavit evidence. The General Manger of OP1 filed affidavit evidence in support of the defence version.

7.   Arguments from complainants side heard, OP side taken as heard.

7. Points for our considerations are:

   Point No.1:- Whether the complainants proved the        

                       deficiency in service on the part of

                          the OPs?

 Point No.2:- Whether the complainants is entitled

                 for the reliefs now claimed?

   Point No.3:- To what Order?

8. We record our findings on the above points:

  Point No.1:-Affirmative.

Point No.2:-Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

9. At the out set, it is not in dispute that these complaints being husband and wife becoming the members of Ops-Club by remitting required admission charges of Rs.7,272/. During the year April-2006. The membership No.COOLCT2200 and COOLCG2260 were given to the complainants. Annexures-A and A1 are the brochures issued by OP2. Annexure-B, B1 are the offer letters issued by OP2 to the complainants, Annexure-C is the bill towards admission charges. Annexure-D, D1 to D6 are the site allotment letters issued in favour of the complainants by OP1. Annexure-E are the receipts dt.13.07.2006 for Rs.10,000/- each issued by OP1 in favour of the complainant No1 and 2 in respect of site No.230 and 231 in Phase-IX. Annexure-F is the receipt in respect of admission charges received from complainant No.2. Annexure-G is the receipt issued in favour of complainant No.1 for Rs.60,000/- towards site No.223, 224, 232 in Phase-IX situated in Coconut Grove. Annexure-H is the receipt which does not bear the seal and signature of Ops and the name of the person in whose favour the same has been issued. Annexure-I is the copy of the legal notice. Annexure-I and II are the postal acknowledgment of OP1 and 2 for having received the notice.

10.The complainant No.1 and 2 each paid Rs.3,666/- towards admission charges for becoming the members of OP-Club. Further the complainant No.1 has paid an amount of Rs.10,000/- on 12.07.2006 through cheque and further sum of Rs.60,000/- on 07.11.2006 towards registration and maintenance charges of site No.230, 223, 224 and 232. The complainant No.2 has paid an amount of Rs.10,000/- on 12.11.2006 in respect of site No.231 towards registration and maintenance charges. In spite of receipt of these amounts, Ops failed to register the complimentary sites in favour of the complainants. Ops have not produced any material to prove the fact that there is any layout formed with due approval of the statutory authorities and the sites allotted to these complainants are formed in the said layout. No documents are produced regarding acquisition of any properties for formation of sites and no conversion order has been produced. Therefore, without there being any documents, we are unable to accept the defence of the Ops that presently OP1 is prepared to register two sites one each in favour of complainant No.1 and 2 and the other sites would be registered in due course. The complainants have not produced any receipts with regard to the payment of other amounts of Rs.80,000/- towards maintenance and  of other Rs.80,000/- in cash regarding registration charges. Only an amount of Rs.80,000/- has been deposited as per the receipt issued by Ops and another sum of Rs.7,272/- towards admission charges. Thus totally the complainants have deposited an amount of Rs.87,272/-. The receipt produced for Rs.5,000/- does not bear the signature and seal of the Ops and the name of the person in whose favour the said receipt is issued, as such the same cannot be taken into consideration. We are unable to accept the case of the complainants that the other amount of Rs.80,000/- was paid to the Ops in cash. If the said amount was paid in cash nothing prevented the complainants to obtain the receipts from the Ops. The act of Ops in not registering the sites or refunding the amount to the complainants amounts to deficiency in service.

11.There is no merit in the contention of the Ops that the complaint is barred by limitation. When once the Ops have accepted the deposits and received the amounts from the complainants as members, till the sites are registered or amounts refunded, there is continuous cause of action to claim the relief’s.  

12.The complainants have claimed interest at 21% p.a. on the amount of Rs.1,60,000/- and compensation of Rs.3,00,000/-. Only an amount of Rs.87,272/- is paid by the complainants. On the said amounts interest at 18% is to be awarded as compensation. The complainants are not entitled to claim compensation of RS.3,00,000/-, as interest at 18% has been awarded on the amounts paid only as compensation. Accordingly, we proceed to pass the following:

O R D E R

        The complaint filed by the complainants is allowed in part.

Ops are directed to refund an amount of Rs.87,272/- with interest at 18% p.a. from the respective date of payments, till the date of realization and pay litigation cost of Rs.3,000/- to the complainants.

This order is to be complied within four weeks from the date of this order.

        Send copy of this order to both the parties free of costs.

 (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 4^th day of January-2012.)     

MEMBER                                                     PRESIDENT

Cs.