FA.No.953/2008 against CC.No.298/2006 District Consumer Forum-II, Hyderabad.

Between:

Ramanadha Raju Alluri,

6-3-579/52, Manasa Apartments,

Anandnagar, Khairatabad,

Hyderabad – 500 004.

…Appellant/Complainant.

And

1.Managing Director,

   Bush Betta Resort Management Co.

   3 President Chambers,

   8 Richmond Road,

2.Bush Betta Resort Management Co.

   Marketing,   No.8-6-626/1/2,

   Road No.3, Banjara Hills,

3.Managing Director,

   Country Club of India,

   Begumpet,   Hyderabad.

…Respondents/Opp.Parties.

Counsel for the Appellant           :  M/s.C.Rajaiah & V.Vinod Kumar.

Counsel for the Respondents     :  Respondents served through publication.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, HON’BLE MEMBER,

AND

SRI SYED ABDULLAH, HON’BLE MEMBER.

MONDAY, THE FIFTH DAY OF JULY,

TWO THOUSAND TEN.

Oral Order (Per Smt. M.Shreesha, Hon’ble Member)

*******  

1.         Aggrieved by the order of the District Consumer Forum-II, Hyderabad, dated 13.12.2006 in CC.No.298/2006, the complainant preferred this appeal.

2.         The brief facts as set out in the complaint are the complainant and his spouse entered into Memorandum of Understanding dated 20.05.1997 for availing Holiday Week at Bush Betta Holiday Ownership Wildlife Adventure Resort for a period of 90 years renewable every 30 years on mutual consent.  The complainant paid an amount of Rs.1,15,000/- and got his name enrolled by opposite parties 1 and 2 as per clause 6 of Applicant’s Declaration of Understanding for Bush Betta Holiday Week as a Member of RCI.  The complainant submitted that sine the Bush Betta failed to pay the initial membership fee, he paid Rs.5050/- vide receipt dated 13.06.2001 towards maintenance charges for two years and after making payment of such fee the RCI issued membership card.  It is the case of the complainant that his wife and himself could not avail the Bush Betta Holiday Resort as the Holiday Resort was non-operational as per the periodic information provided by opposite parties 1 and 2 and RCI.  As per the Brochure issued by Country Club of India Limited, Begumpet, Hyderabad the Bush Betta Resort is under their ownership and control.  The complainant submitted that when he approached CCI, he was informed that his name was not mentioned in the list of members of Bush Betta Holiday Resort.  The complainant submitted that the opposite parties violated the terms of irrevocable Memorandum of Understanding which amounts to deficiency in service.  As there was no response to the legal notice the complainant filed the complaint seeking directions to the opposite parties to refund Rs.1

3.         Opposite parties 1 and 2 filed counter stating that the complaint is not maintainable as it was barred by limitation since the agreement was executed on 20.05.1997 and that the complainant himself defaulted in payment of maintenance fees during the year 2000.   Opposite parties denied entire payment of Rs.1  They further stated that on payment of full agreed sum of Rs.1  They denied the allegation that the Bush Betta failed to pay the initial membership fee.  They further denied that the complainant and his spouse could not avail the Bush betta Holiday Resort as the holiday facility was non-operational.  The resort was very much in operational and it was not stopped even for one day.  In the event of failing to make payment of fee on the specified date company shall be entitled to serve notice requiring such payment to be made within seven days and if the applicant fails to make such payment then the company at its option shall be entitled to terminate the agreement.  There was no deficiency in service on their part and therefore prayed for dismissal of the complaint.

4.         Opposite party No.3 filed counter stating that the complaint is not maintainable.  It has submitted that the complainant had failed to pay the annual maintenance fee of Rs.3250/-.  It is not liable to provide services agreed when the complainant failed to fulfil the terms and conditions of the agreement.  The complainant failed to pay maintenance charges as per clause 4 of the agreement.  There is no deficiency in service on its part.

5.         The District Forum based on the pleadings put forth by both parties and the documentary evidence, i.e. Exs.A.1 to A.9 and B.1 to B.5 dismissed the complaint on the ground of limitation.

6.         Aggrieved by the said order, the complainant preferred this appeal contending that the District Forum did not appreciate the facts in its correct perspective.  It failed to appreciate the fact that only on complete payment of Rs.1  The transfer of ownership by opposite parties 1 and 2 to opposite party No.3 without any communication to him came to light only through the brochure that was issued by opposite party No.3 in August, 2005 which amounts to deficiency in service and that the complaint was filed within the limitation period.  The complainant prayed that the appeal be allowed.      

7.         It is the case of the complainant that he entered into an agreement with the opposite party for a period of 90 years renewable every 30 years on mutual consent and paid Rs.1   The complainant submits that he paid Rs.5050/- towards maintenance charges for two years and the RCI had issued Membership Card.  Since the complainant and his spouse could not avail the Bush Betta Holiday Resort as it was non-operational, the complainant approached the CCI, Hyderabad in the month of August, 2005 to find out whether their membership was available for Bush Betta Resort.  The CCI having taken over the Bush Betta Holiday Resort failed to continue membership of the complainant and his spouse.  The complainant submits that he got issued a legal notice, but there was no response.

8.         Opposite parties 1 and 2 submit that the complainant had paid only Rs.85  They denied the allegation of the complainant that when Bush Betta failed to pay the initial membership fee, he paid Rs.5050/- towards maintenance charges for two years and only on such payment RCI issued membership card. 

9.         The learned counsel for the appellant submitted that the transfer of ownership of Bush Betta Resort came to light only when a Brochure was issued by opposite party No.3 in August, 2005 (Ex.A.7).

10.       We observe from the record that the complaint was dismissed on the ground of limitation.  It is evident from Ex.A.1 and A.2 that the agreement was entered into on 20.05.1997, but the agreement is for a period of 90 years renewable every 30 years on mutual consent from the date of commencement of Bush Betta Holiday Ownership Wildlife Adventure Resort.  Hence, this complaint cannot be said to be barred by limitation.  It can be construed as continuing cause of action.  It is an admitted fact that the complainant had paid Rs.85  Ex.A.1 evidences that the complainant has paid an amount of Rs.1  Hence, we are of the considered opinion that the complainant is entitled to the refund of Rs.1,15,000/- together with interest at 9% per annum from the date of filing of the complaint till the date of realization together with costs of Rs.5000/-. 

11.       In the result, this appeal is allowed in part and the order of the District Forum is set aside.  Consequently, opposite parties 1 to 3 are directed to pay Rs.1,15,000/- to the complainant together with interest at 9% per annum from the date of filing of the complaint till the date of realization together with costs of Rs.5000/-.            

PRESIDENT

MEMBER

MEMBER

DtVvr.