Date of filing:     10.03.2014

   Date of Disposal: 26.05.2015

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

                              PRESENT: Sri B.Vinay Kumar, B.Sc.B.L.  PRESIDENT

              Smt H.V. Ramana, B.Com., L.L.M., MEMBER.

                                                  Sri A Madhusudana Rao, M.Com., B.L., MEMBER

                         CONSUMER COMPLAINT No.14 /2014

                     Tuesday, the 26^th Day of May, 2015

Between:-

Batchu Venkata Satyanarayana, S/o. Satyanandam,

Age 74 years, Business, D.No.46-11-9, Batchu Vari St.,

Danavaipeta, Rajahmundry.                                                               …  Complainant

                                    And

1)  M/s. Sterling Holiday Resorts (India) Ltd.,

     Rep. by its C.M.D., 7, 3^rd Cross Street,

     ‘City Towers’, Katurba Nagar, Adayar,

     Chennai – 600 020.

2)  M/s. Securities & Time Share Owners Welfare

     Association, Rep. by its Secretary/authorized

     Representative, No.13, I Floor, Mukambika Complex,

     4^th Lady Desika Road, Mylapore, Chennai – 600 004.                 …  Opposite parties

This case is coming on 05.05.2015 for final hearing before this Forum and upon perusing the complaint, and other material papers on hand and upon hearing the arguments of Sri E.Murali Sreedhara Babu, Advocate for the complainant and               Sri K. Badrinath,  Advocate for the 1^st opposite party and the 2^nd opposite party having been set exparte, and having stood over for consideration till this day, this Forum has pronounced the following.

O R D E R

(Per Smt. H.V. Ramana, Member)

This is a complaint filed by the complainant under section.12 of the Consumer Protection Act, 1986 to direct the 1^st opposite party to pay a sum of Rs.30,000/- as compensation for non allotment of resort to him; award damages of Rs.5,000/- for the mental agony and distress caused to him and award costs of the complaint.

2.         The case of the complainant is that the 1^st opposite party is a public limited company having its regd. office, Chennai and doing business of developing holiday resorts at various places and selling property time shares of such holiday resorts whereas the 2^nd opposite party is an association established for the benefit of the security of holiday resorts owner.  The complainant is one of the buyers of Time Share of Holiday resorts under Sale deed dt.24.3.1994 and he is a life member of time share holiday resort and he need not pay any amount to the 1^st opposite party towards any maintenance charges.  While the matter stood thus, the 1^st opposite party had started issuing demand notices to the complainant for payment of annual amenity charges of Rs.15,525/- out of which Rs.1700/- towards annual amenity charges due for the year 2009 and Rs.13,825/- towards amenity charges due for the previous years.  After receipt of the above, the complainant issued a notice on 13.6.2009 and the 1^st opposite party gave reply dt.24.6.2009.  On 21.12.2012, the 1^st opposite party issued demand notice to the complainant and the complainant got issued notice on 2.2.2013, the opposite party received the same, but did not comply the demand.  As the complainant being founder member of the time share is entitled to the benefit of exemption of payment of annual amenity charges. Hence, the complaint.

3.         The 1^st opposite party filed its written version, denied the allegations made by the complainant. This opposite party submits that the complainant had purchased a timeshare consisting of various documents of his title. The timeshare was sold to the complainant based on the various terms and conditions mentioned in the agreement for sale, registered sale deed, possession certificate, and facilities agreement. The complainant is entitled to enjoy his timeshare subject to the conditions mentioned in the document of title. The agreement for sale entered between the opposite party and the complainant has clearly stated that shall be a maintenance company formed exclusively for the purpose of maintaining the resort. The fact is clearly spelt out in clauses 21, 24 and 26(d) and 35 of the agreement of sale. This opposite party submits that they have invested about 15 crores in refurbishing the property which was funded by the promoter company which ought to be collected from the members by the maintenance company.  Due to the above loss, the promoter company had invested on refurbishing the resorts. On completion of the said renovation, old customers have started visiting the property. The maintenance company and the promoter company reserves its right to collect the amount spent on renovation from the PTS members in proportion to the undivided share held by the customers. The complainant is the owner of the apartment for a week and also shares an undivided share in the common area of the property. The same is clearly stated in the Schedule B,C,D and E of the sale deed. The schedule F of the registered sale deed states that the sale deed is governed by the covenants of the agreement for sale. The opposite party further submits that since the complainant is the owner of the undivided share in land, building and other amenities, the complainant is liable to pay the annual amenity charges. This opposite party states that the demand notice of Amenity charges made is not illegal. The complainant is bound to pay the annual amenity charges as per the demand made by the 1^st opposite party.  This opposite party is not liable to pay any compensation or damages to the complainant.  Hence, there is no deficiency of service on the part of the                 1^st opposite party and the complaint is liable to be dismissed with costs.  

4.         Proof affidavits filed by the complainant and the 1^st opposite party.  Exs.A1 to A8 have been marked on behalf of the complainant and Exs.B1 to B5 have been marked on behalf of the 1^st opposite party. 

5.         Heard the complainant and the 1^st opposite party.  

6.         The points that arise for consideration are:

      1) Whether there is any deficiency in service on the part of the opposite

     parties?

             2) Whether the complainant is entitled for the reliefs asked for?

             3) To what relief?

7. POINT No.1 & 2:-   The admitted facts are that the complainant is a member with the opposite parties for the time share of holiday resorts.  The complainant submitted that the opposite parties issued a letter vide Ex.A1 i.e. 9.12.2008 for payment of maintenance charges.  For which, the complainant got issued a notice vide Ex.A2 dt.13.6.2009 by questioning the opposite parties for payment of maintenance charges. Later, the complainant received a letter vide Ex.A3 from the opposite parties to ignore the demand notice sent by them.  Again, the complainant received another certificate of posting from the 1^st opposite party vide Ex.A4 for payment of the due amount Rs.28,294/-.  For which, the complainant got issued another notice vide Ex.A5 to withdraw the demand made by the 1^st opposite party. The main contention of the complainant is that earlier the opposite parties withdraw the demand and replied him to ignore the demand notice sent by them.  In the same manner, the complainant submitted to the opposite parties that he is being the founder member of the timeshare and therefore, he is entitled to the benefit of exemption of payment of annual amenity charges claimed by the 1^st opposite party and he also submitted that they are not entitled to claim either past, present or future amenity charges from the complainant as per the understanding arrived at and can deny allotment of the resort to the complainant. The complainant further contended that the 1^st opposite party as a service provider had admitted, not done by the 1^st opposite party. This amounts to deficiency in service on the part of the opposite parties. He further contended that the     2^nd opposite party has undertaken to provide necessary protection to the complainant, but he also failed in its duty of getting the demand issued to the complainant is withdrawn. Therefore, the complainant had mental agony and distress due to the acts of the opposite parties.

            It is an admitted fact that the complainant has purchased timeshare from the opposite parties which consists of various documents of his title, in which there are various terms and conditions mentioned in the agreement of sale, registered sale deed, possession certificate and facilities agreement. The complainant is entitled to enjoy timeshare subject to the terms and conditions in the documents. The 1^st opposite party contended that the complainant has not filed the documents pertaining to the membership to ensure that there was no restrictive covenant in the said agreement for collecting AAC. He further submitted that the complainant is the owner of 1/6760 undivided share in total extent of land owned by the opposite parties, 1/52 undivided share of the cottage with plinth area of 500 sq. feet, 1/52 undivided share in the movables in the said cottage, 1/6760 undivided share in all the common areas and common amenities and common properties and 1/6760 undivided share in the movables facilities and services in the common area with a restrictive covenant to enjoy the same only during the 23^rd week of the English calendar year.

            The agreement for sale entered by the complainant with the opposite parties stated that shall be a maintenance company formed exclusively for the purpose of maintaining the resort.  This fact is clearly mentioned in clauses 21, 24 and 26(d) of the agreement to sale. The opposite parties filed copy of the agreement of sale by another person has been marked vide Ex.B1.  He also filed sale deed vide Ex.B2 and the possession certificate vide Ex.B3, facilities agreement vide Ex.B4 and also filed annual report for the year 2013-14 vide Ex.B5.

            The main contention of the 1^st opposite party is that he is not connected with the opposite party No.2 and also submitted that the 2^nd opposite party is not the promoter of this company. This opposite party submitted that the buyer of timeshare shall let out the cottage owned by him on rent at his own will or authorized  person to enjoy the holidays on his behalf and the same is subject to the payment of guest fee. The 1^st opposite party stated that the letter as per Ex.A3, they waived the maintenance charges for the complainant only upto 9.12.2008, but the waiver was not given for lifetime. The complainant has to pay the maintenance charges i.e. annual amenity charges until current year. The complainant is liable to pay the annual amenity charges as per the terms and conditions.

            After perusing the material on record and after going through the exhibits filed by the 1^st opposite party, it is evident that the complainant has to pay maintenance charges as per the sale agreement and facilities agreement.  It is clearly mentioned in Ex.B1 clause 26(d) – “the BUYER shall pay the requisite charges/fees/prices as decided by the Maintenance Company from time to time to utilize and enjoy the Schedule D Property and Schedule E property and other common facilities and common amenities.  The BUYER shall also be liable to pay such, charges/fees/prices as may be fixed from to time by the Maintenance Company in respect of the food and other eatables, consumables, electricity, telephone, gas, oil, water etc., that may be utilized by the BUYER in his/her property time share.”        

The 1^st opposite party relied on the citation between K.K. Bheniwal Vs. Sterling Holiday Resorts (India) Ltd., and others in R.P.No.3037/2013, NCDRC.

            After perusing the above citation, it is very much applicable to the present case on hand.   

            In this case, we observed that the complainant failed to produce any documents to prove that he is the founder member of the opposite parties project and he has not filed any sale agreement or other relevant documents before this forum. The complainant only filed correspondence made between the opposite parties with regard to maintenance charges. As seen from the material on record the complainant failed to pay the AAC/ASF charges to the 1^st opposite party as per terms and conditions of the sale agreement and other documents. Therefore, the claim against the opposite parties is dismissed without costs as there is no deficiency in service on their part.   

8.  POINT No.3:  In the result, the complaint is dismissed, without costs.

      Typed to my dictation, corrected and pronounced by us on this the 26th Day of May, 2015.

               Sd/-                                                                       Sd/-                                    Sd/-

           MEMBER                                                      MEMBER                            PRESIDENT

APPENDIX OF EVIDENCE

                                                                           WITNESSES EXAMINED

FOR COMPLAINANT: None                                                                                                  FOR OPPOSITE PARTIES: None

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.A1    Demand notice dt.9.12.2008 issued by the 1^st opposite party.

Ex.A2    Notice dt.13.6.2009 by the complainant.

Ex.A3    Letter dt.24.6.2009 by the 1^st opposite party to the complainant.

Ex.A4    Letter dt.21.12.2012 by the 1^st opposite party to the complainant.

Ex.A5    Reply dt.2.2.2013 given by the complainant.

Ex.A6    Two postal receipts.

Ex.A7    Acknowledgement from the 1^st opposite party.

Ex.A8    Acknowledgement from the 2^nd opposite party.

FOR 1^st OPPOSITE PARTY:

Ex.B1    Agreement of Sale.

Ex.B2    Sale deed.

Ex.B3    Possession Certificate.

Ex.B4    Facilities Agreement.

Ex.B5    Balance sheet for the year Fy.2013-14.

         Sd/-                                                     Sd/-                                                                                       Sd/-

      MEMBER                                      MEMBER                                                                          PRESIDENT