Complaint filed on: 07-05-2010 Disposed on: 16-11-2010 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.1036/2010 DATED THIS THE 16th NOVEMBER 2010 PRESENT SRI.D.KRISHNAPPA., PRESIDENT SMT. ANITA SHIVAKUMAR.K, MEMBER Complainant: - B.R.Narayana Murthy Aged about 53 years, S/o. late S.Ramaiah, Presently residing at Balaji Enclave, Doddanekkuindi, Marathahalli post, Bangalore-37 V/s Opposite party: - M/s. The Country Club (I) Ltd, Administrative office, No.273, Defence colony, HAL 2nd stage, Bangalore – 38 Represented by its manager O R D E R SRI. D.KRISHNAPPA., PRESIDENT., Brief facts of the complaint filed by the complainant against the OP are, that he in response to the offer made by the OP to become a Cool Member of OP Club paid a sum of Rs.1,05,000/- towards membership fee. The OP offered a complimentary site of 2178 Sq. feet at Coconut Groove near Tumkur besides other facilities. OP has issued an allotment letter dated: 23/9/2006 allotting a site. Earlier he had paid Rs.65,000/- towards membership fee and he on 31/10/2009 paid Rs.50,000/- towards full membership fee. When he demanded for allotment of site by a final allotment and despite issue of legal notice dated; 26/3/2010, the OP has not registered site allotted and delivered the necessary documents. The complainant further stated to had filed a complaint in CC 1545/2008 for refund of Rs.65,000/- paid by him earlier before the 3rd Additional District Consumer Disputes Redressal Forum which dismissed the same on 25/10/.2008 and therefore has prayed for a direction to OP to complete registration formalities and to deliver him all the documents, in the alternative to refund the membership fee paid by him. 2. OP has appeared through his counsel, has filed version contending that the complaint is not maintainable and that the complaint is still due a sum of Rs.10,000/- towards membership fee. The OP admitting to had issued an allotment letter allotting a plot measuring 1089 sq feet only and submitted that complainant could be allowed directing them to register the complimentary plot measuring 1089 sq feet on payment of balance amount and registration charges. It is further contended that the member would be entitled for complimentary site only on payment of full membership fee, that the complainant has paid only partial membership fee. It is further stated, under the allotment letter the complainant was asked to pay Rs. 15,000/- towards maintenance charges within 30 days from the date of receipt of allotment letter, but has not paid that amount and submitted that they are even now ready to allot and register a site measuring 1089 sq feet on the complainant meeting the registration expenditure. It is further contended that the complainant though has paid Rs.1,05,000/- but has not paid full membership fee of Rs.1,15,000/- and stated that the complainant is yet to pay balance amount of Rs.10,000/-. Further denying that the complainant is entitled for a plot measuring 2178 sq feet and denying other allegations has submitted that they will allot a plot measuring 1089 sq feet at Thaggihalli Village, Sira Taluk, Tumkur District on payment of balance amount and submitted for dismissal of the complaint. 3. In the course of enquiry in to complaint, the complainant and one Vijay for OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced copies of receipts in proof of payment made, copies of letters of the OP and copy of legal notice got issued to the OP. OP has not produced any documents. Counsel for the complainant has filed his written arguments. We have heard the counsel for OP and perused the records. 4. On the above contention following points for determination arise. i) Whether the complainant proves that the OP has caused deficiency in his service in not allotting a complimentary site as promised? ii) To what relief, the complainant is entitled to? 5. Our findings are; Point No: 1 - In the affirmative, Point No: 2 - To see the final order. REASONS 6. Before we take up the rival contentions of the parties on merits, we shall deal with the complaint earlier filed by the complainant against the OP in CC 1545/2008. On perusal of the copy of the order passed by the Forum in CC No: 1545/2008 which is produced at a later stage, the complainant found to had filed that complaint against the OP for a direction to the OP to make a final allotment of a site in his favour. The complaint on merits came to be dismissed on 25/10/2008 on the ground the complainant had not paid full membership fee to the OP, therefore the complainant was not entitled for the relief. Thereafter after dismissal of this complaint, the complainant stated to had paid Rs.50,000/- to the OP on 31/10/2009 which was towards the balance membership fee then got issued a legal notice to OP demanding registration of a site vide legal notice dated 26/3/2010. The OP when failed to execute sale deed by making final allotment the complainant has come up with this complaint. The present complaint by virtue of the dismissal of the earlier complaint in our view is not barred and is maintainable for the reasons we are going to assign below; 7. As could be found from the version and affidavit/ evidence filed by the OP, the OP is not seeking dismissal of the complaint on the ground it is barred by the principles of resjudicata on the contrary admitting to have received a total sum of Rs.1,05,000/- from the complainant has further contended that membership fee payable is Rs.1,15,000/- and the complainant has not paid balance membership fee of Rs.10,000/- and has agreed to provide a plot to the complainant on the complainant paying the balance membership fee and registration charges. Therefore we should construe that the OP has not opposed the complaint disentitling the complainant for the relief sought, but has made categorical admission to provide a plot on the complainant fulfilling the remaining part of his obligation. 8. On perusal of stand of the OP, he has contended that he had agreed to provide a complimentary plot measuring 1089 sq feet and not 2178 sq feet as claimed by the complainant and has stated that prayer of the complainant could be allowed by directing them to register complimentary plot measuring 1089 sq feet on the payment of the balance amount and registration charges. This stand of the OP is contrary to the letter dated 23/9/2006 issued by them to the complainant under this letter the OP has stated to have awarded Cool Membership to the complainant under which they has allotted 2178 sq feet of land free of cost at Coconut Groove near Tumkur beside promising other facilities. OP has not denied issue of this letter. Therefore it can not lie in the mouth of the OP to contend that the complainant is entitled for a plot measuring 1089 sq feet only and not 2178 sq feet. The complainant has not denied that Cool Membership if is Rs.1,15,000/- and he has not paid the balance of Rs.10,000/-, administration charges of Rs.3,000/- and Rs.15,000/- towards registration expenditure. Considering all these uncontroverted facts we find that the complaint deserves to be allowed and we pass the following order. ORDER Complaint is allowed. The complainant shall pay the balance membership fee of Rs.10,000/- and legal registration charges with Rs.3,000/- towards administration charges to the OP. On the complainant paying the above said payments the OP within six months from the date of such payments shall allot a plot measuring 2178 sq feet at Coconut Groove near Tumkur, execute registered document and deliver possession of the plot to the complainant. OP shall pay cost of Rs.2,000/- to the complainant. Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 16th November 2010. Member President
| | [HONORABLE Anita Shivakumar. K] Member[HONORABLE Sri D.Krishnappa] PRESIDENT | |
