BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 540/2002 Filed on 24.12.2002

Dated : 15.04.2009

Complainants:

1. Padmanabhan, T.C 39/219, Gokulam, Kothuval Lane, Chalai, Thiruvananthapuram – 36.

    

2. Nambirajan, T.C 39/219, Gokulam, Kothuval Lane, Chalai, Thiruvananthapuram – 36.

(By adv. Chirayinkil C.V. Gangadharan Nair)

Opposite party:

M/s V.G.P Ever Green Plantation Ltd., V.G.P Square, Saidapet, Madras, Tamil Nadu – 600 015.

(By adv. Rita Nayar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02.08.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 16.03.2009, the Forum on 15.04.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The relevant facts of the complaint in brief are that the complainant entered into an agreement with the opposite party on 22.09.1994 and accordingly a document was registered by the 1^st complainant by remitting Rs. 900/- towards V.G.P Teak Talk Document Registration charge. The agreement so entered into between the 1^st complainant and opposite party farm is for a total sum of Rs. 33,440/- for two units, i.e, Rs. 16,720/- for each unit for monthly instalment of an amount at the rate of Rs. 1,000/- in 30 instalments. The 2^nd complainant has regularly remitted the monthly payments without any default from 22.09.1994 onwards for and on behalf of the 1^st complainant and thus he has completely remitted Rs. 33,940/- till 25.10.1996 towards V.G.P Teak Talk Farm Scheme. The opposite party farm offered 5% discount for outright payment and thereby the complainants are entitled to 5% discount for the said sum of Rs. 33,940/-. Accordingly a letter was also given to the Plantation for registering the documents in favour of the 1^st complainant. On completion of full payment on the side of the complainants, sale deed will be registered in favour of the complainants. Though the sale deed was executed, neither the property was delivered nor given the sales proceeds of Teak Trees to the complainants. Now the opposite party has come forward with a plea that they could not develop land as agreed upon and fell the teak trees at the end of 6^th year, i.e, in the year 2000 due to the extreme drought and that they have introduced a new scheme of allotting House plots at various centres of Tamil Nadu State and that they are insisting on the complainant to select a house plot by giving balance amount. The opposite party is purposefully evading from payment of the amount due to the complainants by raising new pleas in violation of the terms of agreement. There is deficiency of service and unfair trade practice on the part of the opposite party. Hence this complaint for refund with compensation and costs.

The contention of the opposite party in its version is as follows: The complaint is not maintainable. It has been admitted that the 2^nd complainant has joined the opposite party's scheme and on payment of required amount the 2^nd complainant has transferred the account to the name of the 1^st complainant and on transfer a sale deed has been executed and registered. As such the 1^st complainant has become the owner of the two units of teak farm land. As per the terms of agreement for development of the units into a teak farm, the opposite party has developed the units into a teak farm by planting hybrid and hi-tech variety of teak saplings to provide a projected 300 cu. ft of wood from the trees in the units at the end of 20 years. The opposite party has been fostering the teak plants putting enormous amount and efforts to keep up the proposed estimates of the esteemed customers. However, the growth of the teak plants was not upto the expected level. The growth was rather tardy and unhealthy on account of the acute drought conditions prevailing during the years 1997, 1998 and 1999. It is clearly mentioned in the clause No. 24 of the Terms of the Agreement found on the reverse of the application form agreed and signed by the complainant that inspite of the company's best efforts, should there be any loss due to act of God, act of State, climatic conditions, or other factors over which the company has no control, the company shall not be liable to pay any damages or make any other payments. As such the 1^st complainant is not paid any returns on account of the poor growth of the teak trees due to the said climatic conditions. On account of the submission of a requisition for withdrawal of application dated 14.12.1999 submitted for provisional registration, SEBI has passed an order on 12.02.2002 rejecting the application dated 14.12.1999 and directing VGP Evergreen Plantation Ltd. to wind up the Teak Talk Farm Scheme and repay the investors in terms of Regulation No. 73. Under Regulation No. 74 an existing collective investment scheme which is not desirous of obtaining provisional registration from the Board shall formulate a scheme of repayment and make such repayment to the existing investors in the manner specified in Regulation No. 73. Hence an Information Memorandum has been sent to the existing investors formulating a scheme for repayment and the investors are to choose any one of the options mentioned there. On the acceptance of any one of the options by the investors, further action will be taken accordingly. There is no deficiency of service or unfair trade practice on the part of the opposite party. The complainants are not entitled to any compensation. This Hon'ble District Forum has no territorial jurisdiction to entertain this complaint. Hence prays for dismissal of this complaint.

Both parties have filed their affidavits. Exts. P1 to P27 were marked for the complainant and Exts. D1 to D4 were marked on behalf of the opposite party.

The following issues are raised for consideration:

1. Whether the complaint is maintainable before this Forum?

2. Whether there is any unfair trade practice on the part of the opposite party?

3. Whether the complainant is entitled for the reliefs claimed for?

Point (i):- One of the main contentions raised by the opposite party is that the purchase of time share does not fall under the purview of the Consumer Protection Act since the dispute between the parties is for the right involved in immovable property and the question of consumer dispute does not arise and hence the complainant is not a consumer and the opposite party has referred the judgement of the Hon'ble National Commission reported in 1997 CPJ 63 (NC) in support of their contention. By now it is a settled position and there are umpteen judgements favouring the complainant that a dispute pertaining to property time share is maintainable under the Consumer Protection Act. Hence the complaint is found maintainable before the Forum. With regard to territorial jurisdiction the complainant has relied on Ext. P27 wherein the opposite party's Trivandrum branch office's address has been mentioned. The complainant has further contended that the complainants were remitting money at this branch which was functioning at Trivandrum. In the above circumstance, since the part of the cause of action having been arisen within the territorial jurisdiction of this Forum, we find that this Forum has jurisdiction to entertain this complaint.

Points (ii) & (iii):- According to the complainant, the income arising out of cutting of the teak poles by the end of the 6^th year, 12^th year and 20^th year in the respective units after deduction towards farm maintenance charges and administrative expenses will be distributed to the unit holders as per the agreement, but the complainants have not received the profits which is a violation of the terms of agreement. The complainant has further pleaded that the opposite party has come with a new plea that due to drought they could not develop land as agreed and that they have introduced a new scheme of allotting house plots at various centres of Tamil Nadu and that they are insisting the complainant to select a house plot by giving balance amount. This according to the complainant is a tactics to evade the payment which is a deficiency in service and unfair trade practice on the part of the opposite party.

The opposite party has admitted that the 2^nd complainant had joined the scheme and on payment of the required amount, the account was transferred in the name of 1^st complainant. On transfer a sale deed has been executed and as such the 1^st complainant has become the owner of the 2 units of teak farm land. According to the opposite party it has been clearly mentioned in the agreement that the company shall not be liable to pay any damages or make any other payments should there be any loss due to the act of God, act of State, climate conditions or other factors over which the company has no contract. As such the 1^st complainant has not been paid any returns due to the acute drought conditions.

The records produced by the complainants prove that an amount of Rs. 33,940/- has been remitted to the opposite party. Now the aspect to be considered is whether the complainants are entitled for refund of the said amount as claimed in the complaint. We have perused the records produced by both parties. Though the opposite party has contended that the SEBI has passed an order directing the opposite party to wind up Teak Talk farm scheme and repay the investors in terms of Regulation No. 73, the opposite party has not produced any record in support of the same. The opposite party has further contended that Information Memorandum has been sent to the investors formulating a scheme for repayment and the investors are to chose any one of the options mentioned there. But the opposite party has not produced any copy of the said information memorandum wherein the scheme for repayment are mentioned as contended above. In the absence of the above documents, the terms and conditions in Ext. D2 is to be taken into consideration.

The application form dated 22.09.1994 which contains the terms of the agreement has been marked as Ext. D2 which has been signed by the both parties. In the agreement which binds the applicant unit holder(s) and the company, No. 24 reads as follows: “Inspite of the company's best efforts should there be any loss due to the act of God, act of State, climatic conditions, or other factors over which the company has no control, the company shall not be liable to pay any damages or make any other payments. However the amount claimed or obtained from the appropriate agencies should be passed on to the unit holders after adjusting the expenses.” The 2^nd complainant has agreed and signed D2 stating that the terms printed overleaf governing the scheme are agreed and totally acceptable to them.

The opposite party has admitted that the complainant has not been paid any returns on account of poor growth of the teak trees due to acute drought which definitely comes under condition No. 24 above referred. However, a sale deed has been executed and registered in the name of the complainant. In the above circumstance no deficiency in service or unfair trade practice can be attributed on the opposite party since the loss has occurred solely due to the climatic conditions which is beyond the control of the company. As per condition 24, the amount claimed or obtained from the appropriate agencies shall be passed on to the unit holders after adjusting the expenses. In the light of the above discussions, we hereby direct the opposite party to refund the amount as per the terms and conditions after adjusting the expenses. There is no order as to costs and compensation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th April 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 540/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of sale deed dated 06.02.1997.

P2 - Copy of pass book with date of order – 22.09.1994.

P3 - Copy of receipt No. 12860 dated 22.09.1994 for Rs. 300/-.

P4 - Copy of receipt No. 12663 dated 23.09.1994 for Rs. 300/-.

P5 - Copy of receipt No. 12879 dated 30.09.1994 for Rs. 3440/-

P6 - Copy of receipt No. 16153 dated 28.10.1994 for Rs. 300/-.

P7 - Copy of receipt No. 19566 dated 05.12.1994 for Rs. 1000/-

P8 - Copy of receipt No. 16288 dated 06.01.1995 for Rs. 1000/-

P9 - Copy of receipt No. 21838 dated 06.02.1995 for Rs. 1000/-

P10 - Copy of receipt No. 35972 dated 05.04.1995 for Rs. 1000/-

P11 - Copy of receipt No. 41559 dated 05.05.1995 for Rs. 1000/-

P12 - Copy of receipt No. 41824 dated 05.06.1995 for Rs. 1000/-

P13 - Copy of receipt No. 35507 dated 27.06.1995 for Rs. 1000/-

P14 - Copy of receipt No. 49538 dated 11.10.1995 for Rs. 2000/-

P15 - Copy of receipt No. 49539 dated 16.10.1995 for Rs. 1000/-

P16 - Copy of receipt No. 74526 dated 08.03.1996 for Rs. 3000/-

P17 - Copy of receipt No. 27628 dated 06.03.1995 for Rs. 1000/-

P18 - Copy of receipt No. 7453 dated 11.03.1996 for Rs. 1000/-

P19 - Copy of receipt No. A6770 dated 25.09.1996 for Rs. 3000/-

P20 - Copy of receipt No. 89956 dated 10.10.1996 for Rs. 5000/-

P21 - Copy of receipt No. 89958 dated 11.10.1996 for Rs. 5000/-

P22 - Copy of receipt No. 89976 dated 25.10.1996 for Rs. 900/-

P23 - Copy of advocate notice dated 07.08.2002 issued to the opposite party.

P24 - Copy of reply notice dated 16.08.2002.

P25 - Postal receipt

P26 - Postal acknowledgement card

P27 - Photocopy of advertisement published by opposite party.

III OPPOSITE PARTIES' WITNESS :

NIL

IV OPPOSITE PARTIES' DOCUMENTS :

D1 - Copy of sale deed dated 06.02.1997.

D2 - Copy of application form dated 22.09.1994.

D3 - Copy of reply notice dated 16.08.2002.

D4 - Acknowledgement card.

PRESIDENT