COMPLAINT FILED ON: 26.04.2011
DISPOSED ON: 15.09.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
15th SEPTEMBER - 2011
PRESENT :- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.M.MUNIYAPPA MEMBER
COMPLAINT NO. 134/2011
COMPLAINANT | Sri Shivayogappa S.B. Aged about 53 years, S/o late Basavarajappa S No.129, GF-1 Supra Ascent Defence Layout, Vidyaranyapura, Bangalore- 560 097. (Adv: M.G.Jagannatha) Vs. |
OPPOSITE PARTY | M/s. Country Club (India) Limited, No.847/1, adj. to post office, 100 feet Road, Indiranagar Bangalore – 560 038 Rep. by its Mg. Director. (Adv: G.A.Gopi.) |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This is a Complaint filed U/S. 12 of Consumer Protection Act of 1986, by the complainant, seeking direction to the Opposite party (herein after called as O.P) to pay Rs.1,55,000/- paid towards membership fees and registration expenses with interest at 24% p.a., & compensation of Rs.2 lakhs on the allegations of deficiency in service on the part of the O.P.
The brief averments made in the complaint are as follows:
2. Complainant being a business man based on the advertisement given by OP became the member of OP club and paid sum Rs.1,55,000/- on different dates starting from 14/5/2007 to 25/2/2008. OP accepted the membership of the complainant issued Kool card membership bearing No. COOL CG 700A. OP has issued the receipt for having received the amount. OP wrote a letter to the complainant informing that complainant will be allotted site measuring 1089 sq.ft. at Country club Coconut Grove. Thereafter on 16-8-2008 OP has executed two gift deeds infavour of the complainant and same has been registered in the office of Sub-Registrar Hindupur in respect of plot No.142 & 143 situated within the R.D. of Hindupur SRD of Penugonda. Copy of two registered gift deeds are produced. On enquiry complainant came to know that there is no existence of such plot. In the said circumstances complainant is not interested to get said plots from the OP. Hence sought for refund of amount paid. Inspite of repeated requests OP refused to return the same. On 8-11-2010 Complainant got issued legal notice calling upon O.P. to refund the amount. Inspite of service of notice OP failed to refund the amount. Hence complainant felt deficiency in service against O.P.. Under the circumstances he is advised to file this complaint against O.P. for the necessary relief.
3. On appearance OP filed the version mainly contending that OP has already registered two complimentary plots infavour of complainant dated:5-5-2008 bearing plot 142 & 143 at vedic spa, project 1, pandiparthi village, Anantapur Dist., A.P. in the year 2008 itself. Complainant cannot seek for refund of amount without seeking cancellation of the registered documents which cannot be done in summary proceedings. Any order for refund amounts to cancellation of registered document. This forum has no jurisdiction to order for cancellation of any registered document. Complainant if at all has any grievance should have approached the forum within two years from the said date. Complaint is barred by limitation. No consideration has been paid for allotment of complimentary plot. Complainant has to bear only registration and maintenance charges. When complainant has not paid any consideration he is not a consumer. It is false to state that there is no existence of complimentary plot. Copy of the conversion order clearly indicates demarcation of complimentary plot. There are several stages in coconut grove and vedic spa; banyan tree, several stages of coconut grove is located in different parts of Tumkur District. Several stages of vedic spa, banyan tree are located near Hindupur, Penugonda. The membership fee paid is not refundable. Any order for refund would cause irreparable loss to O.P. There is no deficiency in service on the part of O.P. O.P. acted according to their promises by providing all the services to the complainant and by registering the complimentary sites in favour of the Complainant. Complainant is enjoying the facilities provided by OP. Among other grounds OP prayed for dismissal of the complaint.
4. In order to substantiate the complaint averments Complainant filed his affidavit evidence and produced 6 number of receipts issued by OP, copy of the two registered gift deeds dated: 16-4-2008, copy of the legal notice, postal acknowledgement card. On behalf of OP Venkatesh Verma C., Asst. Administration Manager filed affidavit in support of the defence version. O.P. has not produced any documents. Heard arguments from complainant side and taken as heard from O.P. side.
5. In view of the above said facts, the points now that arises for our consideration in this complaint are as under:
Point No.1:- Whether the complainant has proved
the deficiency in service on the part of
the OP ?
Point No.2:- If so, whether the complainant is
entitled for the reliefs now claimed?
Point No.3:- To what Order?
6. Our findings on the above points are:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the out set it is not in dispute that the complainant attracted by the offers made by the O.P. scheme became the member of O.P. club. OP accepted the membership of the complainant and allotted the membership bearing No. Cool CG 700-A. Complainant paid Rs.1,25,000/- towards the membership fees., and Rs.30,000/- towards stamp duty and registration charges; On different dates starting from 14/5/2007, to 25/2/2008. Rs.25,000/- each on 14/5/2007, 25/7/2007 and 13/09/2007, Rs.50,000/- on 17/11/2007, Rs. 15,000/- each on 19/2/2008 and 25/2/2008. Totally complainant paid Rs.1,55,000/- to O.P. O.P. has issued the receipt acknowledging the receipt of amount. We have perused the receipts produced by the complainant. Thereafter OP executed two registered gift deeds in favour of the complainant on 16/4/2008 in respect of the plots bearing No.142 and 143 situated at Hindupur, S.R.D. of penukonda. Copies of the said gift deeds are produced. Now the grievance of the complainant is on enquiry he came to know that there is no existence of such plots. Hence he sought for refund of amount. OP refused to refund the amount paid inspite of service of legal notice. Hence complainant approached this Forum for the necessary reliefs. Complainant also filed application for condonation of delay if any in filing this complaint U/Sec.5 of limitation act.
8. As against the case of the complainant the defence of the OP is it has already registered two complimentary plots in favour of the complainant Vide two gift deeds dated 5/5/2008 bearing plot No.142 & 143 at Vedic spa, project I, Pandiparthy village, Ananthpur District, A.P. vide documents No.1457 and 1449 in the year 2008 itself. Complainant cannot seek for refund without seeking for cancellation of registered documents. There is no merit in the defence of O.P., in the gift deeds it is shown that the vendors G.Venkatesh, C.Sumathi, S.Sivaparavathi, M.Tataji, V.S.Jaya kumar, R.Dharamendra kumar and C.M.Santosh are executing these gift deeds through their general power of attorney Mr.P.Kumarvelu and it is stated that on the basis of agreement cum general power of attorney these gift deeds are executed in respect of plots. At the time of execution of these gift deeds the complainant was not present in person. It appears that photographs and finger prints of the complainant as required, as per section 32(A) of Registration Act 1908 was taken by OP and S.Chandra Shekar as representative of complainant has accepted the gifts of the plots. Complainant is still not aware of the location of the sites. OP has not produced any document regarding formation of duly approved layout, conversion order of the land and title deed. Therefore on the basis of these gift deeds OP cannot be permitted to contend that as per assurance the sites are given to complainant.
9. Further it is contended by OP that complaint is barred by limitation. Complaint is filed after lapse of more than two years from the date of registration of the complimentary sites is not correct. Along with complaint application U/Sec. 5 of limitation Act is also filed by the complainant seeking condonation of delay if any in filing the complaint. Complainant has sworn to the affidavit accompanying the application to the effect that though gift deeds are executed on 16/4/2008, OP has failed to handover the possession of the property; On the date of registration of the document or till this date. In first week of Sept. 2010 complainant came to know that OP has played fraud and executed the gift deeds on the property which is not existing. Hence complainant got issued legal notice on 8/11/2010 calling upon OP to cancel the gift deeds and to repay the amount. Inspite of service of notice there was no response from OP. Till OP hand over the possession, recurring cause of action will accrue to the complainant. Complaint is filed within limitation period of two years from the date of knowledge that OP has executed the gift deeds on the property which is not in existence.
10. There is no merit in the contention of OP that only Civil Court can set aside the gift deeds, the Forum has no jurisdiction to entertain the complaint. The registered gift deeds executed in respect of sites which are not duly formed in the approved layout cannot be considered as a valid gift deeds. Under these circumstances we are of the view that OP failed to allot and register the complimentary free sites at Coconut grove, Tumkur, as assured and also failed to provide the assured services to the complainant, the same amounts to deficiency in service on the part of OP. OP has not denied the receipt of amount of Rs.1,55,000/- from the complainant. Hence under the circumstances we are of the considered view that complainant is entitled for refund of amount paid along with interest at 12% p.a. as compensation and litigation cost Rs.2000/-. Accordingly we proceed to pass the following
O R D E R
The complaint is allowed in part.
OP is directed to refund Rs.1,55,000/- with interest at 12% p.a. from the date of respective date of payments till the date of realization and pay litigation cost of Rs.2,000/- to the complainant.
This order is to be complied within 30 days from the date communication of this order.
Send the copy of this order both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 15th day of September 2011.)
MEMBER MEMBER PRESIDENT
Rk.
