COMPLAINT FILED: 26.10.2009 <br /> DISPOSED ON: 06.08.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 6TH AUGUST 2010<br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER<br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT No.2496/2009<br /> <br /> COMPLAINANT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> OPPOSITE PARTY<br /> <br /> <br /> <br /> <br /> Arjun. K.,<br /> S/o A. Krishnaprasad,<br /> Aged about 27 years,<br /> # 2705, 18th Main, 5th Cross,<br /> HAL - 2nd Stage, <br /> Indiranagar,<br /> Bangalore – 560 008.<br /> <br /> Advocate: Sri. G.M. Ananda<br /> <br /> V/s.<br /> <br /> M/s Country Club (India) Ltd.,<br /> # 273, 1st Main Road,<br /> Defence Colony,<br /> Indiranagar, HAL II Stage,<br /> Bangalore – 560 038.<br /> <br /> Advocate: Sri. G.A. Gopi<br /> <br /> O R D E R S<br /> <br /> SRI. B.S.REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint U/s 12 of the C.P. Act, 1986 seeking direction against Opposite Party (herein after called as O.P) to refund the deposit amount of Rs.35,000/- with interest at 24% p.a. and to pay compensation on an allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The case of the complainant is to be stated in brief is that:<br /> <br /> The complainant being inspired by the offers published in the broacher of OP providing various facilities on becoming member, enrolled as a member of OP with initial payment of Rs.25,000/- on 11.08.2007. OP issued membership card and allotment letter allotting site Nos.105 and 106 at Banyan Tree Vedic Spa Project Phase VII. Further the complainant also made payment of Rs.10,000/-, Rs.3,333=33, Rs.25,000/-, Rs.8,333=33 and Rs.16,666=80. OP promised that the site situated at Tumkur would be allotted, but when the complainant visited the office for making further payment he came to know that the said project was situated at Andhra Pradesh. The complainant stopped further payment and OP said that no site available at Tumkur project. The complainant demanded execution of the sale deed; OP prolonged the process of execution of sale deed. On 01.08.2009 OP obtained request form from the complainant, the representative of OP endorsed for repayment of the amount. OP failed to keep up their promise. Hence the complaint for refund of the amount. <br /> <br /> 3. On appearance, OP filed the version contending that the complainant has paid only sum of Rs.35,000/- out of Rs.1,25,000/- as such he is not entitled for allotment of complimentary site. The membership fee is non refundable. There is no deficiency of service on the part of the OP. The allotment letter produced at document No.5 is forged and fabricated document; created for the purpose of present complaint. Apart from the payment of Rs.35,000/-, the other payments alleged are denied. It is denied that the OP obtained request form from the complainant on 01.08.2009 and has endorsed that they will refund the amount. The complainant has availed the facilities provided at the clubs of the OP, which is clearly evident from the payments indicated in the credit card statement. OP would allot complimentary site as soon as the complainant deposit entire membership amount. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Customer Care Manager of the OP filed affidavit evidence and produced documents in support of the defence version. <br /> <br /> 5. The complainant filed written arguments, arguments heard on both sides. Points for consideration are:<br /> <br /> Point No.1:- Whether the complainant proved the <br /> deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2:- If so, Whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We have gone through the pleadings of both the parties; document produced and noted the arguments. We record our findings on the above points are: <br /> <br /> Point No.1:- Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> R E A S O N S<br /> <br /> 7. At the outset it is not at dispute that the complainant paid sum of Rs.35,000/- as initial payment to become member of OP club. The receipt marked as exhibit C-2 is dated 11.08.2007 for Rs.25,000/-, exhibit C-1 is the letter of OP offering various facilities in OP club for a person becoming Mr. Cool Life Membership, exhibit C-4 is the letter of OP addressed to the complainant regarding the payment received to an extent of Rs.25,000/-. Temporary membership card was issued; exhibit C-5 is the letter of allotment dated 09.11.2007 issued by OP for having allotted site Nos.105 and 106 at Banyan Tree Vedic Spa Project Phase VII in favour of the complainant. Further sum of Rs.10,000/- was paid on 13.11.2007 as per the credit card account statement exhibit C-6. <br /> <br /> 8. It is contended for the complainant that at the time of receiving the initial payment of membership, OP promised to allot complimentary plot at Tumkur, but now as per allotment letter the plot situated at Andhra Pradesh are allotted. Thus OP has failed to keep up its promise. The learned counsel for the OP contended that exhibit C-5 letter is forged document; the same was not issued by OP. In our view after perusing exhibit C-5 it is difficult to accept that the complainant has created the said document by forging the signature of the Manager of OP. The said allotment letter is signed for OP by one Raghu, Department Manager. The said Raghu has not come forward to file an affidavit stating that the signature found on exhibit C-5 is not that of his signature. In case if the said letter was forged one, nothing prevented to file any complaint before the police. OP had not taken steps to challenging the said letter. <br /> 9. The learned counsel for the OP contended that the total membership fee is Rs.1,25,000/- whereas the complainant has paid only Rs.35,000/- he is not entitled for any complimentary site. Only after making entire payment he is entitle to claim the allotment of plot. Further it is contended that the membership fee paid is liable to be forfeited, as per the terms and conditions stipulated in the application for membership. The complainant has availed the services of OP. Thus it is contended that there is no deficiency in service on the part of the OP. <br /> <br /> 10. In our view OP failed to keep up its promise to allot site at Tumkur. At this stage we are unable to accept that the exhibit C-5 allotment letter is forged document. As per that letter the sites situated at Andhra Pradesh are allotted. Thus OP failed to keep up its promise in allotting the sites. In the request form exhibit C-8 OP has assured to refund the amount. An endorsement has been made stating that the amount will be refunded after showing the documents. Further another endorsement is made on 01.09.2009 to collect the cheque. Thus as per these endorsements OP agreed to refund the amount, but failed to refund the same, the same amounts to deficiency in service on the part of OP. Under these circumstances we are of the view that OP is not justified in refusing to refund the amount. There is no material to hold that the complainant has made use of services of OP club. There is no merit in the contention that membership fee paid is non refundable. Taking into consideration all the facts and circumstances we are of the view that the complainant is entitled for the refund of the amount with interest at 9% p.a. Accordingly we proceed to pass the following: <br /> <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. OP is directed to refund an amount of Rs.35,000/- with interest at 9% p.a. from the respective date of payment, till the date of realization with litigation cost of Rs.2,000/- to the complainant. <br /> <br /> This order is to be complied within four weeks from the date of this order. <br /> <br /> Send the copy of this order to both the parties free of cost.<br /> <br /> (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 6th day of August 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm: <br /> <br />