M/S. Country Club (India) Ltd. V/S S. Shafiulla Hussaini. - Consumer Court Case

Karnataka

Bangalore Urban

CC/10/1143

S. Shafiulla Hussaini. - Complainant(s)

Versus

M/S. Country Club (India) Ltd. - Opp.Party(s)

B.C. Avinash

21 May 2010

ORDER

BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSLAL FORUM, BANGALORE, KARNATAKA STATE.
Bangalore Urban District Consumer Disputes Redressal Forum, Cauvery Bhavan, 8th Floor, BWSSB Bldg., K. G. Rd., Bangalore-09.
consumer case(CC) No. CC/10/1143

S. Shafiulla Hussaini.						...........Appellant(s)
Vs.
M/S. Country Club (India) Ltd. M/S. Amrutha Estates						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 25TH NOVEMBER 2010 PRESENT:- SRI.B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs. 2117/09, 18, 728, 729, 1142,1143,1296, 1297, 1746/2010 COMPLAINT NO.2117/2009 COMPLAINANT OPPOSITE PARTY Sri. Gururaja. A., S/o Sri. Ananda Theertha A.G., Resident of Apartment No.G-1, Sri Hari Paradise, Opposite Sunder Mahal, 14th Cross, Girinagar, Bangalore 85. Advocate: Sri. H.S.Srinivasa Murthy V/s. The General Manager, Country Club (India) Ltd., No.675, 9th A Main Road, Indiranagar 1st Stage, Bangalore 560 038. Advocate : G.A. Gopi COMPLAINT NO.18/2010 COMPLAINANT OPPOSITE PARTIES COMPLAINT NO.728/2010 COMPLAINANT Sri. P.S. Vijay Kumar, S/o Shetteppa, Aged about 36 years, R/at No.59/1, Ground Floor, 12th F Cross, 12th Main Road, Mrthyal Nagar, Mathikere, Bangalore. Presently R/at No.9 & 10, 4th Cross, Opp: Muneshwara Temple, Bhoopasandra, Bangalore. Advocate: Sri. M.R. Srinivas V/s. 1. The Managing Director, Country Club, Having its administrative office at No.675, Old Syndicate Bank Road, 1st Stage, 9th A Main Road, Indiranagar, Bangalore. 2. The Country Club, Having its administrative office at Amrutha Castle, 5-9-16, Saifabad, Opp: Secretariat, Hyderabad 560 063. Advocate : G.A. Gopi Tousif Ahmed S/o. Nazir Ahmed (Late), Ramya Regent, Flat No.29, 1st Floor, 1st Main, 1st Stage, Indira Nagar, Bangalore 560 038 Advocate : Neelakantaiah V/s. OPPOSITE PARTY The Country Club (India) Ltd., Rep. by its Managing Director, No.675, 9th A Main, Indiranagar 1st Stage, Bangalore-560038. Advocate : G.A. Gopi COMPLAINT NO.729/2010 COMPLAINANT OPPOSITE PARTY Yusuf Perodi S/o Moosa Haji (Late) Aged about 63 years, R/a. No.11, 8th Main, 12th Cross, B Block Vinayak Nagar, Bangalore-560 017. Advocate : Neelakantaiah V/s. M/s.Country Club (India) Limited, No.273, Ist Main Road, Defence Colony, HAL II stage, Indiranagar, Bangalore-560 038. (Reptd. by Managing Director) Advocate : G.A. Gopi COMPLAINT NO.1142/2010 COMPLAINANT COMPLAINT NO.1143/2010 COMPLAINANT Mrs. Aneesa Sultana, W/o Mohammed Abbas, Major, Represented by Attorney Holder, Sri. Mohammed Abbas, S/o Syed Ahmed Ali, Aged about 52 years Both are residing at No. 39, Venkatareddy Layout, Kormanagala 6th Block, Near IBP, Bangalore-560 095. S. Shafiulla Hussaini, S/o S.A. Hussaini, Aged about 44 years, Residing at No. 489, 6th Block, 6th Cross, Kormangala, Bangalore-560 095 Advocate : B.C.Avinash V/s. OPPOSITE PARTIES 1.Country Club (India) Limited, No.675, 9th A Main, Indiranagar 1ST stage, Bangalore-560 038. Rept. by its Manager 2. M/s. Amruth Estates, No.478, Mahapadma, 1st Main, Indiranagar I stage, Bangalore-560 038. Rept. by its Manager Advocate : G.A. Gopi COMPLAINT NO.1296/2010 COMPLAINANT COMPLAINT NO.1297/2010 COMPLAINANT COMPLAINT NO.1746/2010 COMPLAINANT Sri. Chunnilal, S/o Indraramji, Aged about 24 years, R/a Vasantha Lekha Kuteera, No.245, Tele Communication Layout, 5th Cross, Dr. Shivaram Karanth Nagar, Near B.K.Hegde Nagar, Arabic College Post, Bangalore-560 045. Advocate : Rajesh Shetty Sri. Om Prakash, S/o Lakharamji, Aged about 26 years, R/a # 203/1, Kattigenahalli Village, Bagalur Main Road, Dwarakanagar, IAF Post, Bangalore-560 063. Advocate : Rajesh Shetty Mr.George Abraham Son of K.G. Abraham Aged about 37 years, G-01, Varshitha Heights Near Deva Matha School, Horamavu, Kalyannagar Bangalore-560 043 Advocate : Krishna Murthy V/s. OPPOSITE PARTIES 1. The Chairman and Managing Director, Country Club (India) Ltd., Amrutha Castle, 5-9-16, Saifabad Opp. Secretariat, Hyderabad-500063 2. The Country Club (India) Ltd., No.675, 9th A Main, Indiranagar 1st Stage, Bangalore-560038. Rep. by its Authorised signatory Advocate : G.A. Gopi O R D E R SMT. M. YASHODHAMMA, MEMBER These are the complaints filed u/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the amount paid towards Membership fees along with interest at 20%p.a., compensation, litigation cost, on the allegations of deficiency in service on the part of the OPs. As the OP in all the complaints are common, the question involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order. 2. The brief averments as could be seen from the contents of these complaints are as under: Complainants being attracted by the offer made by OP thought of becoming members of OPs Club under the name and style Mr.Kool, Mr. Kool Privilege, Millionaire Metro, Gold Crown premium Membership. OPs accepted their membership and collected the amount towards membership fees. OPs promised so many benefits including allotment of free sites. Thereafter some how OP failed to keep up its promise. There was no response to the legal notice. For no fault of their complainants were made to suffer both mental agony and financial loss. Under such circumstances complainants felt deficiency in service on the part of the OP. For the convenience sake the card membership, Membership No. amount paid Receipt No. and date are noted below in the chart. When the repeated requests and demands made by the complainants have gone in vain they are advised to file these complaints and sought for the reliefs accordingly. SL No Complaint No. Card Membership Member ship No. Amount paid Receipt No. Date of Receipt Date of Legal Notice 1. 2117/09 Millionaire Metro MKM-172 30,000 BAN08 17345 18.02.09 14.03.09 2. 18/10 Mr.Cool Privilege Mr.CooLCG 382A 40,000 20,000 20,000 20,000 25,000 1,25,000 50878 BAN08 9084 BAN08 11947 BAN08 13413 BAN08 14345 25.04.07 20.08.08 15.10.08 19.11.08 09.12.08 11.11.09 3. 728/10 Mr.Cool Card life COOLCG- 701A 35,000 60,000 30,000 1,25,000 51705 12683 54688 14.05.07 25.06.07 09.07.07 -- 4. 729/10 Gold Crown Premium Super Card COOLCG- 6485 30,000 60,000 20,000 1,10,000 76547 18195 20105 18.11.05 07.09.06 10.10.06 -- 5. 1142/10 Mr.Cool COOLCG 4920 85,000 30,000 1,15,000 29940 23228 13.02.07 29.11.06 05.05.10 6. 1143/10 Mr.Cool COOLCG 6126 85,000 30,000 1,15,000 30442 26180 21.02.07 25.12.06 05.05.10 7. 1296/10 Mr. Cool Privilege COOLCG 4625 1,15,000 Nil 23.10.06 13.05.10 8. 1297/10 Mr. Cool Privilege COOLVS 1734 25,000 50,000 50,000 1,25,000 56436 57052 57789 18.08.07 31.08.07 19.09.07 13.05.10 9. 1746/10 Mr. Cool Privilege COOLCG 4007 40,000 8,000 8,000 8,000 8,000 8,000 8,000 8,000 8,000 11,000 1,15,000 18878 19871 21603 23823 27794 29524 31329 50211 51370 52942 18.09.06 06.10.06 01.11.06 05.12.06 06.01.07 04.02.07 05.03.07 06.04.07 04.05.07 04.06.07 -- 3. On appearance OP filed the version. The defence set out in all the complaints is almost identical and same. The brief averments made in the version are as under: According to OP it has already issued allotment letter in favour of the complainants allotting complimentary sites mentioning the site No., phase number, area etc., In the said allotment letter OP has asked the complainants to deposit registration and maintenance charges of Rs.15,000/- within 30 days from the date of issuance of allotment letter, which has not been deposited by the complainants, inspite of several requests and reminders; Due the said reason OP could not register the allotted sites in favour of the complainants; OP is ready for registration as soon complainants deposits the registration charges; Inspite of several request complainants not turned up for registration. Under these circumstances this forum can only direct the OPs to register the complimentary plots on receipt of full registration fees. In this scheme complainants cannot seek refund of amount on the alleged ground of non providing of complimentary plots as the same is not part of the facilities assured and other scheme; Complainants having utilized all the services are now trying to seek for refund of membership fee paid. This is not permissible under law; The place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; OPs never assured to allot the complimentary sites at Bangalore and that they had clearly informed them that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa/Banyan Tree which was formed by the sister Concern of the OP; All the members knew the place of allotment of complimentary sites. Only the site numbers and the phase in which the said sites are located is being mentioned in the allotment letter and there is no malafide in not mentioning the details of the place of allotment. The said letter of allotment to the members was issued by the customer care department and not by the legal department, then contents of the said allotment letter could have been different with details of the boundary etc; Membership fee paid by the member is non refundable, since the same would be utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable harm and loss to the OP; Complainants are enjoying the facilities provided by OPs in their clubs; Complainants are not consumer and does not satisfy the said definition under the Consumer Protection Act 1986. OP is a company incorporated under Companies Act, 1956 and carrying on the hospitality business and having several clubs and resorts across the country and has been providing good service to its members. OP admits the payments of membership fee in all the complainants; Prayer seeking direction to pay interest at the rate of 21% is commercial in nature cannot be granted; Prayer seeking compensation of Rs.1 lakh i.e expenses cost cannot be granted for the reason stated here in above complainants are not entitled for allotment any complimentary plots; When the non registration is due to default of the complainants who have not turned up registration and not paid full registration charges; Among these grounds OPs prayed for dismissal of the complaints. 4. In order to substantiate the complaint averments, each one of these complainants have filed their affidavit evidence and In complaint No.1142/2010 the G.P.A holder of the complainant Sri. Mohammed Abbas filed his affidavit evidence on behalf of the complainant. Produced receipts issued by OP, membership applications, receipts for having paid the registration fees and correspondences made by OP. Copy of the Credit Card statements, Temporary Card, Brochure, Copy of the legal notice postal recepts. On behalf of OP Sri Vijay D.P., Senior Manager (Customer Care) filed his affidavit evidence and not produced any documents. Heard arguments from complainants side and taken as heard from OP side. 5. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OPs? Point No.2:- If so, whether the complainants are entitled for the relief now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: 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 outset it is not in dispute that the complainants became the members of the OPs scheme as noted in the chart. The OPs accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants. Now the main grievances of these complainants is that though OP collected the membership fees failed to provide the facilities offered to allot and register the complimentary sites in their favour as promised. 8. According to complainants OP promised them to allot complimentary sites only on payment of full membership fees. Complainants with a sole intention of getting the complimentary sites became the member of the OP Club and paid full membership fees. The receipts issued by the OPs are produced. Inspite of repeated requests OP failed to fulfill its promises and to extend the services offered. Both oral and documentary evidence produced by these complainants support their cases. There is nothing to discard their sworn testimony. 9. As against this unimpeachable evidence of the complainants the defence of the OP that whatever club membership fees paid is non-refundable has no basis. It is further contended by the OP that even now they are ready to execute the sale deed with respect to complimentary sites if complainants pay required registration fee and stamp duty. But there is no basis for this defence. OP has not produced any documents to show that layout has been formed, required sanction has been obtained from statutory authorities and sites are readily available at its disposal free from all encumbrances as on today. Hence the version of the OPs cannot be accepted. 10. In complaint No. 1746/2010 OP entered his appearance through his counsel but failed to file the version inspite of giving sufficient opportunity. Hence taken as version not filed. 11. In complaint No.18/2010 OP has contended that complainant has paid only Rs.1,05,000/- towards membership and complainant is still in due for balance of Rs.20,000/-. This contention of the OP cannot be accepted because OP itself has issued receipts for Rs.125,000/-. We have perused the receipts issued by OP totally for Rs.1,25,000/-. Hence the contention of the OP that complainant has paid only Rs.1,05,000/- has no basis. In complaint Nos.728/10, 729/10, 1142/10, 1143/10 OP has contended that it has already sent an allotment letters to the complainants allotting complimentary sites. But OP has failed to produce the copy of the allotment letter or any proof for having sent the allotment letters to the complainants. Hence we are unable to accept this contention of the OP. 12. In complaint No.1297/10 OP having accepted Rs.1,25,000/- from the complainant in the year 2007 itself now contends that allotment of complimentary plots is subject to government approvals and sanctions and also availability of the same. Plot allotted to complainant is not available due to non approval of the plan sanction and conversion of the same. 13. In complaint No. 2117/2009 OP has contended that complainant has not paid full membership fees. Hence he is not entitled for allotment of site and cannot approach this forum. The contention of the OP that complainant is not entitled for refund of the membership amount as he has not paid full membership fees cannot be accepted. The appeals preferred by OP in Appeal No.100/2010 and 102/2010 against the order of the II Addl. District Consumer Forum, Bangalore in Complaint No.2216/09 and 2217/09 are dismissed vide its order dated 15.02.2010 by the Honble Karnataka State Consumer Disputes Redressal Commission, Bangalore holding that forfeiture clause printed in the application form is not signed by the complainants. Hence OP is bound to refund the amount received by OP either in full or in part towards membership fees. We have perused the copy of the orders in appeal No.100/2010 and 102/2010 passed by the Honble Karnataka State Consumer Disputes Redressal Commission, Bangalore. In view of the same there is no merit in the contention of the OP that complainant is not entitled for the relief claimed. 14. In Complaint No.729/10 OP has contended that it has allotted a site No. 45 to the complainant at Coconut Groove, Phase XIV, Tumkur District but at Para 5 of its affidavit OP contends that the said complimentary plot is technically situated at Andra Pradesh which in the border of Karnataka. Hence this contradictory statements of OP has no basis. 15. Though OPs received such a huge amount from these complainants in the year 2006, 2007 and 2008 but failed to allot and register the complimentary sites as promised and failed to supply the basic information regarding the location of the plots, details of the layout approved sanction plan etc., Though OP has stated in its version and affidavit that it has already issued allotment letter infavour of the complainants and copy of the said letter is produced; but in fact OP has not produced any letter along with version and affidavit as stated. Hence the defence of the OP cannot be accepted. Inspite of repeated requests and service of legal notice OP failed to respond. This act of the OP amounts to deficiency in service on the part of the OPs. We are satisfied that complainants are able to prove the deficiency in service on the part of the OPs. Under these circumstances complainants are entitled for certain reliefs. In our view ends of justice would be met by directing the OPs to refund whatever the amount it has received from these complainants towards membership fees along with interest and litigation cost. Accordingly we proceed to pass the following: O R D E R The complaints are allowed in part. 1. In complaint No.2117/2009 OP is directed to refund Rs.30,000/- together with interest at the rate of 12% p.a. from 18.02.2009 till realization along with litigation cost of Rs.1,000/- to the complainant. 2. In complaint No.18/2010 OPs are directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 09.12.2008 till realization along with litigation cost of Rs.1,000/- to the complainant. 3. In complaint No.728/10 OP is directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 09.07.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 4. In complaint No.729/10 OP is directed to refund Rs.1,10,000/- together with interest at the rate of 12% p.a. from 10.10.2006 till realization along with litigation cost of Rs.1,000/- to the complainant. 5. In complaint No.1142/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 13.02.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 6. In complaint No.1143/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 21.02.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 7. In complaint No.1296/10 OP is directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 23.10.2006 till realization along with litigation cost of Rs.1,000/- to the complainant. 8. In complaint No.1297/10 OP is directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 19.09.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 9. In complaint No.1746/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 04.06.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. This original order shall be kept in the file of the complaint No.2117/2009 and copies of it shall be placed in other respective files. Send the copy of this order both the parties free of cost. (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 25th day of November 2010.) PRESIDENT MEMBER MEMBER gm.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) 25TH NOVEMBER 2010 PRESENT:- SRI.B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NOs. 2117/09, 18, 728, 729, 1142,1143,1296, 1297, 1746/2010 COMPLAINT NO.2117/2009 COMPLAINANT OPPOSITE PARTY Sri. Gururaja. A., S/o Sri. Ananda Theertha A.G., Resident of Apartment No.G-1, Sri Hari Paradise, Opposite Sunder Mahal, 14th Cross, Girinagar, Bangalore 85. Advocate: Sri. H.S.Srinivasa Murthy V/s. The General Manager, Country Club (India) Ltd., No.675, 9th A Main Road, Indiranagar 1st Stage, Bangalore 560 038. Advocate : G.A. Gopi COMPLAINT NO.18/2010 COMPLAINANT OPPOSITE PARTIES COMPLAINT NO.728/2010 COMPLAINANT Sri. P.S. Vijay Kumar, S/o Shetteppa, Aged about 36 years, R/at No.59/1, Ground Floor, 12th F Cross, 12th Main Road, Mrthyal Nagar, Mathikere, Bangalore. Presently R/at No.9 & 10, 4th Cross, Opp: Muneshwara Temple, Bhoopasandra, Bangalore. Advocate: Sri. M.R. Srinivas V/s. 1. The Managing Director, Country Club, Having its administrative office at No.675, Old Syndicate Bank Road, 1st Stage, 9th A Main Road, Indiranagar, Bangalore. 2. The Country Club, Having its administrative office at Amrutha Castle, 5-9-16, Saifabad, Opp: Secretariat, Hyderabad 560 063. Advocate : G.A. Gopi Tousif Ahmed S/o. Nazir Ahmed (Late), Ramya Regent, Flat No.29, 1st Floor, 1st Main, 1st Stage, Indira Nagar, Bangalore 560 038 Advocate : Neelakantaiah V/s. OPPOSITE PARTY The Country Club (India) Ltd., Rep. by its Managing Director, No.675, 9th A Main, Indiranagar 1st Stage, Bangalore-560038. Advocate : G.A. Gopi COMPLAINT NO.729/2010 COMPLAINANT OPPOSITE PARTY Yusuf Perodi S/o Moosa Haji (Late) Aged about 63 years, R/a. No.11, 8th Main, 12th Cross, B Block Vinayak Nagar, Bangalore-560 017. Advocate : Neelakantaiah V/s. M/s.Country Club (India) Limited, No.273, Ist Main Road, Defence Colony, HAL II stage, Indiranagar, Bangalore-560 038. (Reptd. by Managing Director) Advocate : G.A. Gopi COMPLAINT NO.1142/2010 COMPLAINANT COMPLAINT NO.1143/2010 COMPLAINANT Mrs. Aneesa Sultana, W/o Mohammed Abbas, Major, Represented by Attorney Holder, Sri. Mohammed Abbas, S/o Syed Ahmed Ali, Aged about 52 years Both are residing at No. 39, Venkatareddy Layout, Kormanagala 6th Block, Near IBP, Bangalore-560 095. S. Shafiulla Hussaini, S/o S.A. Hussaini, Aged about 44 years, Residing at No. 489, 6th Block, 6th Cross, Kormangala, Bangalore-560 095 Advocate : B.C.Avinash V/s. OPPOSITE PARTIES 1.Country Club (India) Limited, No.675, 9th A Main, Indiranagar 1ST stage, Bangalore-560 038. Rept. by its Manager 2. M/s. Amruth Estates, No.478, Mahapadma, 1st Main, Indiranagar I stage, Bangalore-560 038. Rept. by its Manager Advocate : G.A. Gopi COMPLAINT NO.1296/2010 COMPLAINANT COMPLAINT NO.1297/2010 COMPLAINANT COMPLAINT NO.1746/2010 COMPLAINANT Sri. Chunnilal, S/o Indraramji, Aged about 24 years, R/a Vasantha Lekha Kuteera, No.245, Tele Communication Layout, 5th Cross, Dr. Shivaram Karanth Nagar, Near B.K.Hegde Nagar, Arabic College Post, Bangalore-560 045. Advocate : Rajesh Shetty Sri. Om Prakash, S/o Lakharamji, Aged about 26 years, R/a # 203/1, Kattigenahalli Village, Bagalur Main Road, Dwarakanagar, IAF Post, Bangalore-560 063. Advocate : Rajesh Shetty Mr.George Abraham Son of K.G. Abraham Aged about 37 years, G-01, Varshitha Heights Near Deva Matha School, Horamavu, Kalyannagar Bangalore-560 043 Advocate : Krishna Murthy V/s. OPPOSITE PARTIES 1. The Chairman and Managing Director, Country Club (India) Ltd., Amrutha Castle, 5-9-16, Saifabad Opp. Secretariat, Hyderabad-500063 2. The Country Club (India) Ltd., No.675, 9th A Main, Indiranagar 1st Stage, Bangalore-560038. Rep. by its Authorised signatory Advocate : G.A. Gopi O R D E R SMT. M. YASHODHAMMA, MEMBER These are the complaints filed u/s. 12 of the Consumer Protection Act of 1986 by the respective complainants, seeking direction to the Opposite Party (herein after called as O.P) to refund the amount paid towards Membership fees along with interest at 20%p.a., compensation, litigation cost, on the allegations of deficiency in service on the part of the OPs. As the OP in all the complaints are common, the question involved, relief claimed being the same, in order to avoid repetition of facts and multiplicity of reasoning these cases stand disposed of by this common order. 2. The brief averments as could be seen from the contents of these complaints are as under: Complainants being attracted by the offer made by OP thought of becoming members of OPs Club under the name and style Mr.Kool, Mr. Kool Privilege, Millionaire Metro, Gold Crown premium Membership. OPs accepted their membership and collected the amount towards membership fees. OPs promised so many benefits including allotment of free sites. Thereafter some how OP failed to keep up its promise. There was no response to the legal notice. For no fault of their complainants were made to suffer both mental agony and financial loss. Under such circumstances complainants felt deficiency in service on the part of the OP. For the convenience sake the card membership, Membership No. amount paid Receipt No. and date are noted below in the chart. When the repeated requests and demands made by the complainants have gone in vain they are advised to file these complaints and sought for the reliefs accordingly. SL No Complaint No. Card Membership Member ship No. Amount paid Receipt No. Date of Receipt Date of Legal Notice 1. 2117/09 Millionaire Metro MKM-172 30,000 BAN08 17345 18.02.09 14.03.09 2. 18/10 Mr.Cool Privilege Mr.CooLCG 382A 40,000 20,000 20,000 20,000 25,000 1,25,000 50878 BAN08 9084 BAN08 11947 BAN08 13413 BAN08 14345 25.04.07 20.08.08 15.10.08 19.11.08 09.12.08 11.11.09 3. 728/10 Mr.Cool Card life COOLCG- 701A 35,000 60,000 30,000 1,25,000 51705 12683 54688 14.05.07 25.06.07 09.07.07 -- 4. 729/10 Gold Crown Premium Super Card COOLCG- 6485 30,000 60,000 20,000 1,10,000 76547 18195 20105 18.11.05 07.09.06 10.10.06 -- 5. 1142/10 Mr.Cool COOLCG 4920 85,000 30,000 1,15,000 29940 23228 13.02.07 29.11.06 05.05.10 6. 1143/10 Mr.Cool COOLCG 6126 85,000 30,000 1,15,000 30442 26180 21.02.07 25.12.06 05.05.10 7. 1296/10 Mr. Cool Privilege COOLCG 4625 1,15,000 Nil 23.10.06 13.05.10 8. 1297/10 Mr. Cool Privilege COOLVS 1734 25,000 50,000 50,000 1,25,000 56436 57052 57789 18.08.07 31.08.07 19.09.07 13.05.10 9. 1746/10 Mr. Cool Privilege COOLCG 4007 40,000 8,000 8,000 8,000 8,000 8,000 8,000 8,000 8,000 11,000 1,15,000 18878 19871 21603 23823 27794 29524 31329 50211 51370 52942 18.09.06 06.10.06 01.11.06 05.12.06 06.01.07 04.02.07 05.03.07 06.04.07 04.05.07 04.06.07 -- 3. On appearance OP filed the version. The defence set out in all the complaints is almost identical and same. The brief averments made in the version are as under: According to OP it has already issued allotment letter in favour of the complainants allotting complimentary sites mentioning the site No., phase number, area etc., In the said allotment letter OP has asked the complainants to deposit registration and maintenance charges of Rs.15,000/- within 30 days from the date of issuance of allotment letter, which has not been deposited by the complainants, inspite of several requests and reminders; Due the said reason OP could not register the allotted sites in favour of the complainants; OP is ready for registration as soon complainants deposits the registration charges; Inspite of several request complainants not turned up for registration. Under these circumstances this forum can only direct the OPs to register the complimentary plots on receipt of full registration fees. In this scheme complainants cannot seek refund of amount on the alleged ground of non providing of complimentary plots as the same is not part of the facilities assured and other scheme; Complainants having utilized all the services are now trying to seek for refund of membership fee paid. This is not permissible under law; The place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; OPs never assured to allot the complimentary sites at Bangalore and that they had clearly informed them that the complimentary sites would be allotted at the Coconut Groove and Vedic Spa/Banyan Tree which was formed by the sister Concern of the OP; All the members knew the place of allotment of complimentary sites. Only the site numbers and the phase in which the said sites are located is being mentioned in the allotment letter and there is no malafide in not mentioning the details of the place of allotment. The said letter of allotment to the members was issued by the customer care department and not by the legal department, then contents of the said allotment letter could have been different with details of the boundary etc; Membership fee paid by the member is non refundable, since the same would be utilized for development, maintenance and development of the clubs and resorts across the country. Any order for refund would cause irreparable harm and loss to the OP; Complainants are enjoying the facilities provided by OPs in their clubs; Complainants are not consumer and does not satisfy the said definition under the Consumer Protection Act 1986. OP is a company incorporated under Companies Act, 1956 and carrying on the hospitality business and having several clubs and resorts across the country and has been providing good service to its members. OP admits the payments of membership fee in all the complainants; Prayer seeking direction to pay interest at the rate of 21% is commercial in nature cannot be granted; Prayer seeking compensation of Rs.1 lakh i.e expenses cost cannot be granted for the reason stated here in above complainants are not entitled for allotment any complimentary plots; When the non registration is due to default of the complainants who have not turned up registration and not paid full registration charges; Among these grounds OPs prayed for dismissal of the complaints. 4. In order to substantiate the complaint averments, each one of these complainants have filed their affidavit evidence and In complaint No.1142/2010 the G.P.A holder of the complainant Sri. Mohammed Abbas filed his affidavit evidence on behalf of the complainant. Produced receipts issued by OP, membership applications, receipts for having paid the registration fees and correspondences made by OP. Copy of the Credit Card statements, Temporary Card, Brochure, Copy of the legal notice postal recepts. On behalf of OP Sri Vijay D.P., Senior Manager (Customer Care) filed his affidavit evidence and not produced any documents. Heard arguments from complainants side and taken as heard from OP side. 5. In view of the above said facts, the points now that arise for our consideration in these complaints are as under: Point No.1:- Whether the complainants have proved the deficiency in service on the part of the OPs? Point No.2:- If so, whether the complainants are entitled for the relief now claimed? Point No.3:- To what Order? 6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on: 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 outset it is not in dispute that the complainants became the members of the OPs scheme as noted in the chart. The OPs accepted their membership fees and allotted certain numbers as shown in the chart to each of the complainants. Now the main grievances of these complainants is that though OP collected the membership fees failed to provide the facilities offered to allot and register the complimentary sites in their favour as promised. 8. According to complainants OP promised them to allot complimentary sites only on payment of full membership fees. Complainants with a sole intention of getting the complimentary sites became the member of the OP Club and paid full membership fees. The receipts issued by the OPs are produced. Inspite of repeated requests OP failed to fulfill its promises and to extend the services offered. Both oral and documentary evidence produced by these complainants support their cases. There is nothing to discard their sworn testimony. 9. As against this unimpeachable evidence of the complainants the defence of the OP that whatever club membership fees paid is non-refundable has no basis. It is further contended by the OP that even now they are ready to execute the sale deed with respect to complimentary sites if complainants pay required registration fee and stamp duty. But there is no basis for this defence. OP has not produced any documents to show that layout has been formed, required sanction has been obtained from statutory authorities and sites are readily available at its disposal free from all encumbrances as on today. Hence the version of the OPs cannot be accepted. 10. In complaint No. 1746/2010 OP entered his appearance through his counsel but failed to file the version inspite of giving sufficient opportunity. Hence taken as version not filed. 11. In complaint No.18/2010 OP has contended that complainant has paid only Rs.1,05,000/- towards membership and complainant is still in due for balance of Rs.20,000/-. This contention of the OP cannot be accepted because OP itself has issued receipts for Rs.125,000/-. We have perused the receipts issued by OP totally for Rs.1,25,000/-. Hence the contention of the OP that complainant has paid only Rs.1,05,000/- has no basis. In complaint Nos.728/10, 729/10, 1142/10, 1143/10 OP has contended that it has already sent an allotment letters to the complainants allotting complimentary sites. But OP has failed to produce the copy of the allotment letter or any proof for having sent the allotment letters to the complainants. Hence we are unable to accept this contention of the OP. 12. In complaint No.1297/10 OP having accepted Rs.1,25,000/- from the complainant in the year 2007 itself now contends that allotment of complimentary plots is subject to government approvals and sanctions and also availability of the same. Plot allotted to complainant is not available due to non approval of the plan sanction and conversion of the same. 13. In complaint No. 2117/2009 OP has contended that complainant has not paid full membership fees. Hence he is not entitled for allotment of site and cannot approach this forum. The contention of the OP that complainant is not entitled for refund of the membership amount as he has not paid full membership fees cannot be accepted. The appeals preferred by OP in Appeal No.100/2010 and 102/2010 against the order of the II Addl. District Consumer Forum, Bangalore in Complaint No.2216/09 and 2217/09 are dismissed vide its order dated 15.02.2010 by the Honble Karnataka State Consumer Disputes Redressal Commission, Bangalore holding that forfeiture clause printed in the application form is not signed by the complainants. Hence OP is bound to refund the amount received by OP either in full or in part towards membership fees. We have perused the copy of the orders in appeal No.100/2010 and 102/2010 passed by the Honble Karnataka State Consumer Disputes Redressal Commission, Bangalore. In view of the same there is no merit in the contention of the OP that complainant is not entitled for the relief claimed. 14. In Complaint No.729/10 OP has contended that it has allotted a site No. 45 to the complainant at Coconut Groove, Phase XIV, Tumkur District but at Para 5 of its affidavit OP contends that the said complimentary plot is technically situated at Andra Pradesh which in the border of Karnataka. Hence this contradictory statements of OP has no basis. 15. Though OPs received such a huge amount from these complainants in the year 2006, 2007 and 2008 but failed to allot and register the complimentary sites as promised and failed to supply the basic information regarding the location of the plots, details of the layout approved sanction plan etc., Though OP has stated in its version and affidavit that it has already issued allotment letter infavour of the complainants and copy of the said letter is produced; but in fact OP has not produced any letter along with version and affidavit as stated. Hence the defence of the OP cannot be accepted. Inspite of repeated requests and service of legal notice OP failed to respond. This act of the OP amounts to deficiency in service on the part of the OPs. We are satisfied that complainants are able to prove the deficiency in service on the part of the OPs. Under these circumstances complainants are entitled for certain reliefs. In our view ends of justice would be met by directing the OPs to refund whatever the amount it has received from these complainants towards membership fees along with interest and litigation cost. Accordingly we proceed to pass the following: O R D E R The complaints are allowed in part. 1. In complaint No.2117/2009 OP is directed to refund Rs.30,000/- together with interest at the rate of 12% p.a. from 18.02.2009 till realization along with litigation cost of Rs.1,000/- to the complainant. 2. In complaint No.18/2010 OPs are directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 09.12.2008 till realization along with litigation cost of Rs.1,000/- to the complainant. 3. In complaint No.728/10 OP is directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 09.07.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 4. In complaint No.729/10 OP is directed to refund Rs.1,10,000/- together with interest at the rate of 12% p.a. from 10.10.2006 till realization along with litigation cost of Rs.1,000/- to the complainant. 5. In complaint No.1142/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 13.02.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 6. In complaint No.1143/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 21.02.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 7. In complaint No.1296/10 OP is directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 23.10.2006 till realization along with litigation cost of Rs.1,000/- to the complainant. 8. In complaint No.1297/10 OP is directed to refund Rs.1,25,000/- together with interest at the rate of 12% p.a. from 19.09.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. 9. In complaint No.1746/10 OPs are directed to refund Rs.1,15,000/- together with interest at the rate of 12% p.a. from 04.06.2007 till realization along with litigation cost of Rs.1,000/- to the complainant. This original order shall be kept in the file of the complaint No.2117/2009 and copies of it shall be placed in other respective files. Send the copy of this order both the parties free of cost. (Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 25th day of November 2010.) PRESIDENT MEMBER MEMBER gm.