Complaint filed on: 09-12-2011 Disposed on: 18-04-2013 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.2232/2011 DATED THIS THE 18th APRIL 2013 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainant: - Sri.B.Srikanth, S/o. B.Vittal Charya, Aged about 46 years, Residing at – No.359, 7th Main, 10th Cross, N.R.Colony, New Thygaraja Co-operative Bank, Bangalore-19 V/s Opposite party: - M/s. Country Club (India) Ltd, No.273, 1st Main, Defence colony, HAL 2nd stage, Indiranagar, Bangalore-38, Reptd by its Manager, ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OP to refund a sum of Rs.3,00,000=00 alongwith interest @ 16% per annum, and to pay Rs.50,000=00 as compensation towards mental agony, hardship and loss, and grant such other relief as deemed fit, in the interest of justice and equity. 2. The brief facts of the complaint can be stated as under. The OP represented itself to be reputed legal entity which provides membership to the intended members for the purpose of providing various facilities in the clubs / resorts maintained by it including allotting the sites formed at various projects at the option of the intended members. Being lured by the representation of the OP, the complainant has become member of the OP. Initially complainant had become member of the OP with respect to member ship No.KOOL704. While according the membership, the complainant was assured that, as per its project particulars, the complainant would be allotted sites in the layout to be formed near Sira, Tumkur District. The complainant with an intention of owning the sites in the area which is having considerably good market value and proper approach from Bangalore has accepted the offer and has paid an amount of Rs.3,00,000=00 which including a sum of Rs.1,25,000=00 towards membership fee and Rs.1,75,000=00 towards registration and other miscellaneous expenditure. Though it was agreed and assured that, the complainant would be allotted the sites near Sira for his utter shock the complainant received some documents which are named as Gift Deeds in the month of October 2009 sent by the OP. Upon perusal of the documents the complainant has found that, those documents are pertaining to some imaginary properties alleged to be situated near Bagepalli, Penukonda, Andhra Pradesh and surprisingly without there being any acceptance of the alleged gift, in violation of the provisions of transfer of Property Act, the gift deeds have been executed in the name of complainant by the OP as if the complainant has accepted the gift which is an essential element to conclude a valid gift. It was never intended either by complainant or the OP to have the sites anywhere except near Sira. Suffice to say in a place which is too far away from Bangalore that too out of state. So the complainant has never accepted the gift alleged to have executed by the OP through the aforesaid fictitious deeds. So the complainant has approached the OP insisting to take back the gift deeds and to provide the sites in the intended project at Sira as assured by OP or to refund the amount of Rs.3,00,000=00. The OP on one pretext or the other kept on postponing the issue by falsely assuring that once the project at Sira is completed complainant would be allotted sites thereon and complainant can keep the gift deeds only as a security for the amount paid by him. With respect to one more membership bearing No.KOOLK591, in view of the deficiency of service on the part of the OP, the complainant had filed complaint no.741/2010 seeking refund of the membership amount and the said complaint was allowed pursuant to which the OP had repaid the amount as ordered. On 13-10-2011 the OP has issued a notice calling upon the complainant to return the membership card and also to re-convey the Gift deed which was sent to the complainant. The demand made in the notice is quiet contrary to the assurance made by the OP to the complainant. So the complainant has issued a suitable reply to the OP calling upon the OP either to convey sites in the project formed at Sira or to refund the amount of Rs.3,00,000=00 with interest. The said reply notice dated 31-10-2011 is duly served on both OP and its advocate. However, the OP has not complied with the demand made in the notice. Since the complainant was being assured by the OP till he receive the notice dated 13-10-2011 that, he would be either provided sites at Sira or repay the amount of Rs.3,00,000=00 alongwith interest, the complainant kept the deeds with him. Nevertheless since the OP has come up with the false claim for re-conveyance of the Gift deed with respect to sites bearing no.284, 251, 250, 249, 236, 235, 222, 223 and 221, the complainant has now learnt that, he was kept in dark till date by the OP. Since the project intended to be formulated at Sira by the OP is not completed and as the OP has not obtained the required permission from the concerned authorities, the project is not likely to be completed. Hence the complainant is seeking refund of the amount of Rs.3,00,000=00 paid to the OP. Hence, the complainant has come up with the present complaint. 3. After service of notice, the OP has appeared through its counsel and filed objection contending interalia as under: The complaint of the complainant is not maintainable either in law and on facts and it is liable to be dismissed in limine. The OP is a company incorporated under the Companies Act 1956and is carrying on the hospitality business and has established several clubs and resorts across the country and abroad and is providing good service to its members. The OP has tie up with leading clubs and resorts across the country and several other countries. The OP introduced a scheme Mr.Cool Card members, under the said scheme which would get the facilities like country club cool life member, complimentary plot holiday package of 2 nights and 3 days stay in Bandipur, Bush Betta etc. The complainant having learnt about the facilities and benefits provided under the cool scheme, applied for membership by paying a sum of Rs.1,25,000=00 through various cheques and for the said payment, the OP has issued receipts, thereafter the complainant was inducted as a member of the OP club and OP issued a membership card bearing no.KOOL 704. Upon becoming a member of the OP club, the OP executed in all nine gift deeds dated 11-7-2008 in favour of the complainant, and the same are registered as documents bearing nos.2697, 2696, 2695, 2694, 3281, 5918, 3027, 2026, 3025/2008 in respect of plot bearing nos.235, 236, 249, 250, 251, 284, 221, 222, 223 at Vedic spa, phase 5 and 7. The complainant has since then enjoyed the club facility and has never ever complained of any shortcoming on the part of the OP club. The claim amount of Rs.1,25,000=00 was paid by the complainant to the OP only for the purpose of membership with the OP. The OP is in the business of providing hospitality services to its members. The sites agreed to be provided by the OP was only a complimentary offer, any grievance of the complainant with regard to the failure on the part of the OP to convey the agreed site would be a breach of the service provided by the OP in terms of the complimentary offer. Such alleged breach could by no stretch of imagination be considered as a breach of the original service agreed to be provided by the OP. The complainant has availed of various hospitality services provided by the OP and has no grievances in this regard. The OP has not committed any deficiency in service, so this forum be pleased to dismiss the complaint. The complainant has become member of the OP club solely to enjoy the facilities provided in its clubs and resorts which facilities he has to avail by visiting the clubs and resorts. Further the plot allotted under the cool scheme is a complimentary gift to the membership and the member fee is collected for providing the facilities, no consideration has been collected for allotment of the complimentary plot and the member has to bear only the registration and maintenance charges. The OP had already executed a gift deed in favour of the complainant and the complainant had peaceful possession and enjoyment of the complimentary plots. So it cannot be said that the OP has committed unfair trade practice and the complainant does not come under the meaning of consumer under the CP Act. Allotment of complimentary plot was an additional attraction for taking up membership but not an intrinsic part of the OP, hence the complainant has no right to get Redressal under the CP Act. The complainant being a consumer in relation to the membership of the OP but not in relation to additional benefit i.e. complimentary plot, so he is not a consumer within the meaning of Sec.2 (d) of the CP Act. The OP has acted as per its promises by providing all the services to the complainant and also executed gift deed in favour of the complainant. The complainant having utilized all the services provided by the OP, so it cannot be said that the OP has committed unfair trade practice. The OP has collected only registration and maintenance charges regarding the complimentary plots and the appropriate authority has issued a conversion order and layout plan regarding the said complimentary plots. This forum has no jurisdiction to entertain the complaint. Clause 27 of the terms and conditions states that in case full amount of membership fees is not remitted within 45 days of allotment of membership, membership allotted if any would be cancelled/withhold membership without assigning any reason. The contents of para 4 of the complaint that while according to the membership, the complainant was assured that, as per its project particulars, the complainant would be allotted sites in the layout formed near Sira, Tumkur district is denied as false and the complainant is put to strict proof of the same. The averments of para 5 and 6 are denied as false and the complainant is put to strict proof of the same. The OP has executed nine gift deed dated 11-7-2008, 18-7-2008 and 2-8-2008 in favour of the complainant upon acceptance by the complainant. The contents of para 6, 7 and 8 of the complaint are denied as false. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity. 4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration. 1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP? 2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to? 3. What order? 5. Our findings on the above points are; Point no.1: In the Negative Point no.2: In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint Point no.3: For the following order REASONS 6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced six documents alongwith list of the documents dated 9-12-2011 and produced one letter dated 28-12-2007 alongwith memo dated 28-1-2013. On the other hand, one Venkatesh Varma who being the Asst. Administrative Manager and authorized signatory of the OP has filed his affidavit on behalf of the OP and produced no documents. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties scrupulously. 7. One B.Srikanth, who being the complainant has filed his affidavit stating that, the OP represented itself to be reputed legal entity which provides membership to the intended members for the purpose of providing various facilities in the clubs including allotting the sites formed at various projects as per option of the intended members. Being lured by the representation of the OP, he has become member of the OP. Initially, he had become member of the OP with respect to member ship No.KOOL704, and at that time, he was assured, as per its project particulars, he would be allotted sites in the layout to be formed near Sira, Tumkur District and with an intention of owning the sites in the area which is having considerably good market value and proper approach from Bangalore has accepted the offer and has paid Rs.3,00,000=00 which includes a sum of Rs.1,25,000=00 towards membership fee and Rs.1,75,000=00 towards registration and other miscellaneous expenditure. Though it was agreed and assured that, he would be allotted the sites near Sira for his utter shock, he has received some documents which are named as Gift Deeds in the month of October 2009 sent by the OP. Upon perusal of the documents, he has found that, those documents are pertaining to some imaginary properties alleged to be situated near Bagepalli, Penukonda, Andhra Pradesh and surprisingly without there being any acceptance of the alleged gift, in violation of the provisions of Transfer of Property Act, the gift deeds have been executed in his name by the OP as if he has accepted the gift which is an essential element to conclude a valid gift. It was never intended by either himself or the OP to have the sites anywhere except near Sira. Suffice to say in a place which is too far away from Bangalore that too out of state. So he has never accepted the gift, he has approached the OP insisting to take back the gift deeds and to provide the sites in the intended project at Sira as assured by OP or to refund the amount of Rs.3,00,000=00. The OP on one pretext or the other kept on postponing the issue by falsely assuring that once the project at Sira is completed, he would be allotted sites thereon and he can keep the gift deeds only as a security for the amount paid by him. With respect to one more membership bearing No.KOOLK591, in view of the deficiency of service on the part of the OP, he had filed complaint no.741/2010 seeking refund of the membership amount and that complaint was allowed and the OP had repaid the amount as ordered. On 13-10-2011 the OP has issued a notice calling upon the complainant to return the membership card and also to re-convey the Gift deed which was sent to him. The demand made in the notice is quiet contrary to the assurance made by the OP to him. So he has issued a suitable reply to the OP calling upon the OP either to convey sites in the project formed at Sira or to refund the amount of Rs.3,00,000=00 with interest. But the OP has not complied with the demand made in the notice. Since he was being assured by the OP till he received the notice dated 13-10-2011 that, he would be either provided sites at Sira or repaid the amount of Rs.3,00,000=00 alongwith interest, he kept the deeds with him. He has learnt that, since the project intended to be formulated at Sira by the OP is not completed and as the OP has not obtained the required permission from the concerned authorities, the project is not likely to be completed. So he is seeking refund of the amount of Rs.3,00,000=00 paid to the OP. Hence, the present complaint is filed, so he prays to allow the complaint and grant relief as prayed for. 8. By a careful reading of the complaint and evidence of the complainant as mentioned above, it is no doubt true that, the complainant has tendered his evidence in accordance with the recital of the complaint. Let us have a look at the relevant document of the complainant, so as to know whether the oral testimony of the complainant stands corroborated by documentary evidence or not. Document no.1 (a) to (c) are the copy of receipts issued by the OP dated 22-12-2007, 25-12-2007 and 26-12-2007 in the name of the complainant for having received Rs.50,000=00, Rs.50,000=00 and Rs.25,000=00 towards Mr.Kool card life membership fee, and document no.1 (d) to (f) are the copy of receipts issued by the Amrutha Estates being a division of OP in the name of the complainant dated 4-7-2008, 4-7-2008, 17-5-200810-7-2008 and 31-7-2008 for having received Rs.40,000=00, Rs.40,000=00, Rs.55,000=00, Rs.20,000=00 and Rs.20,000=00 towards stamp duty and registration expenses for the complimentary plot bearing no.235, 236, 249, 250, 280 to 582, 251 situated in Banyan tree, Phase 5 (VS) and 7 (VS). Document no.2 is the copy of gift deed dated 11-7-2008 executed by OP in the name of the complainant in respect of plot nos. 250, 249, 235, 236, 221, 223, and 222 situated at RD of Hindupur SRD of Penukonda. Document no.3 is the copy of legal notice of the OP dated 13-10-2011 addressed to the complainant calling upon him to return membership card issued by the OP bearing no.KOOLK591 and re-convey of the gift deed dated 18-7-2008, 7-11-2008 and 8-2-2008 as he wanted to obey the order passed by this forum in the complaint no.CC.741/2010, and the complainant was called upon to return the membership card and re-convey gift deeds within 15 days from the date of receipt of the notice, failing which, the OP will initiate civil proceedings to get the site re-conveyed and also file criminal proceedings for withholding the membership cards. Document no.4 is the copy of reply notice of the complainant dated 31-10-2011 addressed to the OP and its lawyer stating that, he is ready to return the membership card and with respect to gift deed is concerned, the very gift deed is invalid and the complainant never intended to have any sites anywhere except near Sira, so question of re-conveying any sites would not arise, so he called upon the OP either to provide sites at Sira or repay the amount of Rs.3,00,000=00 alongwith interest and cost of notice. One copy of letter of the OP dated 27-12-2007 addressed to the complainant is produced by the complainant wherein the complainant is called upon to send photos of the complainant and his wife and children and date of birth certificate of children of the complainant and they have received Rs.50,000=00 from the complainant and the balance is of Rs.75,000=00 and in the notes column, it is stated that, the complimentary plot will be allotted at Coconut Groove Vedic spa, if membership fees is paid fully and he has called to pay annual administrative charger and look after the registration charges by remitting Rs.15,000=00. 9. It is the specific case of the complainant both in the complaint and during the course of evidence of the complainant that, he has been assured to allot a plot near Sira, which is convenient to him and not out side the state. But in order to show before the forum that, the OP has promised to the complainant to allot a site only in the project to be formed near Sira, no iota of documentary evidence is produced. In the absence of vouchsafing any convincing documentary evidence, it is superfluous to reiterate on the oral testimony of the complainant that, he has been promised to allot the site in the project to be formed near Sira only. Moreover in the complaint, the complainant has not made any allegation against the OP for not providing other facilities as promised other than the allotment of complimentary plots. The entire complaint of the complainant is silent on this material aspect. This is all about the material evidence of the complainant. 10. Let us have a cursory glace at the material evidence of the OP. One Venkatesh Varma, the authorized signatory of OP has stated in his affidavit that, the complainant was inducted as a member of the OP club and the OP has issued a membership card bearing no.KOOL 704 and executed gift deeds on 11-7-2008 in the name of the complainant in respect of plot bearing nos.235, 236, 249, 250, 251, 284, 221, 222, 223 at Vedic spa, phase-5 and 7, and the complainant has enjoyed the property and enjoyed the club facilities and has never complained of any shortcoming on the part of the OP . The OP has not committed any deficiency in service and the OP has not committed unfair trade practice. The OP has acted strictly as per its promise, so the complaint be dismissed. 11. Looking to the oral evidence of the OP and relevant documents of the complainant; it is made crystal clear that, the OP after receiving the membership fees from the complainant, had allotted the complimentary sites as promised and gift deeds were also executed in the name of complainant and sent gift deeds to the complainant and copy of gift deeds are produced by the complainant in this regard. The main grievance of the complainant is that, he was promised to allot a site only in the project situated near Sira and not out side the Karnataka state. But unfortunately, the complainant has failed to provide any documentary evidence to demonstrate before the forum that, he was promised by the OP to allot a site in the project near Sira only. We are unable to understand, on what basis the complainant has reiterated that, he was promised to allot a site in the project near Sira only. Having not produced any scrape of papers, it is unsafe and hazardous to hold on the oral testimony of the complainant that, he was promised to allot a site in project near Sira. So taking material evidence of the complainant and compare the same with the material evidence of the OP, it is vivid and clear that, the OP has acted strictly as per its promise made to the complainant and executed the gift deed in the name of the complainant by allotting a complimentary plot and handed over the gift deeds to the complainant, and there is no negligence or deficiency of service on the part of the OP as such. The complainant has kept gift deeds executed by the OP dated 11-7-2008 upto 9-12-2011, and on 9-12-2011 all of a sudden, the complainant has come up with the present complaint prying to refund the entire amount, as the gift deeds executed by the OP are in valid. No plausible explanation was given by the complainant for keeping the gift deeds with him upto filing of the present complaint i.e. on 9-12-2011 without raising any voice against the gift deeds. Unless and until, the gift deeds executed in the name of the complainant are cancelled by competent court, the complainant is not entitled to any relief as prayed in the complaint. Since, the power vested to the district forum under the Consumer Protection Act is limited; this forum can not decide the mixed question of law and facts. The only remedy left over to the complainant is to approach the civil court and get appropriate relief. The oral evidence of the complainant that, the OP is negligent and there is deficiency of service on the part of the OP is not corroborated by any clear and tangible documentary evidence. So, viewing the case of the complainant, on the back ground of material evidence of both parties, we are of the considered opinion that, the complainant who comes to the forum seeking relief has utterly failed to prove this point satisfactorily, and accordingly, we answer this point in a negative. 12. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainant is dismissed. No costs. Supply free copy of this order to both parties. Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 18th day of April 2013. MEMBER PRESIDENT |
