COMPLAINT FILED: 11.11.2009

DISPOSED ON: 13.01.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

13^TH JANUARY 2011

  PRESENT :-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER                   

                     SRI. A. MUNIYAPPA                         MEMBER

       COMPLAINT NO.2639/2009

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to allot the site at phase V, Coconut Groove, at Somsagara Village; in the event of failure to allot and register the site to compensate the complainant with a sum of Rs.1,53,000/- with interest 18% p.a. from September 2008 and cost on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

          Lured away with the offer made by OP-1 in its colourful broucher and also based on the representation made by the executive of OP-1 that OP has proposed to form a layout at Somsagara village, near National highway No.4 under the name “Country Club Coconut Grove phase V extn.” Complainant became its member by paying a sum of Rs.1,15,000/- on different dates from 23.12.2006 to 28.07.2008.  The receipts issued by OPs are produced. OP has issued a membership card namely Mr. Cool privilege card bearing membership No. COOL CG-7196 to the complainant and his wife. Complainant paid Rs.20,000/- towards first instalment on 23.12.2006 and further Rs.20,000/- on 09.02.2007 3^rd instalment on 24.03.2007 and Rs.10,000/- on 24.04.2007 Rs.15,000/- on 25.05.2007 and lastly Rs.25,000/- on 28.07.2008. OP has also collected a sum of Rs.3,000/- towards administration charges. OP issued an allotment letter dated 26.07.2007 intimating the complainant that he was allotted a site bearing No.326, measuring 1089 sq.ft. at Coconut Grove Phase XI and further demanded the complainant to make payment of Rs.15,000/- towards the site confirmation administrative charges within 30 days with OP-2. Complainant contacted the executive of OP-1 Mr. M.R.Vikram and informed that he is not interested in the site allotted at phase XI since same is situated far away from National highway No.4. The said representative informed complainant that it is only a temporary allotment and has promised the complainant that he will be allotted with a site at phase V only.  Believing the representation of the representative of OP-1 complainant paid further sum of Rs.25,000/- on 28.07.2008.  OP has also collected a sum of Rs.30,000/- in cash from the complainant during September 2009 stating same is towards the registration and other incidental expenses, But not issued any receipt for the same. When complainant contacted OP-1 he was informed that said Vikram had misappropriated the Company’s money and left the job.  However OP-1 being the employer is responsible for the acts of its employees.

3.      Inspite of repeated requests and personal visits made by the complainant to the office of OP demanding to execute the sale deed in his favour in phase 5 of their project; OP-1 on one or the other pretext went on postponing to execute the sale deed and refused to allot the site in phase-V. Hence complainant felt deficiency in service. Under the circumstances he is advised to file this complaint for the necessary relief’s.

4.      On appearance OPs filed version contending that complaint is barred by limitation, cause of action has arose on the date of issuance of the allotment letter dated 26.7.2007. Complainant has become a member of the OP club for the purpose of enjoying the facilities and not for the purpose of getting complimentary site as alleged in the complaint. Complainant having utilized all the services provided by OP now trying to blam the OP for non allotment of complimentary site, which in fact has already been allotted on 26.07.2007.  But complainant has failed to deposit registration charges and maintenance charges.  The order for refund could be ordered only when mutual terms of the parties could not be enforced. The grievance of the complainant being allotment of complimentary site can be enforced by directing OP to register the same; any order of refund would be contrary to the Consumer Protection Act since same would tentamount to a recovery proceedings. There are several phases in Coconut Grove and Vedic Spa/Banyan Tree. Several phases are located in different parts of the Tumkur District and several phases of Vedic Spa/Banyan Tree are located near HIndupur/Penukonda.  The membership fee paid by the members is non-refundable. Any order for refund would cause irreparable harm and loss to the OP.  Wherein thousand of people are earning their livelihood. The allegations of misrepresentation, fraud, cheating etc., could be proved only by adducing the evidence and same cannot be proved in a summary proceedings before this Hon’ble Forum. Complainant is not a consumer and does not satisfy the said definition under C.P. Act.  OP is a company incorporated under companies Act, 1956 and is carrying on the hospitality business and established several clubs and resorts across the Country and abroad. OP-1 is not involved in any development of property in fact OP-1 introduced a membership offered under Cool scheme wherein the member interalia, would be allotted with complimentary site. OP admits the payment of membership fee of Rs. 1,10,000/- on different dates and allotment of complimentary plot bearing No.326 measuring 1089 sq.ft., in Coconut Groove, Phase XI. In the said letter of allotment OP has asked the complainant to deposit a sum of Rs.15,000/- towards maintenance and registration charges. OP denies the averments that site allotment letter is temporary and complainant would be allotted site at phase V. OP denied the payment of Rs.25,000/- and Rs.30,000/- in cash to the representative of the OP in September 2009 towards registration and other expenses.  Complainant never approached OP for registration of the complimentary plot. On the contrary inspite of request by OP complainant failed to deposit the registration charges which prevented the OP from completing registration formalities.  Complainant having paid only a sum of Rs.1,10,000/- cannot contend that he has suffered a loss of Rs.1,43,000/-.  Among other grounds OP prayed for dismissal of the complaint.

5.      To substantiate the complaint averments complainant filed his affidavit evidence and brochure produced original receipts and correspondences and allotment letter. On behalf of OP Sri Vijay D.P., Manager Customer care filed his affidavit evidence and has not produced any documents. Heard oral arguments from both the sides.

6.      From the above pleadings, the points now that arise 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 OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

7.      We have gone through the pleadings of the parties, both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs 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

8.      At the out set it is not in dispute that the complainant attracted by the offers made by the OPs in their brochure and also based on the representation made by the OPs executive became the member of the OP club called Mr. Cool privilege bearing registration No. COOL CG-7196 by paying a sum of Rs.1,15,000/- on different dates. The receipts issued by OPs are produced.  From the brochure issued by OP at annexure-1 it is clear that OP has offered complimentary site of 1089 sq.fts. at “Coconut Groove  phase V extn.” in their proposed layout at Somsagara Village, near National High Way No.4. OP admits receipt of Rs.1,10,000/- from the complainant. On 26.07.2007 OP sent an allotment letter to the complainant allotting a complimentary site bearing No.326 measuring 1089 sq.ft. at Coconut Groove phase XI and demanded a sum of Rs.15,000/- towards site confirmation administrative charges. That letter of allotment is valid for a period of 30 days from the date of the letter.  It is relevant to note that complainant was assured to allot a complimentary site at. Coconut Groove phase V extn., at Somsagara Village, near National highway 4 but the allotment letter is in respect of site situated at Coconut Groove  phase XI.  The complainant informed Mr. Vikram the executive of OP that he is not interested in the site allotted at phase XI since the said site is situated far away from National Highway No.4.  The representative of OP further assured the complainant that it is only a temporary allotment and he will be allotted a complimentary site at phase V only.  Believing the words of the executive of OP complainant paid further sum of  Rs.25,000/- to OP on 28.07.2008. The receipt issued by OP is produced.  Inspite of repeated requests to execute the sale deed at phase V there was no response from OPs. Hence complainant approached this forum.

9.      As against the case of the complainant, the defence of the OP that complaint is barred limitation has no basis. The last payment made by the complainant is on 28.07.2008 and complaint is filed on 11.11.2009. OP has failed to substantiate its contention that complainant has utilized all the service provided by OPs.  It is not correct to say that OP has already allotted a site on 26.07.2007.  The said allotment is not in terms of the offer or assurance made by OP.  Further it is contended by the OP that membership fees paid is non-refundable. When OP is unable to allot and register the complimentary site as assured, it is not open to contend that amount is non refundable. Hence same cannot be accepted. OP has promised to allot a complimentary site at phase V Somsagara Village and accepted the membership fee from the complainant but failed to fulfill its promise.  Hence complainant is a consumer under Consumer Protection Act; as such there is no merit in the contention of the OP that complainant is not a consumer.  Complainant though sought direction against OPs for allotment and registration of a complimentary site at phase V Somsagara village, but has not produced any documents to establish that the vacant sites approved by statutory authorities, free from encumbrances are still available at the disposal of the OPs as on today.  Hence first part of the relief claimed by the complainant cannot be granted. Complainant has proved payment of Rs.1,10,000/- only. Under these circumstances we are of view that OP failed to register the complimentary site at phase V Somasagara Village as assured in the brochure but issued an allotment letter allotting a site No.326 at phase XI and also failed to provide the assured services to the complainant. The same amounts to deficiency in service on the part of the OPs. We are satisfied that complainant is able to prove the deficiency in service against OPs. OP has not denied the receipt of amount of Rs.1,10,000/- from the complainant. Hence complainant is entitled for refund of admitted amount of Rs.1,10,000/- with interest at 12% p.a. Accordingly we proceed to pass the following:

ORDER

          Complaint is allowed in part. OPs are directed to refund Rs.1,10,000/- together with interest at 12% p.a. from the 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 four weeks from the date of its communication.

(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 13^th day of January 2011.)

                                                PRESIDENT

MEMBER                                                  MEMBER                     

gm.