This case is coming for final hearing on 06.04.2015 in the presence of D.Manjulatha and Smt.P.Leelavathi Advocates for Complainant and of Sri Lodagala Krishna and Sri Karri Parthasaradhi Advocates for Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1.       The case of the complainant is that she purchased Points Rights on 13.04.2006 under Contract No.C.V.A 9/0238 from the opposite party and a Purchase Agreement was entered between the complainant and opposite party on 13.04.2006.  The particulars of vacation ownership mentioned in the said contract agreement and the total period is 10 years commencing from 2006-2015 and allotted 115 total points rights and also mentioned the total purchase price is Rs.86,000/-.  The complainant as per the contract agreement paid the total purchase price on 16.04.2006 to opposite party and for that the opposite party issued receipt for the same.  The Complainant stated that on 22.06.2006 she received a letter from Amrutha Estates (a division of country club) to send Rs.10,000/- towards registration charges and maintenance charges for a period of 13 months for complementary free plot for the member of Country club, then, the complainant send a D.D for Rs.10,000/- bearing No.20804 dated 12.10.2006 through State Bank of Hyderabad to Amrutha Estates, Bangalore.  The said Amrutha Estates, Bangalore executed a Gift Deed in favour of the complainant instead of sale of site situated at S.No.349/1 in Plot No.185 at Hindupur, SRD of Chilanathra in Kondurpalem Panchayat area and the cost of the site is Rs.9,000/- as mentioned in the Gift Deed and the registration fee and cost of stamp is Rs.1005/-.  The Complainant stated that inspite of repeated demands made by him, the opposite party did not fulfill the recitals in the contract agreement and did not show the site gifted by them at Hindupur, because of this acts of the opposite party the complainant sustained huge loss both mentally and financially.  Finally, on 28.06.2011 the complainant issued a registered lawyer’s notice to the opposite party and the same was received by them, but did not send any reply which clearly shows their negligent act.  The complainant has no interest to continue in the club of the opposite party and she wants her money back which was deposited by her at the time of agreement.  Hence this complaint to direct the opposite party;

a)      to refund the amount of Rs.86,000/- with 24% interest from 16.04.2006

b)      to pay Rs.10,000/- towards compensation besides costs.

2.       On the otherhand, the opposite party filed its counter and denied the allegations mentioned in the complaint and pleaded that as per the terms and conditions of agreement between both the parties; out of the deposited amount, 80% amount will be forfeited and the opposite party is liable to pay remaining balance amount of 20% and the opposite party is ready and willing to register the said plot in the name of the complainant with registration expenses of the complainant.  The opposite party also pleaded that there is no cause of action and the complaint is frivolous and vexatious one and the complaint is to be dismissed.

3.       At the time of enquiry, the complainant filed her evidence affidavit along with documents which are marked as Exhibits A1 to A6.  On the otherhand, the opposite party filed its counter, evidence affidavit, but no documents are marked on behalf of opposite party.  When the matter came for hearing both the counsels represented that the matter is going to be settled and compromise talks are going on.  As there is no settlement in the issue, heard both the counsels and posted for orders.

4.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

5.       As per Ex.A1 i.e., Membership Purchase Agreement dated 13.04.2006 shows Country Vacations International Holiday Club Membership and particulars of ownership mentioned as Membership period is 10 years and the total purchase price is Rs.86,000/-.  The balance due amount was shown as nil.  In that agreement, there is a clause of 6 & 7 i.e., Choice of resorts and Country Vacations Alliance wherein they mentioned that the club member shall entitle to request the accommodation of any of the Country Vacations and they have access to all the resorts that are associated with the Marker through the Country Vacations Alliance Scheme.  Clause-8 clearly speaks that “in the event of purchaser failing to make any payment installment on the due dates, then the opposite party shall have a right to cancel the agreement and forfeit 80% of the amount paid so far”.  But, here in this case, the complainant paid total amount as per Ex.A1, hence clause of forfeiture is not applicable to the complainant.  Ex.A2 is the Receipt bearing No.618 dated 16.04.2006 clearly shows that the complainant paid Rs.86,000/- towards initial and final payment by way of cash.  Ex.A3 is the Allotment Letter addressed by Amrutha Estates to pay sum of Rs.10,000/- towards registration charges and maintenance charges regarding the allotment of complementary free plots.  There in that Exhibit, the opposite party marked complementary as “conditions apply”.  But those conditions are not mentioned in any of the document served by them.  Ex.A4 is the Gift Deed executed by Representative of Amrutha Estates as Gift Deed of Rs.9,000/-, but the complainant’s contention at the time of arguments that no document shall served by opposite party to show the site and the complainant not know where the plots are situated and more over she has no interest to continue in the club of the opposite party as they failed to arrange holidaying as promised by them.  The Complainant also issued a registered Lawyer’s notice on 28.06.2011 i.e., Ex.A5 and the same was acknowledged by the opposite party on 29.06.2011 i.e., Ex.A6, but there was no response from the opposite party.  The only contention of the opposite party is that the 80% of the amount paid by the complainant will be forfeited and opposite party also expressed its willingness to register the plot, but the complainant not come forward for that as there are no authorized approvals and compromise talks between both the parties were failed. 

6.       Evidently, the opposite party received the total amount as per its agreement, but failed to register the sale deed and more over Gift Deed executed by 3^rd party which is not a valid one.  Moreover, the opposite party in its counter raised a plea regarding the forfeiture.  As per Ex.A1 clause-8 the opposite party has right to cancel the agreement if the purchaser fails to make payment of installments on the due dates.  But here in this case, the complainant paid the total amount as per Ex.A1 and the balance due is nil, as such this forfeiture clause is not applicable to the complainant.

7.       It is to be noted that after receiving the lawyer’s notice by the complainant also the opposite party is silent, hence there is no doubt that because of acts of the opposite party, the complainant suffered financially and mentally, as such the opposite party is liable to refund the amount to the complainant which was paid by her i.e., Rs.86,000/- with 9% interest from 16.04.2006 i.e., payment date .

8.       Collecting money from the public and not fulfilling the promise made by the opposite party at the time of agreement is a clear cut deficiency of service on its part.  Doing business with public money with unfair intention is not good.  The complainant paid the total amount to own a house plot, but she deprived of having a house plot because of acts of the opposite party, hence it should compensate by allowing compensation is reasonable.  Without compromising the matter as they represented earlier, the opposite party dragged the matter and caused financial hardship to the complainant.  She has to invest huge amount to purchase a plot now-a-days, hence allowing Rs.5,000/- towards compensation besides costs which would be just and proper.

9.       In the result, the Complaint is allowed directing the opposite party to pay Rs.86,000/- with 9% p.a. interest from 16.04.2006 within three months failing which to pay the same with 12% p.a. interest till the date of realization to the complainant.  The opposite party is directed to pay Rs.5,000/- towards compensation besides costs of Rs.1,500/-.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 24^th day of April, 2015.

        Sd/-                                                                            Sd/-

Member                                                                      President (FAC)

                                                                   District Consumer Forum-I 

                                                                             Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

    Sd/-                                                                        Sd/-

Member                                                                  President (FAC)

                                                                   District Consumer Forum-I

                                                                             Visakhapatnam

//VSSKL//