Tamil Nadu

South Chennai

CC/145/2014

Prof.Dr.S.Mani, S/o.P.S.Srinivasan - Complainant(s)

Versus

Rep by its Managing Director, Sterling Holiday Resorts(India) Ltd, - Opp.Party(s)

T.Ravi Kumar

05 Jul 2017

ORDER

                                                                        Date of Filing :   25.03.2014

                                                                        Date of Order :   05.07.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.145/2014

WEDNESDAY THIS  5^TH    DAY OF JULY 2017

 

Prof. Dr. S. Mani,

S/o. P.S. Srinivasan,

Residing at E-6,

Vasanth Apartments,

Bypass Road,

Velachery, Chennai 600 042.                         .. Complainant

 

                                        ..Vs..

 

Sterling Holiday Resorts (India) Ltd.,

Rep. by its Managing Director,   

NO.7, 3^rd Cross Street,

“Citi Towers”,

Kasturba Nagar, Adyar,

Chennai 600 020.                                            .. Opposite party.  

 

For Complainant counsel           :    M/s. T. Ravikumar      

For opposite party counsel         :   M/s. Shivakumar & Suresh.   

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to withdraw the bills demanding for Annual Amenities Charges of credit notes unutilized accumulation up to 21 days transferring of Property Time share and also to pay a sum of Rs.1,00,000/- towards mental agony and also to pay Rs.10,000/- towards cost of the complaint.

1. The averment of the complaint in brief are as follows:

         The complainant states that he had entered into an agreement for sale dated 8.12.1988 and facilities agreement dated 8.12.1988 with the opposite party.     Based on the said agreement for sale and facilities agreement, the complainant purchased property Time share ownership from the opposite party by a registered sale deed dated 21.6.1993 SRO Kodaikanal.    As per the terms of agreements and sale deed, the complainant is also an equity holder in the Maintenance Company and the equity is exclusively for maintaining the property without any charges to the complainant.    The complainant is eligible to accumulate upto 21 days of Time Share holidays at any given time.  

2.     Further the complainant also state that he is a member of the opposite party, with membership No.3182.  As such he is eligible for the week No.30 for the period from 1989 to 2089 in Kodaikanal Lake View Resort between 25.7. to 31.7 every year till the year 2089.   If he is not going on a holiday for a particular year he can carry over the said period for a period of 21 days or 2 weeks in addition to the week for that particular year in which the member is seeking his holiday.   For example if the complainant has not availed of the holiday facility for the years 2011-2012, they can be carried over to 2013.   In the year 2013 he can avail the unutilized Holiday period for 2011 to 2012 also.   This facility is called accumulation facility.   The facility for accumulation is available for 21 days as per the agreement, but the opposite party is now restricting to the number of days accumulation to 14, including the days for the current year.    The complainant also submit that to his shock and surprise suddenly during September 1998, the opposite party have sent a general communication demanding him to pay for Annual Amenities charges.   Immediately the complainant sent a reply to opposite party, that he had not made any written commitment to pay such a fee.   The complainant having purchased equity in the Maintenance Company, it is clearly stated in the documents that the opposite party would maintain the facility free of charge for 100 years.     Accordingly the complainant sent several letter s and emails to the opposite party that he is not liable to pay the Annual Amenities Charges.  But till date, the opposite party have been continuously demanding for Annual Amenities Charges from the complainant.    Therefore the complainant sent a notice on 3.7.2013 to the opposite party to withdraw the bills demanding Annual Amenities Charges and also demanded that no such bill shall be raised in the future to cancel all the debit notes sent so far and to reconfirm the eligibility of original accumulation days upto three weeks (21 days) and also to pay compensation of Rs.10,000/- with cost.   As such the act of the opposite party is amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence the compliant.

 

3. The brief averments in the Written Version of  the opposite party   are as follows:

        The opposite party state that the opposite party denies all the allegations contained in the complaint except those which are specifically admitted herein and this opposite party puts the complainant to strict proof of each and every allegation.   The opposite party submit that the complainant had purchased the property time share product in Kodaikanal under customer ID No.3182 floating week by way of following documents 1. Agreement for sale.  2. Facilities agreement 3. Registered Sale deed and 4. Possession certificate and the same are also explicitly admitted by the complainant.    The customer had been allotted the apartment immediately on registration of the sale deed.  It is further submitted that the complainant is the owner of 1/6760 undivided share in total extent of land owned by the opposite party, 1/52 undivided share of the cottage with plinth area of 450 sq. ft. 1/52 undivided share in the movables in the said cottage, 1/6760 undivided share in all the common areas and common amenities and common properties and 1/6760 undivided share in the list of movable facilities and services in the common area with a restrictive covenant to enjoy the same only during the 30^th week of the English calendar year.   Further it is pertinent to mention that the accumulation days shall not be more than 21 days to the maximum at any point of time and hence it is false to state that the opposite party is now restricting to the number of days accumulation to 14 days and the complainant is put to strict proof of the same.  

4.      The opposite party further state that the complainant has failed to note that the there are two different charges collected by the opposite party a) utility charges and b) Annual Amenity charges.   The agreement for sale entered between the opposite party and the complainant has clearly stated that shall be a maintenance costs collected exclusively for the purpose of maintaining the resort.   The charges for utility of the resort as specified in clause 26 (d) is paid only at the time of utilization of the holiday by the customer and the same is collected at the resort only.  The opposite party as agreed in the agreement for sale, has promoted company called opposite party company for the purpose of maintaining its resorts at Kodaikanal.   The maintenance company was incorporated in the year 1995 and as agreed in Clause 21 of the agreement for sale, had allotted share in proportion to the undivided share of the company.    The maintenance company had initially maintained the resorts.  With the growing rate of inflation and labour charges, it could not maintain the resorts and the company incurred severe loss.  The audited balance sheets were duly sent to the shareholders till the current year 2013-14.  The accumulated losses as on 31.3.2014 of the subsidiary is Rs.734.36 lakhs for the year 2013 and Rs.710.90 lakhss for the year 2014 respectively. The opposite party further states that the letter dated 26.8.2006 relied by the complainant states that the waiver was given only until 2006 and as stated by the complainant the waiver was not given for life time.   Even assuming the waiver given until the year 2006, the complainant is liable to pay the annual amenity charges from the year 2006 and till the current year which is due on his account.   Therefore the complainant  is not entitled to claim any compensation in this regard.   Hence this complaint is liable to be dismissed.

5.        In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A27 marked.  Proof affidavit of opposite party filed and Ex.B1 & Ex.B2 marked on the side of the opposite party and also oral arguments let in.   

6.   The point for the consideration is:  

1. Whether the complainant is entitled the relief of withdrawal of bills demanding for Annual Amenities Charges of credit notes unutilized accumulation up to 21 days transferring of Property Time share as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony and cost of Rs.10,000/- as prayed for ?

 

 

7.  POINTS 1 & 2:

 

          Heard both sides.  Perused the records.   Admittedly the opposite party is a Public Limited Company sold properties on Property time share basis with terms and conditions.  The complainant is one of the purchaser having I.D.No.3182 entered into the agreement of sale followed by registration of sale deed and obtained possession certificate etc. with 1/6760 undivided share in total extent of land and 1/52 undivided share of the cottage with plinth area of 450 sq.ft., 1/52 undivided share in the movable in the said cottage, 1/6760 undivided share in all the common areas and common amenities.  The learned counsel for the complainant contended that he entered into the agreement  for sale with the opposite party on 8.12.1988 as per Ex.A4 and thereafter on 21.6.1993 he purchased the property time share by way of registered sale deed No.2195 /1993, SRO Kodaikanal.  As per terms and conditions of the agreement and sale deed the complainant is also an equity holder in the Maintenance Company and the equity is exclusively for maintaining the property without any charges.   The complainant was given possession in  Block No.B1, Door No.303 under the premium season period.   The complainant is entitled to enjoy one week every year after giving due letter in advance of 45 days.    The complainant is also entitled to accumulate 21  days of  Property Time Share holidays.  The learned counsel for the complainant further contended that as usual right from 1989 the complainant is enjoying such benefits as per sale deed of property time share.    In the year 2013 when the complainant requested for availing the unutilized Holiday period for the year 2011-2012, the complainant  was denied and the opposite party restricted the holiday to the tune of 14 days for accumulation and availing 7 days as current.   Thereby the complainant was denied 7 days accumulation which is against the terms and conditions of the agreement.  But on a careful perusal of Ex.A5 facility agreement Clause-8 is as follows:

The PTS OWNER shall be entitled to utilize the ACCUMULATION FACILITY mentioned above in the consecutive Calendar Years.  However the PTS OWNER shall not have any right to have to his / her / its credit more than 3 weeks (21 days) stay in the Cottage (inclusive of the days to his/her/its credit under Clause 11 below in respect of his / her/ its Property Time Share).   Any day’s/week’s stay over a period of 3 weeks stay to the credit of the PTS OWNER shall automatically lapse.   Provided the PTS OWNER shall not have the right to enjoy a week’s stay in the Cottage in respect of any Calendar Year in advance.

Further the learned counsel for the complainant contended that while availing property time share facility as per the membership and utilized the holidays the opposite party demanded the annual amenities charges which is against the terms and conditions of agreement and sale deed.   The opposite party is claiming such amenities charges right from September 1998 which is totally against the equity and also barred by limitation.  The opposite party also in the written version very clear admitted that such charges hs been waived until 2006.   But on a careful perusal of the agreement Clause 26 (d) is as follows:

26 (d)  The BUYER, shall pay the requisite charges/fees/prices as decided by the Maintenance Company from time to time to utilize and enjoy the SCHEDULE-D-PROPERTY, SCHEDULE-E –PROPERTY and other common facilities and common amenities.   The BUYER shall also be liable to pay such charges/fees/prices as may be fixed from time to time by the Maintenance Company in respect of the food and other eatables, consumables, electricity, telephone, gas, oil, water etc. that may be utilized by the BUYER in his/her/its PROPERTY TIME SHARE.

 

8.     Further the learned counsel for the complainant contended that admittedly the complainant purchased property time share.   There is no restriction or conditions restraining any person for using such property time share.   The opposite party also has not raised any substantial conditions regarding transfer or sale of property time share.  The learned counsel for the opposite party contended that as per the agreement of sale and sale deed and facility agreement Ex.A4, Ex.A7, and Ex.A5 the maintenance of building is with the maintenance company appointed by the opposite party which is a registered company.  The opposite party company sold the property by way of property time share and granted several facilities.   As per the terms and conditions for the proper utilization of such purchaser.  As per the terms and conditions every year 7 days or a week can be enjoyed by such purchaser after giving letter 45 days prior to such utilization.  Similarly the property time share holder can accumulate 21 days for such utility inclusive of the present year, the contention that the period of utility and accumulation has been arbitrary reduced by the opposite party is absolutely false as per Clause-8 of the facility agreement.

9.   The learned counsel for the opposite party cited a decision reported in

1. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Panchakula Haryana

..Vs..

M/s. Dalmia Resorts International

2. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No.3037 of 2013

K.K. BHENIWAL

..Vs..

          STERLING HOLIDAY RESORTS (INDIA) LTD & ANR.

 

 

10.    Further the learned counsel for the opposite party contended that the complainant was directed to pay the utility chares and annual amenities charges; since the maintenance was done by the maintenance company; which has submitted the accounts and auditor report showing huge amount shortage.  Hence the opposite party as per Sec.26(d) of the agreement increased maintenance and directed to pay the annual amenities charges.   The complainant without paying the amount addressing letter by letter, hence the opposite party waived annual amenities charges only until 2006.  The contention of the complainant that the property time share is for 100 years and there shall be no annual amenities charges except utility charges is not acceptable because it is well known that day by day the cost of living is increasing.   As per the property time share proper utility service and maintenance shall be done, for that annual amenities charges shall be increased in accordance with the Auditor report.  Hence the opposite party rightly increased the annual amenities charges.   Considering the facts and circumstances of the case this forum is of the considered view that  the complainant is directed to pay annual amenities charges from the year 2007 onwards and point-1 is answered accordingly. 

11  POINT :-2

Further the learned counsel for the complainant contended that the arbitrary claim of annual amenity charges and restricted accumulation of holidays caused mental agony.  The complainant is claiming a sum of Rs.1 lakh towards such mental agony and cost of Rs.10,000/-.   The learned counsel for the opposite party contended that as per the agreement alone the annual amenity charges increased.   Therefore the complainant is liable to pay utility charges and there is no restriction in accumulation of holidays.  However claiming free of cost, annual amenity charges for 100 years cannot be accepted.    Considering the facts and circumstances of this case, this forum is of the considered view that the complainant is liable to pay annual amenity charges from 2007 January on wards.   Therefore the complainant is not entitled for any relief as prayed for in the complaint and the point-2 is answered accordingly. 

In the result this complaint is dismissed.  No cost.

 

 Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  5^th  day  of  July 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-         -       - Copy of Phamphelet.

Ex.A2-         -       - Copy of Maintenance Plan Sheet,

Ex.A3-         -       - Copy of Fact Sheet.

Ex.A4- 8.12.1988  - Copy of Agreement for sale.

Ex.A5- 8.12.1988  - Copy of Facilities agreement.

Ex.A6- 27.12.1988         - Copy of letter from opposite party.

Ex.A7- 21.6.1993  - Copy of Sale deed.

Ex.A8- 1.9.1993    - Copy of Possession Certificate.

Ex.A9- 2.9.1993    - Copy of letter regarding handing over of possession.

Ex.A10-  9.1998    - Copy of letter regarding levy of AAC and bill 1998.

Ex.A11- 19.10.1998- Copy of letter offering legal Assistance.

Ex.A12- 5.8.1999  - Copy of letter regarding AAC, 1999

Ex.A13- 23.12.1999- Copy of letter regarding AAC 2000

Ex.A14- 24.10.2001- Copy of Debit Note.

Ex.A15- 2.12.2001         - Copy of letter from complainant to opposite party

Ex.A16-       -       - Copy of pricing for Sterling Vistas.

Ex.A17- 24.11.2003 – Copy of letter from complainant.

Ex.A18- 1.11.2004         -  Copy of letter from opposite party for AAC upto 2004 & bill

Ex.A19- 14.8.2006         -   Copy of letter demanding AAC arrears.

Ex.A20- 26.8.2006   Copy of letter asking debit note to be ignored from

                                opposite party

 

Ex.A21- 09.12.2008 – Copy of AAC demand .

Ex.A22-       -         - Copy of email correspondences.

Ex.A23-       -         - Copy of Holiday Usage statement.

Ex.A24-  10.4.2013  - Copy of email demanding AAC arrears.

Ex.A25-  1.7.2013   - Copy of email regarding usage.

Ex.A26- 2.7.2013     - Copy of email regarding usage.

Ex.A27- 3.7.2013     - Copy of notice and Ack. card.

 

 

Opposite party’s side document: -   

Ex.B1-         -       - Copy of Annual Report.

Ex.B2-         -       - Copy of Holiday Utilization Statement.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.