Heard learned counsel for  the appellant.

2.      Here is an appeal filedu/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

3.      The case of the complainant in brief is that the complainant No. 1 being the wife of complainant No. 2, both the complainants came in contact with OP Nos. 2 and 3  the authorized representative of OP No.1 for  buying a time share membership for the resort of Op No. 1. Such membership was valid for 12 years. The purpose of the scheme is to allow the deposits with holiday facility at the Company resort at different places. The agreement was executed on 21.11.20032. Under the agreement the complainant  paid Rs.1,06,984/-  towards full and final payment of their  time-share membership including Rs.19,962/- paid at the time of execution of agreement. It is alleged that on 20.2.2003 the OP No.1 sent a letter allotting a temporary membership till 30.5.2003 only for Toshali Sands at Puri. For 12 years the OPNo.1  did not send any membership certificate to the complainants inspite of receipt of full an final payment. Since the time-share facility was not provided the complainants lost faith on ToshaliResortsInternationals and sent notice for referring the matter to the arbitration. Therefore, alleging deficiency in service the complaint was  filed.

4.      The OPs filed written version stating that the complainants are not consumers. The OPs admitted to have received the payment. However, they averred that they are not adopted unfair trade practice. According to the OPs   the complainants did not ask for cancellation of the agreement within the period of 10 days from the date of agreement as per clause 12 of the agreement. Therefore, there is no deficiency in service on their part.

5.      After hearing both the parties, the learned District Forum passed the following order:-
                             “xxx     xxxxxx

In the result, the complaint is allowed on contest. The OPs are hereby directed jointly and severally to refund Rs.1,06,984/- which was deposited towards membership fees with interest at the rate of 9% per annum from the date of deposit till the date of payment. They are further directed to pay ligation cost of Rs.1000/- to the complainants. The order be complied with within a period of one month from the date of communication of this order, failing which the complainants are at liberty to execute the order against the OPs in accordance with law.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not considering the written version of the appellant with proper perspectives. He also submitted that  the learned District Forum has not followed clause – 5 and 12 of the terms and conditions of the agreement executed between the parties. Therefore, he submitted to set aside the impugned order by allowing the appeal.

7.      Considered the submission of learned counsel for the   appellant and perused the impugned order including the DFR.

8.      It is an admitted fact that the complainants have deposited  Rs.1,06,984/- with OP No.1 towards  membership fees  to avail the resort facility for 12 years but the complainants did  not chose to travel any resort. After receiving notice, OP No.1 tried to return the money but the complainants did not receive the same. When it is a long term project giving different facilities, we are of the view that   as the facilities were not availed, it is for the appellant to refund the money with interest as per the banking rate. Since OP No.1 has received Rs.1,06,984/- from the complainants such amount is to be refunded to the complainants. Learned counsel for the appellant submitted that interest is in higher side and it should be considered. When we find that there is deficiency in service on the part of the OPs by not responding  the complainants at proper time,  the appellant has committed deficiency in service  and they are liable to refund the amount with interest. But in view of the submission of learned counsel for the appellant, we hereby while affirming the impugned order direct the  appellant to refund Rs.1,06,984/- with interest at the rate of 7% per annum from the date of impugned order till the date of payment. Rest part of the impugned order remains unaltered. No cost is allowed so far the appeal is concerned.

        DFR be sent back forthwith.

        Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.