BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th of November 2010

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT                

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.66/2010

(Admitted on 20.2.2010)

1. Balakrishna Rao,

Aged 64 years,

Son of late K.Narayana Rao,

2. Diana B Rao,

Aged 52 years,

Wife of Balakrishna Rao,

3. Anoop B.Rao,

Aged 28 years,

Son of Balakrishna Rao,

All presently Residing at

Yamuna Devakki Apartment,

Door No.17 19 1380 6,

A 2, 2  Floor, SL.Mathias Road,

Falnir, Mangalore.                                    …….. COMPLAINANTS

(Advocate for Complainant: Sri D.A.L. Andrade.)

          VERSUS

1.  Sri Rajeev Reddy,

     The Country Club Limited,

     Amrutha Valley, 8 2 703,

     Road No.12, Banjara Hills,

     Hyderabad.

2. The Country Club,

    847, 100 feet Road,

    Next to Indira Nagar Post Office,

    Indiranagar, Bangalore-560 038.

    Represented by the Manager.

3. The Country Club,

    TO2B, 3^rd Floor, Crystal Arc,

     Balmatta Road,

     Mangalore- 575 001,

     Represented by the Manager.             ……. OPPOSITE PARTIES

(Advocate for Opposite Parties: Sri. Vivek Nambiar)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainants submitted that, in the year 2007, the Opposite Parties were promoting membership to the Country Club India Limited for its branch to be opened in Mangalore.  The Opposite Party No.1 is the owner of the Country Club as well as the Managing Director of the Club.  The Complainant No.1 subscribed the membership of the club by paying a sum of Rs.15,000/- on 21.8.2007, the same has been acknowledged by the Opposite Party and the Complainant was admitted as a life member of the Country Club, Mangalore. 

It is stated that, the Opposite Party had promised services to its membership and offered various services at its in Mangalore, but as on today the club has not yet opened.  It is stated that, the Complainant No.1 joined a member of the Club, the Opposite Parties were promoting a Scheme under the name of ‘MGM Scheme’, wherein, if an existing member introduces another member and pays an additional sum of Rs.1,25,000/-, two plots will be given by way of incentives at Bangalore, one of the name of existing member and one in the name of new member.  Accordingly, the Complainant No.1 introduced his wife Complainant No.2 into the membership of the Opposite Parties club.  Complainant No.2 applied under the MGM Scheme and Rs.1,25,000/- was paid in installments and was enrolled as KOOL Card member of the Country Club under the membership No.KOOL 3520.  Thereafter, with the consent of the Opposite Parties the Country Club membership was transferred by Complainant No.2 to her son Complainant No.3.  It is more than two years since the membership amounts were paid, neither the Club in Mangalore has surfaced and commenced nor its activities have commenced.  The Complainants had booked site No.’s 990 and 960  as per the sketch  and site numbers were shown by the Opposite Parties on paper. The Opposite Parties has not allotted the sites given by way of incentives nor the sites were shown to Complainants though Complainant No.1 had gone to Bangalore on behalf of his wife and son.  It was also agreed that both the sites will be registered together and notarized copies of the title deeds will also be delivered to the Complainants.  It is stated that, the Opposite Parties since it is more than two years after the promises were made and documents executed and the Opposite Parties are failed to perform their promises given by them.  In spite of repeated calls to Opposite Parties in Mangalore and Bangalore there is no response. Hence the Complainant issued a lawyers notice dated 16.11.2009 calling upon the Opposite Parties to refund the entire amount of Rs.1,40,000/- with interest at 12% from the date of payment but Opposite Parties have failed comply the demands and hence, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund the entire amount of Rs.1,40,000/- with interest at 12% p.a. from the respective dates of payments and further compensation and costs of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD.  Opposite Parties appeared through their counsel filed version admitted the membership of the Complainants but it is contended that, there are two separate and distinct cause of action, one in favour of the Complainant No.1 who is a member under different scheme and another in favour of the Complainant No.3, who is member under Kool Scheme.  The Complainants by combining both cause of action together is seeking for refund of entire membership amount paid under two different schemes which is not permissible as the each membership is distinct and separate.

          It is stated that, the Opposite Parties issued allotment as well as in favour of the Complainant No.1 and 2 allotting complementary plot of at Vedic Spa.  It is submitted that, in the said allotment letters the Complainants have been called upon and to deposit the registration and maintenance charges which has been not deposited by the Complainant 1 and 3 inspite of the several requests and reminders and contended that there is no deficiency of service on the part of the Opposite Parties. The Complainant has become a member of the Opposite Parties club for the purpose of enjoying the facilities provided at the Opposite Party’s Club and not for the purpose of getting complementary site.  It is submitted that, the sites which have being registered by the Opposite Parties is a complementary site without taking any consideration.  The place allotment of the complementary site has been informed by the Opposite Parties to all the members at different location.  The above dispute cannot be agitated before this Forum which is require adducing of evidence by the Complainant and other witnesses.  It is stated that, the sites would be allotted at the Coconut Groove or Vedic Spa/Banyan Tree which was formed by the sister concern of the Opposite Parties.  The transaction between Complainant and the Opposite Parties is not a transaction for purchase of any property, on the contrary the said transaction is only for availing membership of the Opposite Party club.  It is further contended that, now membership fee paid by the members is non-refundable, since it would be utilized for development, maintenance and development of the Clubs and resorts across the country which are beneficial to the members including the Complainant and it is contended that there is no deficiency and prayed for dismissal of the Complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainants prove that the Opposite Parties committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

4.         In support of the complaint, Sri K.Balakrishna Rao, (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.  Ex.C1 to C12 were produced for the Complainant as listed in the annexure.   One Sri. Vijay D.P. (RW1), Senior Manager (Customer Care) of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him.   Complainant has produced written notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

REASONS

5.  POINTS NO. (i) to (iii):

In the instant case, the facts which are not in dispute is that, the Complainant has become a member of the Opposite Party club by paying Rs.15,000/- on 21.8.2007 as per Ex C3(f) and the same has been acknowledged by the Opposite Parties.  It is also not in dispute that, the Complainant No.1 who introduced his wife i.e. Complainant No.2 into the membership of the Opposite Party club who has paid a membership fee of Rs.1,25,000/- to the Opposite Parties as per Ex C3(a) to C3(e) and was enrolled as Kool Card member of the Opposite Parties club under the member ship No.KOOL 3520.  Thereafter, with the consent of the Opposite Parties the country club membership was transferred from Complainant No.2 to her son Complainant No.3.

Now the point in dispute between the parties before this Forum is that, the Opposite Party had promised services to its members and offered various services at its in Mangalore, but as on today the club not yet opened in Mangalore.  The Complainant No.1 joined a member of the Club and the Opposite Parties were promoting a Scheme under the name of ‘MGM Scheme’, wherein, if an existing member introduces another member and pays an additional sum of Rs.1,25,000/- two plots will be given by way of incentives at Bangalore, one in the name of existing member and another in the name of new member.  Accordingly, the Complainant No.1 introduced his wife i.e. Complainant No.2 has paid Rs.1,25,000/- and was enrolled as KOOL Card  member of the Country Club.  But it is more than two years since the membership amounts were paid, neither the Club in Mangalore has surfaced/commenced nor its activities have commenced.  Further they had booked site No.’s 990 and 960 as per the sketch and the site numbers were shown by Opposite Party on paper but not allotted the sites.   Further, the sites were not shown to the Complainants though the Complainant No.1 had gone to Bangalore on behalf of his wife and son.  It is stated that, the Opposite Parties were agreed that both the sites will be registered together and title deeds also be delivered to the Complainants.  It is stated that, Opposite Parties since it is more than two years after the promises were made and documents executed but not shown the site nor registered the site and thereby failed to perform their promises given by them.  Hence, came up with this Complaint.

Opposite Parties appeared through their counsel and admitted the membership of the Complainant but it is contended that there are two separate and distinct cause of action, one in favour of the Complainant No.1 who is a member under different schemes and another in favour of Complainant No.3 who is member under Kool Scheme.  The Complainant by combining both of cause of action together is seeking for refund of entire membership amount paid under two different scheme is not maintainable.  Further it is stated that, the Opposite Parties issued allotment as well as complementary plot at Vedic Spa.  In the allotment letters the Complainants have called upon to deposit the registration and maintenance charges  which has been not deposited by the Complainants inspite of requests and reminders.  And contended that, the sites which have been registered by the Opposite Parties is a complementary site without taking any consideration.  The place of allotment of the complementary site has been informed by the Opposite Parties to all the members at a different locations.  It is stated that, the sites would be allotted at the Coconut Groove or Vedic Spa/Banyan Tree which was formed by the sister concern of the Opposite Parties.  The transaction between the Complainants and the Opposite Parties is not a transaction for purchase of any property is only for availing membership of the Opposite Party Club.  It is stated that, the membership fee paid by the members is non-refundable and it would be utilized for development, maintenance of the Clubs and resorts across the country.

However, the Complainant filed oral evidence by way affidavit and produced Ex C1 to C12.  The Opposite Parties also filed affidavit and answered the interrogatories served by the Complainant.

          On scrutiny of the oral as well as documentary evidence place on record, we find that, on payment of Rs.15,000/- by the Complainant No.1 i.e. K.Balakrishna Rao has become the member of the Opposite Party on 21.8.2007 (i.e. as per Ex C3(f)) and the same has been acknowledged by the Opposite Parties.  Further Rs.1,25,000/- has been paid by the Complainant No.2 who is a wife of the Complainant No.1 for the membership of the Opposite Party club.  Thereafter, with the consent of the Opposite Parties the Country Club membership was transferred by the Complainant No.2 to her son Complainant No.3 in this case.  There is no dispute of the facts that, the Opposite Parties has taken membership fee from the Complainant No.1 to 3 promising to open a Club at Mangalore and the said amount was taken three years back in 2007.

It could be seen in Para No.28 of the version, the Opposite Parties stated that, the Club is opening on 15^th May 2010 and answer to the interrogatories No.2, 32 and 33, the Opposite Party contradicted the above statement and deposed that the Club is opening  on 18.11.2010.  This part of the contradictory statement goes to show that, the Country Club is in Mangalore not yet opened there is a breach of service.  It is significant to note that, despite of taking a membership fee in the way back 2007, when the club is not yet opened for availing the facilities offered by them, it is quite natural that the members are seeking refund of the membership fee paid by them.  When the Opposite Parties receives a membership fee from the members herein the Complainants, at the same time they should provide all the amenities and facilities as promised by them.  One cannot by receiving the money as a membership indefinitely prolong the services entitled by the Complainants/members under the scheme introduced by the Opposite Parties.   The Opposite Parties admitted that, the Complainants has become a member of the Country Club for the purpose of enjoying the facilities provided at the Opposite Parties club.  It is pertinent to note that, the Complainant who is a resident of Mangalore paid the membership with the hope that he can enjoy the facilities provided at the Opposite Party’s Club and not for keeping the money indefinitely for years together.  In a case of like this nature seeking refund of the membership amount paid by the Complainant is permissible because the Opposite Parties failed to provide facilities as promised by them.  Under that circumstances, the Complainant No.1 is entitled for the refund of the membership fee paid by him. 

          As far as the Complainant No.3 is concerned, it is not denied that the Complainant No.1 who is the father of the Complainant No.3 joined the Opposite Party Club and the Opposite Parties were promoting a scheme under the name of MGM Scheme, wherein if an existing member introduces another member and pays an additional sum of Rs.1,25,000/- two plots will be given by way of incentive at Bangalore, one in the name of existing member and one in the name of new member.  Accordingly, the Complainant No.1 introduced his wife i.e. Complainant No.2 into the membership of the Opposite Party Club.  The Complainant No.2 applied under MGM Scheme and a sum of Rs.1,25,000/- was paid in installments as per Ex.C3(a) to C3(e) and she was enrolled as Kool Card member of the Country Club.  Thereafter, with the consent of the Opposite Party, the above said membership transferred to Complainant No.3 who is none other than the son of the Complainant No.1 and 2.  When that being the case, the contention raised by the Opposite Parties that, the above complaint is not maintainable as the relief sought for refund of the entire membership amount paid under two different schemes not acceptable.  In the instant case, we have observed that, the Opposite Parties despite of undertaking to allot two plots one in the name of the existing member i.e. Complainant No.1 and another in the name of the new member i.e. the Complainant No.3 herein, but the Opposite Parties though allotted the site numbers 990 and 960 as per the sketch on paper but the same are not shown to the Complainants till this date despite of their request/demand amounts to deficiency and unfair trade practice.  It is quite natural that, when a members paid so much of amount expecting to see the sites before registration.  But in the given case, the Opposite Parties failed to show the sites to the Complainant despite of his request.   It is a bounden duty of the Opposite Parties to show the sites to the members before registration.  Further, the contention of the Opposite Parties that, the sites which have been offered is a complementary site without taking any consideration and the transaction between the Complainants and the Opposite Parties is not a transaction for purchase of any property, is only for availing membership of the Opposite Parties club.  The above contentions are baseless because the Opposite Parties by taking so much of amounts by way of membership from the general public promising them that they are going to provide a complementary site/providing various facilities and amenities in the district by opening their club, now they cannot contend that their transaction is not for purchasing of any property etc. etc.  The Opposite Parties by introducing a scheme to the general public by enrolling them as a membership to their club and made them to belief that they are allotting some sites and providing some facilities and amenities in their club and collected the amount from the members herein the Complainants itself shows that they have indulged in unfair trade practice.  The Opposite Parties are bound to adhered to the promise made by them.  But in the instant case, though they have collected Rs.1,25,000/- from the Complainants but failed to deliver the sites are to show the sites allotted to them till this date amounts to deficiency.  Since the Opposite Parties not shown the sites to the Complainants till this date gives scope for doubt to the members/Complainants.  We have noticed that, there is no proper explanation why the sites were not shown to the Complainants till this date.  In the absence of the same, we hold that, the Complainant No.3 also entitled for the refund of the amount paid by them under the Kool membership from the Opposite Parties. 

          In view of the above discussions, we hold that, the Opposite Parties are committed deficiency in service and indulged in unfair trade practice by retaining the  amount pertaining to the Complainants for indefinite period till this date.  Therefore, we hereby direct the Opposite Parties to pay Rs.15,000/- along with interest at 10% per annum from the date of receipt of the amount till the date of payment to the Complainant No.1 and Rs.1,25,000/- along with interest at 10% per annum from the respective date of receipt of the above said amount till the date of payment to the Complainant No.3. 

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- (Rupee One thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                          

ORDER

            The complaint is allowed. The Opposite Parties are hereby directed to pay Rs.15,000/- (Rupees Fifteen thousand only) along with interest at 10% per annum from the date of receipt of the amount till the date of payment to the Complainant No.1 and Rs.1,25,000/- (Rupees one lakh twenty five thousand only) along with interest at 10% per annum from the respective date of receipt of the above said amount till the date of payment to the Complainant No.3.  And Rs.1,000/- (Rupees only thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 14 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of November 2010.)

    PRESIDENT                                     MEMBER                                        MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1 – Sri K.Balakrishna Rao – Complainant.

Documents produced on behalf of the Complainants:

Ex.C1 – 16.11.2009: Office copy of lawyer’s notice.

Ex.C2 – Postal Acknowledgements (3 in number).

Ex.C3 – Xerox copies of receipts for payment of a total sum of Rs.1,40,000/- to the Opposite Party (six in number).

Ex.C4 – 26.5.2008: Letter issued by Opposite Party to Complainant No.2.

Ex.C5 – 24.6.2008: Offer letter of the Opposite Party.

Ex.C6 – Letter given by Opposite Party regarding Kool Card member to Complainant No.2.

Ex.C7 – 21.1.2009: Letter given by Opposite Party to Complainant No.1 stating

                            Eligibility of free plot.

Ex.C8 – 10.3.2009: Letter given to Complainant No.3 by Opposite Party.

Ex.C9 – Brochure given by the Opposite Party of their Club.

Ex.C10– Promotion letters given by Opposite Party of their club and services offered by the Club.

Ex.C11– Three membership cards issued by the Opposite Party in the name of the Complainants.

Ex.C12– 23.11.2009: Letter of allotment issued by Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

Rw-1: Sri. Vijay D.P., Senior Manager(Customer Care) of Opposite Party No.2.

Documents produced on behalf of the Opposite Parties: 

-Nil-

Dated:30.11.2010                                                         PRESIDENT