BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 15th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.190/2015
(Admitted on 09.06.2015)
Mr. M.Shahid Rehman,
Proprietor M/S. M S R Constuctions,
Having his principal place of business,
Now at Door No.8.14.1321,
Opp.Jamia Masjid, Kambala Cross Road,
Kudroli, Manglaore 575003.
……… Complainant
(Advocate for Complainant by Sri. YBPR)
VERSUS
Sterling Holiday Resorts (India) Limited,
A Public Limited Company incorporated under,
The companies Act 1956, having its registered,
Office at Citi tower, 3rd Cross Street,
Kasturba Nagar, above Nalli Silks,
7, 4th St, Nehru Nagar, Adyar,
Chennai, Tamilnadu 600020,
Represented by its authorised signatory,
…. Opposite Party
(Advocate for Opposite Party by Sri.RKG)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The Opposite Party being a company had in the year 1995 were in the process of constructing Holiday Resorts at various places and the Opposite Party company who had been developing a Holiday Resort at Coorg in the land bearing survey No.96,112,114 situated at Ambatti Village within the Sub-Registration District of Virajpet and registration District of Kodagu offered to the complainant the right to stay in an apartment in the Holiday Resort and enjoy the amenities for one week per year for 99 years commencing from 1996 and ending with 2094 for a consideration of Rs.39,000/ out of which Rs.17,550/ was towards the cost of the right to stay in an apartment in the Holiday resort and enjoy the amenities for one week per year Rs.21,450/ was towards and advance subscription towards the customer facility for the entire period of 99 years. As the offer given by the Opposite Party representative was attractive and as the complainant found Coorg to be a convenient location for him to travel and enjoy his holidays, as Coorg is just four hours away for travel by road from Mangalore, so complainant had accepted the said offer of the Opposite Party and had entered into a time share agreement on 10.2.1995. The complainant had paid the entire consideration of Rs.39,000/ which is inclusive of the cost of the right to stay in an apartment in the Coorg Holiday Resort and enjoy the amenities for one week per year and Rs.21,450/ towards the annual subscription towards the customers facility for the entire period of 99 years. At the time of entering into the agreement with the complainant only liable to pay the electricity, telephone, gas, oil, water charges that may utilized by him at the time of stay in the Holiday Resort. Even though as per the verbal promise of the Opposite Party representative the Holiday resort was to be completed by the end of 1996 at the aforesaid place at Coorg which is shown in schedule A of the aforesaid agreement, it would not be out of context to mention that in spite of the lapse of nearly nineteen years from the date of the agreement the Opposite Party failed to complete the same. Subsequent to the entering into the aforesaid time share agreement even though the complainant was not in a position to travel long distance as per the advice of his doctor due to heart ailments, inspite of discomfort still the complainant was compelled to avail his holiday in other holiday resorts of the Opposite Party located at Munnar and Ooty which places are far away from the Mangalore, till date because of the non-completion of the Holiday Resorts by the Opposite Party as promised by them at Coorg, the complainant has been compelled to forgo most of his yearly week long holidays at holidays resorts of Opposite Party. The non completion of the Holiday Resort at Coorg as promised by the Opposite Party as per the agreement dated 10.2.1995 amounts to deficiency in service. Other than the above the complainant has also suffered monetary loss as well as mental agony. That other than the non completion of the Holiday Resort as undertaken by the Opposite Party , now the Opposite Party has been demanding from the complainant a sum of Rs.4,542 towards Annual Amenity Charges (AAC) for the year 2014 which was nowhere contemplated under the aforesaid agreement entered into by the Opposite Party with the complainant. Therefore the demand for Annual Amenity charges by the Opposite Party is illegal and against the terms of the written contract. Therefore complainant issued legal notice to Opposite Party not demand any annual maintenance charges in future but notice not served. Hence the above complaint filed by the complainant before this forum under section 12 of the C.P.Act 1986(here in after referred to as the Act) seeking direction from this Fora to the Opposite Parties to complete the construction of the holiday resort at coorg at the place mentioned in the Agreement dated 10.2.1995 within a time frame to be fixed, and to pay Rs.1,00,000/ towards the loss, hardship and mental agony such other reliefs.
II. Version Notice served to the opposite party by RPAD and filed version stating that during the year 1996 affected many industries including Opposite Party Company. The Opposite Party sale had come down substantially and started incurring huge losses. The steps taken by the Opposite Party for revival did not fructify for a long time. The cumulative loss of the company as on 2003 was over Rs.180 Crores. The Opposite Party has taken various steps for restructuring the capital and also the organisation in the year 2004 by raising the required funds to settle various creditors. The Opposite Party submits that owing to the above reason, the resort at Coorg remains unconstructed. That the customers owning the resort at Coorg were allowed to avail holidays at the available resorts belonging to the Opposite Party at various destinations. This facility was enjoyed by the complainant as well. The details of the holiday statement has been attached as Ex.B1. Clause 13 (c) of the agreement between the complainant and the Opposite Party clearly states that the customer has to pay requisite charges for use and enjoyment of amenities.
The Time Share Holder shall pay requisite charges/fees/prices decided by the company from time to time for use and enjoyment of the amenities. The Timeshare Holder shall also be liable to pay such charges/fees/prices as may be fixed from time to time by the company in respect of electricity, telephone, gas, oil, water etc. that may be utilised by the Timeshare Holder while enjoying his timeshare.
The Opposite Party had opted not to collect the Annual Amenity Charges (AAC) from the customers whose resorts were not ready. However, post the management change in 2011, the Opposite Party started the process of revamp in phases. Part of the revamp was the demand notice of AAC being sent to all customers including the customers whose resorts were not ready. Since this was an automated process, all customers received the demand notice of AAC on 12.12.2013. Having received complaints from the customers who own unconstructed resorts, the Opposite Party has withdrawn the demand of AAC from customers of unconstructed resorts until such time, the resort or the alternate accommodation at the promised destination is ready. Hence prays for dismissal of complaint.
III. In support of the above complaint the complainant Mr. M.Shahid Rehaman, filed affidavit evidence as CW1 and documents produced got marked Ex.C1 to C6. Opposite party not lead any evidence treated nil.
IV. In view of the above said facts, the points for arise for our consideration in the case are:
- Whether this forum has territorial jurisdiction to entertain the complaint?
- Whether the Complainant proved that the Opposite Party committed deficiency in service?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
We have considered the arguments submitted by the complainant and Opposite Party and also considered the materials that was placed before the Fora and answered the points are as follows:
Point No. (i) : Affirmative
Point No. (ii) and (iii) : Affirmative
Point No. (iv): As per the final order.
REASONS
V. POINTS No. (i): In order to prove the case the complainant filed evidence by way of affidavit and produced Ex.C1 as listed in the annexure. After perusal of the evidence considering the point No.1 the document Ex.C6 original passbook the entries reveals that the cheque has been drawn by the complainant in favour of the Opposite Party at Mangalore and the amount was deducted from the bank account of the complainant at Karnataka Bank Kudroli, Manglaore. Within the territorial jurisdiction of this forum Section 11 (2) (c) the cause of action, wholly or in part arises. (1991) I CPR 405 clearly stated that even though the sole or principal office is situated outside state limits a complaint can be filed against corporation carring on business within the territory of District forum. The learned counsel cited ruling reported by the state Forum of Meghalaya in FA 7/2007. Which also pointed that filing a complaint in the District Forum that covers the area where cause of action arise considering the above the point no.1 is affirmative.
POINTS NO. (ii and iii): It is undisputed fact that the documents Ex.C1 the complainant and Opposite Party entered an agreement on 10.2.1995 and opted Coorg to be a convenient location for travel and enjoy the holidays as Coorg is just four hours away for travel by road from Mangalore and paid consideration of Rs.39,000/. Which include the cost of stay in coorg Holiday resort and enjoy in amenities for one week per year and Rs.21,450/ towards the annual subscription towards the customers facility for the entire period of 99 years.
After lapse of nearly 20 years from the date of agreement failed to complete the project at Coorg. In the version of Opposite Party admitted that in the year 1996 Opposite Parties sale had come down substantially and started incurring huge losses the steps taken by Opposite Party not fructify for long time, hence the resort at Coorg remains un constructed this admission is sufficient to prove the case in our hand. Further the Opposite Party also agreed that not collect the Annual Amenity Charges (AAC) from the customer whose resorts were not ready. However, demand notice of AAC sent to all the customers whose resorts were not ready since it was an automated process. After the complaint from the customers who own unconstructed resorts, the Opposite Party has withdrawn the demand of AAC from customers of unconstructed resorts until at the promised destination is ready. Therefore which amounts to be deficiency in service of Opposite Party. Further the Opposite Party has been demanding from the complainant a sum of Rs.4,542/ towards AAC as per Ex.C5 for the year 2014. Which was no where contemplated under the aforesaid agreement entered in to the Opposite Party with the complainant. Thus whatever contention taken by the complainant have been admitted by the Opposite Party. The Opposite Party neither the interrogatories has been filed to the affidavit evidence filed by the complainant nor any evidence has been led to controvert the evidence of the complainant. Hence the evidence and documents are sufficient to prove the case of the complainant.
In view of the above discussions deficiency in service by Opposite Party is proved hence we are hereby directed to provide Holiday Resort developed by the Opposite Parties of the description has been agreed to be provided to the complainant either in Karavar or Ooty and not demand any extra charges other than the agreement dated 10.2.1995 and also pay Rs.15,000/ as compensation for hardship caused to the complainant and Rs.5,000/ as cost of the litigation expenses is justified. Hence answer No.2 and 3 is affirmative.
POINTS NO.(iv): In the result, accordingly we pass the following Order.
ORDER
The complaint is allowed. Opposite Party is provide Holiday Resort to the complainant either in Karavar or Ooty and not demand any extra charges other than the agreement dated 10.2.1995 and also pay Rs.15,000/(Rupees Fifteen thousand only) as compensation and Rs.5,000/(Rupees Five thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of receipt of this order
In case of failure to pay the above mentioned amount with in the stipulated time, the opposite party directed to pay interest at the rate of 6% per annum on the above said total amount from the date of legal notice till the date of payment.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 dictated by Member to the Stenographer typed by him, revised and pronounced in the open court on this the 15th March 2017)
MEMBER PRESIDENT
(LAVANYA M RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. M.Shahid Rehaman,
Documents marked on behalf of the Complainant:
Ex.C1: Original of the timeshare agreement dated 10.2.1995 entered into between the Opposite Party and the complainant.
Ex.C2: Office copy of the notice dated 19.3.2014 issued by the Advocate for the complainant to the Opposite Party.
Ex.C3: Acknowledgement of the Opposite Party for having received the notice document no.2 issued by counsel for the complainant.
Ex.C4: Returned Postal envelope sent by the counsel for the complainant to the address of the Opposite Party mentioned in the timeshare agreement.
Ex.C5: copy of the letter dated 24.10.2013 sent by the Opposite Party to the E-mail I.D of the complainant claiming Annual Amenity
Charges (AAC) for the year 2014.
Ex.C6: Original of the passbook pertaining to current account No.104 pertaining to the complainant.
Witnesses examined on behalf of the Opposite Party:
Nil
Documents marked on behalf of the Opposite Party:
Nil
Dated: 15.03.2017 MEMBER
