BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 6^th day of May 2016

Filed on : 20-01-2014

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.29/2014

Between

Jay Thomas, : Complainant
1-C Amber Park (By Adv.Nisha John, F-3, Empire

Cannon Shed Road, Building, Old Railway Station

Kochi- 682 011 Road, Kochi- 682 018)

And

1.Sterling Holiday Resorts (India) Ltd. : Opposite parties

Regd. Office No. 7 Citi Towers, 3^rd (By Adv. K. Jgadeesh,,
Cross street, Kasturba Nagar, Adayar, “Narayaneeyam”, Chittoor road

Chennai- 600 020, Tamil Nadu, Cochin- 682 011)
Rep. by its Managing Director

2. Sterling Holiday Resorts (India) Ltd.

Room No. 122, DD Vyapara Bhawan,

K.P. Vallon Road, Kadavanthra,

Kochi-682 020.,

Rep. by its Assistant Manager.

O R D E R

Beena Kumari V.K., Member

A brief statement of the facts of this complaint is a as follows:

The complainant Shri. Joy Thomas is a time share holder of his 1^st opposite party sterling Holiday Resorts (India) Pvt. Ltd. and the membership ID of the complainant is 77575. The membership is valid for a Timeshare period of 99 years from 1997 to 2095. As per the time share certificate the complainant was allotted a twin apartment in GOA Chapora Fort in week number 43 (26^th October to 1^st November). At the time of agreement the complainant was made to believe that the resort is under construction and the resort would be completed in no time. The time share agreement also provided for exclusive possession of the resort and for utilization of stay facilities in notified resorts also. The agreement also stipulated that a time share holder will be entitled for the same only subject to availability. All time share holders having allotted resorts were paying Annual Amenity charges (AAC) for the last several years, which the complainant was not made to pay AAC due to non-completion of the holiday Resort. A member who owns only allotted Resort and not the notified Resorts, is liable to pay AAC towards maintenance charges of the allotted Resort and for its upkeep. The 1^st opposite party continued informing the complainant that the allotted Resort will be completed soon. The complainant on several occasions tried to get a booking in other functional Resorts of the 1^st opposite party in Goa. Since the 1^st opposite party had informed him that he is entitled to enjoy the facilities in the allotted Resort and in other resorts subject to availability. Facts being so the complainant contacted the 2^nd opposite party in September 2013 for enquiring about the availability of resort in Munnar. He was informed that the facility at Munnar Resort can not be enjoyed till the payment of the dues towards AAC for 2013 amounting to Rs. 4,326/-. The complainant then asked the 2^nd opposite party whether the construction work on his allotted resort was over. The 2^nd opposite party informed the complainant that the GOA CHAPORA Fort resort is not in existence and that the said resort was already sold off. The complainant was shocked to know that the 1^st opposite party was demanding AAC for a non-existing or sold out Resort. The complainant alleged that the above act amounted to deficiency in service on the part of the opposite parties. Therefore the complainant is entitled to liquidated damages as stipulated in clause 4.2 of the Time Share Agreement at the rate of 18% p.a. on the amount paid by a time share holder and the opposite party is liable to pay the said amount within 15 days from the date of receipt of the notice from the time share holder in the event of delay in constructing the allotted Resort. The complainant made a request to the 1^st opposite party to allot him another Resort if the Resort promised to him is sold off but there was no positive reply from the 1^st opposite party. Subsequent several mails of the complainant met with the same fate. Till date there have been no efforts on the part of the opposite parties to refund the amount paid by the complainant with interest @ 18% p. a. or to allot another resort or to waive the AAC on the non-existing Resort. In the circumstances the complainant filed this complaint seeking orders of this Forum against the opposite parties to refund the amount of Rs. 1,05,000/- along with interest and to pay compensation of Rs. 15,00,000/- for the deficiency in service and it for the unfair trade practised by the opposite parties.

2.Notice was issued from this Forum and the opposite parties filed their version in response to the above notice.

3. Version of the opposite parties.

The opposite parties in their version submitted that sterling Holiday Resorts India Ltd is a public limited company registered under the provisions of companies Act 1956 having its registered office at No. 7, 3^rd cross road, Kasturbai Nagar, Adayar, Chennai, that the opposite party company still holds land at Goa Chapora and due to economic recession the opposite company was not able to invest its funds on constructing resorts at Goa, that the 1^st opposite party is having two tie up resorts at Goa. 1^st opposite party is having its own resort since 1996 and leased resort since 2008 which is still in existence. The 1^st opposite party submitted that though it has not constructed a resort of its own at Goa, it possessed necessary approvals to construct the resort and it is waiting for its financial stability to invest its funds on construction. The opposite parties have two resorts namely “The club Estadia” and the Villagio Inn” operating at Goa at present. 1^st opposite party denied the allegation of the complainant that the 1^st opposite party is resorting to unfair trade practice. The 1^st opposite party denied the allegation made by the complainant in para 7 of the complaint. It is further submitted by the 1^st opposite party that as per clause 4.2 of the agreement, in the event of failure on the party of the opposite party company to construct the resort or to provide an accommodation with equivalent facilities as promised, then the opposite party would pay interest at the rate of 18% p.a on the amount paid by the time share holder and in this case alternate accommodation was provided at the promised location of Goa. Therefore the opposite parties are not liable to pay any interest to the complainant. It is prayed that the complaint may be dismissed with costs to the opposite parties.

4. Evidence in this case consisted of the oral testimony of PW1, the complainant and the documentary evidences marked as Exbt. A1 to A6 on the side of the complainant and the documentary evidence marked as Exbt. B1 on the side of the opposite parties.

5. Heard the counsel for both parties.

6.The issues emanated in this case are as follows:

(i) Whether the complainant has proved deficiency in service on the part of the opposite parties?

(ii) Whether the complainant is entitled to get refund of the amount paid to 2^nd opposite party towards Time share membership in the resorts of the 1^st opposite party along with interest thereon.

(iii) Whether the opposite parties are liable to pay compensation for the service deficiency or unfair trade practice if any?

(iv) Whether the opposite parties are liable to pay costs of proceedings to the complainant?

7. Issue No. (I) The complainant purchased Time-share membership of 1^st opposite party for a consideration of Rs. 1,05,000/- for allotment of twin apartment in Goa Chapora Fort. The amount was paid in full as evidenced by Ext. A6 Acknowledgment slip cum terms and conditions of Sterling Resorts dated 31.01.1996. The membership period was for 99 years which extended for the period from the year 1997 to 2095. The Ext. A1 membership certificate would go to show that as per clause 1.1 the complainant has the right to stay in twin-apartment in the allotted holiday resort Goa Chapora Fort and to enjoy amenities provided therein during the allotted holiday week No. 43 ie., from 26/10 to 01/11. The clause 3.3 (g) printed on the reverse page of Ext. A1 certificate of membership says that the Time share holder shall be entitled to exclusive possession of the allotted Resort only for the allotted week as of right but the employment of other resorts in other plans would be subject to availability as those resorts belong to other persons , the complainant submitted that the allotted resort was not made available to the complainant even after 17 years. Thereby causing legal injury to the complainant while so the Assistant Manager of the 2^nd opposite party sterling Holiday Resorts India Ltd., a branch office at Kadavanthra in Ernakulam District, informed the complainant that the entire resort property at Chapora Fort, in Goa was sold off. Till that time the 1^st opposite party was giving assurances to the complainant that his allotted resort is nearing completion when asked about the non-construction of the resort, the DW1 the marketing manager of the 2^nd opposite party deposed before this Forum that “it is an organizational decision”. Moreover the 1^st opposite party in their version stated that due to financial crisis it could not invest its funds on constructing resort in Goa and the marketing manager of the 2^nd opposite party DW1, when cross-examined on the point regarding existence of land of 4.5 Acres in Goa, deposed “I don't know”. Thus, it is evident that the twin apartment allotted to the complainant in Goa Chopara Fort resort is not even in existence and we have no reason to reject the contention of the complainant that property in Goa Chapora Fort resort was sold off for Rs. 8,02,179/- especially in the absence of any evidence on the part of the opposite parties. The above acts of the opposite parties namely non-construction of allotted resort at Goa and the sale of the landed property in Goa Chapora Fort amounted not only to deficiency in service but also to unfair trade practice on the part of the opposite parties. Thus the complainant succeeded in providing deficiency in service and unfair trade practice on the part of the opposite parties.

8. Issue Nos. (ii) and (iii)

The complainant came to know from the 2^nd opposite party branch office that the allotted resort Goa Chapora property was ' sold off ' by the 1^st opposite party for Rs. 8,02,179/- for a period of 25 years. Even then the complainant was asked to pay Annual Amenities charges (AAC) we find that the complainant is justified in not paying the Annual Amenities charges in respect of a non-existence resort in Goa Chapora Fort Property or a non existent Goa Property itself. We also find that even after the elapse of 17 years the complainant is not provided with the facilities in the allotted resort in Goa. It is also found that the complainant availed the facilities in resorts other that the allotted resort in Goa Chapora Fort property. It is submitted by the complainant that at the time of purchase of Time share, the opposite parties had one resort in Goa by name 'Goa Vagator'. This resort has no twin-apartment. When DW1 the witness of the 2^nd opposite party was asked 'Do you still own the vagator Resort, he answered 'I am not aware'. The opposite parties contended that the complainant had availed and enjoyed the benefit of Time share for long sixteen years at various hotels of opposite parties as evidenced by Ext. B1 and that there is no deficiency in service on their part. We are not inclined to accept the above contention since the complainant had made separate payments for such stays and such equivalent facilities were provided by the opposite parties in accordance with clause 4-1 of Ext. A1 membership certificate cum terms and conditions. Due non-completion of allotted resort, under clause 4.2 & 4.3 of Ext. A1, the opposite party company is liable to pay liquidated damages at the rate of 18% p.a. on the amount paid by the Time-share holder. Therefore we find that the complainant is entitled to get refund of the full amount paid of Rs.1,05,000/- along with interest @18% p.a. thereon from 31.01.1996 the date of payment till realization. The complainant is also entitled to get compensation for the deficient service and unfair trade practice practiced by the opposite parties.

9. Issue No. (iv)

The complainant had issued a notice dated 09.12.2013 in Ext. A3 demanding liquidated damages but the opposite parties did not pay the same on untenable reasons. Had the opposite parties paid the genuine demand made by the complainant, this complaint would not have been filed by the complainant. He is unnecessarily dragged to this Forum by the opposite parties. Hence we find that the opposite parties are liable to pay the costs of the proceedings to the complainant.

10. In the result, the complainant is allowed and we direct as follows.

1. 1. The opposite parties shall refund an amount of Rs. 1,05,000/- along with interest @18% thereon from the date of payment 89i.e., from 31.01.1996 till the date of realization.

ii. The opposite parties shall also pay Rs. 3,00,000/- towards compensation for the deficient service, unfair trade practice practiced by the opposite parties which inclusive of the costs of the proceedings.

The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 06^th day of May 2016.

Sd/-

Beena Kumari V.K., Member.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

APPENDIX

Complainants Exhibits

Exbt. A1 : Copy of Certificate of membership

A2 : Copy of letter dt 31.11.2013

A3 : Copy of letter dt 09.12.2013

A4 : Copy of letter dt 01.10.2014

A5 : Copy of investment plans

A6 : Copy of details of payment details

Opposite party's Exhibits:

Exbt. B1 : Copy of list of holidays availed

Depositions:

PW1 : Jay Thomas

DW1 : Shivakumar G.

Copy of order despatched on :

By Post: By Hand: