Complaint filed on: 05-12-2009 <br /> Disposed on: 28-06-2010<br /> <br /> BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, <br /> BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE-560052<br /> <br /> C.C. NO.2872/2009<br /> Dated of this 28th day of June 2010<br /> <br /> <br /> PRESENT<br /> <br /> Sri.D.Krishnappa, President<br /> Sri.Ganganarasaiah, Member<br /> Smt.Anita Shivakumar.K., Member<br /> <br /> Complainant: - Mr.Gopala Krishna.H.<br /> S/o. Hanumanthaiah,<br /> Aged about 33 years,<br /> Residing at No.16, 3rd Cross,<br /> 5th Main, New Extension, <br /> Byatarayanapura<br /> Bangalore-26 <br /> <br /> <br /> V/s <br /> <br /> <br /> Opposite party: - The Chairman, <br /> M/s. Country Club (I) Ltd, <br /> No.273, Defence colony, HAL II stage, Bangalore-560 038<br /> <br /> <br /> O R D E R<br /> <br /> Smt.Anita Shivakumar.K., Member<br /> <br /> Brief facts of the complaint filed by the complainant against the OP are that he agreed to become a cool member of the OP club by submitting application form on 18-5-2007. That he accordingly became a Mr. Cool Banyan Tree member bearing No. COOLBT 632 by paying membership fee of Rs.1,25,000/- in three installments i.e. on 13-6-2007, 31-7-2007, 31-8-2007 and 8-9-2007. OP had issued receipt for the same. With that the OP had offered to allot 4 sites at Tumkur project in coconut groove Vedic country Spa, Phase-II. OP had issued allotment letter dated 5-1-2007 allotting a site No. B 113 which is measuring 1633 Sq. ft and a complimentary free site bearing No.366 measuring 1089 Sq. ft. In the allotment letter OP also told complainant to pay Rs.20,000/- for each site to confirm the same. Earlier OP assured complainant that to allot 4 site but later OP allotted only 2.5 sites. Complainant is not interested in OP’s offer and he did not find any fairness in transaction of OP which was not excepted from OP. So complainant requested to refund the amount in letter dated 10-1-2008, 30-5-2008 and 9-10-2009 as the complainant is not interested in OP’s offer. Inspite of complainant’s request OP neither refunded his amount nor replied to the letter. Complainant submitted that OP with a dishonest intention is cheating the public by misrepresentation. Complainant approached the forum to seek direction to OP to refund of Rs.1,25,000/- with interest of 18% p.a. and Rs.2 lakhs compensation. <br /> <br /> 2. OP has appeared through their advocate and filed version. OP in his version has contended that the complaint is not maintainable and denied deficiency in their service. Ops have admitted that the complainant has become a member of that club called cool Banyan Tree member bearing No.COOLBT 632 by paying membership fee of Rs.1,25,000/- which is non-refundable membership fee. At the same time OP submitted in his objection that the complainant is a member of OP club since 2002 which is suppressed by the complainant and complainant was satisfied with the services of OP decided to upgrade his membership to cool scheme. It is further admitted that along with membership fee they have offered free sites as complement to the membership taken and was gift to the members. That the complainant did not get the sites registered. That they have offered to execute registered deeds and even issued a letter stating that within 30 days from receipt of the letter the same registration can be done. But complainant not shown interest to register it and thereby have prayed for dismissal of the complaint. <br /> <br /> 3. In the course of enquiry into the complaint, the complainant and OP has filed heir affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced the offer letter of the OP, copy of the receipt for having paid membership fee, copy of the request made before OP regarding refund of his amount. Counsels of both parties argued and perused the records. <br /> <br /> 4. On the above materials, following points for determination arise. <br /> 1. Whether the complainant proves that the OP has caused deficiency in their service in not allotting sites and in not providing other facilities as promised?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> 1. Point No.1: In the affirmative <br /> 2. Point No.2: See the final order <br /> <br /> REASONS:-<br /> 6. Answer on point No.1: As we have gone through the contention of both parties, there is no dispute between them, in this complainant having had become a cool. As we have gone through the contention of both parties, there is no dispute between them, in this complainant having had become a cool banyan tree member bearing No. COOLBT 632 by paying Rs.1,25,000/- as membership fee and that the Ops have offered 4 sites. But later occasions OP allotted only 2.5 sites through the letter dated 5-12-2007. Alongwith that OP told him to pay Rs.40,000/- for confirmation. As these facts are not disputed, the only dispute between the parties remains for decision is regarding non-allotment 4 sites as promised. <br /> <br /> 7. It is the grievance of the complainant that despite he approaching the OP several times OP did not allot as promised. In the offer letter OP dated 5-12-2007, had offered to a lot a site of 1633 Sq. ft i.e. at coconut grove banyan tree site bearing No.B113 and free extra site of 1089 Sq. ft i.e. totally 2722 Sq. ft. (2.5 sites). Complainant has asked in his prayer for refund of his membership fee on the ground that he cannot trust the OP and do not wish to continue his relationship with them. But the OP as stated above have not controverted the arguments of the counsel for the complainant and dissatisfaction he has expressed but OP is still ready to register the site. On considering all these facts placed before us, we find that there is nothing wrong in this complainant asking for the relief of refund of membership fee because of non response or due to lack sincerity on the OP that we find there is no genuinety in allotment also. Regarding utilization of club facilities and request made by complainant about upgrading from life membership to cool scheme it is not proved by the OP. <br /> <br /> 8. If we carefully look at this offer, the offers in our view appears to be an uncertain and non-existing because it is not clear where exactly that coconut grove banyan tree exists. In this way it is found that the OP has offered such types of free plots to attract the people to become their members by paying heavy amount. Similarly the offers made in this case also exhibit uncertainty. It is found that the complainant became a member on 7-9-2007. He has repeatedly stated the despite approaching the OP they did not allot plots. <br /> <br /> 9. OP has neither register the site as assured nor refunded his amount though complainant requested twice by submitting written requests. Even OP did not take any trouble to communicate to complainant. If the contention of the OP that they offered to allot the place as promised where exactly is really genuine and they had intension to allot sites they could have first allotted free plots to the complainant showing the plots numbers, location etc., and then tell the complainant to get documents registered by meeting registration expenditure but it is evident that the OP has not even come forward to prove that they have formed any layout or sites at all leave alone execution of documents. Through the developments that have taken place in this case, we are of the view, the claim of the opponents do not inspire confidence in us and also in the complainant. Therefore under those circumstances complainant opted for taking back his membership fee which cannot be denied. <br /> <br /> 10. The Ops have contended as membership fee is not refundable. But it is not their case that the complainant after becoming a member has used any sort of their service like club service and other facilities offered through their offering letter. Therefore when the complainant has absolutely not availed any service of the OP and OP has not exhibited their interest in keeping their promises and sincerity in showing some progress in the formation of layout and allotment of plots they cannot in the guise of non-refundability retain complainant’s money. Hence, complaint in our view is entitled for the relief has prayed for but not for the other compensation he has sought for. Therefore, from that date the complainant would become entitled for interest on the money to be refunded. With the result, we answer point no.1 in the affirmative and pass the following order:<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. OP is directed to refund Rs.1,25,000/- to the complainant with interest @ 18% per annum from the date of deposit till it is repaid. OP shall refund that amount within 45 days from the date of this order. <br /> <br /> Ops shall also pay cost of Rs.2,000/- to the complainant. <br /> <br /> Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 28th June 2010.<br /> <br /> <br /> Member Member President<br />