O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> These complaints are filed by different complainants against the same Op with similar grievance and allegations for the similar relief as such in order to avoid repetition of facts are taken together for disposal by a common order.<br /> <br /> The complainant of the first complaint and the second complaint are herein referred to as the first complainant and second complainant for sake of convenience.<br /> <br /> The grievance of the first complainant in brief is that he became a member of the Op club on payment of Rs.1,51,000/- on 01/02/2007. The second Op issued a letter of allotment, allotting site No.448 situated at Coconut Grove, Phase No.16 vide allotment letter dated 07/03/2007. Despite payment of Rs.1,15,000/- and allotment letter Ops have not allotted him site by final allotment. Op told him that he will call on 16/01/2009 but have failed to initiate further, and therefore has prayed for refund of his membership fee. Where as the second complainant has contended to had become a member of Ops club on their men approaching him promising to provide him a plot at Coconut Grove Banayan tree by paying membership fee of Rs.1,25,000/- on 31/10/2007 and on 01/12/2007. The Ops also issued a letter on 18/11/2007 giving membership of the club further extending temporary privilege card and after issue of letter dated 08/11/2007, the Op has remained silent and despite approaching them have not allotted the plot on the contrary demanded and received subscription fee of Rs.3,666/- and despite issue of a legal notice to the Ops they have neither replied nor acted upon as promised and therefore has prayed for direction to the Ops to refund his membership fee and to award compensation and costs. <br /> <br /> Ops have appeared through their advocate and filed version which is common, in which have contended that the complaints have taken membership with profit motive. Therefore, they are not consumers and the allegations are of frivolous. That the complainants have became members for enjoying the club facilities and not for getting complimentary sites. That the complainants have filed their complaints by suppressing the material fact, that the complimentary site has already been allotted in their favour. The only grievance of the complainant is regarding non allotment of complimentary site. Therefore the complaints for directing the Ops to refund of membership fee is contrary to the consumer protection act therefore cannot be refunded. There are several phases in Coconut Grove and Vedic Spa/Banyan tree, several phases of Coconut grove located in different parts of Tumkur District and the same is indicated as Coconut Grove. There are several phases of Vedic Spa Banyan Tree located near Hindupur Penagonda where the sites are located. Ops have purchased the property. Membership fee is not refundable and sites are ready for allotment. Therefore, the complainants who have enjoyed facilities of the club and entitled for several facilities are not entitled for refund of membership fee and therefore denying other allegations have prayed for dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaints, the complainants and one Alla Subba Reddy in the first complaint and Vijaya D.P in the second complaint for the Ops have filed their affidavit evidence and reproduced what they have stated in their respective complaints and version. The first complainant’s along with the complaint has produced copies of receipt for having paid membership fee, copy of letter of allotment, copy of letter of the Op offering complimentary plots and other facilities. The second complainant has also produced similar documents. Ops along with the written arguments have filed copy of letter of Dy. Commissioner of Tumkur permitting conversion of 15.15 acres of land. In the second complaint, Ops have produced copy of membership application of the complainant and copy of order of Revenue Divisional Officer, Penagonda ordering conversion of certain land. <br /> <br /> We have heard the counsel for the first complainant, written arguments filed by the counsel for the second complainant, written arguments filed by the counsel for the Ops in the first complaint besides hearing both sides in brief and perused the records.<br /> <br /> On the above contentions, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op has caused deficiency in his service in not allotting them the complimentary site as promised.<br /> 2. To what relief the complainants are entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : See the final order<br /> Answer on point No.1: On considering the rival contentions of the parties, it is not in dispute that Ops had offered membership of their club with complimentary residential house site. Accordingly, the first complainant became a member and paid Rs.1,15,000/- towards membership fee and the second complainant paid Rs.1,25,000/- and became a member in the year 2007. Then the Ops on 07/03/2007 issued a letter of allotment to the first complainant congratulating him having become Mr. Cool Member of the Club and issued an allotment letter allotting a complimentary free site bearing No.449 measuring 1089 sq. ft at Coconut Grove, Phase 16 requesting complainant to pay Rs.15,000/- towards registration expenditure. In the second complaint Ops issued a letter dated 08/11/2008 congratulating him for cool membership. In this letter, the Ops have admitted that membership fee was Rs.01,25,000/-, that the complainant had paid Rs.75,000/- and was to pay balance amount Rs.50,000/- and that complimentary plot in Coconut Grove Banyan Tree will be allotted on payment of full membership fee. This complainant has produced receipts for having paid Rs.50,000/- on 04/12/2007 and another Rs.50,000/- on 31/10/2007, Rs.25,000/- on 31/10/2007 and subscription fee of Rs.3,667/- on 22/12/2008. The Op in the second complaint has not denied the entire membership fee paid by the second complainant. But the Ops till date have not allotted any site to this second complainant. <br /> <br /> It is grievance of the complainants that the Ops after receipt of the full membership fee have failed to make final allotment of sites and thereby have caused deficiency in their service and therefore they have prayed for refund of their money. The counsel for the complainants in the course of arguments submitted that the Opponents after receipt of membership fee, despite complainant’s contacting them not at all responded for allotment of site or to prove any progress made in the formation of sites and thereby submitted that Ops have by misguiding, the complainants are sitting on the monies paid by these complainants and therefore have prayed for the relief as prayed for whereas the counsel representing the Ops argued that the complainants became a members of the club, but had not become members for plots that the complainants have utilized service of the Ops and that the Ops have got lands proposed for layout converted for residential purpose from Revenue Divisional Officer, Penagonda and Deputy Commissioner of Tumkur and that the Ops are ready to allot sites and membership fee cannot be refunded. The counsel for the Ops though argued that the complainants have availed service of the Op but has not spelled out what nature of the service that the complainants have availed from him. It is not the case of the Ops that the complainants after becoming members of their club availed any club service at any time till date. If so they could have produced some documents or proof to show that the complainants had availed club facilities. The Ops it is found after receipt of monies from these complainants have not at all responded to the claim of the complainants by showing any progress in formation of layouts, sites and allotment of sites. Further, the formation of layout by the Ops found to be not certain. Because in the first complaint, the letter of allotment allowing site No.449 at Coconut Grove, Phase No.16 was issued. But nobody knows where that location is situated at which village it is situated and on which property, the layout is formed and nothing can be gathered from this letter. Even thereafter, after allotment of site during March 2007 in favour of the complainant, the Ops did not bother to inform the complainant about formation of any layout and calling upon the complainant to get the registration done. This complainant after waiting several years then approached the Op Manager requesting them to refund his membership fee. The manager of the Ops after receipt of this request for refund of membership fee written on this letter that they will call on the complainant on 16/08/2009 but it did not respond. Similarly, in the second complaint, the Ops shown to had allotted site No.366 at Phase-A again it is not clear about the location of layout, the village or city where it is situated, survey number or any other particulars of these Ops layout. Therefore, the Ops as it is explicit taking undue advantage of the complainant’s zeal for possessing a site show their layout in the sky and made them to commit by sparing their hard earned money. The second complainant even got issued a legal notice on 03/07/2009 demanding refund of his membership fee highlighting the inaction of the Ops in not providing site. The Ops have not bothered either to reply to that notice or to respond to that notice as requested by the second complainant.<br /> <br /> The counsel for the Ops in the course of arguments filed a copy of Revenue Divisional Officer, Penagonda for having accorded permission for conversion of certain lands to non-residential purpose at some villages at Pendagonda in Andrapradesh this is the order dated 07/12/2007. He has also produced a copy of the order of the Dy. Commissioner of Tumkur dated 28/11/2008 ordering conversion of 15 acres 15 guntas of land at a village called Ratnasandra in Tumkur District, this conversion order is of 20/11/2008. But thereafter, it is not known whether the Ops have got the approval of concerned authorities for formation of layout, approval of layout plan and their availability for allotment. Nothing is submitted before this forum to find out the earnestness or bonafides of the Opponents in their offer to provide sites now to the complainants. If the plots were available for allotment why did they not respond to the representations of the first complainant for refund of money and the legal notice of the second complainant for the same relief are the questions that the Ops are to answer. Even otherwise the Ops could have proved before this forum the availability of the sites for allotment knows their sincerity in this regard. When the complainants become members absolutely the Ops it looks did not even had land in their hands. We, therefore on considering all these materials find no hesitation in holding that the Opponents after receipt of money have failed to performing part of their role in allotting plots to the complainants or even to prove that the complainants have availed service and therefore they are not entitle for refund of membership fee. Here we should bear in mind that the complainants became members not for enjoying the club inner facilities but for plots. If the complainants availed club is inner facilities the Opponents could have shown it but have failed to prove availment of any service of the Op on the payment of their hard earned money.<br /> <br /> The learned counsel representing the Ops in the course of his arguments submitted if the Ops are asked for refund of membership fee then it is difficult for Ops to run their club. This forum after considering, that the Ops after receipt of monies have not taken any earnest steps to provide complimentary plots found deficient in the service of Ops and therefore told the counsel for the opponents if the Ops when are not able to keep up their promise, they are bound to refund the hard earned money of the consumers and in such a event if the Op cannot run the club they are at liberty to shut down. With this, we answer point No.1 in the affirmative and pass the following order. <br /> <br /> O R D E R<br /> <br /> Complaints are allowed.<br /> <br /> Ops are held jointly and severally liable to refund Rs.1,15,000/- to the first complainant and Rs.1,25,000/- to the second complainant with interest @ 15% p.a from the date of their respective payments till those amounts are repaid. Ops shall also refund Rs.3,666/-, the subscription fee to the second complainant with interest @ 15% p.a from the date of its payment till it is repaid. <br /> <br /> Ops shall pay the above amounts with interest within 60 days from the date of this order.<br /> <br /> Ops shall pay cost of Rs.3,000/- each to each of this complainants.<br /> <br /> The original order shall be kept in complaint No:2324/09 and the copies of the same shall be kept in the remaining complaint.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 15th May 2010.<br /> <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br />