This case is coming for final hearing on 27.02.2015 in the presence of Sri M.P.Madhu, Advocate for the Complainant and Sri S.Mohana Rao, Advocate for 3^rd Opposite Party and Opposite Parties 1, 2 & 4 called absent and set exparte and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on

behalf of the Bench)

1. The case of the Complainant is that on 23.09.2011, the officials of the Opposite Party have made a telephone call to the complainant through one of their official by name Ratna and said that the complainant won some prizes of kitchenware and a holiday tour out of lottery coupons and asked him to come and receive prizes and again telephoned to the complainant on 26.09.2011 by repeating the same. Then the complainant on 26.09.2011 approached the Opposite Party along with his wife and then Opposite Party insisted him to sign on certain bond papers saying that the complainant would allotted a plot of approved ventures of Kodaikanal, Tamilnadu. Though the complainant expressed his unwillingness to take it but the Opposite Parties induced and obtained the signatures of the complainant and his wife by playing fraud against them on the same day and also insisted them to bring money immediately from his house. Thus the complainant paid Rs.20,000/- towards cash and also paid Rs.20,000/- through cheque bearing No.966941 dt.3.10.2011 for an amount of Rs.20,000/-. Thus he paid Rs.40,000/- in total and the same was acknowledged in the agreement by Opposite Party. The Complainant after 15 days by verifying the papers which are given to the complainant by the Opposite Party, the complainant came to know that there is no such clause about plot or venture at Kodaikanal. Then immediately he approached the Opposite Party for refund of amount of Rs.40,000/- by expressing his unwillingness to join as a member, then the Opposite Party promised the complainant to return the same within 7 days but they failed to do so. The complainant made several oral representations with Opposite Parties for refund of amount and also addressed a letter on 3.1.2012 to 4^th Opposite Party. But despite receipt of the said letter the 4^th Opposite Party neither gave any reply nor make any payment. Because of the acts of the Opposite Party, the complainant suffered lot of mental agony. Hence the Opposite Parties are liable to pay compensation of Rs.35,000/-. The complainant also issued Legal Notice on 25.02.2013 and the same was served to the 4^th Opposite Party on 27.02.2013. But the Opposite Parties failed to send any reply. These acts of the Opposite Party clearly shows the deficiency of service on its part. Hence, this complaint to direct the opposite parties

   a)     to refund an amount of Rs.40,000/- with 24% interest from 26.09.2011 till date of realisation; 

   b)     to pay Rs.35,000/- towards compensation besides costs of Rs.5,000/-.

2. On the other hand the 1^st, 2^nd & 4^th Opposite Parties are called absent and set exparte. The 3^rd Opposite Party filed its counter admitting about the telephone call by Opposite Parties on 23.09.2011 to the complainant through one of the official by name Ratna who said the complainant won some prizes of kitchenware and also again telephoned to the complainant on 26.09.2011 are admitted, but denied all other allegations mentioned in the complaint and pleaded that there is no deficiency of service on the part of the Opposite Party and the complaint is not maintainable. The complainant not paid the full instalments amount to the Opposite Parties as such there is no necessity to register the plot in his name. The complaint filed by the complainant for unlawful gain from the Opposite Parties and it is filed for the purpose to harass the Opposite Parties. There is no cause of action for filing the complaint. Hence the complaint is to be dismissed.

3. At the time of hearing the complainant filed Evidence Affidavit along with documents which are marked as Ex.A1 to A4. On the other hand the 3rd Opposite Party filed its counter and Evidence Affidavit. No documents are marked on behalf of 3^rd Opposite Party. The Complainant filed Written Arguments with petition and the same was allowed. Heard the complainant who reiterated his version and posted for Opposite Parties hearing, but as there is no representation by Opposite Party even after imposing costs, treated it heard and posted for Orders. The Opposite Party came up with an application to receive the Written Arguments on 10.03.2015 by giving notice to other side, then Forum received Written Arguments.

4. As per Ex.A1 i.e. the Purchase Agreement for club and vacation membership between the Complainant and the Opposite Parties on 26.09.2011 by paying Rs.40,000/- by the Complainant out of Rs.1,40,000/- is evidenced. Ex.A2 is the letter issued by the Complainant dt.3.1.2012 regarding request for refund of amount which was paid by him. Ex.A3 is the Legal Notice dt. 25.02.2013 issued by the Complainant to 4^th Opposite Party and Ex.A4 is the Acknowledgement. The version of the Complainant is that believing the words of the Opposite Party regarding allotment of plot and to enjoy Holidays, he paid Rs.40,000/- and also entered into agreement as the Opposite Party promised about the Holiday Package. The Complainant stated that the Opposite Parties made false representation with a fraudulent intention at the time of signing the agreement that they will allot a plot in approved ventures at Kodaikanal, Tamilnadu. After that he came to know that there was no such clause in the agreement then he approached the Opposite Party for refund of amount paid by him but there was no positive response, the Complainant also issued Legal Notice.

5. The Opposite Parties pleased that the complainant is a defaulter, he failed to pay the entire amount, hence there is no necessity to register the plot in his name. But it is to be noted that there is no clause in Ex.A1 regarding the allotment of plot. As per that document, the Opposite Party failed to provide holiday-inn to the Complainant’s family, moreover, the Opposite Party did not issue any demand notice to the Complainant regarding the balance amount payable by the Complainant or to forfeit the amount paid by him. Even after receipt of Legal Notice and on receipt of Notice from Forum, there was no response by 4^th Opposite Party. The 1^st & 2^nd Opposite Party received the Notices from the Forum but called absent and set exparte. The 3^rd Opposite Party took a plea that the complainant is a defaulter. Hence there is no cause of action and no deficiency in service. But in our viewmis-representations made by Opposite Parties regarding the allotment of plot and they receive the amount from the public with a fraudulent intention and thus cheating public at large is deficiency in service itself. Hence all the Opposite Parties are liable to refund the amount of Rs.40,000/- to the complainant from date of 2^nd payment by the complainant i.e. 03.10.2011 till date of realization.

6. It is true to say that because of the acts of the Opposite Party, the complainant and his wife suffered a lot of mental agony besides financial hardship. Moreover, the complainant is under the impression that he was going to get a plot in the year 2011 itself. But he deprived of having a own plot even after payment made by him and he has to invest huge amount to owning a house plot now-a-days i.e. after 4 years, where there is severe hike in the real-estate. Hence, the complainant can entitle compensation of Rs.5,000/- which would be just and proper besides costs. Accordingly this point is answered.

7. In the result the complaint is allowed directing all the Opposite Parties to pay Rs.40,000/- with 9% interest from 03.10.2011 within 3 months, failing which to pay the same with 12% interest p.a. till date of realization. The Opposite Parties are further directed to pay Rs.5,000/- towards compensation besides costs of Rs.1,500/-.

    

   Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 10^th day of March, 2015.

    

       Sd/-                                                                 Sd/-

   Member                                                     President (FAC)

                                                           District Consumer Forum-I 

                                                                           Visakhapatnam

    

   APPENDIX OF EVIDENCE

    

   Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

- NIL -

    Sd/-                                                                 Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                Visakhapatnam

//GLR//