BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   15^th DAY OF SEPTEMBER 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to refund amount of Rs.1,25,000/-, to pay Rs.3,00,000/- towards compensation for physical strain and mental agony suffered by complainant and to pay sum of Rs.2,000/- towards cost of the proceedings.

2.      The brief facts of complaint is as under:

Complainant submitted that he had purchased Kool Card Membership from OP for a consideration of Rs.1,25,000/- by way of cash and through credit card on 13.12.2007 and 17.12.2007.  The complainant submitted that at the time of obtaining the Kool Card Membership, OPs have offered two free sites and complimentary 2 nights and 3 days free stay, food, pickup and drop at Goa or Kerala with air ticket validity for two years.  The complainant submitted that the offer given by the OPs have been accepted by the complainant.  Accordingly OPs have issued a letter dated 09.02.2008 mentioning that plots No.234, 235, 236, 237 in phase 2, Vedic Spa.

The complainant further submitted that the OPs have not given complimentary for 2 nights and 3 days free stay.  After repeated requests the OPs have denied to give a complimentary offer with regard to 2 nights and 3 days free stay.  Further the complainant submitted that the OPs have also denied to give allotted site No.234, 235, 236, 237 but site No.213 is allotted on 16.05.2008.  Thereafter the OPs have asked to pay Rs.20,000/- towards administrative charges which was higher than the value of the plot itself.  Moreover this was not mentioned at the time of taking the membership.

The complainant further submitted that in the year 2010 the complainant visited the plot and the complainant noticed that there is no any developments in the OPs property.  Complainant felt deficiency in service on the part of OPs.  Complainant issued legal notice to OPs in December 2012 to refund of the amount paid with compensation.  Hence the complainant filed this complaint.

3. In response to the notice issued, OPs appeared through advocate and filed their version in brief as under:

OPs introduced a scheme called Mr.Cool Card members.  The member of the club under the said scheme would get the following facilities.

1. Country Club Cool Life Membership.

2. Complementary Plot.

3. Holiday Package of 2 nights 3 days stay in Bandipur, Bush Betta.

4. 3 days 2 nights in country club De-Goa with one way Air Ticket of couple and even food and pick up and drop is taken care.

5. Access to all the clubs in India and other facilities.

6. Non refundable membership fee in this scheme is Rs.1,25,000/-.

Further the OPs submitted that the complainant having learnt about the facilities and benefits provided under the said scheme applied for membership and he had made a payment of Rs.1,25,000/- towards membership fees through various cheques.  Thereafter the OPs issued a membership card bearing No.KOOL 363.  OPs further submitted that in the membership application form, allotment letter and welcome letter, the OP had specifically informed the complainant that the complimentary plot allotted would be registered only on payment of the full membership fee, registration and maintenance charges.  Further the OPs have informed the complainant to deposit a sum of Rs.20,000/- towards registration charges in respect of complimentary plot along with other charges for maintenance etc.  The OPs further submitted OPs have purchased several lands in their favour and subsequently they would execute the necessary gift deeds concerning the free complimentary plot in favour of eligible members.  The complainant had paid Rs.1,25,000/- but he has not paid Rs.20,000/- towards registration in respect of complimentary site.  If the complainant is pay the registration charges, the OPs are ready to execute the gift deed in respect of complimentary plot in favour of the complainant situated at Vedic Spa, 7^th Extension, Pandiparthy Village, Ananthapur District.  OPs further submitted that OPs always ready to register the plot in his name subsequent to depositing balance registration charges by the complainant.  OP has fulfill its part of obligation by providing all service to the complainant.

OPs further submitted that the complainant has become member of OPs club solely to enjoy the facilities and resort which facilities he has to avail by visiting the club and resorts.  Further the plot allotted under the Cool scheme is a complimentary gift to the membership and member fee is collected for providing the facilities.  No consideration has been collected for allotment of the complimentary plot and the member has to bear only the registration and maintenance charges, which was made known to the membership application itself.  The complainant has not paid any consideration for the complimentary plot and his grievance in the complaint being not allotted the plot, he does not come under the meaning of Consumer Protection Act.

OPs further submitted that the complainant has paid for getting the membership of the OPs club and the facilities provided has been availed by him.  Allotment of complimentary plot was an additional attraction for taking up membership but not an intrinsic part of the contract for which the complainant made payment.  Thus insofar as the allotment of complimentary plot is concerned, it cannot be said that the complainant was a consumer.  Hence, he has no right to get redressal under the Consumer Protection Act, 1986.  The complainant has not paid any consideration in relation to the complimentary plot offered by the OPs and the said offer is in the nature of additional benefit accruing from the membership and totally unrelated to the consideration paid by complainant.  Further the offer of complimentary plot to the members under the Cool Club Scheme is totally separate and has nothing to do with the fees paid for membership.  Hence the complainant being a consumer in relation to the membership of the OPs but not in relation to additional benefit i.e., complimentary plot, he is not a consumer within the meaning of Sec.2(d) of the C.P Act, 1986.

OPs further submitted that since the complainant has availed all the benefits provided to its members by the OPs and has no grievances whatsoever in that regard and the grievance being only regarding the complimentary plot, which is not an intrinsic part of the contract and no consideration was paid for that, he does not become a consumer under the Act and hence has no locus standi to file complaint.  Under clause.48 of the terms and conditions this Forum has no jurisdiction only Secunderabad and Hyderabad have jurisdiction to entertain this complaint.  Further under Clause.8 of the terms and conditions in case the full amount of membership fee is not remitted within 45 days of allotment of membership, then the money remitted till then would be forfeited by the club and membership allotted if any would be cancelled.  There is no any deficiency of service on the part of OPs.  Hence OPs prayed for dismissal of the complaint.

4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPs have produced certain documents.  Both parties have filed their written arguments.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

7. Point No.1:  On perusal of the documents produced by both the parties, it is an admitted fact that, the complainant paid sum of Rs.1,25,000/- and obtained Kool Card Membership from OPs.  It is also admitted fact that the OPs have admitted to allot a complimentary plot and holiday package of 2 nights 3 days stay in Goa with one way Air ticket of couple and even food, pick up and drop facility.

8. The complainant alleged that at the time of becoming member, OP had offered to provide plot and complimentary holiday package but OPs have not provided complimentary holiday package an either has given a free complimentary plot to the complainant.

9. Per contra OPs submitted that OPs are ready to register a plot in favour of complainant if complainant pay the registration cost of Rs.20,000/-.  After several demands made by the OPs, the complainant has not paid the amount to the OPs.  Hence OPs have not register the site in favour of the complainant.

10. On perusal of the documents produced by the complainant, the OPs have send letter of allotment on 16.05.2008 which reads here as under:

Further, we request you to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards site confirmation administrative charges which includes at the time of registration the stamp Paper fees, registration expenses and along with maintenance charges for a period of 30 months.  Kindly send a crossed DD/Cheque in favour of “Country Condos Limited” payable at Bangalore.  Please send the same to the address given below.

Country Condos Limited

No.478, Maha Padma, Ist Main,

Ist Stage, Indiranagar,

Bangalore-560 038.

Please note that, the Letter of Allotment is valid for a period of 30 days from the date of this letter.  Any delay in making the aforesaid charges within the said period, the complimentary plot number allotted will be changed to a different phase.  On receipt of your payment, we would formally inform you on the registration process and the further course of action.

11. As per the said letter, it is clear that, the OPs have requested to pay Rs.20,000/- towards the site confirmation, administrative charges the same is payable within a period of 30 days from the date of issuance of letter.  If the complainant failed to pay within 30 days from the date of issuance of letter the complimentary plot No.213 will be changed to different phase.  The said letter has been served to the complainant but the complainant was failed to pay the said amount within 30 days of issuance of notice.  However the OPs in their affidavit evidence mentioned that if complainant is paid the said amount the OPs will ready to execute the sale deed in favour of the complainant, the plot situated at Vedic Spa, 7^th Extension, Pandiparthy Village, Ananthapur District.  Admittedly the complainant has not paid the amount of Rs.20,000/- towards the OP for registration of the plot.  The complainant alleged that the OPs have not formed the site and no infrastructure in the said place.  Moreover Rs.20,000/- claimed by the OPs towards administrative charges is more than the value of the plot.  Hence complainant sought for refund of the amount.  The said contention of the complainant does not hold water in view of the judgment passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in a case between Country Club Ltd., And Anr versus K.Dhamodhar 2012(2) CPR 452 (NC), wherein it is held that:

“... When complainant has not performed his part of obligation under allotment letter then OP-Petitioner is not obliged to execute sale deed-State Commission has gone beyond its jurisdiction to grant refund of amount along with 18% interest – Impugned order set aside – Petitioner directed to execute conveyance deed in respect of plot in favour of complainant on payment of Rs.15,000/- by complainant”.

12. Further the next contention of the complainant is that, the OPs have not provided complimentary holiday package for two nights and three days, free stay, food and one side Air ticket to Goa.  OPs submitted that the said scheme which have to be voluntarily availed by the complainant by visiting the clubs or by placing request for free trips with the customer care department or online booking.  The said services cannot be provided at the door steps of the complainant.  The complainant has not produced any document to show that he has requested OP to avail free holiday package.  Without any documentary evidence, mere oral allegation of the complainant cannot be acceptable.

13. On the above discussions made hitherto we do not find any deficiency in service on the part of OPs, since the complainant had failed to produce any documentary to show that they have not provided two nights and three days free stay in Goa.  Further the OPs themselves stated that if the complainant paid Rs.20,000/- as an administrative charges the OPs are ready to execute the sale deed in favour of the complainant.  The complainant has not paid the said amount to the OPs.    

14. Thus looking from any angle, we are of the opinion that the complainant has miserably failed to prove any deficiency on the part of OPs.  The complainant has not placed any material on record to substantiate his allegation that the OPs have acted in contravention of the terms and conditions of club membership.  The complainant having agreed to the terms and conditions of club membership, now cannot demand refund of the fees paid by him.  Therefore, we are of the opinion that the complaint is liable to be dismissed.  Accordingly, we answer the point No.1 in negative.

15. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Commission on this 15^th day of September 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Teny Thomas.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs by way of affidavit:

Sri.Venkatesh Varma.

Documents produced on behalf of Opposite Party.

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