COMPLAINT FILED ON: 08.12.2010
DISPOSED ON: 25.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
25th JUNE 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NOs. 2989/2010
COMPLAINANT OPPOSITE PARTY | N.M.Rathnakar, S/o Manjappa Gowda, Aged about 52 years, No.38, Balakrishna Nilaya, 1st Main Road, 11th Cross, S.R.Nagar, Bangalore. Advocate: T.Mohandas Shetty. V/s. The Country Club (India) Limited, No.675, Old Syndicate Bank Road, 1st Stage, Indiranagar, Bangalore – 560 038. Rep: its Director. Advocate: M/s. Sathya & Co. |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This complaint is filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant, seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.1,65,000/- paid towards membership fees along with interest at the rate of 21% p.a. and compensation of Rs.1lakh on the allegations of deficiency in service.
2. The brief averments made in the complaint are as follows.
Lured away with the offers made by O.P. the complainant became the member of O.P. Club. O.P. accepted the membership of the complainant and issued cool card membership bearing No.Kool-177. Complainant paid a sum of Rs.50,000/- on 3-12-2007 and Rs.75,000/- on 26-12-2007. Complainant paid Rs.1,25,000/-. The receipts issued by O.P. are produced. O.P. issued allotment letter to the complainant. Thereafter O.P. informed the complainant that if he become the member of CK 27 by paying Rs.40,000/- to O.P., he will be allotted two sites by the O.P. Accordingly complainant paid Rs.40,000/- to O.P. through cheques on 29/12/2008 to 30/3/2009 towards upgradation. Totally complainant paid Rs.1,65,000/- to O.P. The receipts issued by O.P. are produced. O.P. issued allotment letter allotting two sites bearing No.567 & 568 at vedic spa project II Kool to the complainant. O.P. failed to form the layout and register the sites, in favour of the complainant. After repeated requests O.P. agreed to refund the amount to the complainant. O.P. failed to provide any of the facilities offered and failed to refund the amount. On 29-10-2010 complainant got issued the legal notice calling upon O.P. to refund of Rs.1,65,000/- along with 21% interest p.a. and compensation of Rs.1lakh. Inspite of service of notice there was no response. Hence complainant felt deficiency in service against the O.P. Under the circumstances he is advised to file this complaint for necessary reliefs.
3. On appearance OP filed the version mainly contending that no consideration is collected for allotment of complimentary plot. Complainant is not a Consumer and hence complaint is not maintainable. O.P. has already issued allotment letter infavour of the complainant allotting a plot at Project-II, Vedic spa, Penukonda, Andra Pradesh. In the said allotment letter complainant was asked to pay Rs.15,000/- towards registration and maintenance charges for the plot allotted. Since complainant failed to pay said registration charges O.P. could not register the allotted sites in favour of the complainant: allotment of complimentary plot is subject to government approvals and sanctions and also availability of the same; if plot allotted is not available due to no approval of plan sanction and the conversion or if plot allotted is not confirmed by such member by making payment of registration charges or if the member fails to come forward for registration, then said member cannot claim right over the said complimentary plot, in such circumstances O.P. would register a complimentary plot at any other phase which are available for registration. Since Complainant failed to deposit registration charges within 30 days, O.P. would register site at project-1, phase-7, Hindupura road, Pengonda. O.P. has obtained plans and conversion order, earmarked the site in favour of the complainant. Since O.P. is providing all the facilities offered, Complainant is not entitled for refund of membership fees. Among other grounds O.P. prayed for dismissal of the complainant.
4. To substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of the membership card, receipts, letters of allotment, correspondence and legal notice and postal acknowledgement card. On behalf of OP Venktesh Verma C. Asst. Administration Manager, filed his affidavit in support of defence version. O.P. has not produced any documents. Complainant filed written arguments. Heard oral arguments from complainant and taken as heard from O.P. side.
5. In view of the above said facts, the points now that arises for our consideration in this complaint is as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant became the member of the OPs scheme. OP accepted his membership and issued cool card membership bearing number Kool-177. Complainant paid Rs.1,25,000/- to O.P. from 3-12-2007 to 26-12-2007. We have perused the receipts issued by O.P. acknowledging the receipt of amount. O.P. informed the complainant that if he pays Rs.40,000/- and became the member of CK 27. O.P. is going to allot two sites to the complainant. Accordingly complainant paid Rs.40,000/- to O.P. from 29-12-2008 to 30-3-2009. Totally complainant paid Rs.1,65,000/- to O.P. We have perused the receipts issued by O.P. On 3-7-2009 O.P. issued allotment letter allotting two sites bearing No.567 and 568 at Country spa project-II. There after O.P. failed to form the layout and failed to register the sites allotted. Inspite of repeated requests and service of notice O.P. failed to refund the amount paid. Hence complainant approached this forum for the necessary reliefs.
8. As against the case of the complainant the defence of the O.P. that no consideration paid for allotment of complimentary plots. Hence Complainant is not a Consumer and membership fees paid is non refundable has no basis. At para 9 of the version it is stated that the allotment of the complimentary plot is subject to Government approvals and sanctions and also availability of the same. If the plots allotted in favour of a member is not available due to non approval of the plan sanction and the conversion then O.P. can register plots at any other phase for which approvals and plans have been sanctioned by the concerned authorities. O.P. blows both hot and cold at one and the same time. At one breath O.P. admits allotment of plots are subject to Govt. approvals and at another breath O.P. is ready to register the plots as soon as complainant deposits registration and maintenance charges. Hence the version of the O.P. has no basis.
9. In both version as well affidavit evidence O.P. has stated that the documents such as conversion order, sanction plan, and MOU are produced and marked as annexure. But in fact O.P. has not produced any documents in support of its defence version. Hence in the absence of any materials we are unable to accept the contention of the O.P. that O.P. has formed the layout approved by statutory authorities and sites are readily available at its disposal free from encumbrances as on today. Though O.P. has received such a huge amount in the year 2007-08 itself failed to form the layout and register the sites allotted to the complainant. Inspite of repeated requests and receipt of legal notice O.P. has failed to refund the amount. This act of O.P. amounts to deficiency in service on the part of the O.P.
10. The claim of the complainant for interest at the rate of 21% p.a. and compensation of Rs.1 lakh is on the higher side. In similar matter against O.P. interest is awarded at the rate of 12% p.a. Hence awarding interest at the rate of 12% p.a. on the amount paid can be taken as compensation. We are satisfied that complainant is able to prove the deficiency in service against O.P. Under these circumstances complainant is entitle for refund of amount paid with interest and costs. Accordingly we proceed to pass the following order.
O R D E R
The complaint is allowed in part.
OP is directed to refund Rs.1,65,000/- together with interest at the rate of 12% p.a. from the respective date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 25rd day of June 2011.)
PRESIDENT
MEMBER MEMBER
COMPLAINT FILED ON: 08.12.2010
DISPOSED ON: 25.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM AT BANGALORE (URBAN)
25th JUNE 2011
PRESENT:- SRI.B.S.REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI.A.MUNIYAPPA MEMBER
COMPLAINT NOs. 2989/2010
COMPLAINANT OPPOSITE PARTY | N.M.Rathnakar, S/o Manjappa Gowda, Aged about 52 years, No.38, Balakrishna Nilaya, 1st Main Road, 11th Cross, S.R.Nagar, Bangalore. Advocate: T.Mohandas Shetty. V/s. The Country Club (India) Limited, No.675, Old Syndicate Bank Road, 1st Stage, Indiranagar, Bangalore – 560 038. Rep: its Director. Advocate: M/s. Sathya & Co. |
O R D E R
SMT. M. YASHODHAMMA, MEMBER
This complaint is filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant, seeking direction to the Opposite Party (herein after called as O.P) to refund Rs.1,65,000/- paid towards membership fees along with interest at the rate of 21% p.a. and compensation of Rs.1lakh on the allegations of deficiency in service.
2. The brief averments made in the complaint are as follows.
Lured away with the offers made by O.P. the complainant became the member of O.P. Club. O.P. accepted the membership of the complainant and issued cool card membership bearing No.Kool-177. Complainant paid a sum of Rs.50,000/- on 3-12-2007 and Rs.75,000/- on 26-12-2007. Complainant paid Rs.1,25,000/-. The receipts issued by O.P. are produced. O.P. issued allotment letter to the complainant. Thereafter O.P. informed the complainant that if he become the member of CK 27 by paying Rs.40,000/- to O.P., he will be allotted two sites by the O.P. Accordingly complainant paid Rs.40,000/- to O.P. through cheques on 29/12/2008 to 30/3/2009 towards upgradation. Totally complainant paid Rs.1,65,000/- to O.P. The receipts issued by O.P. are produced. O.P. issued allotment letter allotting two sites bearing No.567 & 568 at vedic spa project II Kool to the complainant. O.P. failed to form the layout and register the sites, in favour of the complainant. After repeated requests O.P. agreed to refund the amount to the complainant. O.P. failed to provide any of the facilities offered and failed to refund the amount. On 29-10-2010 complainant got issued the legal notice calling upon O.P. to refund of Rs.1,65,000/- along with 21% interest p.a. and compensation of Rs.1lakh. Inspite of service of notice there was no response. Hence complainant felt deficiency in service against the O.P. Under the circumstances he is advised to file this complaint for necessary reliefs.
3. On appearance OP filed the version mainly contending that no consideration is collected for allotment of complimentary plot. Complainant is not a Consumer and hence complaint is not maintainable. O.P. has already issued allotment letter infavour of the complainant allotting a plot at Project-II, Vedic spa, Penukonda, Andra Pradesh. In the said allotment letter complainant was asked to pay Rs.15,000/- towards registration and maintenance charges for the plot allotted. Since complainant failed to pay said registration charges O.P. could not register the allotted sites in favour of the complainant: allotment of complimentary plot is subject to government approvals and sanctions and also availability of the same; if plot allotted is not available due to no approval of plan sanction and the conversion or if plot allotted is not confirmed by such member by making payment of registration charges or if the member fails to come forward for registration, then said member cannot claim right over the said complimentary plot, in such circumstances O.P. would register a complimentary plot at any other phase which are available for registration. Since Complainant failed to deposit registration charges within 30 days, O.P. would register site at project-1, phase-7, Hindupura road, Pengonda. O.P. has obtained plans and conversion order, earmarked the site in favour of the complainant. Since O.P. is providing all the facilities offered, Complainant is not entitled for refund of membership fees. Among other grounds O.P. prayed for dismissal of the complainant.
4. To substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of the membership card, receipts, letters of allotment, correspondence and legal notice and postal acknowledgement card. On behalf of OP Venktesh Verma C. Asst. Administration Manager, filed his affidavit in support of defence version. O.P. has not produced any documents. Complainant filed written arguments. Heard oral arguments from complainant and taken as heard from O.P. side.
5. In view of the above said facts, the points now that arises for our consideration in this complaint is as under:
Point No.1:- Whether the complainant
proved the deficiency in service
on the part of the OP?
Point No.2:- If so, whether the complainant is
entitledfor the relief now claimed?
Point No.3:- To what Order?
6. We have gone through the pleadings of the parties both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:
Point No.1:- In Affirmative.
Point No.2:- Affirmative in part.
Point No.3:- As per final Order.
R E A S O N S
7. At the outset it is not in dispute that the complainant became the member of the OPs scheme. OP accepted his membership and issued cool card membership bearing number Kool-177. Complainant paid Rs.1,25,000/- to O.P. from 3-12-2007 to 26-12-2007. We have perused the receipts issued by O.P. acknowledging the receipt of amount. O.P. informed the complainant that if he pays Rs.40,000/- and became the member of CK 27. O.P. is going to allot two sites to the complainant. Accordingly complainant paid Rs.40,000/- to O.P. from 29-12-2008 to 30-3-2009. Totally complainant paid Rs.1,65,000/- to O.P. We have perused the receipts issued by O.P. On 3-7-2009 O.P. issued allotment letter allotting two sites bearing No.567 and 568 at Country spa project-II. There after O.P. failed to form the layout and failed to register the sites allotted. Inspite of repeated requests and service of notice O.P. failed to refund the amount paid. Hence complainant approached this forum for the necessary reliefs.
8. As against the case of the complainant the defence of the O.P. that no consideration paid for allotment of complimentary plots. Hence Complainant is not a Consumer and membership fees paid is non refundable has no basis. At para 9 of the version it is stated that the allotment of the complimentary plot is subject to Government approvals and sanctions and also availability of the same. If the plots allotted in favour of a member is not available due to non approval of the plan sanction and the conversion then O.P. can register plots at any other phase for which approvals and plans have been sanctioned by the concerned authorities. O.P. blows both hot and cold at one and the same time. At one breath O.P. admits allotment of plots are subject to Govt. approvals and at another breath O.P. is ready to register the plots as soon as complainant deposits registration and maintenance charges. Hence the version of the O.P. has no basis.
9. In both version as well affidavit evidence O.P. has stated that the documents such as conversion order, sanction plan, and MOU are produced and marked as annexure. But in fact O.P. has not produced any documents in support of its defence version. Hence in the absence of any materials we are unable to accept the contention of the O.P. that O.P. has formed the layout approved by statutory authorities and sites are readily available at its disposal free from encumbrances as on today. Though O.P. has received such a huge amount in the year 2007-08 itself failed to form the layout and register the sites allotted to the complainant. Inspite of repeated requests and receipt of legal notice O.P. has failed to refund the amount. This act of O.P. amounts to deficiency in service on the part of the O.P.
10. The claim of the complainant for interest at the rate of 21% p.a. and compensation of Rs.1 lakh is on the higher side. In similar matter against O.P. interest is awarded at the rate of 12% p.a. Hence awarding interest at the rate of 12% p.a. on the amount paid can be taken as compensation. We are satisfied that complainant is able to prove the deficiency in service against O.P. Under these circumstances complainant is entitle for refund of amount paid with interest and costs. Accordingly we proceed to pass the following order.
O R D E R
The complaint is allowed in part.
OP is directed to refund Rs.1,65,000/- together with interest at the rate of 12% p.a. from the respective date of payments till realization and pay litigation cost of Rs.1,000/- to the complainant.
This order is to be complied within four weeks from the date communication of this order.
Send the copy of this order both the parties free of cost.
(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 25rd day of June 2011.)
PRESIDENT
MEMBER MEMBER
