COMPLAINT FILED ON: 12.04.2010

DISPOSED ON: 11.02.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

11^TH FEBRARY 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Parties (herein after called as O.P) for refund of Rs.1,40,004/- along with interest at the rate of 24% p.a. and compensation of Rs.2 lakhs on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

On 20.11.2006 executive of OP approached the complainant and offered up gradation of Mr. Cool Privilege Card membership of the Country Club. Hence complainant paid Rs.30,000/- by way of cheque dated 20.11.2007 drawn an Federal bank Ltd. On 03.12.2006 complainant received a letter from OP-1 asking him to make payment of balance amount of Rs.55,000/- along with two stamp size photographs of his spouse and children. OP issued Cool Previlege Card bearing No. BLGCP 8008 along with cash receipt dated 28.11.2006. Further complainant paid Rs.55,000/- to OP through cheques drawn on Federal Bank Ltd., on 25.01.2007 to 25.02.2007. The receipts issued by OP are produced. On 09.03.2007 OP-2 sent a letter along with laminated membership Card on 03.12.2006. OP promised to allot a complimentary plot at Coconut Grove after payment of full membership fees towards Mr. Cool Card; Evenafter making full payment for Mr. Cool Card OPs failed to allot complimentary plot as promised. Complainant and his wife availed loan from financial Institutions and are still paying interest at Rs.60.64% till February 2009. Complainant on 26.02.2009 caused legal notice to OPs to allot complimentary plot at Coconut Groove immediately and to pay interest at 24% p.a., on Rs.85,000/- from 20.11.2006 till the date of allotment. Inspite of service of notice there was no response from OPs. On various police complaints on 30.07.2009 OPs decided to refund the money, same was published in Times of India dated 30.07.2009. On 06.08.2009 when complainant approached OPs for refund and submitted membership request form for refund to OP. Complainant was informed that he would receive a letter informing when he has to visit OP to receive the amount.  Inspite of repeated request and visits for more than 11 times there was no response from OP. Complainant has paid heavy interest for the loans availed.  Complainant being a businessman has spent lot of time and energy apart from loss of revenue.  Hence complainant felt deficiency in service against the OPs. Under these circumstances he is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed its version contending that the plots allotted under a Cool Scheme is a complimentary gift to the member and the membership fees collected for providing facilities. No consideration is collected for allotment of the complimentary plot and complainant has to bear only registration and maintenance charges.  Hence complainant is not a consumer. Further it is contended that OP has already issued an allotment letter in favour of the complainant allotting a complimentary site at phase XV Extn, Ratnasandra Village and Sy. No. 158/1, A-2 Kasaba Hobli, Sira Taluk, Tumkur Dist, in favour of the complainant and in the said letter of allotment OP had asked the complainant to deposit registration and maintenance charges of Rs.15,000/- within 30 days from issuance of that allotment letter. A copy of the said allotment letter is produced herewith. (Though OP has stated that copy of the said allotment letter is produced herewith but in fact OP has not produced any letter or documents.)  Complainant has not deposited the same. Hence OP could not register the allotted site in favour of the complainant.  OP has earmarked the site in the said layout and same would be registered in the name of the complainant as soon as complainant deposits the registration and maintenance charges. OP has contended that the copies of the conversion order and sanction plan and MOU are produced. (But in fact OP has not produced any documents.) Further it is contended that allotment of complimentary plot is subject to government approvals and sanctions and also availability of the same.  If the plot is not available due to non-approval of the plan sanction and the conversion of the same, then OP can register the complimentary plot at any other phase for which the approvals and plans have been sanctioned by the concerned authorities.  Entire allotment transaction would be done by its sister concern M/s. Amrutha Estates. There are several phases in Coconut Groove and Vedic Spa / Banyan tree locating in different parts of Tumkur, Hindupur/Penukonda. The membership fee paid by the members is non refundable.  Since the same is utilized for development and maintenance of the clubs. Complainant was initially under BLGCP Scheme and has upgraded to Cool Scheme.  In response to legal notice OP has informed the complainant that registration of the plots would be done after full payment of the membership fees.  There is no deficiency in service on the part of the OPs. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averment complainant filed his Affidavit Evidence and produced correspondence, receipts, bank statements, letter of ICIC Bank, Bank Statement of complainant’s wife, legal notice, RPAD receipts, News paper cutting, copy of the member request form and email correspondence. On behalf of OP Mr. Vijay D P, Senior Manager, (Customer Care) filed affidavit evidence and not produced any documents.  Complainant filed additional affidavit evidence and filed written argument. Heard arguments from complainant and taken as heard from OP side.

5.      In view of the above said facts the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

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 out set it is to be stated that complainant being lured away with offer made by OP upgraded his membership to Mr. Cool Privilege Card membership of the Country Club.  OP has not disputed the payment of Rs.85,000/-.  The receipts issued by OP are produced.  OP has promised to allot a complimentary plot at Coconut Grove on 03.12.2006.  Complainant made the payment to OP by availing loans from financial institutions. But OP has failed to allot complimentary plot as promised. Complainant is paying heavy interest on the loans availed.  Inspite of repeated requests and legal notice demanding refund of amount, OP failed to comply the same. Hence complainant approached this Forum.

8.      As against the case of the complainant the dfence of the OP that no consideration is collected against allotment of plot, membership fee is collected only for providing facilities has no basis. Further it is contended by the OP that OP has already issued an allotment letter allotting a complimentary site at Phase XV Extn. Ratnasandra Village situated at Sy. No.158/1, A-2, Kasaba Hobli, Sira Taluk, Tumkur District informing the complainant and OP has stated both in the version and it affidavit evidence that copy of the allotment letter, conversion order, sanction plan, MOU are herewith produced.  But in fact OP has not produced any documents.

9.      Further it is contended by the OP that allotment of complimentary plot is subject to government approvals and sanctions and also availability of the same. If the plot is not available due to non approval of the plan then OP can register the complimentary plot at any other phase for which approvals and sanctions have been sanctioned by the concerned authorities.  From the defence version we can make out that OP has not obtained sanctioned plan and approvals from the statutory authorities. OP has failed to produce any documents in support of its defence.  Therefore the contention that membership fee is non refundable has no basis.  Under these circumstances we are of the considered view that OP has failed to provide the assured services to the complainant. The same amount to deficiency in service on the part of the OP. We are satisfied that complainant is able to prove deficiency in service against OP. Under these circumstances complainant is entitled for refund of Rs.85,000/- along with interest at the rate of 12% p.a. and litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

ORDER

          The complaint is allowed in part. OP is directed to refund Rs.85,000/- along with interest at 12% p.a. from the date of respective payments till the date of the realization and litigation cost of Rs.2,000/- to the complainant.

This order is to be complied within four weeks from the date of its communication.

(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 11^th day of February 2011.)

                                                PRESIDENT

        MEMBER                                        MEMBER                     

gm.