COMPLAINT FILED ON: 04.12.2010

DISPOSED ON:28.07.2011

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

28^th DAY OF JULY -2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                   MEMBER

                     SRI. A. MUNIYAPPA                           MEMBER

COMPLAINT No.2793/2010

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to refund an amount of Rs.1,85,000/- collected towards membership fee with interest at 18% p.a. along with compensation of Rs.3,00,000/- towards mental agony and suffering on the allegations of deficiency in service on the part of the OPs. 

2.    The case of the complainants to be stated in brief is that:

    The complainants were assured by OPs club and its representatives that along with membership to 2^nd OP, two complimentary sites under a scheme of Gift site allotment would be provided to complainants near Bangalore. The complainants with an intention of owning sites and thinking that it is nearer to Bangalore agreed to become a member and paid total amount of Rs.1,65,000/- to OP-Club for the period in between 13.11.2005 and 15.12.2005. Complainants received allotment letter dt.14.11.2005 stating that two sites bearing No.1 and 22 have been allotted and the sites are situated near Bangalore and they require a minimum of 90 days, after completion of payment, to register the plots and according to OPs representatives, the sites are situated at about 30 km from Bangalore. After receipt of the allotment letter, the complainants made further payment towards registration fee of Rs.20,000/- on 26.05.2006, by way of two DDs, to the OP-Club. The complainants visited the OPs office and enquired about the registration of the plots allotted but it was in vain. OPs representatives promised to take the complainants to the layout where exactly the sites are situated but the complainants were not taken to visit the layout. The complainants requested to show the documents for having purchased the lands to form a layout but OPs did not show any papers OPs changed their version stating that the sites situated at Tumkur would be allotted. OPs without having made arrangements for acquiring land for formation of layout, made false promises and collected huge amount from the complainants. The complainants also wrote a letter dt.30.07.2009 requesting OPs to refund the amount paid by them. That even after one year of waiting. OPs did not bother to register the sites as promised nor refunded the amount. The complainants also learnt that OPs have made false assurance and mislead most of their members and therefore once again they requested for refund of total amount of Rs.1,85,000/-and to cancel the membership. The non-allotment and non-registration of the sites nearer to Bangalore and keeping his money and also not responding to the complainant’s visits and letters amounts to deficiency of service by OPs. The complainants once again on 06.01.2010 wrote a letter requesting to cancel the membership and refund the amount with interest. The act of OPs giving false assurances thereby inducing the complainants to pay huge amount for becoming member amounts to cheating and deficiency of service. If the complainants were to invest the same money elsewhere or buy property it would have appreciated considerably and they would have been in better position than now. Therefore, OPs are not only liable to refund the said amount paid by complainants but also liable to compensate the complainants suitably by paying damages. Hence the complaint.

3.   On appearance, OP1 filed version contending that the complainants are not its members and the receipts produced by the complainants does not pertain the 1^st OP. There is no privity of contract between the complainants and OP1. OP1 is not liable to pay any amount. Hence, it is prayed to dismiss the complaint.

4.   OP2 in its version admitted that the complainants have paid in all Rs.1,65,000/-towards the club membership and the complainants and OPs have entered in to purchase agreement dt.11.11.2005. The OPs have issued the Laminated Club Membership Card to the complainants. OPs allotted complementary two plots bearing No.1 and 22 at Coconut Groove at Tumkur District. OP on receipt of registration charges of Rs.20,000/- from the complainants contacted the complainant to complete the registration, but for the reasons best known to the complainant has not turned-up. There is no deficiency on the part of the OPs. The complainants and family members are enjoying and utilizing the club membership frequently, and the present complaint is filed for wrongful gain. The complaint is barred by limitation. As per Clause-9 and 10 of the purchase agreement; there is no provision for cancellation of the Club Membership. The complainant has not paid maintenance charges all these years and is due sum of Rs.7,991/- towards the maintenance charges and instead of remitting the same, to avoid the same has filed the false and frivolous complaint. Apart from the complementary plots, the main benefits for club membership and long time club membership, health club of 2 years, Holiday membership for 30 years, one week accommodation free RIC 5 years international holidays. Resort a holiday/its more than two Star facilities for a period of continuous 5 years either it is in India or abroad. The club membership is for Life Time and it is transferable to their family members apart from the Health Club for a period of 5yeras. OPs never assured to allot sites near Bangalore. OP promised to give two plots at free of cost for which there is no amount collected from the complainant. OPs are always ready and even now ready to execute necessary conveyance to the complainant in respect of the complimentary plots. Hence, it is prayed to dismiss the complaint with exemplary costs.

5.   In order to substantiate the complaint averments, 1^st complainant filed affidavit evidence. The Assistant Administrative Manager OP1 and Manager of OP2 filed affidavit evidence in support of the defence version. The complainants filed written arguments. Argument heard on both sides.

6. Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part of

                            the OP2?

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

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

7.  We record our findings on the above points:

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

At the outset, it is not in dispute that the complainants became members of OPs-Club by paying amount of Rs.1,65,000/- towards membership fee to OP2. OP2 has issued the receipts on 13.11.2005 for Rs.25,000/- on 15.12.2005 two receipts for a sum of Rs.1,00,000/- another for Rs.40,000/-. The grievances of the complainants is that at the time of making them to become members, OPs assured to allot complimentary sites near Bangalore and allotment letter was also issued on 14.11.2005 allotting two sites bearing No.1 and 22. In the said allotment letter, it is stated that the sites are situated near Bangalore, the complainants also paid Rs.20,000/- on 26.05.2006 by way of two DDs towards registration fees. OP2 failed to furnish the required documents to ascertain the title and also failed to take the complainants to the layout where the sites are situated. Though initially, OPs promised that the sites situated nearer to Bangalore would be allotted but the sites stated to have been allotted are situated at Coconut Grove, Tumkur District. Thus the complainants demanded to refund the membership amount and registration amount as they felt deficiency in service on the part of OP2.

8. The receipt issued by OP2 on 13.11.2005 reveals receipt of Rs.25,000/- towards membership fee. After receipt of that amount allotment letter has been issued on 14.11.2005 as per document No.4 stating that the site No.1 and 22 phase-II Mahagoni situated near Bangalore are allotted to the complainants. The complainants after receiving that allotment letter paid further amount of membership fee of Rs.1,40,000/- on 15.12.2005, as per document No.2 and 3. OPs failed to furnish any documents regarding the title, conversion and layout with regard to those two sites and even complainants were not taken to the spot where those two sites are situated. In case if there exists such-sites, nothing prevented OP2 to produce documents with regard to the same. Non production of any documents regarding title, conversion and layout approval with regard to the said sites, leads to draw adverse inference against the OPs that there exist no such sites. In view of the same, the defence of the OP2 that even now they are ready to register the sites situated in Coconut Grove near Tumkur cannot be accepted. The complainants were made to believe that the sites situated near Bangalore would be allotted on becoming the members and made them to part with huge amount of Rs.1,65,000/-. When OP2 was unable to provide any sites near Bangalore as assured, it would have been fair enough on its part to refund the amount received.

9. There is no merit in the contention that the complaint is barred by limitation. The complainants requested for refund of the amount by submitting the letter dt.06.01.2010 marked as document No.7. Ops have not replied for the said letter. The cause of action arose to the complainants, when OPs failed to comply with the demand to refund the amount. Hence the complaint is within two years from the date of cause of action arisen to the complainants.

 10.The receipts are issued by OP2 for having received the amount towards membership fee and allotment letter is also issued by OP2 only. There is no material to show that OP1 is concerned to this transaction. Hence OP1 is not liable for the claim.

11.The complainants have claimed refund of Rs.1,65,000/- membership fee and registration charges of Rs.20,000/- in all Rs.1,85,000/-. Further they have claimed compensation of Rs.3,00,000/-. In our view the act of OP2 neither in allotting and registering the sites near Bangalore nor refunding the amount to the complainant’s amounts to deficiency in service. It would meet ends of justice by awarding interest at 18% p.a. on the amounts paid by way of compensation to the complainants along with litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaints filed by the complainants allowed in part.

OP2 is directed to refund an amount of Rs.1,85,000/- with interest at 18% p.a. from the date of respective payments till the date of realization and pay litigation cost of Rs.2,000/-to the complainants within 4 weeks from the date of this Order.

The complaint against OP1 dismissed.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 28^th day of July 2011.)

 MEMBER                      MEMBER                       PRESIDENT

Cs: