CC No.2287/2017                                         Date of filing:16.08.2017

                                                        Date of Disposal:23.07.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 23^rd Day of JULY 2020

CONSUMER COMPLAINT NO.2287/2017

PRESENT:                                      

Sri.   Venkatasudarshan  D.R.  B.Com,LL.M.,   ….  PRESIDENT

Smt.  L.Mamatha, B.A., (Law), LL.B.                ….       MEMBER

Sri.  M.B. Seena, B.A., (Law), LL.B.           ….       MEMBER

COMPLAINANT:

K.S.Sadashiva Prasad S/o

K.N.Srikantaiah,

Aged about 52 years,

Residing at 220/A Ground Floor,

7^th Main, 1^st Block,

Bengaluru-560011.

(Rep by Sri.Vallari Associates)          

 V/s

OPPOSITE PARTIES:

1. The Country Club,

A Division of Country Club (India) Limited,

Hyderabad Admin Office No.273,

Defence Colony, HAL 2^nd Stage,

Bengaluru-560038.

2. Amrutha Estates,

A Division of Country Club

Branch office No.478,

“Mahapadma” 1^st Main,

1^st Stage, Indiranagar,

Bengaluru-560013.

(By Sri. A.N.Somashekar, Advocate)

 = = = = = = = = = = = = =

WRITTEN BY SRI VENKATASUDARSHAN D.R., PRESIDENT

          ******

//ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant K.S.Sadashiva Prasad against the Country Club and another praying for a direction to the OPs to register the sites allotted in the name of the complainant or in the alternative to refund a sum of Rs.1,60,000/- along with interest at 18% p.a from 10.11.2006 till the date of actual payment and also to direct payment of Rs.5,00,000/- as compensation for the mental agony.

2. The brief facts of the case of the complainant as per the complaint are that the1^st OP had orally offered membership to their scheme.  The complainant agreed to the terms and conditions and paid a sum of Rs.25,000/- on 10.11.2006.  Subsequently on 17.11.2006 an offer letter describing the particulars of membership was issued to the complainant.  The complainant paid a sum of Rs.1,15,000/-also and obtained membership with his membership COOLCG4546. The complainant was also assured by the 1^st Op for allotting one site measuring 1089 sq.ft at free of cost.  The complainant was also assured of another free site measuring 544 sq.ft by the 1^st OP vide letter dt.8.12.2006.

3. On 25.01.2017 the complainant received anallotment letter dt.25.01.2007.  The complainant was informed that a free site has been allotted at Phase-XII Site No.B9 & G and requested the complainant to pay Rs.20,000/- towards site confirmation charges, stamp paper fee and registration expenses along with maintenance charges for 30 months.  The complainant has paid a sum of Rs.45,000/- on 28.06.2007.  The 1^st OP has also given a brochure showing the site number with the descriptive site map.

4. Thus the complainant has paid a sum of Rs.1,60,000/- with the fond hope of getting site in Bangalore.  But the Ops have not taken any action to register the allotted site.  The complainant has been made to run from pillar to post.  The complainant having suffered mentally, financially and physically got issued a Legal Noticeto the OPs to refund Rs.1,60,000/- together with interest at the rate of 18% p.a and to pay compensation of Rs.5,00,000/-.  But the OPs have not taken any steps to register the site nor replied to the notice.  This according to the complainant amounts to deficiency of service.  Hence the complaint.

5.   There are two OPs in the case.  After admitting the complaint, the notices were ordered to be issued to the Ops.

6. The OPs having received notices did not appear before the Forum. Hence they were placed ex-parte vide order dt.20.12.2017.  Thereafter both wanted to appear and have the order placing them ex-parte set aside.  But this Forum vide order dt.24.01.2018 dismissed the applications filed by the OPs u/o 9, R-7, R/w Sec.151 of CPC.

7. When the case was set down for recording evidence, the complainant filed his affidavit evidence and also produced some documents. The documents produced would be considered in the course of the order whenever it is necessary. 
8.   Heard the arguments.
9. The points that arise for our determination are:-

(1)Whether the complainant proves that there is deficiency in service on the part of the OPs?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

10.    Our findings on the above points are:-

Point No.1:-Affirmative

Point No.2:-Partly in the affirmative

• As per the final order for the following.  
•  

11. POINT NO.1:-This complaint is filed by Sri.K.S.Sadashiva Prasad under Section 12 of the Consumer Protection Act against the Country Club and another praying for a direction to the Ops to register the sites allotted in favor of the complainant or in the alternative to refund Rs.1,60,000/- together with interest at 18% p.a. from 10.11.2006, till the date of realization and also to pay a compensation of Rs.5,00,000/- and for such other reliefs as this Forum deem it fit.

12. In this case, the complainant in order to prove that there is deficiency in service on the part of the Ops has filed the affidavit evidence. The said affidavit contains averments which are nothing but reproduction of the averments made in the complaint. Since the averments in the complaint have already been narrated above, there is no need for us once again to refer to the averments in the affidavit.

13. It is the case of the complainant that on 10.11.2006 he paid a sum of Rs.25,000/- initially to the 1^stOP towards membership.  To substantiate that he has produced the receipt dt.10.11.2006 bearing No.21912.  The letter dt.17.11.2006 sent by the 1^st OP to the complainant congratulating him for having become “Mr.COOL Privilege Card with Membership No.COOL CG 4546.  In that letter, the complainant was called upon to limit a sum of Rs.1,15,000/-.  The complainant submits that he has made payment of Rs.1,15,000/- on 08.12.2006 he has produced two receipts bearing Nos.24169 & 24170 dt.08.12.2006 issued by the 1^st OP each for Rs.45,000/- so in all Rs.90,000/-.  The letter dt.25.01.2007 sent the complainant by the 2^nd OP Amruth Estates shows that the complainant was allotted site No.B9 in phase No.XII and the complainant was called up to pay Rs.20,000/- towards maintenance charges, stamp paper, registration expenses.  The complainant was also called upon to pay another Rs.20,000/- towards site confirmation and administrative charges. A Temporary receipt dt.28.06.2007 issued by the 2^ndOP in favor of the complainant for having received a sum of Rs.5,000/- is also produced.  All these documents produced by the complainant show that the Ops have in all received a sum of Rs.1,60,000/- and have agreed to convey the site by executing an appropriate document. It is contended that   the Ops have failed to comply with the same.  The copy of the Legal Notice dt.17.07.2017 got issued by the complainant to the Ops along with the postal receipts also produced.  In spite of that the Ops have not complied with the request of the complainant.  In our considered view this amounts to deficiency in service.  The evidence placed by the complainant both oral and documentary has remained unchallenged and undisputed.  The OPs have though appeared before the forum have failed participate in the proceeding at least by cross examining the complainant if really the case of the complainant is not true. That has not been done. Thus the case of the complainant has not been contested at all.  This conduct on the part of the Ops clearly shows that they are admitting allegations made against them in the complaint. Thus from the discussion made above we come to the conclusion that there is deficiency in service on the part of the Ops.  Accordingly, we answer Point No.1 in the affirmative and against the Ops.

14. POINT NO.2 & 3:- In view of the finding recorded on Point No.1 holding that there is deficiency in service on the part of the Ops, the next aspect that needs to be considered is about the entitlement of the complainant for the reliefs sought. 

15. In this case, the reliefs sought by the complainant seeking direction to the Ops to register the site by executing the suitable document or in the alternative to refund the amount together with interest is not only proper but also reasonable.  However, if for any reason the Ops are not in a position to register the document conveying title in respect of the site they are bound to refund the amount.  However, since the Ops are retaining the amount of Rs.1,60,000/- from 28.06.2017 (the last payment date) they must have employed this amount in their business and made profit out of it.  Thus the Ops got enriched at the cost of the complainant. The complainant on the other hand having parted with the amount of Rs.1,60,000/- has been deprived of getting income, benefit at least in the form of interest on the said amount.  Therefore, we deem it and proper to direct the Ops to pay interest at the rate of 10% p.a. calculated on the said sum of Rs.1,60,000/- from 28.06.2007, till the date of actual payment and pay the same to the complainant.

16. The conduct of the Ops in not complying with the promises made and also by not even choosing to reply to the Legal Notice issued by the complainant, has driven the complainant to file this complaint in the year 2017. Thereby, they have made the complainant to suffer physically and also mentally and thus caused mental agony and harassment. For this the Ops have to compensate the complainant. Having regard to the facts and circumstances of the case, we deem it fit and proper to direct the Ops to pay a sum of Rs.40,000/- as compensation to the complainant under this head.

17. As already stated above, the circumstances created by the Ops have driven the complainant to file this complaint in the Year 2017 by engaging the services of an Advocate.  The complainant has contested the case in order to take the same to the logical end.  Necessarily, the complainant must have incurred expenditure.  Therefore under this head we award sum of Rs.5,000/- as cost of litigation payable by the Ops to the complainant.  Accordingly, we answer Point No.2 partly in the affirmative and proceed to pass the following final order:

The complaint filed by the complainant Sri.Sadhashiva Prasad K.S u/s 12 of the Consumer Protection Act is allowed partly as under:

1. The Ops are directed to execute a registered document in the name of the complainant conveying the title in respect of site allotted to him within 45 days from this order.
   382.  

In the alternative if the Ops have for any reason cannot comply with the direction mention above, they shall refund of Rs.1,60,000/- (Rupees One Lakh Sixty Thousand only) together with interest at 10% p.a. to be calculated on the said sum from 28.06.2007, till the date of actual payment and pay the same to the complainant within the time stipulated above.

2. In addition to the above, the complainant is also entitled to recover a sum of Rs.40,000/-(Rupees Forty Thousand only) from the Ops as compensation for the harassment and mental agony caused from the the opposite parties(Ops).
3. The complainant is also entitled to recover a sum of Rs.5,000/- (Rupees Five Thousand only) being the cost of litigation from the Ops.
4. Supply free copy of this order to both the parties.

(Dictated to the Steno, typed by her, transcript corrected, revised and then pronounced by the open Forum on 23^rd day of July 2020)

(M.B. Seena)       (L.Mamatha)    (D.R. Venkatasudarshan)                           Member                       Member                      President  

//ANNEXURE//

Witness examined for the complainant side:

           Sri. K.S.Sadashiva Prasad, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

                                     -NIL-

List of documents filed by the complainant:

1. Copy of Receipt dt.10.11.2006.
2. Copy of the offer letter dt.17.11.2006.
3. Copy of the letter dt.08.12.2006.
4. Copies of the letter along with two receipts Nos.24169 and 24170.
5. Copy of letters both dates.25.1.2007.
6. Copy of temporary receipt.
7. Copy of brochure.
8. Copy of legal notice dt.17.07.2017.
9. Copy of returned postal covers.

List of documents filed by the Opposite Party:

                                      -NIL-

(M.B. Seena)       (L.Mamatha)    (D.R. Venkatasudarshan)                           Member                   Member                      President