BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th  November 2015

PRESENT

SMT. ASHA SHETTY           :   HON’BLE PRESIDENT           

 SMT.LAVANYA M. RAI       :   HON’BLE MEMBER

COMPLAINT NO. 424/2014

(Admitted on 07.11.2014)

1. Mr. Nelson Sequeira,

S/o S/o Mr. Louis Sequeira,

Aged about 61 years,

2. Mrs. Jasmine Florence Sequeira,

W/o. Mr. Nelson Sequeira,

Aged about 55 years,

Both (1) and (2) are residing at

102, Belvue Apartments,

On top of State Bank Of Mysore,

Valcncia Circle.

 Mangalore-575 002.                                          ….. COMPLAINANTS

(Advocate for Complainant: Sri. P. Ranjana Rao.)

          VERSUS

The Executive Member Service Department,

Sterling Holiday Reasorts (India) Ltd.,

(Corporate & Registered Office),

Citi Tower No. 7, 3^rd  cross street,

Kasturba Nagar, Adyar,

CHENNAI 600 020.

Represented by Director.         ……. OPPOSITE PARTY

(Opposite party: Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY

I.       1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.

The brief facts of the case are as under:

The complainants submit that, they have purchased time share more fully detailed in schedule “A” of the complaint. It is stated that, opposite party had initially entered into an agreement for sale and subsequently the Opposite Party had executed and registered separate sale deed conveying the right, title and interest in “A” to “I” time share in favour of the complainants.  The Opposite Party had also given possession certificate to the complainants qua “A” to “I” time share.

As per the agreement the opposite party required to pay the following amounts namely.

1. A sum of Rs. 3,400/- in respect of “A” schedule time share.
2. A sum of Rs. 8,560/- in respect of “B” schedule time share and
3. A sum of Rs. 8,160/- in respect of “F” to “I” schedule time share.  But, the opposite party is in arrears of amount mentioned in the complaint.

The opposite party keep on assuring the complainants to pay the outstanding amount but not paid.  Thereafter, the complainant issued a legal notice the same has been received without any demur. In-spite of that, the opposite party failed to pay the amount. Hence the above complaint came to be filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund the sum of Rs.  5,05,755/- along with interest at 12% per annum from the date of purchase agreement and also claimed Rs. 50,000 /- as damages and Rs. 10,000/- as cost of the proceedings. 

I1.     Version notice served to the opposite party by R.P.A.D. In-spite of receiving version notice neither appeared nor contested the case before this FORA. Hence we have proceeded ex-parte as against the opposite party.  The acknowledgment marked as court Document No. 1.

III.   1. In support of the complaint, Mr. Mr. Nelson Sequira. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C-31. Opposite Party ex-parte.

          In view of the above said facts, the points now that arise for our consideration in this case are as under:-

1. Whether the complainant proves that the opposite party has committed deficiency in service?
2. If so, whether the complainant is entitled for the reliefs claimed?
3. What order?

          We have considered the oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:

Point No. (i) and (ii): Affirmative

Point No. (iii) and (iv). As per the final order.

REASONS

IV.     1.  POINTS NO. (i) TO (iii):  In order to substantiate the averments made in the complaint the complainant filed affidavit supported by documents i.e. Ex C1 to C 31. However, the opposite party in spite of the receiving version notice not appeared nor contested the matter till this date.  The documents produced by the complainant reveals that, the opposite party had initially entered into an agreement for sale in respect of schedule mentioned in A to I  of the complaint wide customer No. 875 to 877 in respect of all the time share. It also reveals that, subsequently opposite party executed and registered separate sale deed conveying the right, title and interest in respect of schedule A to I  time share.  The opposite party had given possession of certificate to the complainant.

          Further the opposite party had entered into an agreement for assured returns in favour of the complainants. However the clause No. 2 reads thus:

1. A return calculated at the rate of 20% of the sale consideration paid to be paid by the second party to the first party per years.
2. Actual rents collected by the first party by letting out the said property time share to any other person/s after making necessary deductions towards service charges including (i) marketing expenses, (ii) Electricity charges and (iii) Food expenses in the case of American Plan.

As per the above agreement the opposite party is liable to pay the amounts to the complainants as under:

1. A sum of Rs. 3,400  in respect of  A schedule time share.
2.  A sum of Rs. 8,560  in respect of  B to  E schedule time share and:
3. A sum of Rs. 8,160  in respect of F to  I  schedule time share and the following amount are in arrears:-

1. In respect of A schedule time share, for the period from 1993 to 2014 at the rate of Rs. 3,400 aggregating to Rs. 74,800
2. In respect of  B to  E schedule time share for the period from 1993 to 2014 at the rate of Rs. 8,560 aggregating to Rs. 1,88,320
3. In respect of  F to I schedule time share, for the period from 1993 to 2014 at the rate of Rs. 8,160 aggregating to Rs. 1,79,520

Since the opposite party failed to pay the above said amount till this date which amounts to deficiency in service.  Therefore we hereby direct the opposite party to pay the complainants total outstanding arrears amounts of Rs. 4,42,640  along with interest @ 12% p. a. from 1993  till date.   

In view of the above discussion, by considering the facts and circumstances, we hereby direct the opposite party to pay Rs. 4,42,640 (Rupees Four lakhs fourty two thousand six hundred fourty only) to the complainant along with interest at 12% p.a from the period 1993 till date of payment and also pay Rs. 3,000 (Rupees Three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

In the present case, interest considered itself is compensation and therefore, no separate amount for compensation is awarded.

          In the result, we pass the following:                          

ORDER

The complaint is allowed. The Opposite party  shall pay  Rs. 4,42,640 (Rupees Four lakhs fourty two thousand six hundred fourty only) to the complainant along with interest @ 12% p.a from the period 1993 till the date of payment  and also pay Rs. 3,000 (Rupees three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of November 2015)

PRESIDENT                               MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum       D.K. District Consumer Forum

 Mangalore.                                      Mangalore.                                                                                                                                 

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1    Mr. Nelson Sequeira                  Complainant.

Documents produced on behalf of the Complainant:

Witnesses examined on behalf of the Opposite Party:

 Nil

Documents produced on behalf of the Opposite Party:      

 Nil

Dated: 30/11/2015.                                                                                                                                  PRESIDENT                                                              (SMT. ASHA SHETTY)                   

D.K. District Consumer Forum       

                                                           Mangalore.       

ORDER

The complaint is allowed. The Opposite party  shall pay  Rs. 4,42,640 (Rupees Four lakhs fourty two thousand six hundred fourty only) to the complainant along with interest @ 12% p.a from the period 1993 till the date of payment  and also pay Rs. 3,000  (Rupees three thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 10 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of November 2015)

PRESIDENT                               MEMBER

 (SMT. ASHA SHETTY)                (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum       D.K. District Consumer Forum

 Mangalore.                                      Mangalore.