Complaint filed on: 12-04-2012
Disposed on: 15-03-2013
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.785/2012
DATED THIS THE 15th MARCH 2013
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.M.SHIVALINGAPPA, MEMBER
Complainant: -
Avinash Kumar
Ground floor,
#12/4, 4th Cross,
APC Layout, Thindlu,
Vidyaranyapura Post,
Bangalore-97
V/s
Opposite party: -
Country Vacations
C/o. Country Club India Ltd,
# 201, 1st Floor/2nd Floor,
No.48, SS Chamber
(Next to Kamat Hotel)
Bowring Hospital Road,
Shivajinagar, Bangalore-01
Reptd by Managing Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, praying to pass an order, directing the OP to refund total sum of Rs.1,73,000=00, in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
The complainant had taken country vacations membership on 29-10-2008 bearing membership no.DTB (88)-072. There is always some issue told by company while booking accommodation even if you try to book more than 2 months in advance. The company had promised him to give return flight ticket from any destination of India which was not fulfilled. The company was supposed to book his tickets but later they asked him to book flight tickets and reimburse within a month, and accordingly, the complainant booked the tickets at his expenses but company never reimbursed him, even though he reminded them many times. The complainant requested Mr.Akmal Pasha, Manager-Customer and his colleagues to cancel his membership and return his membership because if bad service, nor reimbursing flight fare and many issues with plots allotted by company. The complainant has paid Rs.1,20,000=00 as membership charge Rs.18,000=00 for flight fare (Bangalore to Kolkata) and Rs.35,000=00 for two plots registration. Mr.Akmal and his colleagues agreed to repay total money soon but it never happened and then they have exchanged many emails for refund. The complainant has sent three legal notices to country vacations and there is no reply of a single legal notice yet, and they always made some excuses for not refunding, the complainant has visited personally to country vacation offices many times and has written many emails to them and he was always promised for refund but never refunded. Now it has been more than three years for requesting the OP for refund, so he has come up with the present complaint.
3. After service of the notice, the OP has appeared through its counsel and filed objection, contending interalia as under:
The complaint of the complainant is not maintainable either in law or on facts and it is liable to be dismissed. The complainant had paid in all total sum of Rs.1,20,000=00 towards the club membership. The OP and the complainant have entered into the purchase agreement dated 29-10-2009. The OP upon receipt of the above said amount has issued the laminated club membership card to the complainant. The OP allotted complementary two plots measuring 1089 Sq. ft. each at free of cost for which there is no amount collected from the complainant, and the OP executed two registered gift deeds both dated 28-3-2009 respectively in favour of the complainant in respect of the complementary plot bearing no.754 and 755 each measuring 1089 sq. ft. phase V situated at within the RD of Hindupur SRD of Penukonda. There is no deficiency of service on the part of the OP. Inspite of executing necessary documents in respect of complementary plot and further the complainant and his family members are enjoying and utilizing the club membership regularly has filed the above false and frivolous complaint for wrongful gain, so on this ground alone the complaint is liable to be dismissed. The complainant has availed the services and offers all the days and stayed and on several occasions at country club at Bandipur and Kolkatta, after availing the benefits and utilizing the services regularly and also after getting the free plots, at this stage seeking refund of membership amount does not arise. The complainant entered into the purchase agreement dated 29-10-2008 with this OP and in terms of the agreement clause 9, 10 and 13 there is no provision for cancellation of the club membership. However the complainant is at liberty to sell or transfer or gift the club membership to any third party. There is any deficiency in service on the part of the OP and there is no cause of action to file the above complaint. The complainant with a dishonest and malafide intention has filed the above complaint by making all false and baseless allegations. The complainant has not paid the annual maintenance charges and is due maintenance for a period of three years at Rs.3,000=00 p.a. totaling Rs.9,000=00 towards the maintenance charges and instead of remitting the same and to avoid annual maintenance charges has filed the false and frivolous complaint. The OP performed its contractual obligation and at no point of time OP failed and this OP is providing best services in their field without any blemish and even in the complaint there is no iota of evidence. But the complainant suppressing the true facts has filed the above false and frivolous complaint. As a matter of fact the complainant is due and payable maintenance charges to the OP. The OP offers yearly one week accommodation in their property totally free of cost, it is more than two star facilities for a period of continuous five years either it is n 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 two years. The complainant has filed the complaint on surmises and hypothesis. The complaint is barred by limitation. The Hon’ble State Commission in similar set of circumstances in Appeal No,3898/2010 by its order dated 26-9-2011 confirmed the order of dismissal of complaint passed by the District Forum. Hence it is prayed to dismiss the complaint with exemplary cost, in the interest of justice and equity.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, the OP is negligent and there is deficiency of service on the part of the OP, in not refunding his total amount of Rs.1,73,000=00 as stated in the complaint?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced 16 copies of documents and also produced 10 documents with list. On the other hand, one Mohammed Akmal Pasha, Manager working in OP has filed his affidavit by way of evidence on behalf of the OP. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties meticulously.
7. One Avinash Kumar, who being the complainant has stated in his affidavit that, he had taken country vacations membership on 29-10-2008 bearing membership no.DTB (88)-072, and the OP had promised him to give return flight ticket for him and his wife from any destination of India, which was not fulfilled. The company was supposed to book his tickets but later they asked him to book flight tickets and reimburse within a month and accordingly, he booked the tickets at his expenses but company never reimbursed, even though he reminded them many times. He requested Mr.Akmal Pasha, who being the Manager-Customer and his colleagues to cancel his membership and return his membership. He has paid Rs.1,20,000=00 as membership charge Rs.18,000=00 for flight fare, and Rs.35,000=00 for two plots registration. Mr.Akmal, Ms.Latha and Ms.Tilaka agreed to repay total money, but it never happened and then they have exchanged many emails for refund, and he has issued three legal notice to country vacations and there is no reply and he has visited personally to OP office many times and has written many emails to them and he was always promised for refund but never refunded. Now it has been more than three years requesting them for refund, so he has come up with the present complaint requesting the forum, to refund Rs.1,73,000=00 alongwith 18% interest per annum from the date of membership to till the date of payment.
8. By a careful reading of the averments of complaint and evidence of complainant as mentioned above, it is made crystal clear that, the complainant has given his evidence in accordance with the averments of complaint. Let us have a look at the relevant documents of the complainant, so as to whether the oral testimony of the complainant is supported by any documentary evidence or not. Document no.1 of the complainant produced alongwith the complaint is a copy of individual member’s statement of the complainant issued by the OP dated 6-1-2009. Document no.2 is the copy of terms and conditions for allotment of complimentary plot dated 28-12-2008 in the name of the complainant wherein it is stated that, the complainant has been allotted two complimentary sites at Hindupur measuring 1089 Sq. ft without any consideration and he is instructed to pay Rs.35,000=00 towards registration and development charges. Document no.3 is the copy of letter of OP dated 25-3-2010 addressed to the complainant stating that, flight tickets promised by the sale guys will be reimbursed, after making trip to Kolkatta and to wait for a month that is till April 2010, the flight tickets will be reimbursed. Document no.4 is the copy of legal notice issued by the complainant’s lawyer to OP date 12-5-2010 calling upon the OP to cancel his membership and return the amount as service provided by OP is not satisfactory. Document no.5 is the copy of legal notice of complainant issued to OP dated 14-6-2010 calling upon to cancel his membership and return the amount. Document no.6 is the copy of final legal notice dated 2-8-2010 issued by the complainant’s lawyer to the OP to cancel the membership and return the entire amount as service provided by OP is not satisfactory. The complainant has produced copies of emails exchange letters between the complainant and OP and these emails go to show that, the complainant has sent emails letter to OP calling upon to return the amount to him, including membership fees, flight tickets and registration charges otherwise he will take legal action. Two Gift deed copies dated 28-3-2009 are produced by the complainant and these deeds were executed by OP in favour of the complainant and by executing Gift Deeds; the OP has allotted two complimentary sites to the complainant on the said date as promised measuring 1089 Sq. ft each. The complainant has produced four original receipts issued by the OP in the name of the complainant for having collected total a sum of Rs.1,20,000=00 dated 31-10-2008 and 3-11-2008, and the original purchase agreement alongwith terms and conditions is produced and that documents were signed by both parties dated 29-10-2008, and Individual Member’s Statement dated 6-1-2009 has been produced by the complainant and it is issued by OP mentioning the details of complainant. The complainant has produced the original letter dated 25-3-2010 issued by OP in the name of complainant stating that wait for a month that is till April 2010, the flight ticket will be reimbursed for a couple. The complainant has produced email letters of Akmal Pasha on behalf of OP dated 24-3-2010 addressed to the complainant stating that, they will give the complainant flight tickets money and this time make a payment first and they will reimburse after submitting the receipts. In spite of sending email letter the OP did not pay the flight charges to the complainant and in this regard the complainant has produced email letters for kind consideration. The complainant has produced computerized itinerary details dated 25-3-2010 issued by the Kingfisher Air lines in the name of the complainant and his wife for going to Kolkatta by Air by paying Rs.12,647=00 and Rs.5,949=00. The brochure of the OP club is produced and three legal copies are produced by the complainant and these legal notices were issued by the complainant’s lawyer to the OP calling upon them to refund the amount by cancelling the membership as service rendered by OP is not satisfactory. Some of the emails produced by the complainant go to reveal that, the complainant has calling upon the OP to refund the entire amount paid by him and cancel his membership. Two original gift deeds dated 28-3-2009 executed by OP in the name of the complainant are produced and these gift deeds go to show that the OP has allotted two complimentary sites bearing no.754 and 755 in the name of the complainant and executed registered gift deeds duly as promised.
9. At this stage, it is relevant to have cursory glance at the material evidence of the OP. One Mohammed Akmal Pasha, Manager of OP has stated in his evidence that, the complainant has paid in all total sum of Rs.1,20,000=00 and the OP has issued membership card to the complainant and complementary plots of two numbers measuring 1089 Sq. ft. each were allotted to the complainant at a free of cost and gift deeds have been executed in favour of the complainant in respect of plot no.754 and 755 situated at Phase V situated at RD of Hindupur SRD of Penukonda. The complainant and his family members are enjoying and utilizing the club membership regularly and inspite of it, the complainant has filed this false complaint. The complainant has not paid the annual maintenance charges. The club membership is for life time and it is transferable to their family members and there is no negligence and deficiency of service on the part of the OP. The complaint is hopelessly barred by limitation, so the complaint be dismissed.
10. So making careful scrutiny of the material evidence of both parties, it is unambiguously clear that, the complainant after becoming a member of OP club by paying Rs.1,20,000=00 has availed benefits of the club alongwith his family members and the complainant was allotted two complimentary sites bearing no.754 and 755 by OP at free of cost, after executing gift deeds and these gift deeds were duly registered by sub-registrar on 28-3-2009 as promised by OP. It is no doubt true that, the OP promised the complainant to refund Air tickets charges, but the OP did not pay the amount. In view of not refunding the flight charges as promised by OP, the complainant has got issued legal notice to the OP calling upon the OP to refund the entire amount by cancelling the membership. The fact of none payment of Air tickets charges has made the complainant to cancel his membership and sought refund of the entire amount. When once the OP executed registered gift deeds in favour of the complainant in respect of two complimentary sites measuring 1080 sq. ft each bearing sites no.754 and 755, the complainant is not having any right to cancel his membership and ask to refund the entire amount including registration charges and Air tickets charges. Till the gift deeds are declared as null and void by competent court, the complainant is estopped from the claiming membership charges, registration charges and Air tickets charges. Moreover, as per the material on records placed by the complainant, it is transpired that, gift deeds executed by OP in the name of complainant on 28-3-2009. The complainant ought to have filed the complaint before the forum well within two years from the said date. Instead of doing so, the complainant has filed the complaint on 12-4-2012 i.e. after expiry of two years. The complaint of the complainant is time barred as the complaint has been filed after lapse of more than two years. No plausible explanation was given by the complainant for filing the complaint late. As per the clause 13 of purchase agreement produced by the complainant, it is made manifest that, the said agreement is legally binding and it is neither rescindable nor cancelable, and the said agreement was executed by both parties and it is signed by both the complainant and OP, and terms and conditions of the agreement are binding on both parties. So, under the circumstances, the membership once entered as per the covenant of agreement, it cannot be cancelled and accordingly, the complainant is disentitled to claim membership fees back by cancelling his membership. So also, after execution of gift deeds by OP, the amount paid by complainant towards registration charges is also not refundable. So viewing the case of the complainant, on the back ground of material evidence of the complainant and also oral evidence of OP together with the terms and conditions of the agreement entered between the parties, we are of the view that, the material evidence of OP is more believable trustworthy and acted upon than the material evidence of complainant. The OP has acted strictly in accordance with the terms and conditions of agreement between the parties and allotted two complementary sites to the complainant by executing registered gift deed and the complainant has availed the facilities of OP club alongwith with his family members as per the terms and conditions. Merely because the OP did not refund the flight tickets charges, the complainant is disentitled to cancel his membership and ask refund of entire amount of Rs.1,73,200=00 as prayed in the complaint, which is contrary to the terms and conditions of the agreement between the parties. In fact, the complainant is negligent in asking cancellation of his membership card and refund of entire amount as per the agreement entered between the parties and the OP is neither negligent nor any sort of deficiency of service. The oral evidence of complainant that, the OP is negligent and there is deficiency of service on the part of the OP is not corroborated by any documentary. So viewing the case of the complainant from any angle, we are of the considered opinion that, the complainant has utterly failed to prove with convincing material evidence that, the OP is negligent and there is deficiency of service on the part of the OP, and as such, we answer this point in a negative.
11. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
(Vide separate order dated 15-3-2013)
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 15th day of March 2013.
MEMBER PRESIDENT
