COMPLAINT FILED: 30.09.2009

DISPOSED ON: 10.02.2011

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

10^TH FEBRUARY 2011

  PRESENT :- SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                MEMBER  

     SRI. A. MUNIYAPPA                         MEMBER         

       COMPLAINT NO.2300/2009

ORDER

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 Party (herein after called as O.P) to refund Rs.1,85,000/- with interest at the rate of 18% p.a. from 29.10.2007 and compensation of Rs.3,00,000/- on the allegations of deficiency in service on the part of OP.

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

Complainant lured away with offer made by OP became the member of the scheme floated by OP. The representative of the OP approached complainant and told him that if he became member of OP club by investing Rs.1,85,000/- complainant would be getting four complimentary sites outside Bangalore City within a span of three months period. Hence complainant became member of OP and OP issued Mr. Cool Card and told him that he has been allotted a gift plot of 1089 sq.ft + 3 plots of same dimension taking extra land under MGM Scheme in Coconut Grove Banyan Tree/Vedic Spa at Penugonda, on NH-7 at Bangalore-Hydrabad Highway. Based on that assurance complainant invested Rs.1,85,000/- with OP issued a Cool Card bearing membership No.VS-2647.  After collecting the sum of Rs.1,85,000/- OP has failed to show and made known to him the sites allotted to him and where exactly the site is situated its boundary, location etc., on enquiry complainant learnt that allotting of site and getting it registered and taking its possession are all beyond his reach and it is only a promise made in brochures. Complainant several times had been to the office of OP and his repeated personal visits to get further information regarding his site were not given any fruitful results.  All is efforts went in vain. OP has failed to keep up its promise and fraudulently informed the complainant that it would deliver the vacant possession and dishonestly, cheated the complainant without arranging anything after collecting huge amount.  Complainant after waiting for considerable time on 12.02.2009 caused legal notice to OP demanding to refund the amount along with the accrued interest. Inspite of service of notice on 03.02.2009, OP has failed to settle the complainant’s claim.  Hence complainant felt deficiency in service against OP. Under the circumstances he is advised to file this complaint for the necessary relief’s.

3.      On appearance OP filed the version admitting that complainant upgraded his membership from existing platinum scheme to Mr. Cool. Complainant suppressing the said facts making false claim.  OP has collected a sum of Rs.95,000/- and earlier membership fee of Rs.15,000/-. In all Rs.1,10,000/- only and not Rs.1,85,000/- as alleged by the complainant. OP submits that permanent member would get live country club life membership, Complementary plot of 1089 sq.ft., at Vedic spa, Penukonda, One way air ticket to Goa for couples 2 nights 3 days, Holiday package of two nights three days stay in Bandipur, Bushbettta, Holiday package to RGBC Goa, for 6 nights 7 days, 7 months complementary Moksh Card worth Rs.50,000/- Access to all the clubs in India. Value of which is more than the membership fee paid by the member. Under Mr. Cool membership member would get one complementary site at Coconut grove.      In the allotment letter OP has asked the complainant to deposit registration and maintenance charges of Rs.15,000/- within 30 days from the date of issuance of allotment letter, which has not been deposited by the complainant, inspite of several requests and reminders; Due to the said reason OP could not register the allotted site in favour of the complainant; OP is ready for registration as soon complainant deposit the registration charges;  Inspite of several requests complainant not turned up for registration. Under these circumstances this forum can only direct the OP to register the complementary plot on receipt of full registration fees. In this scheme complainant cannot seek refund of amount on the alleged ground of none providing of complimentary plots as the same is not part of the facilities assured and other scheme; Complainants having utilized all the services are now trying to seek for refund of membership fee paid. This is not permissible under law; the place of allotment of complimentary sites has been informed by OP to all the members and the contention that the complainants have been offered a site at different location is false; Complainant by suppressing said facts is making false statement. OP has collected only sum of Rs.95,000/-over and above earlier membership amount of Rs.15,000/- in all OP has collected only Rs. 1,10,000/- from the complainant and not Rs.1,85,000/- as alleged by the complainant. Complainant by suppressing the said fact is making false claims that OP had offered four complementary sites measuring 1089 Sq.ft at Penukanda, on NH-7. Under upgradation complainant is entitled for only one complimentary site.  Since complainant had not introduced any members the question of allotting site under MGM Scheme does not arise at all, it is untenable to contend that plot No.A-44, at Phase-2, Coconut grove was allotted to the complainant. Complainant is yet to pay a balance of Rs.15,000/- documents produced by the complainant dated 31.01.2007 is a fabricated and concocted document for the purpose of filing the present complaint. OP has acted as per the promise and ready to provide all the facility to the complainant and to register and convey site in favour of the complainant. Issuance of legal notice was uncalled for since OP has acted as per its promise and said notice was issued only to harass the OP.  Prayer for grant of compensation of Rs.3,00,000/- cannot be granted since complainant has upgraded his membership with a profit motive, unnecessarily dragging the OP. There is no deficiency in service on the part of the OP. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averments, complainant filed his affidavit evidence and produced copy of membership card, brochures, letters of OP dated 31.10.2007, 02.11.2007, 06.11.2007, receipt for Rs.50,000/-, Rs.45,000/- copy of the legal notice, postal acknowledgement, complainant after going through the version of OP filed better affidavit in lieu of clarification restricting his claim for refund Rs.1,10,000/- only. On behalf of OP Alla Subba Reddy, General Manager (Operation) filed his affidavit evidence and produced allotment letter dated 23.01.2010.  Heard arguments from both the sides.

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 OP?

     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 not in dispute that complainant became the member of Mr. Cool Card vide membership No.VS 2647 of OP. It is also not in dispute that complainant has paid Rs.1,10,000/- as admitted by OP. OP has promised to allot the complementary site at Coconut grove banyan tree as per letter dated 02.11.2007. OP has failed to show the location, boundary of the site allotted to the complainant. Insipite of repeated requests OP failed to register the site.   Hence complainant caused legal notice through his advocate. Inspite of service of notice there is no response from OP. Hence complainant approached this forum.

8.      As against the case of the complainant the defence of the OP that complainant failed to pay Rs.15,000/- towards the maintenance charges within 30 days from issuance of the letter; for the said reason OP could not register the allotted site. As soon as complainant makes payment OP is ready to register the site in favour of the complainant.

9.      It is contended by the complainant that OP has promised to allot the complementary site within three months from the date of membership but till date OP has failed to allot site as per its promise. As per receipt issued by OP amount was received by OP on 30.10.2007. In the allotment letter produced by OP dated 23.01.2010, OP has requested complainant to pay Rs.15,000/- towards site confirmation administrative charges which includes the stamp paper and registration expenses and along with maintenance charges for the period of 30 months; further requested to sent a cross DD in favour Country Club India Ltd., and this letter of allotment is valid for a period of 30 days from the date of this letter, any delay in making the aforesaid charges within the said period the complementary plot allotted will be changed to different phase. On receipt of payment by the complainant OP will inform on the registration process and further course of action.  Since 3 years OP has failed to show and made known the location of the site allotted to the complainant and where exactly the site is situated, complainant felt deficiency in service and that it is beyond his reach and it is only a promise made on the brochures.  Inspite of his repeated requests and personal visits to the office of the OP regarding further information regarding the site. OP failed to provide the same. Hence complainant sought for refund of amount and caused legal notice to OP through his counsel. Inspite of service of notice there is no response from OP. This act of OP amounts to deficiency in service. OP having retained the amount for more than two years failed to show the location and failed to give reply to the legal notice. On 23.01.2010 OP filed a memo stating it is ready to register the site at Penukonda, A.P., But the relief sought by the complainant is only for refund of amount with interest and compensation. OP has not produced any documents to establish that vacant sites approved by statutory authorities free from encumbrances are still available at the disposal of the OP as on today.  OP admits payment of Rs.1,10,000/- only. Under these circumstances we are of the considered view OP has failed to provide the assured services to the complainant. The same amounts to deficiency in service on the part of the OP. We are satisfied that complaint is able to prove deficiency in service against OP. Under these circumstances complainant is entitled for refund of admitted amount of Rs.1,10,000/- 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.1,10,000/- along with interest at 12% p.a from 30.10.2007 till the date of payment 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 her verified and corrected, and then pronounced in the Open Court by us on this the 10^th day of February 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.