COMMON ORDER


1. In these two cases, though the Complainants are different persons, the Opposite Parties are one and the same persons. The subject matter of these Complaints is similar. The reliefs sought for are also similar. The Opposite Parties are represented in these cases by the same Counsel. The question of law involved in these cases is also similar. Therefore, these two cases are consolidated from the point of view of expediency and they are being disposed-off through this Common Order.


2. These Complaints are filed on 9.1.2009. It is desirable to narrate the case of the Complainant in short here itself; The Complainants are the Members of the Opposite Party-Club (hereafter OP-Club). The representatives of the OP-Club approached the Complainants for upgrading their Membership to KOOL Card. An additional amount of Rs.1,10,000/- was required to be paid for that up-gradation. The Complainants were attracted by the promise of the representatives of the OP-Club that if it is done, one plot of 1089 sft each and another plot 2178 sft area at their Coconut Groove Vedic Spa would be given. Though the Complainants were reluctant in the beginning, they were persuaded in that connection and accordingly, they agreed for that up-gradation by making payment of Rs.1,10,000/- to the OP-Club for that up-gradation. It was further assured that apart from providing two plots each, the said Scheme KOOL Card has some other benefits. However later on, the Complainants began to suspect the genuineness of those offers.
They thought of getting the clarity from the OP-Club regarding the actual location etc., of those plots so promised. Then the OP-Club realized the fact that the Complainants have come to know of the truth of the matter, promised that the amount so paid would be refunded since they failed to show and earmark any specific plot to the Complainants in that Scheme. In the circumstances, the above act of the OP-Club is nothing short of cheating and on account of the same, the Complainants have been put to agony, sufferance and loss. In the circumstances, though promised to refund the amount so paid, the OP-Club failed to refund inspite of repeated requests. Hence these Complaints are necessitated to direct the OP-Club to refund Rs.1,10,000/- each to the Complainants and also compensate them adequately for the agony, sufferance and loss to which, they were put to.


3. The Opposite Parties have made available their Version of the case separately in these two cases on 19.3.2009. In brief, it is as hereunder; These Complaints are not maintainable either at law, or on facts of the case. This Forum has no territorial jurisdiction to maintain these Complaints. The OP-Club is registered under the Companies Act, 1956 and they have come up with many Schemes.
It is true, they have caused advertisements touching their Schemes. It is also true, they have introduced “Mr. KOOL LIFE MEMBERSHIP SCHEME” and called upon their Members and others to become Members of the same. There was no compulsion on the Members to become Members of that Scheme. On the other hand, the Complainants became Members of that Scheme voluntarily. The OP-Club was ready to provide plots to the Complainants. However, the Complainants did not come up to get the Sale Deed registered.
They have not paid the registration charges and the stamp duty for documentation. The OP-Club is ready to execute the Sale Deeds in respect of the plots offered. That apart, the Complainants have made use of the OP-Club to every other benefits. Having availed the same, the Complainants would not have aired their grievance regarding one of the assurances that too without basis.

Such an approach is unjust and improper. Absolutely there is no deficiency of service by the OP-Club to the Complainants. In the circumstances, these Complaints need be dismissed with the cost of the OP-Club.



4. By way of evidence, the Complainants have chosen to produce their evidence in the respective case. The OP-Club have made available an affidavit of G. Kashyap said to be the Customer Care Officer in the OP-Club in each case by way of evidence along with three documents marking them at Ex.No.01 to 03. At the end, this Forum heard on merits.


5. In the circumstances, the following points do arise for our consideration and decision and they are;
(i) Whether the allegation that the OP-Club remained deficient in rendering services to the Complainants is well founded?
(ii) Whether the Complainants are entitled for the refund of the amount and compensation from the OP-Club in the respective case?
(iii) What Order?


6. Our Findings to these points are as hereunder:
i) Yes
ii) Yes
iii) As shown in the operative portion of the Order here below.


7. We shall substantiate our findings on the following:

R E A S O N S


POINT NO.1: (a) It is an admitted fact that these Complainants became Members of the OP-Club long back and that they have chosen to upgrade their Membership to avail the benefits of one of the Schemes of the OP-Club namely Mr. KOOL CARD MEMBERSHIP SCHEME. It is also an admitted fact that the Complainants by paying a sum of Rs.1,10,000/- each to the OP-Club, were so upgraded to the Membership of that Scheme. The OP-Club have made available a xerox copy of the respective Application Form touching that Kool Card Membership Scheme. Annexure-A made available by the Complainant in each case gives the details of that Mr. Kool Card Membership Scheme. It is the copy of the letter dt.4.6.2008 addressed by the OP-Club to the Complainants. It is not a disputed document. Among other offers, we find a clear offer by the OP-Club that a Member would be allotted a plot measuring 1089 sft in their Coconut Groove Vedic Spa and registered that plot in the name of the concerned Member.
There is one more attractive offer in that Scheme to the effect that if a Member introduces a fresh Member to that Scheme, another plot measuring 2178 sft would be provided in the very same Coconut Groove Vedic Spa. It is the very case of the Complainants that having been attracted by that offer of plots, they had chosen to become the Members of that Scheme by way of upgrading their previous Membership in the OP-Club. Whatever it is, having agreed, it was the bounden duty of the OP-Club to provide the agreed sites to the Complainants.

(b) Now the question is, whether the OP-Club have fulfilled their offers? The answer is in the negative. Nodoubt to impress upon this Forum that the OP-Club have formed their Layout and provided sites to the Members, they placed reliance upon Ex.No.03. Ex.No.03 is a xerox copy of the plan of the proposed Layout. As revealed therein, it is as vague as it could be. Nowhere in that plan a mention is made that it is the certified copy of the original plan touching the proposed Layout. It is true, we find the signatures of the President and the Secretary of the concerned Village Panchayath in which according to the OP-Club, that Layout is situate as per Layout Plan. But very significantly, that Plan is not dated. Moreover, the round seal impression of that Panchayat found in that Plan does not reveal the Approval Number or Resolution Number or, the date on which, that Plan is alleged to have been approved. Wherefore in the circumstances, no credence can be given to the above xerox copy of the alleged Plan.
That apart, it is the very case of the Complainants that they might have visited that area umpteen number of times and that they could not make out where exactly the proposed Layout is situate. Instead of clearing the doubts regarding the very formation of the said Layout, the OP-Club probably to suit their convenience, have chosen to contend that though the plots were ready, the Complainants did not come forward to get the Sale Deed registered by providing stamp duty and registration charges.
This is very much disputed by the Complainants. It is significant to note that stamp duty and registration charges touching any Registered Deed for that matter, goes to the State and not to the Vendor of the Plot. Secondly, where is the documentary proof on record that the OP-Club have formed that site and the agreed plots are ready for sale in favour of the Complainants and that the OP-Club have salable right over those plots? Absolutely there is no evidence in that regard. Inspite of the same, now they want to make this Forum to believe that sites are ready for sale.



(c) Further it is not as if the Complainants after upgrading their Membership to Mr. Kool Card Membership Scheme, had kept quiet. On the other hand, the evidence on record by way of correspondence would clearly go to show that the Complainants have been persistently demanding the OP-Club to keep up their promise of providing the agreed sites. Now their grievance is, all those attempts have become futile and that the OP-Club on the other hand, by their conduct have driven them to this litigation. Significantly, there is no honest attempt on the part of the OP-Club to comply with their offer of sites. On the other hand, they have chosen to find fault with the Complainants themselves even though there is no fault whatsoever on the part of the Complainants. Wherefore, the conduct of the OP-Club by making such an offer without making any honest attempt to fulfill the same at the earliest, would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986. It is needless to say that they have upgraded their Membership only for the sake of getting the promised site and having been frustrated by the commissions and omissions of the OP-Club in that regard, the Complainants must have been put to some sort of agony and sufferance apart from loss.

Absolutely we do not find any substance in the defence of the OP-Club in these cases. Wherefore, the materials on record by way of evidence would clearly go to show that the allegation of deficiency of service on the part of the OP-Club is very much established here. Accordingly, this point is answered.



8. POINT NO.2: The Complainants have sought for the refund of the additional amount so paid by them for the Membership of that new Scheme namely Kool Card Membership Scheme along with an interest and in addition to the same, they have sought for compensation for the sufferance to which they were put to. Having regard to the totality of the facts and circumstances of the case, it is but proper in a situation like this, to direct the OP-Club to refund the respective amount so paid by the respective Complainant along with an interest at a reasonable rate. Further, as stated supra, on account of that deficiency of service, the Complainants have been put to sufferance and loss and to secure the ends of justice, the same need be compensated. They have not only been deprived-off the sites promised, but also were compelled to take legal course. Wherefore, a reasonable amount need be provided to the Complainants by way of cost and compensation in addition to the refund of the amount with interest. In the circumstances, according to us, it would be just and proper to direct the OP-Club to pay interest on the said amount at 18% from the date of payment, till refund. Further, cost and compensation if fixed at Rs.10,000/-, ends of justice would secure. Accordingly, this point is answered.


9. POINT NO.3: In the result, we proceed to pass the following: ORDER Since the alleged deficiency of service by the OP-Club is established in these cases, the OP-Club in these cases are directed to refund Rs.1,10,000/- (Rupees one lakh ten thousand) to the Complainant in each case along with an interest at 18% p.a. from the date of the payment of that amount, till refund. In addition to the same, the OP-Club shall also pay a sum of Rs.10,000/- (Rupees ten thousand) by way of cost and compensation to the Complainant in each case. The OP-Club is granted 30 days from this date to comply this Order and report compliance positively.