BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD

F.A.No. 1113 OF 2013 AGAINST C.C.NO.27 OF 2011 DISTRICT CONSUMER FORUM-II  HYDERABAD

 Between

1.       The Country Vacations,

          Rep. by its Chairman and Managing Director

          A Division of Country Club ( India) Limited

          Corporate Office: 3-6-376, 368, 3rd floor

          Flat No.306, Skill Spectrum Building

          Besides, TTD Kalyana Mandapam

          Liberty X Roads, Himayat Nagar,

          Hyderabad-500029

2.       The Country Club

          Rep. by its Chairman and Managing Director

          A Division of Country Club (India) Limited

          6-3-1219, Hyderabad

                                                                             Appellants/opposite parties

          A N D

Bamanath Narsing Raod So B.Hariya

Aged 44 years, Occ: Govt. Service

R/o 18-2-197/C, Ravinder Nayak Nagar

Falukna, Hyderabad-500 053

                                                                             Respondent/complainant

Counsel for the Appellant                  Sri S.Rajesh Jaiswal

Counsel for the Respondent              Sri M.Hari Babu

QUORUM             :

HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT

&

SRI PATIL VITHAL RAO, MEMBER

FRIDAY THE SECOND DAY OF JUNE

TWO THOUSAND SEVENTEEN

Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)

***

                    This is an appeal filed by the opposite party aggrieved by the     orders of District Consumer Forum-II, Hyderabad   dated 26.04.2013 made in CC No.27 of 2011 in partly allowing the complaint directing the opposite party to cancel the membership and pay an amount of Rs.52,000/- with interest @ 9% per annum from the date of respective payment together with compensation of Rs.10,000/- and costs of Rs.2,000/-. 

2.                For the sake of convenience, the parties are referred to as arrayed in the complaint.

 3.               The case of the complainant, in brief, is that induced by the opposite party the complainant joined as a member in the opposite party club and paid an amount of Rs.52,000/-.  After receipt of the amount by the opposite parties sent a welcome letter dated19.10.2008 wherein it was mentioned that they have allotted master life membership and as a complement the complainant would be getting a plot of 150 sq.yds at their venture Fairway at Janagam.  Subsequently the opposite parties issued another letter dated 30.12.2008 stating that  has a complementary the complainant would get a plot of 150 sq.yds at their venture at Wanaparthy and the said plot is expected to be registered in the name of the complainant within 18 months from the date of full payment of membership fees and completion of legal formalities and development charges of Rs.20,000/- paid in favour of their sister concern Ms Amrutha States.  But the opposite parties as promised did not execute the sale deed.  Therefore, the complainant approached the opposite party requesting it to refund the amount as it failed to execute any document relating to the plots as promised.  Hence, the complaint praying to direct the opposite party to cancel the membership and refund the amount of RS.52,000/- with interest @ 24% per annum together with compensation and costs.

4.                 The opposite party resisted the case contending that  the complainant ha paid an amount of Rs.52,000/- out of total amount of membership fees of Rs.85,000/- and still he has due an amount of Rs.33,000/- to become full pledged member and to get the registration of the plot in his name.  Further the complainant has to pay an amount of Rs.20,000/- towards development charges.  The opposite parties are always ready and willing to execute the gift deed in favour of the complainant as complementary if the complainant paid Rs.53,000/-.  There was no deficiency of service on the part of the opposite parties and that the complainant is not entitled to the reliefs as prayed for in the complaint.  The membership amount paid by the complainant is non-refundable and hence it prayed for dismissal of the complaint.       

5.                 During the course of enquiry before the District Forum, in order to prove his case, the Complainant   filed his evidence affidavit and the documents Exs.A1 to A22 while on behalf of the Opposite party, no documents have been marked.

6.                The District Forum after considering the material available on record, allowed the complaint bearing CC No.27 of 2011 by orders dated 26.04.2013 granting the reliefs, as stated in paragraph No.1, supra.

7.                 Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.    It is contended that the com as per terms and conditions of the Agreement the membership fees is non-refundable and is not a deposit towards the membership.  The complainant paid only Rs.52,000/- out of Rs.85,000/- towards membership fees and he failed to pay the balance amount as such committed breach of contract.  The opposite party allotted complementary plot to the complainant without any consideration and subject to the conditions of paying development charges of Rs.20,000/- within prescribed time.  The complainant failed to pay the development charges and hence there is no fault on the part of the opposite party in not registering the plot.   Hence, the opposite party prayed to allow the appeal.

8.                 The counsel for the   Opposite party and the complainant   had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments on behalf of the complainant.    Heard both sides.

9.                 The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner?  To what relief ?

10.              The case of the complainant is that he has paid an amount of Rs.52,000/- at different dates towards membership fees to the opposite parties. While so the complainant received a welcome letter from the opposite parties dated 27.11.2008 wherein besides congratulating the complainant on becoming Master Life Membership with Fairway of the Country Club stated that the complainant is required to remit Rs.85,000/- towards mutual life membership with Country Fairway Fee against which the opposite parties received RS.30,000- as initial payment and the balance of Rs.55,000/- is to be paid within 30 days.  The complainant alleged that the opposite parties have not mentioned anywhere that what is the total value of plot and they have made a condition precedent that the complainant has to pay 50% of total purchase price within 4 or 6 months from the date of agreement.  But no agreement is made between the opposite parties and the complainant.  The opposite parties did not execute any sale deed or agreement.  Though the complainant made requests several times but when the opposite parties did not respond, he got issued legal notice dated 06.04.2010 to the opposite parties and filed the complaint. 

11.              On the other hand the case of the opposite parties is that since the complainant has not paid the full membership fee amount, the registration and development charges the question of registration of the plot does not arise.  The opposite parties were ready and willing to execute registered sale deed until and unless the complainant paid balance amount.  They further contended that the membership fees once remitted is non-refundable and also not cancellable.

12.               Admittedly there is no agreement between the parties to dispute the terms and conditions.  In the instant case, the complainant when the opposite parties failed to register the plot expressed his intention not to continue with the opposite party and requested for cancellation. Apparently, by offering gift   and in all probability some other benefits also, the opposite parties made the complainant to pay the amount and he apparently did so in good faith believing the version of the opposite party to be correct. In our considered opinion, forfeiture of amount of Rs.52,000/-, when the complainant did not avail of gift  and any holiday package, is too harsh and unreasonable.

 13.             With regard to allotment of the plot the opposite party issued allotment letter dated 219.10.2008, Ex.A2 where under the complainant was informed that the plot would be registered in his name after completion of formalities pertaining to acquiring of the land such as conversion of the land, approval of the layout, survey of the land etc.  The terms and conditions mentioned in the allotment letter are that completion of all governmental  formalities and development of the project and also subject to payment of registration charges and development charges of Rs.20,000/- in favour of its sister concern M/s Amrutha Estates. 

14.              The other conditions mentioned in the allotment letter are that venture, phase dimensions, plot numbers and layout plans are subject to change from what was mentioned in the brochure.  Construction rights over plot are vested in the opposite party club and any construction over the plot would be made through the opposite party club.  Except stating that the complainants have not paid the registration charges and development charges, the opposite party club had not adduced evidence to show that it had discharged its part of the contract.  The opposite party has not stated the stage of the project and whether the layout is approved and whether there was any change in the dimensions of the plot etc.  It is not the case of the opposite party that the complainants had not paid the entire membership fees.

15.              The complainants had paid the entire membership fee, the obligations rests on the opposite party club to inform them the stage of development of project and changes made if any, either in layout plan or in the policy of government regarding land acquisition etc.  The opposite party cannot take shelter under non-payment of registration charges and development charges by the complainants.  It is not clear whether the amount of Rs.20,000/- mentioned in the allotment letter is consolidated amount or the development charges claimed are different from the registration charges. 

16.              May be, for the reason that the opposite party is allotting the complimentary sites, the complainants were lured to become as members.  On physical verification of the site by the complainants, there appeared no such venture physically and that the sites mentioned in the agreement also not really existing.  Though the counsel for opposite party would contend that the sites really exist at the places mentioned therein in the agreement, no evidence is placed on record to vouchsafe their contention.  Had really the sites been existing, the opposite party would have filed the service tax particulars for the particular period so as to show that the sites are really existing.  In such a circumstance, an adverse inference is to be drawn that without providing any realistic sites, the opposite party offered the scheme to the public including the complainants and thereby lured them to shell out the money.  In any view of the matter there has been deficiency in service on the part of the opposite party club in its failure to inform the complainants the stage of development of the project and the amount to be paid by them towards registration charges and development charges.  Though the complainants have stated in their complaint the opposite party offered to give two plots but in support of their plea no evidence is adduced by them. 

17.              The complainants also pleaded that though the opposite party offered to grant free life membership in Country Club Hyderabad but it  failed to grant any such membership to them.  The complainants contended that the attitude of the opposite party club compelled them to opt for seeking refund of the amount with interest.  The complainants stated that they requested for allotment of accommodation of SPA package and the opposite party postponed to book the accommodation on one pretext or other. 

18.              It is settled law that the parties are bound by the terms and conditions of contract.  The complainants requested the opposite party to refund the amount paid by them.  The opposite party has not responded to their request and it has not allotted the accommodation at the request of the complainants.  The inaction of the opposite party in this regard is made basis for claim for return of the entire amount paid by the complainants.  Admittedly, though the complainants became members of the scheme, they could not avail the benefits and accordingly requested for refund of the amount paid by them.   These facts would certainly constitute deficiency of service and negligence on the part of the opposite party.  The forum below after considering the facts in detail, passed the orders which do not require any interference. 

19.              In the above facts and circumstances, we do not see any merit in the contentions of the Appellants and accordingly find no fault with the findings of the forum below.  In the circumstances discussed supra, we answer the point framed for consideration in paragraph No.9 , supra, in favour of the complainant/respondent and against the opposite parties/appellants. 

          In the result, the appeal fails and accordingly dismissed but no costs.   Time for compliance four weeks. 

PRESIDENT                                 MEMBER

Dated:  02.06.2017