PRESENT

                   Complainant by Adv.Shri.C.S.Malhotra present.    

                    Opponent by Adv. Prasad apte present.          

ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.)

1.         The Complainant has filed the complaint against the Opponent for deficiency-in-service as per section 12 of Consumer Protection Act, 1986.
2.         The Complainant stated that, the opposite party is doing huge publicity by publishing advertisement in the leading newspapers. Mr. Krishnan Raju personally visited Complainant with the proposal of membership of the opposite party with a promise that one branch will be open at Dadar. The Complainant paid Rs. 1,25,000/- to the opponent on 31.08.2008. the opponent confirmed the membership on 02.09.2008 ageeing  to provide facilities and plot of Two Thousand Sq.ft at Kolad and other facilities. The opponent issued a Photo smart card to Complainant and for all his family members for the said membership.
3.         The opposite party addressed a letter to complainant on 12.09.2008 confirming that, the complainant will be entitle for the plot of 3000 sq.ft at Kolad on payment of total non-refundable membership of Rs. 3,25,000/-.
4.          The complainant paid Rs. 50,000/- towards the registration charge of plot. The complainant stated that, opponent started demanding money after money and no temporary or permanent membership card was issued to the complaint. The complainant paid Rs. 1,00,000/- during 14.02.2009 to 31.05.2009 however opponent failed to issue temporary card of permanent membership card.
5.         The complainant alleged that, the opponent failed to provide facilities as per the promise. The sole intention of the opponent is to make money under one or other excuse and harass the complainant. The complainant prayed for direction to opponent to execute agreement of sale and handover the possession of the plot of 2000 sq,ft at Kolad or in the alternative to refund the sum of Rs. 2,25,000/- with interest. He also prayed for compensation for mental agony of the amount of Rs. 5,00,000/- and cost of Rs, 25,000/-   
6.           The opposite party filed his written statement on 02.11.2011 and denied the allegations made by the complainant and resisted the complaint on all counts. The present complaint is filed only with the intention to harass the opponents as no cause of action has arisen against the opponents.
7.          The complainant is not entitled to repudiate the contract unilaterally. The amount paid by the complainant was non refundable as per the agreement, hence has no right of asking of refund of membership fees from the opponent. The opponent submitted that, the plot was complementary with zero consideration.
8.         The opposite party stated that complainant is not consumer and complaint is not maintainable as per law.
9.          The opposite party states that as per agreement only courts of Hyderabad and Secunderabad will have jurisdiction in case of disputes arising if any.
10.             The opposite party states that complainant failed to fulfill the terms and conditions of the membership. The opponent party denied claim made by the complainant for the branch at Dadar the opposite party denied the payment of Rs. 50,000/- made by the Complainant towards the registration charges and other charges of said plot.
11.         The opposite party stated that, newspaper cutting dated 2^nd May 2010 as well as the content of the website of ICRPC has no relevance in this matter as  ICRPC is not having any authority to declare anyone as a cheater.
12.       The opposite party stated that as far as allotment of plot is concerned their role is limited as the allotment of plot was subject to policy of government regarding the Land acquisition, plotting, layout etc.
13.           It is contended that free plot is a gift which does not have any kind of consideration.
14.            The opposite party submitted that they have already issued a letter for allotment of plot which was complementary as per agreement.
15.           It is further submitted that opponent is always ready to fulfill obligations as per agreement. It is prayed that complaint is dismissed with cost.
16.               We have perused all the documents produced on record by both the sides. Heard complainant and opponent at length.  
17.            The main contention of the complainant is that opponent failed to render service as per the agreement of membership.
18.             On perusal of the documents it is evident that opposite party had allotted to the complainant the plot about 2000 sq.ft. at Golf Village, Kolad, Near Mangaon, on Mumbai-Goa Highway, Dist: Raigad on 02.09.2008.
19.           It is pertinent to note that opponent has not till this date given the possession of the said plot. The opponents have taken the defense that the allotment of plot is subject to policy of the government as to Land acquisition etc. The opponent failed to explain the steps taken by them for getting the clearance from competent authorities for giving the possession of the plot to the complainant.
20.            We are of the opinion that opponent was under an obligation to act fairly with the complainant and was expected to take reasonable steps within proper time to handover the possession of the plot to the complainant.
21.             The opponent on the other hand stated that complainant is not entitled for the said plot as the allotment was made as a complementary gift. The opponent is not permitted to take such stand as per law.
22.             The complainant has paid total amount of Rs.2,25,000/- however the opponents failed to perform contractual obligation of rendering service to him.
23.               The complainant was subjected to mental agony due to breach of contractual obligation on the part of opponent. The therefore is entitle to receive compensation from the opponent who has broken the contract.
24.                The complainant is entitled to rescind the contract due to breach of contract by opponent.    
25.             We are of the opinion that opponent is guilty for unfair trade practice as well as deficiency in service by depriving the complainant of his legal right conferred on him as per agreement.
26.              We are of the opinion that opponent is guilty for breach of trust for accepting huge amount on the assurance of giving plot and other benefits and lastly stating that the allotment of the plot was complementary and without consideration.
27.             In view of the facts and circumstances of the case we feel proper in interest of justice to direct the opposite party to refund the total amount of Rs.2,25,000/- paid by complainant. . The complainant prayed that the said amount be refunded with interest @ 24% and claimed compensation of rupees 500000/- for mental agony.
28.             We are of the opinion that, the opponent is not in a position to allot the plot, so we feel it proper to direct the opponent to refund the amount to complainant.
29.            We accept his prayer for refund of Rs.2,25,000/- with interest @ 18% from the date of admitting of this complaint i.e. 21.06.2011. The complainant is entitle to compensation of rupees 25,000/- for mental agony. The complainant is entitle for cost of Rs.10,000/- from opponent.
30.         We proceed to pass the following order.   

ORDER

1.       RBT  complaint No.259/2011 is partly allowed.

2.       The opposite parties is directed to pay Rs. 2,25,000/- with interest @ 18

          % p.a from the date of filling of the complaint i.e 21.06.2011 till

          realization to complainant.

3.      The opposite parties is directed to pay Rs. 25,000/- to complainant as

          compensation for mental agony.

4.     The opposite parties is directed to pay Rs. 10,000/- to complainant

        Consumer Welfare Association as cost.

5.       Copy of this order be sent to both parties.