PRESENT

                   Complainant by Adv.Shri.D.B.Mhatre present.    

                    Opponent by Adv. Shri.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. It is the case of the complainant that he is bonafide member of opponent and obtained the membership in 2008. He contended that he became a member after considering all the privileges and benefits provided by opponent on payment of Rs.4,68,000/-.

3. The complainant stated that opponent agreed to provide service facility as well as agreed to allot plot area 3000 sq.ft. + 2000 sq.ft. Plot at Kolad, near Mangaon, on Mumbai-Goa Highway, Dist: Raigad.

4. The complainant stated that opponent failed to provide facilities and privileges as stated in the agreement. The complainant stated that the opponent agreed for welcome trip for Dubai for 2 nights 3 days as per agreement, however, he had very worst experience at the Hotel Dubai. He stated that he has to wait for 6 hours on lawns in Hotel and was required to spent about Rs.8,000/- towards food and telephone bills.

5. The complainant contended that opponent failed to provide facility of free health club as per agreement and also has not received any insurance policy as agreed by opponent.

6. The complainant stated that in view of the failure of the opponent to render service as per agreement, he sent letter dated 4/3/2011 & reminder dated 28/3/2011 to the opponent, and the opponent falsely replied the notice.

7. The complainant contended that the opponent intentionally and deliberately have not considered and provide the facility as per the agreementeven after accepting the amount from him. The complainant prayed that opponent be directed to refund the amount of Rs.4,68,000/- with interest @ 12% p.a. from 26.10.2008, as well as amount spent at Dubai at Rs.10,000/-, compensation for mental harassment to the amount of Rs.50,000/- and Rs.15,000/- as costs.

8. The opponent filed written statement and resisted the complaint on all counts. The present complaint is filed only with the intention to harass the opponent as no cause of action has arisen against opponent.

9. It is submitted thatcomplainant is not entitled to repudiate the contract unilaterally. The amount paid by the complainant was non refundable as per the agreement, hence he has no right of asking of refund of membership fees from the opponent. The plot was complementary with zero consideration.

10. The opposite party stated that complainant is not consumer and complaint is not maintainable as per law.

11. The opposite party states that as per agreement only courts of Hyderabad and Secunderabad will have jurisdiction in case of disputes arising if any.

12. The opposite party states that complainant failed to fulfill the terms and conditions of the membership.

13. 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.

14. It is contended that free plot is a gift which does not have any kind of consideration.

15. The opposite party submitted that they have already issued a letter for allotment of plot which was complementary as per agreement. It is prayed that complaint be dismissed with cost.

16. We have perused all the documents produced on record by both the sides. Heard both sides at length.

17. The main contention of the complainant is that opponent failed to render service as per the agreement of membership.

18. The opposite party submitted that complainant committed the breach of the terms of the agreement.

19. On perusal of the document it is evident that opposite party had allotted to the complainant the plot admeasuring 3000 sq.ft + 2000Sq.ft. extra plot with management offer at Kolad Dist. Raigad on 27/10/2008.

20. It is pertinent to note that opponent has not till this date given the possession of the said plot. The opponent has taken the defence 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 for getting the clearance from competent authorities for giving the possession of the plot to the complainant.

21. 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.

22. 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 and equitable considerations.

23. The complainant claimed compensation for his worst experience during the trip at Dubai and for the amount spent during the said period. The opponents stated that complainant was entitle only for air fare and stay for two nights and three days subject to terms and conditions. As the complainant has not spent any amount for fare and stay he is not entitle for compensation.

24. We are of the opinion that opposite party committed breach of contract by depriving the complainant from his rights as per proposal of Cool Dubai Membership dated 27/10/2008.

25. The complainant has paid total amount of Rs.4,68,000/- however the opponents failed to perform contractual obligation of rendering service to him.

26. The complainant has been suffered loss by breach of contractual obligation on the part of opponents. The complainant therefore is entitle to receive total amountfrom the opponents who has broken the contract.

27. The complainant is entitle to rescind the contract due to breach of contract by opponent .

28. 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 vested in him as per agreement.

29. 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.

30. In view of the facts and circumstances of the case we feel it proper in interest of justice to direct the opposite party to refund the total amount of Rs.4,68,000/- paid by complainant with compensation and cost. The complainant has claimed interest @ 12% p.a. on the said amount which is on lower side. We accept the said prayer regarding interest.

31. The complainant was subjected to wrongful loss due to wrongful gain by the opposite party. The complainant has become a victim of unfair trade practice adopted by the opposite party. We hold that complainant is entitled for compensation for mental agony to the amount of Rs. 50,000/- as claimed by him and Rs. 10,000/- as cost of complaint.

32. In the result we pass the following order.

                                             ORDER

     

    1.       RBT  complaint No.101/2012 is partly allowed.

    2.        The opposite party i.e. The Country club India Ltd. is ordered  to pay

               Rs. 4,68,000/- with interest @ 12 %  p.a  from the date of filling of the

              complaint.  

    3.        The opposite party is ordered  to pay Rs. 50,000/- as compensation

               for mental agony with interest @ 9% p.a from the date of receipt of this

              order till realization.

    4.        The opposite party  is ordered  to pay Rs. 10,000/- to complainant as

               cost of the  complaint. 

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