PRESENT

                   Complainant by Adv.Leela Mehta  present. 

                   Opponent  by Adv.Shradhha  Worlikar 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 states that, the representative of opposite party offered him membership of the Country club on payment of amount of Rs. 5,75,000/-. The complainant further stated that, the opposite party also assured him to provide various facilities along with promise to allot the plot of admeasuring 10,000sq.ft. at Kolad, Dis. Raigad.
3. The complainant stated that, he has made full and final payment of Rs. 5,75,000/-. The complainant further stated that, the M/S Amruta Estates who is the sister concern of opposite party sent an allotment letter for the plots bearing no. 529, 530, 531, 532 and 533 of 2,000sq.ft each  on 29.03.2009.
4. The opponent informed the complaint that, the registration process of above said plots will take about 18 months and also informed the complainant to pay the development charges.
5. The complainant stated that, after the receipt of said allotment letters he requested the opposite party to show the site of said plots bearing no. 529, 530, 531, 532 and 533 to him but in spite of repeated requests made by the  complainant the opposite party failed to show the said plots.
6. The complainant sated that, he was informed by the opponent on 1.02.2010 that the plots allotted to him were cancelled  and he was told that, he would get another six memberships of the value of Rs. 1,60,000/- each for Country club membership.
7. The complainant submitted that, he is entitled to receive the amount of Rs. 9,60,000/-  worth six membership of Rs. 1,60,000/- each from the opposite party.
8. It is alleged that, opposite party is guilty for deficiency in service and unfair trade practice 
9. The opposite party filed written statement on 06.06.2012 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 opponent as no cause of action has arisen against the opponent.
10. The complainant 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 opponent submitted that, the plot was complementary with zero consideration.
11. The opposite party stated that complainant is not consumer and complaint is not maintainable as per law.
12. The opposite party submitted that, the complaint is barred by limitation as per section 24A of the Consumer Protection Act 1986 and deserves to be dismissed with cost.
13. The opposite party stated that, the claim of the complainant for an amount of Rs. 9,60,000/- is baseless as in view of the surrender of plot the complainant is entitled  for six memberships for which he can give nominations
14. The opposite party states that as per agreement only courts of Hyderabad and Secunderabad will have jurisdiction in case of disputes arising if any.
15. The opposite party states that complainant failed to fulfill the terms and conditions of the membership.
16.  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.
17.  It is contended that free plot is a gift which does not have any kind of consideration.
18.  The opposite party submitted that they have already issued a letter for allotment of plot which was complementary as per agreement.
19.     It is further submitted that opponent is always ready to fulfill obligations as per agreement. It is prayed that complaint be dismissed with cost.
20.    We have perused all the documents produced on record by both the sides. Heard Ld. Adv. Lila Mehta for complainant and Ld. Adv. Shradha Varalikar for the opponent at length.  
21.    The main contention of the complainant is that opponent failed to render service as per the agreement of membership.
22.    On perusal of the documents it is evident that opposite party had allotted to the complainant the plot bearing No. 529, 530, 531, 532 and 533 about 2000 sq.ft. each at Kolad, Near Mangaon, on Mumbai-Goa Highway, Dist: Raigad on 29.03.2009.
23.    It is pertinent to note that opponent has failed to give the possession of the said plots of admeasuring of 10,000 sq,ft. to the complainant and also failed to give the membership of six persons of Rs. 1,60,000/- each as promised by the opponent to the complainant.
24.    The opponent has 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 the opposite party for getting the clearance from competent authorities for giving the possession of the plots to the complainant.
25.    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 or give six membership of country club to the complainant.
26.   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.
27.  The complainant is subjected to wrongful loss due to false promise made by the opponent. The opponent is subjected to wrongful gain as nothing has been done in favour of the complaint as promised by the opposite party even after the accepting the huge amount from the complainant.
28.     The complainant has paid total amount of Rs.5,75,000/- however the opponents failed to perform contractual obligation of handing over possession of the said plots or alternatively also failed to allot the six membership in the country club as promised by the opposite party.
29.   The complainant was subjected to mental agony due to breach of contractual obligation on the part of opponent. The complainant therefore is entitle to receive compensation from the opponent who has broken the contract.
30.   The complainant is entitled to rescind the contract due to breach of contract by opponent.    
31.   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.
32.   We are of the opinion that opponent is guilty for breach of trust for accepting huge amount on the assurance of giving plot  or in alternative six membership of county club and other benefits.
33.   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.5,75,000/- paid by complainant. . The complainant prayed that the said amount be refunded with interest @ 18% and claimed compensation of rupees 100000/- for mental agony.
34.     We are of the opinion that, the opponent is not in a position to allot the plot also the opponent failed to give six membership to the complaint as promised, so we feel it proper to direct the opponent to refund the amount to complainant.
35.        We accept his prayer for refund of Rs.5,75,000/- with interest @ 18% from the date of admitting of this complaint i.e. 24.05.2012.
36.   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.
37.      In the result we pass the following order.

                                    ORDER

1.      RBT/CC/171/2012  is party allowed.

2.     The opposite party is directed to pay Rs. 5,75,000/- with interest @ 18 % p.a from the date of filling of the complaint i.e 24.05.2012

        till realization to complainant.

3.      The opposite party is directed to pay Rs. 25,000/- to complainant  as compensation for mental agony.

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

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