BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    04^th DAY OF SEPTEMBER 2019

Complainant/s: -                           

Sri.Ganeshan Kaitheri Kandoth

S/o Late N.V.Narayanan Nambiar,

R/at Flat No.S2,

Bharathi Towers, Doddanekkundi,

Marathahalli,

Bengaluru-37.

By Adv.Smt.Indu.N

V/s

Opposite party/s:-    

Country Vacations,

Having its Office at No.4, S.V.Towers, 1^st & 3^rd

Floor, Krishna Nagar Industrial Layout,

Hosur Road, Behind

Christ College,

Koramangala,

Hosur Main Road, Venkateshwara Layout, Sidduguntepalya,

Bengaluru-29.

Rep. by its Manager

By Adv.Sri.D.Narase Gowda

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to return the amount of Rs.15,000/- collected towards membership along with interest at 24% p.a.; to pay compensation of Rs.1 lakh; to pay cost and to award such other reliefs.

2. The brief facts of the complaint are as under:

The Complainant submits that, by believing the attractive offerings of the OP, he applied for the membership with them by paying initial part payment of Rs.15,000/-. Though he was ready to pay the necessary fees, OP not issued the membership card.  Hence, requested the OP to return the amount. The Complainant requested through emails and visited office so many times, but they are not ready to listen the words of the Complainant. Finally sent notice dtd.08.04.13, for which no reply from them. Thereafter, OP informed the Complainant that they will look in to the matter and shall return the amount to the Complainant. Hence, on 07.04.14 again sent reminder to the OP. But OP did not come forward to return the amount. The said act amounts to deficiency of service on its part. Hence this complaint.

3. After issuance of notice, OP did appear and filed version.  In the version, OP submits that, the Complainant had entered into the purchase agreement dtd.21.09.12. The Complainant has paid only Rs.15,000/- out of 95,000/- and hence OP issued only Temporary Membership card. In view of the balance payment of Rs.80,000/-, this OP could not generate the laminated membership cards. Further, the Complainant has not provided the photographs and birth certificates of their dependents. In terms of the purchase agreement clause, there is no provision for refund of amount or cancellation of the club membership. However, the Complainant is at liberty to sell or transfer or gift the club membership to any third party. Inspite of that, the Complainant for the reasons best known to him has filed the above false and frivolous complaint for cancellation. In view of the said facts, there is no deficiency of service on its part. Hence, prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents.  Both filed written arguments. We have gone through the available materials on record. Heard.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP.  The undisputed facts which reveal from the pleadings of the parties goes to show that, the Complainant has entered in to Purchase Agreement for Club and Vacation Membership/Doc.1 with OP and paid part payment of Rs.15,000/- out of Rs.95,000/-. As per the case of the Complainant, the membership card ought to have been issued within two days, but OP did not issue the same. In this context, the Complainant has sent an email/Annex.B dtd.26.12.12 to OP which reads thus:

Dear Sir/Madam

I have purchased a membership bearing contract No.DT41#1397, in your club on 21.09.12, for an amount of Rs.95,000/- and I have paid an amount of Rs.15,000/- as a part payment. Your executive had assured us to issue the membership card within two days, and we have submitted all the required documents to your office and even after the lapse of 3 months, you did not attend our requirement.

So, we hereby request you to return the entire amount, as we are not interested in your scheme, due to your inadequate service.

Regards,

Ganeshan.K.K

So also issued legal notice/Annex.C dtd.08.04.13 and another email/Annex.F dtd.07.01.14 reiterating the contents of email/Annex.B. But OP did not issue the membership card or refunded the paid amount. According to the case of the OP, it has issued Temporary Membership Card. But the same is not produced before this forum to believe his version. It is not the case of the Complainant that, not to pay remaining amount of Rs.80,000/-, but since there is laxity/deficiency of service on the part of OP in not issuing the membership card, he has forced to issue the said letter by way of emails for refund of the paid amount. To these emails, there is no any response by the OP much less to the notice issued by the Complainant.

          8. The OP has relied on the decision of Hon'ble National Commission in R.P.No.1192/2010 in the case of The Country Club (I) Ltd., vs. L.Mahadevan, wherein the facts of the said case are different from the facts of the present case on hand. In the said case, the sites were offered to the Complainant therein and further the club facility has been enjoyed by the Complainant therein.  In the instant case, the Complainant has not availed any service from the OP and not enjoyed the club facilities. When such being the fact, the Complainant is entitled for the relief sought for as per the latest decision of Hon'ble National Commission reported in 2019(1) CPR 647 (NC) in the case of Chief in Charge of M/s.Country Vacations and Anr. vs. Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service.” Hence, in the light of the said decision cited supra, we come to the conclusion that, as the OP being the service provider, did not have cursory look on the emails/Annex.B & F as well as the notice/Annex.C sent by the Complainant for return of the paid amount. Under such circumstances, the amount of Rs.15,000/- paid by the Complainant being part payment of the membership fee is certainly refundable with interest at 8% p.a. from the date of email/Annex.B dtd.26.12.12 till the date of realization with litigation cost of Rs.5,000/-. Accordingly we answered point No.1 partly in the affirmative.

          9. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is allowed in part.

2. The OP is directed to refund Rs.15,000/- to the Complainant along with interest at 8% p.a. from the date of email dtd.26.12.12 till the date of realization along with litigation cost of Rs.5,000/-.

3. This order to be complied by OP within six weeks from the date of receipt of this order, failing which the Complainant is at liberty to have the redress as per law.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of September 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.19.03.15

Sri.Ganeshan Kaitheri Kandoth

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.16.01.15

Sri.Mohammed Akmal Pasha, Manager    

Copies of Documents produced by OP

            MEMBER                                           PRESIDENT