COMPLAINT FILED ON: 11.02.2010

DISPOSED ON: 25.11.2010

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 25^TH NOVEMBER 2010

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER

                     SRI. A. MUNIYAPPA                         MEMBER         

COMPLAINT No.283/2010

O R D E R

The complainants filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction to the Opposite Parties (herein after called as O.Ps) to pay compensation by way of damages a sum of Rs.2,86,000/- on the allegations of deficiency in service on the part of the OPs.

2.      The case of the complainant is to be stated in brief is that:

          The complainants being husband and wife who were married on November – 2007 were searching for good resorts for spending time together. On 12.04.2008 they received a call from OP-1 stating that they have received a lucky draw containing of a dinner set and week accommodation and they were directed to visit the office at Amrutha Castle, Hyderabad to collect the lucky draw gift. The complainants visited the office of OP-1 on 12.04.2008 at 7 p.m., the representative Mr. Samad, Sales Executive and Mr. Abdul Subhan, Sales Manager spoken about the offers for holiday club. The Sales Executive and Sales Manager converse the complainants that they become member by opting for EMI scheme which they were associated with ICICI credit for 24 months with 0% interest. The complainants being satisfied with the proposal for becoming a member by way of EMI scheme, signed credit slips for EMI of Rs.1,12,000/- and paid sum of Rs.1,291/- as processing fee. By the time, they reached the home, the first complainant received three SMS from ICICI bank about deduction of Rs.40,000/-, Rs.40,000/- and Rs.32,000/- respectively as OP-1 immediately presented the credit slips for Rs.1,12,000/-, which was supposed to be paid by the complainants to OPs in 24 months with 0% interest. When the complainants were checking the online account statement, it was reflected after two days of transaction, it showed the deduction of Rs.16,666=66 and Rs.6,666=65 respectively as advance EMI on May – 2008 credit card bill. When complainants enquired with ICICI bank, wherein he has learnt that OP-1 presented the credit slips five months installments at one time and got en-cashed the amount and the rest amount will be deducted monthly as two EMI of Rs.3,333=33 and Rs.1,333=33 respectively on every month till December – 2009. The scheme of EMI was also mislead to the complainants and induced them become member by causing heavy financial loss. After receipt of the payment, OP-1 assigned a membership number and occupancy years 5 with Non-RCI on 15.04.2008. On 15.05.2008 OP-1 gave a complimentary site No.3325 at Golf Village, Birdie-III at Jangoan. On 17.01.2009 complainants entered into purchase agreement with Country Vacations International Holiday Club Membership. Since from the membership only twice provided service and thereafter OPs have not provided any services despite repeated calls, emails and remainders, but OPs kept on postponing the holiday resort on one or other pretext. The listed below caused severe mental harassment, distrust and hardship to complainants because of their deficiency of service as follows:

Firstly, since from membership complainants used to book for vacation advance in two months for availing the resort facility, but never used to provide any resort facility. But on the other hand OP-2 insist complainants to go for tie up facility, which is very costly where the members have to pay more than Rs.1,000/- or Rs.1,500/- for any resort.

Secondly, OPs never circulated free monthly magazine through which members will come to know various events about the country clubs location across India. But when complainants enquired about the non circulation of monthly magazine, OPs evasively replied stating that “this has been stopped for reason rescission and cost cutting”.

Thirdly, OPs never spoken about the complementary site despite being allotted in a piece of paper and also learnt that OPs induced to complainants to part their hard earned money by giving false promises that they are allotting a complementary site, but no sign for transfer of such sites in the member’s name.

Fourthly, OPs promised the complainants free accommodations all over India and seven Asian Countries namely Malaysia, Cyprus, Thailand, Singapore, Srilanka, Indonesia and Dubai, but OPs own properties only in Dubai, Srilanka and Indonesia.

Fifthly, after receiving the entire money OPs have intimated complainants that members will be given ownership of vacations and not a membership.

Sixthly, OPs have not informed anything regarding luxury taxes extra for accommodations in Country Vacations Own Property and also for tie up properties.

Seventhly, OPs have been giving false promises that the members can have access all 250 country clubs in India and 50 clubs in abroad including CK 27 without paying any charges or fees and can utilize all the facilities like Spa, Swimming pool, Gym, Sports, Party Halls and Decorations etc., and there will be a discount upto 20 to 50% on food but the members cannot access to CK 27.    

Eighthly, OPs have not responded to any of queries for using resort facility, but on the other hand OPs insist the complainant to go for tie ups and pay Rs.1,000/- or Rs.1,500/- depending on resorts.

          The complainant got issued legal notice dated 22.12.2009 to the OPs, but no reply from them. The action of the OPs have been a ruse to cheat, deceive and to make unlawful gain at the cost of the complainants. OPs have been deficient in providing service, as they have done nothing to set right the deficiency and there has been continues default by OPs in rendering service to complainants which has resulted in mental agony, harassment and financial loss to complainants. OPs have enjoyed the interest on the monies collected from complainants all along thus unjustly enriching itself at their hard earned money. The complainants are claiming damages for Rs.1,12,000/- to the following heads:

a) Amount paid by the complainants to the OPs - Rs.1,12,000/-

b) Interest at the rate of 18% from 12.04.2008

    till this date of the complaint i.e., 06.02.2010 – Rs.  54,000/-

c) Expenses incurred on the transaction with

    the opposite parties                                            - Rs.   20,000/-

d) Compensation for the deficiency in service

    and harassment/injury, mental agony caused

    to the complainant and for the enhancement

    in land prices                                                       - Rs.2,86,000/-

Thus the complainants filed the complaint claiming the reliefs stated above.

3.      On appearance, OPs filed the version contending that the complainant is not maintainable, since there is no cause of action; complaint is vague and devoid of merits. The transaction took place somewhere else this court has no jurisdiction to try the complaint. It is admitted that the complainants have paid a sum of Rs.1,12,000/- towards club membership. OP in pursuance of the assurance allotted plot bearing No.3325 situated Golf Village, Birdie – III Jangoan, vide allotment letter dated 15.05.2008. OP has not issued membership card in favour of the complainants entered into purchase agreement dated 17.01.2009 with OP. There is no provision for cancellation for membership or for refund of the amount in terms of the clause 9, 10 and 13 of the agreement. There is no any deficiency in service on the part of the OPs. OP is ready to execute the necessary documents in respect of the plot allotted to the complainants. The complainants have not bothered to pay registration expenses of Rs.15,000/- nor replied to the letter dated 15.05.2008. The complainants are regularly making use of the club membership to their satisfaction and also the complimentary offers on 25.10.2008 to 27.10.2008 at Goa and again 02.10.2008 to 04.10.2008 at Country Spa. Further on 24.07.2009 to 26.07.2009 at Sarjapura, Bangalore again on 27.03.2009 to 29.03.2009 at Bangalore. The complainants instead of remitting the registration charges for execution of document and also avoid annual maintenance charges have filed false and frivolous complaint. The complainants are not entitled for any reliefs. In similar set of case in Appeal No.980/2009 the Hon’ble State Commission confirmed the order of dismissal of the complaint passed by the District Forum. Hence it is prayed to dismiss the complaint with exemplary costs. 

4.      In order to substantiate the complaint averments, the complainant No.1 filed affidavit evidence and produced documents. The Manager of the OPs filed affidavit evidence in support of the defence version and produced documents.

5.      The complainants filed written arguments, the arguments on both sides heard. Points for consideration are:

       Point No.1:- Whether the complainants have proved           

                          the deficiency in service on the part of

                            the OPs?

Point No.2:- Whether the complainants are entitled

                   for the reliefs now claimed?

       Point No.3:- To what Order?

6.      We record our findings on the above points:

Point No.1:- In Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final Order.

R E A S O N S

7.      At the outset it is not at dispute that the complainants became the members of OPs club by paying an amount of Rs.1,12,000/-. It is pertinent to note that on 12.04.2008 at 7.00 p.m. the complainants were made to visit the office of OP under the pretext that they have received a lucky draw containing of dinner set and week accommodation. The complainants visited the office of OP at Hyderabad to collect the lucky draw gift. At that time the Sales Executive and Sales Manager of OPs made these complainants to opt for 5 years plan worth of Rs.1,12,000/- which included a complimentary site measuring 1250 square feet at Jangoan. Even the Sales Executive and sales Manager induced the complainants to become member by opting for EMI scheme which these complainants were associated with ICICI credit for 24 months with 0% interest. The complainant No.1 signed the credit slips for EMI of Rs.1,12,000/- and he had paid sum of Rs.1,291/- as processing fee. By the time complainants reached the home the complainant No.1 received the 3 SMS from ICICI bank about deduction of Rs.40,000/-, Rs.40,000/- and Rs.32,000/- respectively as OP-1 immediately presented the credit slips for Rs.1,12,000/- which was supposed to be paid in 24 months with 0% interest. Thus it becomes clear that these complainants were duped with on offer that the membership fee of Rs.1,12,000/- can be paid in monthly installments for 24 months with 0% interest, but presented the credit slips soon after the complainant No.1 signed the same. This act of OPs is nothing but unfair trade practice in making the complainants to become the members by assuring false promises of taking the membership fee in monthly installments for 24 months. The complainants produced the receipts at document No.1(A) and 1(B) dated 14.04.2008 issued by OPs. The copy of the bank statement of account of complainant No.1 for the period from May -08 to November – 09 is at document No.3(A) and copy of the bank statement of account from the month of June – 08 till November – 09 is at document No.3(B). When the complainants checked the online account statement it was reflected deduction of Rs.16,666.66 and Rs.6,666.65 respectively as advance EMI on May – 08 credit card bill. On enquiry with the ICICI bank the complainants came to know that OP-1 presented the credit slip 5 months installments at one time and got encashed the amount. Thus it becomes clear that OPs misled the complainants with regard to the EMI scheme thereby induced them to become the members. Document No.3(A) the bank statement clearly goes to show that 5 months installments were collected by presenting the credit slip of 5 months installments at one time.

8.      The main grievances of the complainants is that since from the membership they used to book for vacation advance in two months for availing the resort facility, but OPs never used to provide any resort facility. But on the other hand OP-2 insisted to go for tie up facility, which is very costly where the members have to pay more than Rs.1,000/- or Rs.1,500/- per day for any resort. Further OPs failed to circulate free monthly magazine on the ground of rescission and cost cutting. Though complimentary site is allotted in a piece of paper, but there was no sign for transfer of such sites. At the time of collecting the membership fee OPs assured free accommodation all over India and seven Asian Countries namely Malaysia, Cyprus, Thailand, Singapore, Srilanka, Indonesia and Dubai, but OPs own properties in Dubai, Srilanka and Indonesia. Further the grievances of the complainants is after receiving the entire amount the OPs intimated that members will be given membership of vacancies and not a membership. Further OPs have not informed anything regarding luxury taxes extra for accommodations in country vacations own property and also for tie up properties. OPs have been giving false promises stating that the members can have access to all 250 country clubs in India and 50 clubs in abroad including CK 27 without paying any charges or fees and can utilize all the facilities like Spa, Swimming pool, Gym, Sports, Party Halls and Decorations etc., and there will be a discount upto 20 to 50% on food but the members cannot access to CK 27. The last grievance is OPs not responded to any queries for using resort facility, on the other hand OPs insist to go for tie ups and pay Rs.1,000/- or Rs.1,500/- depending on resorts. The complainants have produced email correspondences made with the representatives of the OPs; the same is at document No.6.

9.      The learned counsel for the complainants contended that the plot bearing No.3325 is allotted in paper, but no steps are taken to transfer the same in favour of the complainants. OPs have not produced documents with respect to approved layout plan with amenities provided for the plots. Thus it is contended that without there being any documents for getting the registered deed with regard to plot; the complainants cannot be made to pay Rs.15,000/- towards registration charges. As against this the learned counsel for the OPs contended that the conversion order is already produced, OPs are ready to execute the registered deed on paying the registration charges of  Rs.15,000/-. The complainants have not paid the said amount hence there is no deficiency in service on the part of the OPs. In our view except the conversion order OPs have not produced any document to prove the fact that a layout has been approved and the plots are readily available with all amenities for registration. Without such documents the complainants cannot be made to part with further sum of Rs.15,000/- towards registration charges. The agreement deed is executed at Bangalore, therefore it cannot be said that this Forum has no jurisdiction to entertain the complaint. OPs failed to fulfill the promises made at the time of making these complainants to become the members. The copy of the holiday details utilized by the complainants produced by OPs is not disputed by the complainants. It is contended that the complainants have made use of the club membership and also the complimentary offers on 25.10.2008 to 27.10.2008 at Goa and again 02.10.2008 to 04.10.2008 at Country Spa. Further on 24.07.2009 to 26.07.2009 at Sarjapura, Bangalore and again on 27.03.2009 to 29.03.2009 at Bangalore. The complainants in the written arguments have fairly conceded that they have used the holiday accommodation twice both are complimentary holiday accommodation as OPs assured in the beginning provided the same. Further the complainants have used one tie up holiday accommodation by paying Rs.2,000/-; in support of the same, they produced the receipt. Merely because the complainants availed complimentary accommodation provided as assured by OPs in the beginning, it cannot be said that there is no any deficiency of service on the part of the OPs. From the affidavit evidence of the complainants; it becomes clear that subsequently OPs failed to give holiday accommodation for the OPs own property, but OPs suggested tie up facilities. If the complainants were made to avail tie up facilities they have to pay the extra charges to others service provider. In fact OPs assured free holiday accommodation even in the tie up also. Under these circumstances we are of the view that OPs failed to fulfill the obligations, in providing the facilities as assured while admitting the complainants as members of the club. The copy of the judgement in Appeal No.980/09 of the Hon’ble State Commission produced by the OPs is on different facts and circumstances. In that case the complimentary plots were allotted and registered in the name of appellants, but in this case it is not so; therefore the said judgement does not help the OPs. Under these circumstances we are of the view that the complainants are entitled for refund of the membership amount of Rs.1,12,000/-. The complainants having availed the complimentary holiday accommodation provided by OPs as admitted in the arguments are not entitled to claim compensation. It would meet ends of justice by refunding the membership amount of Rs.1,12,000/- with interest at 12% p.a. with litigation cost of Rs.2,000/-. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part. OPs are directed to refund an amount of Rs.1,12,000/- with interest at 12% p.a. from June – 2008 till the date of realization and pay litigation cost of Rs.2,000/- to the complainants.

This order is to be complied within four weeks from the date of this order.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25^th day of November 2010.)

PRESIDENT

MEMBER                                                      MEMBER 

Snm: