CC No.1337.2015

Filed on 20.07.2015

Disposed on.30.10.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF OCTOBER 2017

CONSUMER COMPLAINT NO.1337/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 20.07.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an order directing the Opposite Parties to allot a site, to pay compensation of Rs.7,50,000/-, to pay deposited amount of Rs.95,000/- along with 18% interest and other reliefs.

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant became the permanent corporate member of the Opposite Parties company by paying the initial membership charge of Rs.5,000/- through cheque drawn on Textile Cooperate Bank Limited, dt.30.09.2002.  The Complainant at the request of the Opposite Parties deposited another Rs.85,000/- on different days with the Opposite Parties under seven demand drafts vide DD.No.053780 dt.12.06.2007 for Rs.10,000/-, DD.No.053782 dt.09.06.2007 for Rs.10,000/- DD.No.053798 of Rs.10,000/- dt.02.07.2007, DD.No.179449 dt.25.10.2007 for Rs.15,000/- DD.No.754570 dt.30.07.2007 for Rs.15,000/-, DD.No.179443 dt.15.09.2007 for Rs.15,000/- and DD.No.180199 dt.11.12.2007 for Rs.10,000/- and in the said mode the total amount of Rs.85,000/-.  The Opposite Parties have issued seven receipts of different dates.  The said amount was received by the Opposite Parties on assurance to allot a plot and also a free plot measuring 1089 Sq.ft to its members.   Even after the required payment made and also fulfillment of all terms and conditions, the Opposite Parties completely failed and neglected to allot plots to the Complainant despite several oral requests made.  On 17.02.2013 the Opposite Parties published a notice in Times of India Newspaper calling upon its members to register the plots, in their names.  On being noted o the contents of the notice published in the newspaper, the Complainant approached the Opposite Parties at Bangalore office and requested them to register the plots as promised.  The Opposite Parties simply went on dragging the registration of plots on one or the other pretext, but so far they did not keep up their promise of registering plots in the name of the Complainant.  This act of the Opposite Parties amounts to deficiency in service which has caused lot of mental and physical torture to the Complainant being the consumer of the Opposite Parties Company.  The Opposite Parties being the Service Provider, have completely failed to give service has undertaken by them and hence it amounts to deficiency in service.  The Complainant issued a Legal Notice dt.04.03.2013 and the said Notice was duly served on the Opposite Party No.3 and inspite of it, the Opposite Parties kept silent without even responding to the send letter.  Hence, this complaint. 

3. In response to the notice, the Opposite Party No.1 to 3 put their appearance through their counsel and filed their common version.  In the version pleaded that the complaint is false frivolous and suppression of material facts.  The Country Club India Limited introduced a Scheme viz., Mr.Cool Card Members.  A member of the Club under the said Scheme would get the following facilities. 

1. Country Club Cool Life Membership

ii.  Complimentaryplot.

  iii.  Holiday Package of 2 nights 3 days stay in

        Country Club Properties.

iv.  Access to all the Clubs in India and other facilities.

v. Non refundable membership fee in this scheme is Rs.1,05,000/-.

Initially the Complainant became a member under BLMLM Scheme by paying a membership fee of Rs.10,000/- and was allotted membership bearing No.BLMLM 3698.   Thereafter the Complainant having learnt about the facilities and benefits provided under the Cool Scheme, applied for membership under Cool Scheme and had paid the part payment of Rs.85,000/- out of Rs.1,05,000/- towards membership fees through various cheques, for the said payment the Opposite Party had issued receipts, the Complainant was inducted as a member of the Opposite Party club.  Thereafter, the Opposite Party issued a membership card bearing No.COOL CG 724 A.  In the membership application form, allotment letter and welcome letter, the Opposite Party had specifically informed the Complainant that the complimentaryplot allotted would be registered only on payment of the full membership fee, registration and maintenance charges.  Further, the Opposite Party had informed the Complainant to deposit a sum of Rs.10,000/- towards membership fee and Rs.25,000/- towards the registration charges in respect of the Complimentary plot, along with other charges for maintenance, etc, through demand draft infavour of Country Condos Limited, since entire process for procuring and allotment of complimentary plot was being done by M/s Country Condos Limited Estates, are sister concern of the Opposite Parties.   The Opposite Parties had purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complimentary plot in favour of eligible members.  On 28.05.2011 the Opposite Parties had given a paper publication in Deccan Herald and Prajavaani regarding the allotment and registration of the complimentary sites to its members who have not got their plots registered are requested to contact M/s Amrutha Estates & Hospitality Private Limited, along with their membership card, Letter of allotment and currently applicable registration charges latest by 9^th June, 2011 to get their plots registered.  The Complainant has partly paid the membership fee of Rs.95,000/- and has not paid he balance amount of Rs.10,000/- towards Membership Fee and Rs.25,000/- in respect of the registration of the complimentary site.  The Opposite Parties are ready to execute a Gift Deed in respect of site in favour of the Complainant in Vedic Spa, subject to depositing the balance Membership fee and registration charges.  The claim of amount of Rs.95,000/- was paid by the Complainant to the Opposite Parties only for the purpose of membership with the Opposite Parties.  The Opposite Parties are in the business of providing hospitality services to its members.  The offer of the Opposite Parties were in addition to the services provided by the Opposite Parties in general, by paying the initial fees, had availed of the hospitality services provided by the Opposite Parties.  The site agreed to be provided by the Opposite Parties were only a complimentary offer made by the Opposite Parties.  Any grievance of the Complainant with regard to the failure on the part of the Opposite Parties to convey the agreed site would be a breach of the service provided by the Opposite Parties in terms of the complimentary offer. Such alleged breach could, by no stretch of imagination, be considered as a breach of the original service agreed to be provided by the Opposite Parties.  The Complainant has availed of various hospitality services provided by the Opposite Parties and has no grievances in this regard.   The Opposite Party has not committed any deficiency of service.  The Complainant has become member of the Opposite Parties Club solely to enjoy the facilities provided in its clubs and resorts, which facilities he has to avail by visiting the clubs and resorts.  The plot allotted under the Cool Scheme is a complimentary gift to the membership and the member fee is collected for providing the facilities.  No consideration has been collected for allotment of the complimentary plot and the member has to bear only registration and maintenance charges, which was made known in the membership application itself.  Since the Opposite Parties have not paid any consideration for the complimentary plot and his grievance in the complaint being not allotting the plot, he does not come under the meaning of “Consumer” under the Consumer Protection Act, 1986.  Hence prays to dismiss the complaint.

4. The Complainant, Sri.S.Karuna filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Sri.Venkatesh Varma has been filed.  Heard the arguments of both parties.

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

7. POINT NO.1:- It is undisputed fact that the Complainant became the Mr.Cool Card Membership of the Opposite Parties.  Further in support of this, the Complainant in his sworn testimony, he has reiterated the same and produced the receipts issued by the Opposite Parties.  By looking into these receipts, it is crystal clear that the Complainant has paid a sum of Rs.85,000/- and Rs.5,000/- i.e., initial payment to get the Mr.Cool Card Membership.  This evidence of the Complainant remains unchallenged, thereby, it is proper to accept the contention of the Complainant that the Complainant became the Mr.Cool Card Membership. 

8. It is further case of the Complainant, the Opposite Parties had given an assurance to allot a plot and also a free plot measuring 1089 Sq.ft to its members.   Even after the required payment made and also fulfillment of all terms and conditions, the Opposite Parties completely failed and neglected to allot plots to the Complainant despite several oral requests made.  On 17.02.2013 the Opposite Parties published a notice in Times of India Newspaper calling upon its members to register the plots, in their names.  On being noted o the contents of the notice published in the newspaper, the Complainant approached the Opposite Parties at Bangalore office and requested them to register the plots as promised.  The Opposite Parties simply went on dragging the registration of plots on one or the other pretext, but so far they did not keep up their promise of registering plots in the name of the Complainant.  This act of the Opposite Parties amounts to deficiency in service.      In order to establish the same, the Complainant in his sworn testimony, he has reiterated the same and produced the letter addressed by the Opposite Parties to the Complainant dt.21.05.2007, they congratulate the Complainant to get a Membership of Cool Privilege Card and also informed to remit balance amount of Rs.95,000/- and it further reveals that the allotment of complimentary plot at Coconut Groove, will be allotted only on payment of full membership fees towards the Mr.Cool Card and requested to permit Rs.15,000/- within 30 days of plot allotment towards registration, for 2.5 years maintenance charges and incidental charges. The Complainant as per request letter deposited remaining amount of Rs.85,000/- on various dates as per the receipt issued by the Opposite Parties and also produced the copy of the Times of India dt.17.02.2013 publishing about allotment of one free site measuring 1089 Sq.ft for the membership has been permanently closed and also requested to approach the Opposite Parties Company within 45 days.  After saying this before approaching several times and requested for registration of the plot as promised by them but they fails to allot the site and registered the site in favour of the Complainant.

9. The defence of the Opposite Parties is that a member of the Club under the Mr.Cool Card Members would get the following facilities. 

1. Country Club Cool Life Membership

 ii.  Complimentary plot.

   iii.  Holiday Package of 2 nights 3 days stay in

         Country Club Properties.

 iv.  Access to all the Clubs in India and other facilities.

 v. Nonrefundable membership fee in this scheme is Rs.1,05,000/-.

Initially the Complainant became a member under BLMLM Scheme by paying a membership fee of Rs.10,000/- and was allotted membership bearing No.BLMLM 3698.   Thereafter the Complainant having learnt about the facilities and benefits provided under the Cool Scheme, applied for membership under Cool Scheme and had paid the part payment of Rs.85,000/- out of Rs.1,05,000/- towards membership fees through various cheques, for the said payment the Opposite Party had issued receipts, the Complainant was inducted as a member of the Opposite Party club.  Thereafter, the Opposite Party issued a membership card bearing No.COOL CG 724 A.  In the membership application form, allotment letter and welcome letter, the Opposite Party had specifically informed the Complainant that the complimentary plot allotted would be registered only on payment of the full membership fee, registration and maintenance charges.  The Opposite Parties had informed the Complainant to deposit a sum of Rs.10,000/- towards membership fee and Rs.25,000/- towards the registration charges in respect of the Complimentary plot, along with other charges for maintenance, etc, through demand draft infavour of the Opposite Parties, since entire process for procuring and allotment of complimentary plot was being done by M/s Country Condos Limited Estates, are sister concern of the Opposite Parties.   The Opposite Parties had purchased several lands in their favour and subsequently they would execute necessary gift deeds concerning the free complimentary plot in favour of eligible members.  The Complainant has partly paid the membership fee of Rs.95,000/- and has not paid he balance amount of Rs.10,000/- towards Membership Fee and Rs.25,000/- in respect of the registration of the complimentary site.  The Opposite Parties are ready to execute a Gift Deed in respect of site in favour of the Complainant in Vedic Spa, subject to depositing the balance Membership fee and registration charges.  In support of their defence, Sri.Venkatesh Varma, Assistant Administrative Manager of the Opposite Parties, in his sworn testimony, he has reiterated the same.  Except the interested version of Sri.Venkatesh Varma has not produced any documentary evidence.   On the other hand, the evidence placed by the Complainant, it is crystal clear that as on 11.12.2007 Complainant had totally paid a sum of Rs.90,000/-.  Further as seen from Welcome Letter dt.21.05.2007 it clear that the allotment of complimentary plot at Coconut Groove will allotted only on payment of full membership fee towards Mr.Cool Card.  By looking into this, it reveals that the allotment of complimentary site only on payment of full membership fee.  But the Complainant has paid Rs.90,000/- i.e., almost full amount.  It further reveals that within 30 days of allotment plot.  The Complainant required to remit Rs.15,000/- towards registration charges so far the Opposite Parties have not allotted a plot.  Due to that reason only the Complainant has not paid the registration charges of Rs.15,000/- but the defence taken by the Opposite Parties in their version the Complainant has not paid balance amount of Rs.10,000/-.   Absolutely there is no evidence, in support of the defence of the Opposite Parties, so also no evidence to believe Complainant to pay Rs.25,000/- in respect of the registration charges.  The defence taken by the Opposite Party is falsifies, as looking into the letter dt.21.05.2007 addressed by the Opposite Parties themselves, thereby it is not proper to accept the defence taken by the Opposite Parties.  On the other hand, it is crystal clear that by looking into the evidence placed by the Complainant, the Opposite Parties have received Rs.90,000/- from the Complainant and the Complainant became the member of the Mr.Cool Card Membership.  In spite of that the Opposite Parties failed to allot a plot infavour of the Complainant, eventhough the Complainant demanded and requested several times, thereby it causes mental agony to the Complainant and also it amounts to deficiency of service.  The Complainant is entitled for compensation for causing mental agony and entitled for allotment of plot as per promised and in terms of became the Mr.Cool Card Member. 

10. The learned Counsel for the Opposite Parties argued that the Complainant has partly paid the membership fee of Rs.95,000/- and has not paid the balance amount of Rs.10,000/- towards Membership Fee and Rs.25,000/- in respect of the registration of the complimentary site.  The Opposite Parties are ready to execute a Gift Deed in respect of site in favour of the Complainant in Vedic Spa, subject to depositing the balance Membership fee and registration charges.  In support of their argument relied upon a decision passed by the NCDRC New Delhi in Revision Petition No.1191/2010.   But it is not proper to accept the argument put forth by the learned Counsel for the Opposite Parties.  Since, absolutely, there is no evidence placed by the Opposite Parties that the Complainant has not paid the balance amount of Rs.10,000/- and also Rs.25,000/- in respect of the registration of the complimentary site.  Further the law laid down in the Revision Petition No.1191/2010 will not applicable to the fact of this case.  Hence, this point is held in the Affirmative. 

11. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service by the Opposite Party No.1 to 3.

The Opposite Party No.1 to 3 are directed to allot a site to the Complainant as promised by them.

The Opposite Party No.1 to 3 are further directed to pay compensation of Rs.25,000/- to the Complainant for causing mental agony.

The Opposite Parties No.1 to 3 are also liable to pay a sum of Rs.5,000/- towards cost.

The Opposite Party No.1 to 3 are directed to allot a suitable site within 45 days from the date of receipt of this order.

Supply free copy of this order to both the parties. 

   (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 30^th day of October 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.S.Karuna, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Mr.Cool Card Membership receipts dt.01.10.2002, dt.12.05.2007, 09.06.2007, 30.06.2007, 24.10.2007, 30.07.2007, 18.09.2007 & 11.12.2007.
2. Letter dt.21.05.2007 for calling amount from Complainant
3. Paper Notification published in Times of India dt.17.02.2013.
4. Notice dt.04.03.2013 issued by the Opposite Parties No.3.
5. Postal acknowledgement.
6. Copy of cheque dt.23.06.2009 for Rs.15,000/-
7. Letter sent with the said cheque by RPAD on 22.06.2009
8. Postal acknowledgement and postal receipt for having sent and received the same by Opposite Parties
9. Letter dt.25.04.2008, 05.07.2007 and 06.05.2009 written by Opposite Parties to the Complainant. 

Witness examined on behalf of the Opposite Parties:

1. Sri.Venkatesh Varma, Administrative Manager of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Party:

                             -NIL-

  MEMBER                                                  PRESIDENT