CC No.636.2015

Filed on 06.04.2015

Disposed on 18.11.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 18^th DAY OF NOVEMBER 2016

CONSUMER COMPLAINT NO.636/2015                                                                                                                                                                                                                                                    

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

             PRESIDENT

 Sri.  BALAKRISHNA V.MASALI B.A., LL.B

          MEMBER

                                        V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 11.08.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to refund a sum of Rs.15,00,000/-, to pay sum of Rs.3,00,000/- litigation expenses and other reliefs. 

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

In the Complaint, the Complainant alleges that the Opposite Parties had scheme christened as “Country Club Membership”, under which the members is entitled to obtain the complimentary plot on purchase of membership in the Opposite Party-Club.  On 15.10.2005, the Complainant by paying a sum of Rs.14,000/- becoming the Temporary Membership of the Opposite Party-Club, the validity of the Membership is for period of 45 days.  The Opposite Party has further upgraded the Complainant to Mr.Cool Membership, subject to payment of additional amount of Rs.89,000/- and additional charges as stipulated.  The member of the Mr.Cool is entitled for site.  The Complainant accordingly has paid the amount and in turn the Opposite Party-Company has issued Confirmation Letter dt.28.11.2005 inducting Complainant to the upgraded Mr.Cool Membership.  The Opposite Party allotted the site in favour of the Complainant and delivered the Allotment Letter dt.28.11.2005.  The allotment of site is bearing No.204, situated at Tumkur and same is also registered in the Jurisdictional Sub-Registrar Office.  The Opposite Party launched one more membership as Mr.Super Cool and Coconut Grove Deluxe Country Condos Card Member by paying Rs.15,00,000/-.  In this membership, the Opposite Party No.1 agreed to construct the Villa in the above said allotted site and after completion of construction 50-50 rent sharing basis was agreed.   Accordingly, the letter dt.07.06.2007 issued by the Opposite Party No.1 reflects the part payment of Rs.1,50,000/- paid by the Complainant towards membership of Coconut Grove Deluxe Country Condos.  As per the instruction of the Opposite Party No.1, the Complainant has paid entire amount of Rs.15,00,000/- towards membership and for construction of Villa in time.   Despite repeated request and demand by the Complainant, the Opposite Party No.1 has not sent any construction agreement for execution of Villa, after a long persuasion the Opposite Parties have sent the letter through Courier on 21.06.2012 enclosing with Construction Agreement.  In the said letter, it is stated that the Complainant has to fill and sign the agreement and return back to the Opposite Party.  Accordingly, the Complainant has handed over the signed Construction Agreement to the Opposite Parties.  Even after, complying with all terms and conditions as per the instruction the Opposite Parties are failed to construct Villa.  Despite, having repeated approach and persuasion personally, over the phone and email, the Opposite Parties on one or the other pretext prolonging to construct the Villa.  Though long time has lapsed and the Complainant has paid huge amount towards the membership and construction and having same within the knowledge the Opposite Parties with an intention to make monetary benefit is trying to cheat the Complainant.  The Complainant has made all efforts to take back his amount but there is no response.  The Complainant has sent the email and the Opposite Party has not shown scant respect to the email dt.05.02.2015.  The Complainant has made repeated request to the Opposite Parties for refund of the amount, but the Opposite Parties failed to make payment despite repeated approach to the Opposite Parties.  The failure to comply as per the agreed terms and condition for construction of Villa after collecting the above said amount and their further failure to refund the amount already paid by the Complainant amounts to unfair trade practice and deficiency of service.   Hence this complaint.  

3. In response to the notice, the Opposite Parties 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 Opposite Party-Company introduced a scheme viz., Mr.Cool S Card Members.   As member of the club under the said scheme would get the following facilities:-

1. Country Club Cool Life Membership.
2. Complementary Plot.
3. Holiday Package of 2 nights 3 days stay in Bandipur, Bush Betta.
4. 3 days 2 nights in Country Club Deficiency in service-Goa with one way Air Ticket of couple.
5. Access to all the Clubs in India and other facilities.
6. Non refundable membership fee.

4. The Complainant was taken BLMLM Membership by paying Rs.10,000/-, therefore the Opposite Parties issued a Membership Card bearing No.BLMLM 2737 in the name of the Complainant.  Thereafter, the Complainant is upgraded his membership to Cools on payment of Rs.89,000/-, for that the Complainant is eligible for utilizing benefits and facilities under Cool membership, as per the Cool CG Scheme the Opposite Party had executed a Gift Deed dt.13.06.2007 in favour of the Complainant, inspect of the complimentary plot bearing No.1008, situated at Phase-1, Coconut Groove, Sheebi Agrahara Village, Kallambella Hobli, Sira Taluk, Tumkur District.   The Complainant having learnt about the facilities and benefits provided under the Cool S scheme, he had upgrade his membership to COOL S Scheme and paid an amount of Rs.1,30,000/- towards membership.  The Opposite Parties had issued a membership card bearing No.COOL S 714 for utilizing the club facilities.  The Opposite Parties have executed Gift Deeds dt.20.12.2008, in respect of Plots bearing No.505 and 506, at Vedic Spa, Phase ‘A’, Registered as Documents bearing No.6745 and 6718, in favour of the Complainant.  The Complainant has been in the peaceful possession and enjoyment of the said properties and also enjoying the club facilities and has never complained of any shortcomings on the part of the Opposite Parties.  The Complainant has not paid AMC charges of Rs.25,574/- in respect of the Cool S Membership. 

5. The Complainant has fully satisfied with the services of the Opposite Parties he has upgrade his membership from Cool S to Country Condos Deluxe (CCND) Scheme, on payment of Rs.10,00,000/- towards membership.  The Opposite Parties had issued a membership card bearing No.CCND 118 for utilizing the club facilities and construct the Villa.  The Complainant has not paid the AMC charges of Rs.50,939/- in respect of the CCND Scheme.    The Complainant seeing a very good investment potential in the scheme, expressed his desire to be a part of this scheme for the construction of the condos on his plot, he Complainant paid to the Opposite Parties a sum of Rs.10,00,000/-.  The Opposite Parties and he Complainant executed a construction agreement and a Memorandum of understanding, setting out the terms of the construction, maintenance and revenue sharing with respect to the Villa.   In terms of the construction agreement, the Opposite Parties were to ensure delivery of possession of the Villa within eight months from the date of receipt of the entire amount of Rs.10,00,000/- from the Complainant.   However, the same was subject to the agreement between the parties that the Opposite Party would not be responsible for any loss of time on account of any external reasons.  The said villa has already been constructed and the same is ready for occupation for the Complainant.  However he Complainant has issued a legal notice to the Opposite Parties and filed this false complaint against the Opposite Parties instead of getting possession of the fully constructed Villa.   The Complainant is not a ‘Consumer’ within the meaning of the term under the Consumer Protection Act.  The scheme offered by the Opposite Parties and availed by the Complainant and involved the construction of the villa upon the plot allotted and Registered in favour of the Complainant, for the said villa to be let out for tourists and other persons intending to occupy the same.  The purpose of the construction of the Villa is commercial in nature for the generation of income by letting out the villa to potential tourists.  The contents of the memorandum of understanding, which clearly sets out the commercial purposes between the parties behind the construction of the villa, including revenue sharing, etc.   As per the construction Agreement and MOU as agreed by the Complainant and it clearly shows that the commercial purpose involved in the above case.  Hence, the complaint filed by the Complainant is not maintainable.   All disputes arising out of the construction agreement and the memorandum of understanding have agreed by both the parties to be referred to arbitration.   Considering that the dispute resolution mechanism under the agreements executed between the Opposite Party and the Complainant is before the arbitration, and further in view of the fact that the Complainant cannot be deemed as a ‘Consumer’ under the provisions of the Consumer Protection Act, the appropriate forum for the resolution of the dispute raised by the Complainant would have been before an arbitrator appointed by the parties.    Considering the terms of the understanding between the parties, and in view of the fact that this Hon’ble Forum has no jurisdiction to entertain the complaint.  The Complainant has availed of various hospitality services provided by the Opposite Parties and has no grievances in this regard.   The Opposite Parties have not committed any deficiency in service.  The Opposite Parties have acted as per its promises by providing all the services to the Complainant and also executed gift deed in favour of the Complainant, and the Complainant had peaceful possession and enjoyment of the complimentary plots.   The Complainant having utilized all the services provided by the Opposite Parties. The Complainant has filed the complaint making false and baseless allegations against the Opposite Parties.  Hence, the Opposite Parties prays to dismiss the complaint.

6.      The Complainant, Yogesh Kumar Sharma has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party, the affidavit of one Venkatesh Varma, working as Authorized Signatory has been filed.  Heard the arguments of both parties.  

7.      The points that arise for consideration are:-

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

8.     Our findings on the above points are:-

                POINT (1):- Negative

                POINT (2):- As per the final Order

REASONS

9.   POINT NO.1:- As seen from the allegations made in the complaint and also the version filed by the Opposite Parties, it is not in dispute that the Complainant as a Temporary Membership of the Opposite Parties-Club on 15.10.2005 by paying a sum of Rs.14,000/- and the Complainant upgraded to Mr. Cool Membership, subject to payment of additional amount of Rs.89,000/- and additional charges on 28.10.2005.  The Opposite Parties allotted site in favour of the Complainant and delivered the allotment letter on 28.11.2005.  The Opposite Parties launched one more membership as Mr.Super Cool and Coconut Grove-Deluxe Country Condos Card Member by paying Rs.15,00,000/- became the member of the Opposite Parties agreed to construct Villa in the above said allotted site and after completion of construction 50-50 rent sharing basis was agreed.   To substantiate this, the Complainant in his sworn testimony, reiterated the same and produced the Temporary receipt issued by the Opposite Parties.  Under this Temporary receipt dt.15.10.2005, the Opposite Parties have received a sum of Rs.14,000/- by cash and also produced letter issued by the Opposite Parties dt.28.10.2005.  As looking into this letter, it is clear that the Opposite Parties enrolled the Complainant for the membership in Cool Club bearing No.COOLCG351 and in this letter clearly informed that upgrade into the Mr.Cool Privilege Card Member and requested to remit Rs.89,000/- and also produced the letter dt.15.10.2005 addressed to the Complainant.  Under this letter, the Opposite Parties informed the Complainant, they upgraded the Country Club Membership to the Cool Card and requested to make payment of Rs.89,000/- and also informing that they are going to allot a site measuring 1089 Sq.ft at Coconut Groove, near Tumkur and further produced the Allotment Letter dt.28.11.2005 and as per this Allotment Letter the Opposite Parties have allotted a site No.204 to the Complainant and requested to pay a sum of Rs.10,000/- towards maintenance charges for a period of 30 months, Betterment charges, stamp paper fees and registration expenses and also produced the Letter dt.12.01.2007.  Under this letter, the Opposite Parties have congratulating the Complainant that for upgrading Mr.Super Cool Privilege Card Member of the Country Club and Membership number is COOLS714 and requested to remit Rs.1,30,000/- and also produced a letter dt.07.06.2007.  Under this letter, the Opposite Parties have congratulate the Complainant for becoming the membership of the Coconut Groove Deluxe Country Condos of the Country Club and Membership No.is CCN/D/118 and requested to remit a sum of Rs.9,99,000/- towards the membership fee, and in this letter clearly mentioned that the Complainant is required to pay Rs.10,000/- as Annual Administrative charges and along with this letter enclosing Temporary Card receipt, Construction Agreement, Schedule of Construction and also requesting the Complainant to send two stamp size photographs of the Complainant, his spouse and children with names and produced 17 receipts issued by the Opposite Parties in favour of the Complainant for receiving the membership fee towards country Condos-CG Deluxe.  So from this evidence of the Complainant, it is crystal clear that at the initial stage the Complainant by paying Rs.14,000/- become the Temporary Member of the Opposite Parties-Club and subsequently he upgraded to Mr.Cool Membership and also further he upgraded to Super Cool and Coconut Grove Deluxe Country Condos by paying Rs.15,00,000/-.

10. It is the further allegation of the Complainant that after complaining with all the terms and conditions.  As per the instructions, the Opposite Parties are fails to construct to villa. Despite, having repeated approach and persuasion personally, over the phone and email, the Opposite Parties on one or the other pretext prolonging to construct the Villa.  Though long time has lapsed and the Complainant has paid huge amount towards the membership and construction.  In order to substantiate this, the Complainant in his sworn testimony reiterated the same and produced the mail dt.05.02.2015 the Complainant by sending his mail clearly informing the Opposite Parties that the Opposite Parties were not completed the construction work as promised by them thereby he wants to refund of the amount. 

11. The defence of the Opposite Party is that in terms of the construction agreement, the Opposite Parties were to ensure delivery of possession of the Villa within 8 months from the date of receipt of the entire amount of Rs.10,00,000/- from the Complainant, subject to the agreement between the parties, the said villa has already been constructed and the same is ready for occupation for the Complainant.  However, the Complainant has not issued Legal Notice and filed this false complaint against the Opposite Parties instead of getting possession of the fully constructed villa.  In support of the defence of the Opposite Parties examined one Venkatesh Verma, Assistant Administrative Manager, in his sworn testimony, reiterated the same and produced the Gift Deed.  As looking into this Gift Deed, the Opposite Parties have executed the Gift Deed in favour of the Complainant.  Under this Gift Deed, site No.1208 in the Coconut Groove Phase-I in Sy.No.34/1, 34/2, 35, 41/2, 271, 272, 273 of Sheebi Agrahara, Sheebi Agrahara Village, Sira Taluk, Kallambella Hobli, Tumkur District measuring East West:33 ft. North South:33ft Total Sq.ft.1089.   This Gift Deed is dt.13.06.2007 and produced the reply issued by the Opposite Parties to the Legal Notice issued by the Complainant on 16.03.2013.  This reply is dt.02.04.2013.  In the reply notice, the Opposite Parties clearly informed that as per the terms of the Membership, the Opposite Parties have constructed Villa and ready for occupation, but the Complainant himself is not forward to take the delivery of the possession of the same and also produced the photographs to show that the Opposite Parties have completed the construction of the Villa in the site gifted to the Complainant.  The Opposite Parties produced Reply Notice dt.02.04.2013 for Legal Notice dt.16.03.2013 issued by the Complainant.  In the reply notice, the Opposite Parties have clearly mentioned that construction of Villa is completed.  The Villa is ready for occupation.  But the Complainant never approached to take possession of the Villa.  To this reply, the Complainant did not issue any rejoinder.  If there is failure on the part of the Opposite Parties for construction of Villa.  The Complainant may reiterated the same by issuing rejoinder.  But the Complainant did not issue rejoinder.   Thereby, it is proper to accept the defence taken by the Opposite Parties that the Opposite Parties as per the terms and conditions of the agreement and Memorandum of Understanding completed the construction of the Villa in the Coconut Groove Phase-I, near Tumkur, thereby it is not proper to accept the contention of the Complainant.  The Complainant fails to prove that there is deficiency of service on the part of the Opposite Parties.  Hence, this point is held in the Negative. 

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

ORDER

The complaint is dismissed. No costs.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 18^th day of November 2016)

   MEMBER                                                           PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Yogesh Kumar Sharma who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Receipts
2. Copy of the Letter issued by the Opposite Party No.1
3. The Opposite Party Company has issued the Confirmation Letter dt.28.11.2005 inducing Complainant to the upgraded Mr.Cool Membership.
4. Copy of the Allotment Letter
5. Copy of the Letters
6. Copy of the Confirmation Letter
7. Copy of the Receipt of payment
8. Copy of the Letter along with postal cover
9. Copy of the emil dt.05.02.2015.

Witness examined on behalf of the Opposite Party:

1. Sri.Venkatesh Varma, on behalf of the Opposite Party by way of affidavit.

  List of documents filed by the Opposite Party:

1. Gift Deed dt.13.06.2007.

       MEMBER                                            PRESIDENT