Date of Filing:26/12/2013
Date of Order:28/09/2016
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This the complaint filed in person filed U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps praying for direction to pay a sum of Rs.4,88,560/- with interest at the rate of 25% p.a. on the Principal. Sum of Rs.2,00,000- from the date of payment till the realization and for the cost of proceedings.
2. The brief facts of the complaint is that, the complainant obtained the membership from the O.P country club and paid Rs.1,25,000/- and also paid Rs.35,000/ on 19.3.2008 in order to get complimentary sites. Further complainant states that, in total O.Ps received Rs.2,00,000/- towards membership and to allot complimentary plots near Sarjapura, Anekal Taluk Bangalore. Further O.Ps promised the complainant in addition to two complimentary plot in addition to that they have offered free stay with one way air ticket and site seeing for couple to Goa every year and also they agreed that have launch free health care programme and other services. As per the above promises the complainant obtained the membership by paying total amount of Rs.2,00,000/-. It is further stated that, on one pretext or the other the O.Ps have been postponing to deliver the possession of the sites against the registration of the sites on 20.5.2008. It is also alleged that O.Ps did not allot complimentary sites near Bengaluru and not given details of the site properties registered and alleges that O.Ps are not transparent in their dealing. It is also learnt by the complainant through reliable sources that the O.Ps have not formed any sites as promised by them and they have been collecting money from the people making false and colorful offers and false promises. The O.Ps has also not provided any services to the complainant and adopting unfair trade practice. The complainant states that, he had invested the said amount to purchase site near his residence and by that time it would have fetched good returns in terms of money if the money has been deposited in the bank. Further alleges that, the O.Ps failed to provide Goa trip every year and also health programmes as assured. Hence the complainant got issued legal notice dated 9.7.2013 and the same notice returned un-served. But the complainant received a common reply of all the O.Ps and intimated that complainant membership is cancelled. Hence this complaint.
3. Upon service of notice O.P.No.1 to 4 and O.P No.7 appeared through their counsel and filed their version. Whereas O.P.No.10 and 12 remained absent and hence placed exparte. Inspite of intimation of notice delivered to O.P.No.5 and O.P.No.8 but these O.Ps did not claim the service of notice and hence it is considered as deemed service of notice and accordingly O.P.No.5 and 8 placed exparte. The complainant also taken the substitute service, in order to serve the notice to O.P.No.6, 9 and O.P.No.11 and inspite of paper publication these O.Ps remained absent and consequently placed ex-parte.
4. In the version of O.P.No.1 to 4 and 7, it is contended that the complaint is false, frivolous and filed the same by suppressing the material facts. It is submitted that, O.P.No.1 introduced the scheme i.e. M/s Kool Card Members. A member of the club under the said scheme would get the following facilities.
i)Country club cool membership.
ii) complementary plot,
iii) Holiday package of 2 nights 3 days staying in Bhandipur Bush betta,
iv) 3 days 2 nights in country club De-Goa with one way air ticket of couple and even food and pickup and drop is taken care.
v) Access to all the clubs in India and other facilities.
vi) Non-refundable membership fee in this scheme is Rs.1,25,000/-.
5. The complainant knowing above facilities and benefits applied for membership by paid a sum of Rs.1,25,000/- and the O.Ps also issued the receipt to the said amount. Upon membership O.Ps executed two registered gift deeds dated 20.5.2008 in favour of complainant in respect of plots bearing No.349 and 309 at Vedic Spa, 7th phase, Velidadakala Panchayath Area, Somandepalli Mandal, Penukonda. Since the date of registration, the complainant enjoyed property and club facilities and never ever complained of any shortcomings on the part of the O.Ps club. The complainant also accepted to pay the annual administration charges and service tax and other charges but till date he did not pay any amount. The complainant also accepted the terms and conditions which were mentioned in the application form and had signed in acceptance thereof. The offer of the O.Ps was in addition to the services provided by the O.Ps in general. It is contended that, the sites agreed to be provided by the O.Ps was only a complimentary offer and no consideration is paid by the complainant and such alleged breach could by no stretch of imagination be considered as a breach of original service agreed to be provided by the O.Ps. Further complainant availed various hospitality services provided by the O.Ps and has no grievances in this regard. Hence contended that there is no deficiency in service on their part. On other grounds ultimately prays for dismissal of the complaint with exemplary cost.
6. To substantiate the above case, both the parties have filed the affidavit evidence along with documents. We have heard the arguments.
7. On the basis of pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) Whether the complaint is barred by
limitation
(D) What order?
8. Our answers to the above points are:-
POINT (A) and (B) : In the Negative
POINT (C) : In the Negative.
POINT (D) : As per the final order
for the following:
REASONS
POINT No (A) and (B):-
9. These point inter linked to each other and to avoid repetition of facts and these points taken-up together for common discussion.
10. On perusing the pleadings of the parties it is not in dispute that the complainant obtained the membership from the O.Ps country club. However it is the case of the complainant is that to obtain membership in question he has paid Rs.2,00,000/-. Per-contra O.Ps contended that in order to get membership the complainant paid Rs.1,25,000/- only and remaining amount collected towards registration of the gift deeds. On perusal of the receipt bearing No.61093 dated 10.12.2007 and receipt 61094 dated 10.12.2007 it also discloses that the complainant made payment of Rs.1,25,000/- to the O.P. Hence the allegation of the complainant that O.Ps received Rs.2,00,000/- cannot be acceptable one and there is no evidence on record.
11. Further the O.Ps also offered many facilities to their members such as:
i) Country club cool membership.
ii) Complementary plot,
iii) Holiday package of 2 nights 3 days staying in Bhandipur Bush betta,
iv) 3 days 2 nights in country club De-Goa with one way air ticket of couple and even food and pickup and drop is taken care.
v) Accss to all the clubs in India and other facilities.
vi) Non-refundable membership fee in this scheme is Rs.1,25,000/-.
12. Whereas the complainant did not say anything about the other services and his sole attack is only non-providing the complimentary sites in Sarjapura, Anekal Taluk, Bangalore. It is worth to note that, on perusal of the absolute sale deed dated 20.5.2008 it discloses that, O.Ps executed the registered sale deed in respect of the property situated at Somandepalli, Penukonda i.e. plot No.309. Also on perusal of another sale deed dated 20.5.2008, it also discloses that, another site is registered in the name of the complainant i.e. Plot No.349 at Somandepalli, Penukonda. These sale deeds also discloses that, the complainant himself went to the office of Sub-registrar and got registered the complimentary sites with his open eyes. Hence the allegation of the complainant not providing the complimentary sites cannot be acceptable one and it holds no water. On perusal of the above said sale deeds O.Ps have complied with the service committed by it and the complainant has also not produced any evidence in order to show that during the time of his membership he has paid maintenance charges and other taxes towards his membership. Viewing from any angle the complainant failed to prove deficiency in service on the part of the O.Ps. Hence, complainant is not entitled for the any relief as sought in the complaint. Accordingly we answered these points (A) and (B) in the negative.
POINT (C):
13. It is the specific case of the complainant that, he has taken the country club membership on 10.12.2007 and the complimentary sites were registered on 20.5.2008. The present complaint is filed on 26.12.2013 i.e. after the six(6) years of membership in question. The complainant also failed to satisfactorily explain the delay in approaching the Forum. On perusal of the material evidence placed on record the actual time runs from the date of membership and after registration of the complimentary sites situated at Somandepalli, Penukonda. On perusal of Section 24-A of the Act it reads thus:
“The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen
Notwithstanding anything contained in sub-section (i) a complaint may be entertained after the period specified in sub-section (i), if the complainant satisfies the District Forums, the State Commission or the National Commission as the case may be that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum as case may be records such reasons for condoning such delay.
14. On perusal of the evidence on record the complainant has not established or shown any sufficient cause for not filing the complaint within the time in order to condone the delay. Hence, the complaint brought by the complainant is also hopelessly barred by limitation. Accordingly, we answered this point in the Affirmative.
POINT No.(D):
15. On the basis of the findings given above on the point No.(A) to (C) and in the result, we proceed to pass the following:-
ORDER
01. The complaint is dismissed. No order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 28 th Day of September 2016)
MEMBER MEMBER PRESIDENT
*Rak
