Date of Filing: 05/03/2015
Date of Order: 05/12/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.P and prays for orders to direct the O.P to pay an amount of Rs.70,000/- along with interest at the rate of 12% per annum from 8.12.2006 till its realization and to pay cost of the proceedings.
2. The brief facts of the complaint are that complainant has taken the O.P club membership on 8.12.2006 bearing membership No. COOL CG5235. It is stated that the club membership amount is fixed for Rs.1,16,000/- and as per the agreement O.P agreed to allot the complementary plot near Cool Coconut Grove near Tumkur, out of the above club membership fee of Rs.1,15,000/- complainant paid Rs.70,000/- and got obtained the membership. It is stated that complainant met with some financial crises about one and half year and hence he could not pay the balance membership amount and to get the registration of the plot near Tumkur. Further states that, O.P and his executives have informed the complainant that they are going to allot the plot near Hindupur as such complainant without the balance amount payable to the O.P in respect of the allotment of plot. Further the O.P refused to allot the plot at the agreed place and hence complainant demanded to refund the amount of Rs.70,000/- paid towards the allotment of plot near Tumkur but the O.P postponed the refund of the amount with one reason or the other. Hence stated that he has got issued the legal notice dated 15.07.2014 but the O.P has given untenable replay. Hence this complaint.
3. Upon issuance of the notice O.P entered his appearance and filed its version. In the version it is contended that complainant failed to pay the entire membership amount of Rs.1,15,000/- but only paid Rs.70,000/- and got the membership only and hence O.P did not allot the site to the complainant. Further contended that complainant has enjoyed all the benefits of the club and they informed the complainant to deposit a sum of Rs.45,000/- towards arrears of membership fee and Rs.35,000/- towards the registration of complementary plots along with other charges for maintenance. But the complainant did not paid any arrears of membership fee of Rs.45,000/- and not paid Rs.35,000/- towards the registration charges hence contended that there is no deficiency in service from its part. Further contended that complaint is not maintainable as it is false, frivolous and same is filed by suppression of material facts. On other ground O.P denies all the allegations of the complainant and ultimately prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and parties have filed their affidavit evidence and we also heard the arguments.
5. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complaint is barred by limitation?
(B) Whether the complainant has proved
deficiency in service on the part of the O.P?
(C) Whether the complainant is entitled to
the relief prayed for in the complaint?
(D) What order?
6. Our answers to the above points are:-
POINT (A) : In the affirmative.
POINT (B) & (C): In the Negative.
POINT (D) : As per the final order
for the following:
REASONS
POINT No. (A):-
7. On perusal of the pleadings of the parties it is not in dispute that the complainant obtained the membership of the O.P Club and the club membership is fixed for Rs.1,15,000/- and the complainant paid Rs.70,000/- and got obtained the membership. As per the saying of the complainant he has paid the installments upto 2008 and after words he could not pay the installments towards the membership fee on account of financial problem.
8. It is worth to note that the complainant had obtained the membership from the O.P on 8.12.2006 and the complaint is filed for refund of the amount in the year 2015 and hence claiming refund of the amount after taking the membership is obviously barred by limitation. Further on perusal of Section 24 (A) of the Consumer Protection Act 1986 it reads thus:-
“(1) The District Forum or 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.
(2) Notwithstanding anything contained in Sub Section(1) of the complaint may be entertained after the period specified in Sub Section (1) if the complainant satisfies the District Forum or 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, or the State Commission or the District Forum as the case may be records its reasons for condoning such delay. The present complainant has not disclosed any sufficient cause and grounds to condone the delay. Viewing from any angle the complaint is hit by the law of limitation. Hence accordingly the complaint is rejected Under Section 12(3) of the C.P. Act, 1986.
9. On perusing the above provision of law the cause of action accrued to the complainant since the date of obtaining the membership but the complainant got issued the legal notice on 15.7.2014 and the mere exchange of legal notice will not extend the limitation and the limitation runs from the date of payment. Viewing from any angle complaint is badly hit by law of limitation. Accordingly we answered Point No.(A) in the affirmative.
Point No.(B) and (C)
10. It is pertinent to note that complainant himself admitted that he has paid Rs.70,000/- on 8.12.2006 and did not paid the arrears of balance amount of Rs.45,000/- and hence without paying the balance consideration amount the complainant himself at fault and thereon no cause of action accrued to the complainant to bring the present complaint. Furthermore, the site in question is a complementary one and no consideration is also passed to the O.P. Hence as a matter of right complainant cannot enforce the agreement in respect of complementary plot.
11. Further the O.P relied on the Hon’ble National Commission which is decided in the Rev. Petition No. 1191/2010 the case between the Country Club (I) Ltd Vs L.Mahadevan and on perusal of the above said decision the ratio of the above case is aptly made applicable to the present case on hand. The Hon’ble National Commission held that and also on the basis of manifest from the evidence placed on record the complainant right to continue as cool card members and allotment of complementary site was dependent on their making full payment of the membership fee, hence it is the trite law, the terms and conditions of agreement are to construed on its own terms, without adding or subtracting any words therein. Admittedly the complainants failed to pay the balance amount towards membership and therefore the O.P was justified in not allotting the complementary plot. However they fairly admitted that if the complainant come forward to pay arrears of balance amount of Rs.45,000/- and to pay registration charges of Rs.35,000/- and other expenses they are ready to register the complementary plots in favour of the complainant. Hence it is the liberty of the complainant to approach the O.P if he wants to get register the complementary plot and comply the above said demands.
12. On foregoing reasons and discussion we reached to conclusion that complainant failed to prove deficiency in service on the part of the O.P and hence he is not entitled for the relief as sought in the complaint. Accordingly, we answered Point No.(B) and (C) in the Negative.
POINT No. (D):
13. On the basis of answering the Points (A) to (C) and in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby 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 5th Day of December 2017)
MEMBER MEMBER PRESIDENT
*RAK
