State Consumer Disputes Redressal Commission
M/S. Country Club ( India) Limited, ... vs Nirmal Kumar Pandey, Maredpally, ... on 16 November, 2012
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No . 503/2011 against C.C.No.508/2009, Dist. Forum-II, Hyderabad. Between: 1.M/s. Country Club ( India) Limited, Corporation Office, Silver Oak, Pent House, 8-2-703, Amrutha Villey, Road No.12, Banjara Hills, Hyderabad, Rep. by its Managing Director Sri Y.Rajeev Reddy. 2. M/s. Country Club, A Division of Country Club (India) Ltd., Silver Oak, Pent House, 8-2-703, Amrutha Villey, Road No.12, Banjara Hills, Hyderabad, Rep. by its Managing Director 3.Sri Y.Rajeev Reddy, Chairman and Managing Director of M/s. Country Club(India) Ltd., R/o.H.No.6-3-1219, Begumpet, Hyderabad. 4.M/s. Amrutha Estate., A Partnership firm having its Regd. Office, At Road No.12, Banjara Hills, Hyderabad, Rep. by its Managing Partner. 5. Mrs. Y.Manjula Reddy, Promotor, M/s. Country Club(India) Ltd., Silver Oak,Pent House, 8-2-703, Banjara Hills, Hyderabad, 6. Sri Y.Siddartha Reddy, Promotor: Country Club(India) Ltd., Silver Oak, Pent House, 8-2-703, Amrutha Valley , Road No.12, Banjara Hills, Hyderabad, 7. Sri Y.Varun Reddy, Promotor, Country Club(India) Ltd., Silver Oak,Pent House, 8-2-703, Amrutha Villey , Road No.12, Banjara Hills, Hyderabad, 8. Y.Nikil Reddy, Promotor, Country Club(India) Ltd., Silver Oak, Pent House, 8-2-703, Amrutha Villey , Road No.12, Banjara Hills, Hyderabad Appellants/ Opp.parties And Nirmal Kumar Pandey, S/o. S.B. Pandey, Aged 43 years, R/o.Plot no.21, Lakshmi Enclave, D.No.3-6-158/5, Near Krupa Anand Hall, Maredpally, Secunderabad. Respondent/ Complainant Counsel for the Appellants : M/s. M.Laxma Reddy Counsel for the respondent : M/s.B.S.Prasad QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO , PRESIDENT, SMT.M.SHREESHA, HONBLE MEMBER
AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE SIXTEENTH DAY OF NOVEMBER, TWO THOUSAND TWELVE.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** This appeal is directed against the order dt.10.1.2011 of the District Forum-II, Hyderabad made in C.C.No.508/2009.
The brief case of the complainant as set out in the complaint is as follows:
The opposite parties have been carrying on their business activities in the name of M/s. Country Club and Amrutha Real Estates, as its sister concern, they have formulated a scheme for sale of landed properties near Yadagiri Gutta and various other places in the State of Andhra Pradesh and they have conveniently designed the scheme for sale of property by linking it to a membership in the opposite parties M/s. Country Club as offered by the opposite parties. Actually, the opposite parties dealt with the sale of immovable properties.
In the month of December, 2005, the opposite parties, through their agents, have approached the complainant with a brochure offering sale of plots in a venture called Country Kuteeram Ventures at Yadagirigutta, Nalgonda Dist. They have also supplied a brochure of location plans. The opposite parties, through their agents, have explained about the salient features of the proposed lay out and it was also represented that a free membership in their club will also be conferred upon the purchasers of the plot of properties. The complainant, having been impressed by the afore said representations made by the opposite parties and believing the representations as true and correct, was obliged to purchase plot nos. 328, 329 and 330 admeasuring 150 sq.yards each, in the afore said venture namely Country Kuteeram Refresh. The opposite parties have booked the said plots and they paid the entire sale consideration for the said three plots, through credit cards, in December,2005 itself. The opposite party no.1 through opposite parties 3, 5, 6, 7 and 8 have dealt with the transaction through its concern M/s. Amrutha Estates i.e. fourth opposite party and they have confirmed the booking of the plots through their letter dt.3.1.2006. The opposite parties have however stipulated that the complainant should deposit a sum of Rs.10,000/- for development/betterment charges including the registration charges and maintenance for 3 years to be paid at the time of registration of plots.
From the month of January,2006, the complainant had been contacting the Sales Manager and Manager of Estates and various other agents of the opposite parties and all of them sought for extension of time for completing the transaction again and again. The opposite parties did not take any positive measures in completing the transaction and fulfilling their assured obligations in registering and delivering the plots, which were booked by them for sale in the afore said manner. The complainant further stated that the true and actual transaction as offered by the opposite parties is with reference to sale of immovable properties i.e. plot properties in various ventures assured to be purchased and developed by the opposite parties. However, the opposite parties are now conveniently stated that the actual transaction between the complainant and the opposite parties is with reference to membership in their club and not for sale of plot properties . The opposite parties are setting up the amounts received by them, towards the membership fee in their club and that the plots offered to be conveyed was free of cost and incidental to the membership. As a matter of fact, the immovable properties can never be offered free of cost to a member in the Club or Society and just assigning some name to the transaction other than what was offered and agreed upon. The opposite parties are liable to execute and register the sale deeds in respect of the above said three plots notwithstanding with the membership in their club. The complainant has agreed to purchase the aforesaid three plots from the opposite parties, for a valuable consideration. There seems to be doubt as to the title of the opposite parties regarding the properties which were offered for sale to the complainant. The acts of the opposite parties in collusion with each other and with clear ulterior motive to cheat the complainant, have resulted into grave deficiency in service. Therefore the opposite parties are liable for payment of damages and compensation to the complainant.
The further case of the complainant is that on account of the afore said acts of the opposite parties, the complainant had filed C.C.No.335/2007 on the file of District Forum-II, Hyderabad seeking direction to the opposite parties to pay a sum of Rs.20 lakhs towards the damages and compensation inclusive of the sale consideration paid by the complainant together with interest there on at 24% p.a. from the date of the complaint, till the date of final payment and for costs. During the pendency of the said complaint in C.C.No.335/2007, at the instance of opposite parties, the complainant and the opposite parties 1 and 2 have entered into a Memorandum Of Understanding dt. 6.6.2007. The opposite parties have agreed to register the plot nos. 2305, 2306, 2307 and 2308 admeasuring 150 sq.yards each totaling to 600 sq.yards in Sy.nos. 103,107 and 108 P situated at Yashwanthpur Village, Jangaon Mandal, Warangal Dist. under the name and style of Country Club India Ltd. at Golf (v) in lieu of plot nos. 328, 329 and 330 in Country Kuteeram, Yadagirigutta. The opposite parties have further paid a sum of Rs.1,20,000/- towards damages and compensation as claimed in C.C.No.335/2007 as against the total claim of Rs.20 lakhs. The opposite parties have specifically agreed to complete the project and register the above four plots within 18 months from 4.5.2007. The complainant had agreed to pay a sum of Rs.10,000/- for each plot towards the developmental charges and for registration of the plots. In the event of default, in executing the sale deeds as agreed under Memorandum of Understanding, the opposite parties further agreed to pay a sum of Rs.12 lakhs being the liquidated damages. In pursuance of the Memorandum of Understanding, the complainant had filed a memo dt. 15.6.2007 before the District Forum-II, Hyderabad, withdrawing the said C.C.No.335/2007 in terms of Memorandum of Understanding and the said complaint was closed basing on the said MOU.
The further case of the complainant is that despite several requests and demands made by the complainant, the opposite parties failed to execute the registered sale deeds. The opposite parties have failed to start developmental activities and therefore did not collect Rs.10,000/- for each plot. The acts of the opposite parties are highly unlawful, illegal and amount to serious deficiency in service. Hence the complainant filed the complaint seeking direction to the opposite parties to complete the entire venture named as Golf Village and register the plot nos. nos. 2305, 2306, 2307 and 2308 admeasuring 150 sq.yards each totaling to 600 sq.yards in Sy.nos. 103,107 and 108 P situated at Yashwanthpur Village, Jangaon Mandal, Warangal Dist. under the name and style of Country Club India Ltd. at Golf (v) in l favour of the complainant or in alternative to pay a sum of Rs.12 lakhs for liquidated damages in the terms of Memorandum of Understanding dt.6.2.2007.
The opposite parties filed counter/written version denying the material allegations made in the complaint and contended that the opposite party no.1 established its Club in various cities of India and as a membership drive, the opposite party no.1 published a scheme inviting the general public to become members in the opposite party no.1 club by paying membership fee and to avail the facilities created by opposite party no.1. In the said process, the opposite party no.1 has evolved a scheme to allot a land, free of cost for each person, who intended to become a member of opposite party no.1 as an incentive, in various places, where the opposite party no.4 and its nominees have purchased the landed property and converted such landed property into plots and certain facilities at such places, as opposite party no.4 being a sister concern of opposite party no.1, but at no point of time, opposite party no.4 ever sold any plot to any of the member of the opposite party no.1 club. Therefore, it is clear, that allotment of the plot is nothing but an incentive, free of cost, but it was never a sale and question of collecting the sale consideration does not arise.
The opposite party further contended that in order to boost up the membership drive, the marketing people are entrusted with brochures published by opposite party no.1 to secure membership and as per the terms and conditions of the brochure, the opposite parties have offered a plot, free of cost, for a person, who intends to become a member of opposite party no.1 club, but nowhere it offered to sell plot of land to any of the member by receiving the sale consideration and there is no offer and acceptance and the same allotment of plot never amounts to sale as alleged. The complainant did not pay Rs.10,000/- per each plot. Due to various reasons and hurdles faced by the opposite parties in availing permissions from the local bodies, the earlier allotment of plots, as an incentive, could not be registered and the complainant, taking advantage of that, filed C.C.No.335/2007 before the District Forum and under the threat of prosecution, extracted illegal amount of Rs.20 lakhs, towards damages and still not satisfied with that amount, under the threat prosecuting the opposite parties before the criminal court by filing complaints before P.S. Maredpally and under threat got memorandum of understanding, apart from extracting illegal amounts. Apart from extracting illegal amounts, further got allotment of plots and under the garb of such Memorandum of Understanding, filed the present case with an intention to extract further illegal amounts.
During the course of enquiry, the complainant filed his evidence affidavit, reiterating the averments made in the complaint and got marked Exs.A1 to A25. The opposite parties have also filed evidence affidavit and got marked Ex.B1.
Upon hearing the counsel for both parties and on consideration of material on record, the District Forum allowed the complaint in part, directing the opp.parties to complete the entire venture named as Golf Village and register plot Nos.2305, 2306, 2307 and 2308 admeasuring 150 sq.yards each, totaling to 600 sq.yards in Sy.nos. 103, 107 and 108 P situated at Yashwanthpur Village, Jangaon Mandal, Warangal Dist., under the name and style of Country Club India Ltd. at Golf (v) in favour of the complainant by collecting an amount of Rs.10,000/- per each plot, within two months, from the date of receipt of the order or in the alternative opp.parties are directed to pay a sum of Rs.12 lakhs being the liquidated damages in terms of Memorandum of Understanding dt.6.6.2007. The complainant is also entitled to compensation of Rs. 25,000/-
and costs of Rs.5000/- .
Aggrieved by the said order, the opposite parties preferred the above appeal contending that the District Forum failed to appreciate the facts and material on record and failed to consider the legal position under the Consumer Protection Act. The District Forum failed to see that the appellants/opp.parties have complied all the promises offered to the complainant, when the complainant became a member of the club and failed to see that at no point of time, there was any complaint regarding not providing the facilities in the opposite party club and not denied in enjoying the facilities available in the club equivalent to any other member and in the absence of such complaint of denial of service, the very complaint is not maintainable and ought to have dismissed. That the District Forum has no jurisdiction to entertain the complaint. That the District Forum failed to consider evidence placed on record by the appellants with regard to the taking the complainant as a member and providing all the facilities and ready to execute the gift deed as the transfer of land being an incentive but not a sale and the appellants/opposite parties immediately addressed a letter to the complainant to deposit the amount to be incurred for stamp duty, registration charges and maintenance charges, still the complainant did not deposit the amount, on the contrary addressed a letter to the opposite parties stating that he is ready to deposit the said amount, provided the development is made.
That the District Forum ought not to have passed the order granting alternative relief to the complainant as the District Forum had no power or right under the provisions of Consumer Protection Act . The impugned order of the District Forum is therefore liable to be set aside and the appeal may be allowed We heard the counsel for both the parties and perused the entire material on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
Most of the facts of the case are not in dispute. It is also not in dispute that the complainant and opposite parties have settled the matter during the pendency of complaint in C.C.No.335/2007 filed by the complainant previously by executing Ex.A2 Memorandum of Understanding on 6.6.2007 and as a result, the complaint was dismissed as settled out of the Forum.
The present complaint is filed not only for non performance of the Memorandum Of Understanding but also for the specific failure on the part of the opposite parties, in rendering the service. The opposite parties have not denied the non performance of Memorandum of Understanding, except the bald contention that Ex.A2 Memorandum of Understanding was obtained by bringing immense pressure of threat of filing a criminal cases on the opposite parties. The opposite parties have not placed any material, in support of their contention. The opposite parties have not disputed the contents of Ex.A2 Memorandum Of Understanding. Under Ex.A2 MOU, the opposite parties have agreed to register the plot nos. 2305, 2306, 2307 and 2308 in Sy.nos. 103,107 and 108 P situated at Yashwanthpur Village, Jangaon Mandal, Warangal Dist. under the name and style of Country Club India Ltd. at Golf (v) in lieu of plot nos. 328, 329 ad 330 in Country Kuteeram, Yadagirigutta. Under Ex.A2, the opposite parties have agreed to complete the project and register the above four plots, for which the consideration was already received by the opposite parties, within 18 months from 4.5.2007. But the opposite parties did not complete the project and register the plots in favour of the complainant. It is not the case of the opposite parties that they have developed the project. No explanation is offered by them for not developing and completing the project and for not registering the plots in favour of the complainant.
As seen from the record, the complainant is always ready to pay Rs.10,000/- for each plot as agreed under Ex.A2 MOU, vide Ex.A6 letter addressed to the opposite parties by complainant. The acts of the opposite parties undoubtedly amount to deficiency in service .
Having regard to the facts and circumstances of the case, the contention of the appellants that this case does not come under the provisions of the Consumer Protection Act and that any case of non performance of any contract, one has to approach the Civil Court for redressal but not before the District Forum under the Consumer Protection Act, is not acceptable. There is no cogent evidence on record in support of the contention of the opposite parties .
For the afore said facts and circumstances, we do not find any grounds, much less valid grounds to interfere with the impugned order of the District Forum . Therefore the appeal fails.
In the result, appeal is dismissed confirming the impugned order of the District Forum. The appellants are directed to pay a sum of Rs.5000/- to the complainant towards costs of this appeal.
PRESIDENT MEMBER MEMBER Pm* Dt.16.11.2012