State Consumer Disputes Redressal Commission
M/S. Amrutha Estates vs Hmh Quadri on 17 September, 2012
BEFORE THE A BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 341 of 2011 against CC 633/2010, Dist. Forum-II, Hyderabad Between: 1) The Director M/s. Amrutha Estates H.No. 8-2-703, Silver Oak Amrutha Valley, Road No. 12 Banjara Hills, Hyderabad 2) The Managing Director The Country Club Premises No. 6-3-1219 Begumpet, Hyderabad. *** Appellants/ Opposite Parties And HMH Quadri S/o. HMM Quadri RMP Doctor, R/o. 12-2-134 Muradhnagar, Hyderabad-28. *** Respondent/ Complainant Counsel for the Appellant: M/s. S. Rajesh Jaiswal. Counsel for the Respondent: M/s. G. Bhasker Rao CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SRI S. BHUJANGA RAO, MEMBER
MONDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND TWELVE Oral Order: (Per Honble Justice D. Appa Rao, President) ***
1) This is an appeal preferred by the opposite parties against the order of the Dist. Forum directing them to refund Rs. 86,000/- paid by the complainant with interest @ 9% p.a., from the date of filing of the complaint till the date of realization.
2) The case of the complainant in brief is that appellant organization is a company registered under the Companies Act floated various services and collected consideration. They used to lure the customers over phone by telling that you won the gift come to their hotel and collect the git. Op2 executive came to his house explained about allotment of plot while booking the membership and collected various amounts in all Rs. 86,000/- in between 1.1.2007 and 1.12.2008. He could not know where the site was located and the price of it and when it was going to be handed over and when he approached the Ops there was no proper response. Alleging that it amounts to unfair trade practise and was unaware of terms and conditions filed the complaint for refund of Rs. 86,000/- paid by him with interest @ 18% p.a., from the date of payment till the date of payment together with compensation and costs.
3) The appellants/opposite parties resisted the case. It alleged that the complainant with an intention to become a member and having gone through the terms and conditions paid Rs. 9,000/- on 24.9.2007. As per the scheme if a person intended to become a life member he had to deposit Rs.
75,000/- towards membership fee and on such deposit its sister-concern Amrutha Estates would allot a complementary plot to the member and he had to bear registration expenses, development and maintenance charges of Rs. 15,000/-. Accordingly he paid Rs. 70,000/- towards membership fee and also Rs. 15,000/- towards registration charges for 2-1/2 years. Out of good faith it had registered a gift deed on 22.12.2009 and called upon him to pay remaining balance of Rs. 5,000/-. Even as per the statement of account maintained by it, the complainant had paid only Rs. 70,000/- as against Rs. 75,000/-. If he was ready to pay balance of Rs. 5,000/- it would hand over original gift deed. He was already enjoying the benefits as per the scheme by availing the facilities provided in the opposite party club. There was no deficiency in service nor unfair trade practise on its part, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A7 marked while the appellants filed the affidavit evidence of its Manager and got Ex. B1 marked.
5) The Dist. Forum after considering the evidence placed on record opined that the complainant had paid Rs. 86,000/- out of which Rs. 71,000/- was towards membership fee and Rs. 15,000/- was towards registration and development charges for 2-1/2 years. On payment of fee, it had executed the gift deed contrary to Section 122 of the Transfer of Property Act. The entire transaction is commercial. The appellants are doing real estate business under the guise of club membership and offering gift of a plot thereby avoiding its responsibilities to which the seller of a plot is subjected to.
Holding that it amounts to unfair trade practise directed the appellants to pay Rs. 86,000/- with interest @ 9% p.a., from 5.5.2010 till the date of payment however, without any costs.
6) Aggrieved by the said order, the opposite parties preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that gift deed was never challenged. The complaint was barred by limitation. He became a member of the club on his own accord on 19.2.2007. He paid the amounts on different dates to join as a member. It failed to consider Ex. A2 wherein it was agreed by the appellant to allot complimentary plot of 150 sq.yds at Golf Village Club at Warangal without any sale consideration subject to payment of development charges and registration charges of Rs. 15,000/-. As agreed the complainant had paid Rs.
15,000/- and a gift deed was executed on 19.12.2009. There was no agreement in respect of said transaction and as the gift deed was affected it ought not to have ordered refund of amount. Therefore it prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant had paid altogether an amount of Rs. 86,000/-
to the opposite parties evidenced under Exs. A1 to A5. The complainant while paying initial amount paid Rs.
15,000/- towards maintenance, development charges etc. for the complimentary plot pursuant to Ex. A6 letter dt. 27.2.2007 under the heading Welcome Letter it is categorically mentioned among other things:
i.
you are offered complimentary health club facilities at the Country Club, Hyderabad for a period of 2 years from 8.3.2007 to 7.3.2009. In case this facility is not availed, it would lapse and in no case would be extended.
ii.
You are offered discounts at specified hotels/hospitals/travels/beauty parlours etc. iii.
You are offered subject to payment of registration fee suitable accommodation under 3 days and 2 nights package at the Country Club, Chennai, Bangalore, Mysore. You can avail this package 5 times a year subject to availability of accommodation and payment of nominal fee.
iv.
You are permitted free entry into the clubs under same management in various cities except in Mumbai.
This was followed by another letter filed by the very complainant Ex. A7 wherein the complainant was offered Tassha Membership as complementary for a period of 2 years from 8.3.2007 to 7.3.2009. The complainant was allotted 150 sq.yds of plot as per the scheme evolved by the club wherein he was directed to pay Rs. 15,000/- towards development charges, registration charges etc. of the above said plot vide letter Ex. A2 dt. 10.3.2007. He himself had paid Rs. 15,000/- through cheque dt. 20.11.2009 towards maintenance charges, development charges which we have mentioned earlier vide Ex. A1. Pursuant to the above the appellants had executed gift deed in his favour on 17.12.2009 vide Ex. B1. The complainant pleads innocence about these facilities, and contends that under the guise of membership a gift deed Ex. B1 was executed in his favour. In fact he was made to part Rs. 75,000/- un-necessarily and he was neither insisting for facilities nor the plot. He took the plea that that he was not aware of all these facilities. The complainant went to the extent of disowning the thumb impression on the Form-32 appended to the gift deed. When he challenged, it was sent to Finger Prints Experts opinion. After examining the finger prints the expert opined that:
The questioned left thumb impression said to be of HMH Quadri marked as Q on the form of Photographs and Finger Prints as per Section 32A of Registration Act, 1908 in Gift Deed document No. 7620/09 Dt. 17.12.2009 has been compared with the specimen left thumb impression of HMH Quadri marked as S on the plain sheet of paper obtained.
The questioned left thumb impression marked as Q is identical with the specimen left thumb impression marked as Sof HMH Quadri.
9) In the light of above evidence, we are unable to appreciate the contention of the complainant that he was not aware of any of these facilities nor at their instance the said amount was deposited. The complainant himself is a doctor though an RMP. The very consistent conduct of the complainant in payment of amounts on various dates and having availed the services he cannot turn round and claim the amount. It is up to him to accept the option or not. However, the fact remains that he was not entitled to the amount which he deposited for becoming a member.
10) The learned counsel for the appellant contended that the complainant had become a member of the club and according to the membership a complimentary plot was allotted to him without any consideration which he acknowledged for the terms and conditions but also on the very form 32A appended to the gift deed.
In the circumstances, we are of the opinion that the complainant cannot turn round and take a strange contention that he was not aware of the entire membership, which he entered into with the appellant. We do not agree with the opinion expressed by the Dist. Forum in this regard. There is no unfair trade practise nor deficiency in service on its part. The complainant having signed Ex. B1 cannot turn round and claim the amount.
11) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed, however, no costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER 17/09/2012 *pnr UP LOAD O.K.