BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
FA No. 415 OF 2014 AGAINST CC No.582 OF 2011
ON THE FILE OF DISTRICT FORUM-II, HYDERABAD
Between :
Country Vacations,
(A Division of Country Club India Ltd.,),
Rep. by it’s Chairman and Managing Director,
Door No.3-6-12/13, 4th Floor A-1,
Samad Building Himayathnagar,
Hyderabad – 500029.
New Address i.e., D.No.6-3-1219,
Begumpet, Hyderabad. …Appellant / Opposite Party
AND
- Shaik Mohammed Shafeeq Ahmed
S/o. not known to appellant,
Aged about 61 years, Occ: Retired,
- Smt. Mehaboob Bee,
W/o. Shaik Mohammed Shafeeq Ahmed,
Respondents 1 and 2 are the
R/o. H.No.B-15/2, BHEL Colony,
Old Alwal, Secunderabad. ....Respondents/Complainants
Counsel for the Appellant / Opposite Party : Sri S.Rajesh Jaiswal & Meenakshi Jaiswal
Counsel for the Respondents / Complainants : M/s.K.Ramanna Dora & Associates
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Hon’ble Sri Patil Vithal Rao … Member
Monday, the Sixteenth day of April
Two thousand Eighteen
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
***
Challenge is made to the Order dated 19.12.2013 passed by the District Consumer Forum-II, Hyderabad (for brevity, ‘the District Forum’) in C.C.No.582/2011 directing the Opposite Party Club to pay the Complainants a sum of Rs.2,51,000/- with costs of Rs.5,000/- within one month. The Appellant herein is the Opposite Party Club and the Respondents are the Complainants in the said case. For the sake of convenience, the parties will be referred to hereinafter, as arrayed in the complaint.
- Briefly stated facts of the complaint, are that the Complainants had in all paid a sum of Rs.2,61,000/- to the Opposite Party Club towards membership fees and entered into the Agreement on 23.09.2008 to avail all the membership facilities of it. Their further case is that despite promise of the Opposite Party Club to allot a plot of 450 Square yards within the limits of Hyderabad City to them, it didn’t keep up it’s word despite several representations and that at last refused to either refund the amount paid or register the plot on their names. By terming the said attitude on the part of the Opposite Party Club as deficiency in service and unfair trade practice, the Complainants filed the case under Section-12 of the Consumer Protection Act, 1986 before the District Forum claiming refund of Rs.2,60,000/- with interest and damages of Rs.2,00,000/- with costs of Rs.10,000/-.
- The Opposite Party Club resisted the claim by way of filing a Written Version before the District Forum on the grounds, interalia, that as per the terms and conditions of the Agreement dated 29.02.2008 between the parties, the Complainants were entitled to avail holidays in the resorts during blue season for a period of 30 years i.e., one week in a calendar year and that the membership amount was non-refundable. The further defence of the Opposite Party Club is that the amount of Rs.2,61,000/- paid by the Complainants was not towards sale consideration of the plot because the plot was allotted as complimentary but not for any sale consideration. The Opposite Party has further contended that when it demanded the Complainants to pay development charges of Rs.45,000/-for the complimentary plot inaccordance with the terms and conditions of the Agreement, they failed to respond and even to pay annual maintenance charges of Rs.3,000/- for three years. The Opposite Party Club has also contended that the Complainants didn’t complain about any denial on the part of the Club in permitting them to utilize the membership facilities. Even otherwise, as per the Opposite Party Club, the claim was barred by limitation. For these reasons, it sought dismissal of the complaint with costs.
- After due enquiry into the matter the Forum below has passed the Order as noted in Para No.1 supra, which is now impugned, in the present Appeal.
- The contention of the Appellant / Opposite Party Club in the Appeal filed under Section 15 of the Act, 1986, in brief, is that the Forum below did not consider the terms and conditions of the Agreement dated 29.02.2008 in a right perspective and also ignored the default on the part of the Complainants in making payment of Development Charges and Annual Maintenance charges so also the legal aspect about time barred claim of them. On these grounds it sought to set aside the impugned Order by allowing the Appeal.
- Perused the material evidence placed on record, impugned Order and the written arguments of both the parties and heard their learned counsel.
- Now the point for consideration is that:
whether the impugned Order is erroneous and illegal, both on facts and under law, and that as such liable to be set aside?
8. Point:- At the outset, it is to be noted that the Complainants became members of the Opposite Party Club on 29.02.2008 by making payment of the total membership consideration. But the Complaint was filed on 08.04.2011. As per Section 24-A of the Act, 1986 a Complaint has to be filed within two years from the date of cause of action. Thus, the present complaint was instituted after lapse of two years from the date of alleged cause of action and that as such it is clearly barred by limitation. The District Forum did not consider this vital aspect but based the Demand Letter dated 01.08.2009 under Ex.A6 to bring the claim within limitation. Infact, the said letter was addressed by the Opposite Party Club calling upon the Complainants to clear off the annual maintenance arrears. Therefore, in our opinion, by any stretch of imagination the said letter cannot be treated as a promise by the Opposite Party Club to allot the complementary plot even without discharging obligation of the Complainants in clearing the outstanding dues. Therefore, the view taken by the District Forum is erroneous and against law and that as such needs to be interfered with by holding that the claim in question is time barred.
9. Now coming to the factual aspect of the matter, it is not in dispute that the Complainants became members of the Opposite Party Club by making payment of Rs.2,61,000/- and entered into an Agreement vide Ex.A1 for a period of 30 years. As per Clause-14 of the said Agreement, the terms and conditions therein are binding on both the parties but neither rescindable nor cancellable except inaccordance with Clause No.10. The said Clause-10 confers right on the Opposite Party Club to cancel the Agreement and forfeit 80% of the amount paid by a member in the event of his committing default in payments of installments on due dates. But this clause has no role to play in the present case since the Complainants have paid entire consideration without any installment due. It has been clearly stated in 2nd part of the Agreement vide Clause-14 that it was executed by the Complainants with their free will and without any compulsion or coercion of the Opposite Party Club. Thus, the Agreement became final and conclusive.
10. The Complainants have averred in the complaint that though the Opposite Party Club promised to allot a plot of 450 Sq. yards within the limits of Hyderabad City, it failed to do so despite repeated requests, but in this regard it is to be seen that as per the terms and conditions for allotment of a complementary plot vide letter dated 23.09.2008 under Ex.A2, such a plot could be allotted only on completion of legal formalities such as full payment of registration and development charges of Rs.45,000/-. Further, the Complainants were allotted a complementary plot at Wanaparthy Town by the Opposite Party Club as evident from the above said letter, Ex.A2. But there is no document to show that the Opposite Party Club ever promised the complainants to allot a plot within the limits of Hyderabad City. It seems, the Complainants failed to pay the annual maintenance charges of the plot for continuous three years, from 2009 to 2011 at the rate of Rs.3,000/- per year, amounting to Rs.9,000/- in total. Therefore, the Opposite Party Club sent demand letters vide Ex.A6 and A7. These two documents, infact, support the defense of the Opposite Party Club but not the claim as set up by the Complainants. Thus, it is clear that the Complainants suppressed material facts and didn’t approach the District Forum with clean hands.
11. It is not the case of the Complainants that the Opposite Party Club refused them to utilize it’s holiday facilities. Thus, inview of the terms and conditions of the Membership Purchase Agreement, Ex.A1 there is no evidence to show that the Opposite Party Club exhibited deficiency in service on it’s part towards the Complainants. As the terms and conditions of the said Agreement became final and free from any fraud or misrepresentation, they are binding on the Complainants as noted supra. It is to be seen that the Opposite Party Club has stated in the Written Version, in an unequivocal terms, that it has been always ready and willing to execute a registered document in favour of the Complainants with regard to the complementary plot conferring title on them on their clearing off the arrears of annual maintenance amount and bearing the registration charges. But the District Forum didn’t consider this aspect in a right perspective and based it’s findings only on assumption and presumption by holding that the terms and conditions of the Agreement were unilateral and void. It is now well settled proposition of law that a fora cannot alter or modify terms and conditions of the mutually agreed contract between the parties. In this view of the matter, we hold that the impugned Order is not tenable in the eye of law and also against the material evidence on record and that as such it warrants interference in the present Appeal. We wish to add that the Complainants are at liberty to avail the vacation / holiday facilities by virtue of their membership in terms of the Agreement, Ex.A1 but cannot seek refund of the membership purchase consideration.
12. For the aforesaid reasons, we hold that the Appeal is fit to be allowed by setting aside the impugned Order.
13. In the result, the Appeal is allowed but in the circumstances without costs.
PRESIDENT MEMBER
Dt.16.04.2018
