West Bengal

South 24 Parganas

CC/624/2014

Pankaj Agarwal, S/O Sri Rajesh Kr. Agarwal. - Complainant(s)

Versus

1.Country Club India Ltd. - Opp.Party(s)

19 Jul 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _624   OF ___2014____

 

DATE OF FILING : 30.12.2014     DATE OF PASSING JUDGEMENT: 19.07.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :  Smt.  Sharmi Basu      

 

COMPLAINANT                  :  Pankaj Agarwal,s/o Sri Rajesh Kr. Agarwal of No.P-306, C.I.T. Road, Kankurgachi, Scheme-VIM, 3^rd Floor, P.S. Phoolbagan, Kolkata-54.

 

-VERSUS  -

 

O.P/O.Ps                                :   Country Club India Limited. CK-27, 123, Bosepukur Road, Opposite Neelanchal Housing Estate, Bosepukur, Rashbehari Connector, P.S. Kasba, Kolkata - 42 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

             In a nutshell the case of the complainant is that the O.P represented the complainant that they would provide various facilities i.e. Bangkok Trip for 6 days 2 International Tickets, 1 Samsung Tablet, 1 free Dubai Trip and three years maintenance charges free if the complainant wanted to take Billionaire membership. On such representation complainant paid a sum of Rs.1,30,000/- to the O.P on  10.9.2012 and became member of the O.P for 30 years. But the O.P neither provides agreement nor offered any facilities and/or services to the complainant as yet . Complainant sent a legal notice to the O.P on 13.9.2013 for refund of Rs.1,30,000/- but it yielded no result. Hence, this case praying for refund of Rs.1,30,000/-,cost and damage of Rs.1,00,000/-.

            The O.P contested the case by filing written version denying all the material allegations contending inter alia that complainant is not a consumer in terms of the provision of “C.P Act 1986 and the present dispute is not a consumer dispute as alleged by the complainant. The positive case of the O.P is that complainant failed and neglected to comply his duty and obligation in terms of the agreement in question since complainant has paid membership fees but did not make payment of yearly membership fees as yet and as such there is no deficiency of service on the part of the O.P. O.P prays for dismissal of the case with exemplary cost.

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken together for the sake of convenience, as they are interlinked.

            After scrutinizing vividly the complaint, written version and evidence filed by both the parties and hearing argument in full length from the Ld. Advocates of both  the sides and also scrutinizing all the documents brought before this Forum it is crystal clear that  the complainant paid Rs.1,30,000/- to the O.P towards the service charges for membership of 30 years of the O.P club. Complainant has alleged that O.P has not provided full contract paper but only the first page of the contract . On the other hand O.P at the very first instance when filing the written version in the written version has denied the aforesaid material allegation and has filed the copy of the full agreement along with signature of the complainant. But , it is very shocking to this Forum that the complainant neither challenged that signature of the complainant specifically ,nor has prayed before this Forum for sending the necessary documents to the proper statutory authority to establish his allegation  that the signature in question is forged. Therefore, in this regard it is strongly opined by this Forum that the complainant received the contract Form in its entirety and it can be also safely presumed that only to mislead this Forum complainant suppressed the fact of receiving full contract containing two pages.

            Now, it is pertinent to mention that in the second page of the contract in question it is clearly mentioned that “the II party hereby unconditionally gives his/her/their irrevocable consent to this membership of CCIL. The II party understands that THE MEMBERSHIP FEES IS NON-REFUNDABLE UNDER ANY CIRDUMSTANCS AND THE MEMBERSHIP FEE IS NOT A DEPOSIT”. . Moreover, in no where of the aforesaid contract it is mentioned that the O.P would provide Bangkok trip for 6 days two international tickets, one Samsang Tablet and one free Dubai trip  free of cost. Moreover, complainant has alleged that the facilities had not been provided to him but even a scrap of paper or any other cogent evidence can be placed before this Forum.

            Moreover, it is crystal clear that the provision of the agreement in question duly singed by the complainant is as follows:-

            “The II party understand that the membership fee is non-refundable under any circumstances and the membership fee is not a deposit”. The second party desires to become a member of the company and accordingly he/she has gone through the terms and conditions of the membership purchase agreements and rules and regulations for members. CCIL explained all the term and conditions of the agreement to the II party. It is agreed by and between the parties hereto as mentioned in membership benefits , terms and conditions and covenants of member/II party “.

            It is settle principle of Law that being the party to the agreement complainant is bound to keep his own undertaking as well as terms of the agreement duly signed by him and in this regard we are referring the decision of the Hon’ble National Commission vide RP no. 3037 of 2013 dated 17.9.2013 in almost similar case with respect to the instant case ( the case was against Sterling Holiday Resorts (India) ltd. ) . In this case Hon’ble National Commission has been pleased to observe that “Hence we are of the considered view that the complainant (consumer) failed to comply with the terms of the payment and did not continue the membership , there is no apparent error ,illegality or infirmity …… warranting or interference”.

            In this context it is required to be mentioned that the original complaint case with relevant to the aforesaid revision petition before the Hon’ble N.C.D.R.C was dismissed by the District Forum as well as Hon’ble State Commission, Chandigarh.

            Moreover, in view of the terms for the agreement the complainant undertook that the annual membership fee shall be deposited within the specific period of time by the complainant but even after expiry of two years the complainant not paid his AMC to the O.P and as such the membership of the complainant has already been cancelled long back and in accordance with the terms of the agreement and as such the question of getting refund of money as claimed by the complainant shall not arise

at all.

            In light of the above discussion and keeping in mind the remarkable decision of the Hon’ble National Commission (K.K. Bhenil Supra) we are of the opinion that the complaint case is liable to be dismissed.

Hence,

                                                                                                Ordered

That the application under section 12 of the C.P Act,1986 is dismissed on contest without cost.

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President                                

 

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                                                    Ordered

That the application under section 12 of the C.P Act,1986 is dismissed on contest without cost.

Let a plain copy of Judgment be supplied to the parties free of cost as per rule.

 

                                    Member                                                                                   President