KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 641/2011
JUDGMENT DATED 22.02.2012
PRESENT:-
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
SMT. A. RADHA : MEMBER
APPELLANTS
1. Country Vaccations International Holiday Club,2nd Floor, YMCA International Cultural Complex, YMCA Cross Road, Calicut – 1
2. Country Club(I)LTD, 6-3-1219 Begumpet,
Hyderabad - 500016
(Rep. by Adv.Sri. Shyam Padman)
Vs
RESPONDENT
Ali Baramy, Ashiyana, Kuriyal Lane,
Kozhikode.
(Rep. by Adv.Sri. Sreeram)
JUDGMENT
SMT. A. RADHA : MEMBER
The opposite parties in C.C. 146/2010 in the CDRF, Kozhikode are the appellants before us in this appeal challenging the order to return Rs. 75,000/- along with a compensation of Rs. 5,000/- and a cost of Rs. 1,000/-
2. The case of the respondent/complainant is that the complainant purchased a life membership of Country Vacation International Holiday Club on 15.11.2008 on payment of Rs. 75,000/- to the opposite parties. The opposite parties did not issue the membership card within 30 days as promised. The non receipt of the membership card, the complainant’s family had to stay as paying guest at Bombay during his vacation and had to spend Rs. 20,000/- Alleging deficiency in service and unfair trade practice filed complaint to refund the membership fee and expenses incurred in Bombay.
3. The learned counsel for the appellant submitted before us that the Forum below erred in passing the impugned order. The terms of membership were incorporated in the agreement and it forms part of the contract. The membership is for a term of 5 years and it is specifically stated that the agreement is irrevocable wherein the complainant is a party to the Agreement.
4. It is also strongly pointed out that under clause 4, it is a conclusive evidence of legal ownership. As a protection for the purchaser, the provisions of the agreement remain in full force and effect even on pending issue of the Point Certificate. The other contention raised by the counsel for appellant is that the respondent/complainant resorted to a place which is not in the list of the Holiday Club. The appellant/opposite party’s holiday facilities never included Bombay, which is clearly mentioned under clause 12 of the Purchase agreement. Further the appellant produced Ext. A1 which states that the agreement is neither rescindable nor cancelable other than clause 9 and the right to cancel the agreement is only on default of the payment of installments of management charges which is vested only with the appellants. Further Bombay was not a destination and is not a part of package available for the complainant. Hence the act of the complainant will not in any way fasten liability on the appellants to refund the expenses.
5. It is not in dispute regarding the agreement between the appellant and respondent that it is binding on both the parties. The specific term was reiterated in the Agreement that it is irrevocable and the period commences from 15.11.2008 for a period of 5 years. If at all any delay is caused in the issuance of membership certificate it is not a criterion for enjoying the facilities. It is also clear from Ext. A1 that Bombay is not included in the Holiday facility of the appellant.
6. The act of the respondent resorting to a place beyond the agreement and claiming expenses will not fasten any liability upon the appellants. The lower Forum also found that the complainant is not entitled to get back the money expended towards the trip to Bombay. Further the Purchase Agreement being an irrecoverable contract for a specific period it is binding on the parties. Hence we have no hesitation to set aside the impugned order of the lower Forum.
In the result, the appeal is allowed setting aside the impugned order of the lower Forum.
The office is directed to send a copy of this order along with L.C.R. to the Forum below.
A. RADHA : MEMBER
S. CHANDRAMOHAN NAIR : MEMBER
ST
