Chandigarh

StateCommission

A/46/2023

COUNTRY CLUB - Complainant(s)

Versus

ANU DHINGRA - Opp.Party(s)

PRADEEP SHARMA ADV.

04 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

(Additional Bench)

 

Appeal No.	:	46 of 2023
Date of Institution	:	24.03.2023
Date of Decision	:	04.08.2023

 

 

 

1. Mr. Amit Saha s/o D.K. Saha (Manager) COUNTRY VACATIONS, a division of Country Club Fitness and Vacations, SCO 44 & 45, 2^nd Floor, Above Punjab National Bank, Sector 9 D, Madhya Marg, Chandigarh-160009.
2. M/s Country Club Hospitality & Holidays Ltd., Regd. Office: Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad-500 063, through its Managing Director
3. M/s Country Club Hospitality & Holidays Ltd., Country Club Kool, #6-3-1219/A, 4^th and 5^th Floors, Country Club Kool Building, Begumpet, Hyderabad-500016, Through its Director.

…Appellants/Opposite parties

V e r s u s

 

Ms. Anu Dhingra w/o Brig. K.K. Dhingra r/o House No. 1044, Sector 21, Panchkula.

….Respondent/Complainant

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.PREETINDER SINGH, MEMBER.

 

 

Present:-    Sh. Pradeep Sharma, Advocate for the appellants.

                   Sh.Deepak Aggarwal, Advocate for the respondent alongwith Ms.Anu Dhingra, respondent in person.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   The opposite parties have come up in this appeal feeling aggrieved by the order dated 01.02.2023, passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), whereby consumer complaint bearing no.784 of 2019  filed by the respondent/complainant was  partly allowed in the following terms:-

“……In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly partly allowed. The opposite parties are directed to:-

1. refund the amount of Rs.1,49,000/- along with  interest @ 9% per annum from the date of filing the present complaint i.e. 20.08.2019 till its actual realization.  
2. pay Rs.7,000/- as compensation to the complainant on account of mental tension and harassment.
3. Pay Rs.7,000/- as litigation expenses.

This order be complied with by the OPs jointly and severally, within 60 days from the date of receipt of its certified copy, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this Commission.….”

 

2.           Briefly stated, it is the case of the complainant (respondent herein) that attracted by various offers and commitments made by the opposite parties, qua the vacation clubs plans which included membership of many resorts all over India and abroad, club facilities, SPA facilities etc., she entered a vacation plan sale agreement dated 15.04.2018 with them, valid for 10 years, on making payment of Rs.1,49,000/-. She was issued membership card Blue Season (Annexure C-2).  Thereafter, she kept on approaching the opposite parties with a request to issue the membership letter, holiday plan and vacation plan so that the other plans and facilities could be utilized but to no avail. As per Clause 8 of the agreement, the opposite parties were to give free accommodation vouchers for 2 nights 3 days at Dubai but no such voucher was given. Clause 17 of the agreement reveals that the member is entitled to a special concessional rate to book rooms at Dubai Hotel “during 2017”, however, the agreement was entered on 15.04.2018 and, therefore, the said benefit was not feasible. The complainant even tried to get a booking for a holiday in January, 2019 and made an online request through e-mail dated 15.01.2019 but she received no response from the opposite parties.  Hence, alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the appellants, the complainant filed consumer complaint before the District Commission.
3.           The complaint has been contested by opposite parties, by filing reply, stating therein that the agreement was entered by the complainant with free consent after going through the contents of the same and understanding all the clauses thereof. Thereafter, a welcome call  was given in which the company confirmed her personal details, AMC information details and informed that the membership is non-refundable and is not a deposit, upon which she did not raise any queries. Subsequently, the complainant was issued the welcome kit which included the membership cards, DAE card and welcome letter in which the details of the membership were again mentioned. It was clearly stated in the welcome letter that the kit includes “vacation smart card (Blue Season) to which the complainant had no objection and no protest of any kind was raised after the receipt of the welcome kit, therefore, there is no question of issue of any separate letter of membership. As per clause 8 of the agreement, the opposite parties were to give additional vouchers for 2 nights and 3 days at Dubai which is to be used for the period from March 2018 to September 2018 and the said offer was valid for a period of one year from the date of registration of the agreement and the same was not extendable, but the complainant failed to avail the said offer till September, 2018.  Moreover, the complainant has not disclosed the fact that she opted to exchange the said benefit wherein she requested the company to issue the holiday at “Pattaya” location instead of ‘Dubai’ which as per clause 8 of the agreement was eligible for only members who opt for a membership which is valid for 30 years. However, the opposite parties as a goodwill gesture going beyond the terms of the agreement issued the same to the complainant and updated the same in her online account.  The reservation is only confirmed once the booking voucher is issued and reservation merely though an e-mail for confirmation without a booking voucher was not to be treated as confirmed vacation.  The fee/amount paid by the complainant is not refundable under any circumstances. Remaining averments made by the complainant in her complaint were denied and the opposite parties prayed for dismissal of the consumer complaint. 
4.           The District Commission after hearing the contesting parties, partly allowed the complaint in the manner stated above. Hence this appeal.
5.           We have heard the contesting parties and scanned the material available on the record.
6.           Counsel for the appellants  submitted that since the parties are bound by terms and conditions of the agreement executed between them, as such, the respondent/complainant is not entitled to get any refund but the District Commission fell into a grave error while holding to the contrary. 
7.           On the other hand, learned counsel for the complainant/respondent has vehemently contended that neither any membership card was issued nor the respondent was allowed to book a programme and her amount was not returned. He further submitted that the terms and conditions of Agreement A-3 are in the printed form which were neither read over to the respondent nor explained to her and the same was got signed from her, which are not binding upon her.
8.           We have given our thoughtful consideration to the rival contentions of the parties and critically examined the material available on the record and grounds of appeal.
9.           First of all coming to the sale agreement A-3. A bare perusal of the same transpires that it has been mentioned in clauses 2,8 and 17,  as under:-

 

“2.     Member can stay for a period upto 6 Nights and 7 Days each year at CCHHL’s properties in India.

 

3. to 7…xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

8.       Members who purchase 10 years renewable vacations are eligible for additional vouchers towards accommodation for 2 Nights and 3 Days at Dubai (March to September). Members who purchase 30 years renewable vacations are eligible for additional voucher towards accommodation for 3 Nights and 4 Days Holidays at Country Club Hotel, Dubai (March to September) and 3 Nights and 4 Days at CCHHL's affiliated property in Bangkok/Malaysia. Those offers are valid for a period of One year from the date of registration of the Agreement and same cannot be extendable.

 

9. to 16…xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

17.     In addition to the benefits provided under this agreement, as special privilege, vacationers can book rooms at CCHHL’s Dubai hotel at a special rate of AED 399 per night during 2017…..”

 

10.           In the reply filed before the District Commission also, it has been specifically stated by the appellants that the amount paid by the respondent is not refundable. In para no.9 of introductory facts it has been mentioned by the appellants as under:-

“……. 9) That clause No. 26 under the agreement provides for a cool off period of 10 days from the date of signing the agreement, wherein complainants were free to cancel the agreement and claim the refund of the amount paid by them after deduction of nominal charges of Rs.3,800/-. It is clearly mentioned therein that after the expiry of the aforesaid period the fee is non-refundable under any circumstances. The complainant never exercised the said option rather confirmed the details of membership on the welcome call which shows that allegations made in the present complaint afterthought and false and frivolous.…”

 

11.           Similarly in para no.10 of introductory facts it has been mentioned as under:-

“……10) That the Clause no.38 of the agreement clearly states as "Second Party has understood the benefits available under this agreement which are more particularly listed out in this agreement. Second Party further understands that no benefits other than those listed in the agreement will be available to Second Party.….”

 

12.           Similarly, it has also been candidly stated by the appellants themselves in para no.11 of introductory facts that as per clause 42, the terms and conditions of the said agreement were in printed form only, are final and binding upon the complainant.

 

13.           Condition No.42 of the said sale agreement reads as under:-

 

“…42. Second Party understands that this Agreement (in the printed form ONLY) SUPERCEDES any communication whether written or oral or any variation or hand written remarks rewriting the printed Agreement made by the Agents and/or representatives of CCHHL or Second Party to this Agreement and/or any other written communication issued by CCHHL representatives (including on Company Letter Head or STAMP PAPER). Further, Second Party understands that the benefits and terms of the vacations as set out in this Agreement are final and binding on CCHHL, and Second Party. ……”

 

14.           Under above circumstances, the main questions that falls for consideration before this Commission, is as to whether, the terms and conditions of the sale agreement A-3 can be relied upon or on the other hand, the same are one-sided, oppressive, unfair and unreasonable and are liable to be ignored and set aside? Before answering this question, it may be stated here that it is well settled law that the terms and condition of the contract should be reasonable and if the same are unreasonable and opposed to public policy, they will not be enforced. It is also a well settled law that, the courts have power to strike down the unfair and unreasonable clause(s) contained in a standard format contract, especially, when the parties are not equal in bargaining power. In the case Central Inland Water Transport Corporation Ltd. & Anr. Etc. vs Brojo Nath Ganguly & Anr. 1986 AIR 1571, 1986 SCR (2) 278, the Hon’ble Supreme Court struck down unfair and unreasonable clause in a contract while holding as under:-

 

“……The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances……”

15.           Similar view was taken by the Hon’ble Punjab and Haryana High Court in IFFCO TOKIO General Insurance Company Ltd. Vs. Permanent Lok Adalat (Public Utility Services), LPA No.1537 of 2011 decided on 26.08.2011, wherein also it was held as under:-

 

“….The law is well settled with regard to the exclusion clauses in standard forms of contracts. When the bargaining powers of the parties is unequal and a consumer has no real freedom to contract then such a power may be considered unfair. The principle deducible from various precedents is that the Courts would not enforce and when called upon to do so, strike down such an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. For instance, the above principle would apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It would also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. The types of contract to which the principle formulated above applies to terms which are so unfair and unreasonable that they shock the conscience of the Court.…”.

 

16.            In the present case also, in view of the candid admission of the appellants in their written reply itself  to the effect that it was a pre-printed contract which  was got signed from the complainant, which fact is also coming out from condition no.42 extracted above, thereby leaving no scope of bargaining for the respondent, this Commission has no hesitation to  say that the sale agreement in question, containing the condition of forfeiting of entire booking amount, in case of cancellation thereof, after cool off period, is against the public policy and required to be adjudged as void and ignored, especially, when it has not been proved by the appellants, as to what loss they have suffered, on account of cancellation thereof.
17.           Not only as above, even during arguments also, counsel for the appellants has failed to convince this Commission as to how, the benefit, as referred to, against clause no.17 of the said agreement, in addition to the benefits provided thereunder, as special privilege for vacationers by way of booking rooms at CCHHL’s Dubai hotel at a special rate of AED 399 per night, could have been given during the year 2017, when the said agreement was executed in the year 2018 only. Furthermore, there is nothing on record that the opposite parties issued the membership letter, holiday plan and vacation to the respondent, so that she could have utilized other plans and facilities. There is also nothing on record that any voucher in line with Clause 8 of the agreement qua free accommodation vouchers for 2 nights 3 days at Dubai was even given by the appellants to the respondent.
18.           In view of  above, it is held that terms and condition of the sale agreement on the basis of which Rs.1,49,000/- had been received by the appellants from the respondent, especially, when no services were provided by them to the respondent, are one-sided, oppressive, unfair and unreasonable.   Mere taking signatures of the complainant on a standard format agreement/contract i.e. on the dotted lines, Annexure A-3 is unfair and unreasonable. We did not find anything mentioned in Annexure A-3 that in case the appellants fail to provide the promised services, they will compensate the purchaser/complainant. Thus, the terms and conditions of Annexure A-3 being  inequality of bargaining power for the complainant, which has resulted into great disparity for her, are liable to be ignored and as such are set aside.
19.           Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, partly allowing the consumer complaint, in the manner stated above, being based on the correct appreciation of evidence and law on the point, does not suffer from illegality or perversity, warranting interference of this Commission. Resultantly, this appeal stands dismissed with no order as to costs.
20.           Consequently, miscellaneous application bearing no.208 of 2023 (stay) stands dismissed having been rendered infructuous.
21.           Certified Copies of this order be sent to the parties, free of charge.
22.           The file be consigned to Record Room, after completion.

Pronounced

04.08.2023

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

Rg.