IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 29.05.2017

First Appeal- 635/2014

(Arising out of the order dated 01.04.2014 passed in Complaint Case No. 171/10 by the District Consumer Disputes Redressal Forum (II), Udyog Sadan, Qutub Institutional Area, New Delhi)

Shri O.P. Karwal, S/o Late Shri M.D. Karwal, R/o C-88, Kirti Nagar, New Delhi-110015.

      Appellant

Versus

1. The General Manager, Avalon Resorts P Ltd., Empire Estate, Mehrauli Gurgaon Road, Sultanpur, New Delhi-1 10030.

2. The General Manager,

Avalon Resorts P Ltd.,

Rock Cliff Estate,

Gun Hill, Mussoori, UK.                                                                             ….Respondents

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1. Whether reporters of local newspaper be allowed to sec the judgment?
2. To be referred to the reporter or not?

Justice Veena Birbal, President

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the "Act") wherein challenge is made to order dated 01.04.14 passed by the Consumer Disputes Redressal Forum (II), Udyog Sadan, Qutub Institutional Area, New Delhi (in short, the "District Forum") in CC No. 171/10 whereby the aforesaid complaint has been partly allowed and respondent/OP has been directed as under:

"Therefore, this complaint is partly allowed to the extent that OPs shall restore complainant's membership and benefits of the resort, which the complainant was entitled to enjoy as chartered member but subject to payment of arrears of past and continue to pay future maintenance charges. For other reliefs, the complaint stands dismissed."

2. Briefly the facts relevant for the disposal of the present appeal are as under:

A complaint under Section 12 of the Act was filed by the appellant/complainant stating therein that on 5.7.98, he had purchased a week holiday in a Resort owned and developed by respondents/OPs for the 'Blue Holiday' for a period of 33 years on total membership fee of Rs.92,000/-. The appellant/complainant had utilized the said service of the respondents/OPs only for 2 years as the appellant/complainant had received a letter dated 26.10.99 from respondents/OPs wherein the week allotted to him was changed from week No. 33 to week No. 08. Appellant/complainant was paying Annual Maintenance Charges (AMC) regularly @ Rs.2,500/-. The same were changed by respondents/OPs as Rs.3,500/- from 25.01.2000.  It was alleged that by enhancing the maintenance amount the appellant/complainant had violated the agreed terms and conditions of the agreement. It was alleged that it was never agreed that respondents/OPs would be unilaterally making changes in the agreement. It was stated that on 17.6.2000, the respondents/OPs circulated booklet of Bye-laws adding the new conditions.   No consent of the appellant/complainant was taken. It was alleged that when appellant/complainant did not make the payment of revised AMC to respondents/OPs, his membership was terminated and amount deposited by him was forfeited. The appellant/complainant, therefore, filed a complaint before the District Forum seeking directions to respondents/OPs to restore his membership and allow him to pay the AMC at the old rates.

3. The claim was contested by the respondents/OPs by filing written statement wherein it was admitted that vide an agreement dated 5.7.98, the appellant/complainant had purchased a week holiday in the resort of the respondents/OPs for a "blue holiday period" for 33 years for a total membership fee of Rs.92,000/-.   It was admitted that initially the appellant/complainant was paying a sum of Rs.2,500/- as AMC.  It was stated that as per Clause 6 of the Purchase Agreement, the appellant/complainant was required to pay AMC towards upkeep and maintenance of Resort.   It was further alleged that in the year 1999, the respondents/OPs in accordance with a week classification chart issued by RCI changed the "BLUE season" from rainy season to spring season and sent a letter dated 26.10.99 in this regard to appellant/complainant.   It was also admitted that AMC was increased from Rs.2,500/- to Rs.3,500/- in the year 2000 but the appellant/complainant paid only Rs.2,500/-. The appellant/complainant was asked to pay the remaining amount vide letter dated 1st July, 2000 and the said amount was remitted by appellant/complainant on 21.2.2001. Vide aforesaid letter, the appellant/complainant also acknowledged that week 8 had been allotted to him as such appellant/complainant had no objection in changing his week from No. 33 to No. 8. Thereupon the appellant/complainant vide letter dated 1.2.2002 applied to respondents/OPs to accommodate him for the week starting from February 2002 i.e. week 8 at Mussorie and he never objected to the said change of week and had availed the membership for the said period. It was alleged that as the appellant/complainant failed to pay increased AMC charges for the period from 2003 to 2006, a notice dated 25.11.05 was sent to him despite that he did not make the payment. Ultimately his membership was terminated vide letter dated 11.4.06, however, respondent/OP left it open for appellant/complainant for renewal of membership on payment of pending charges. On 28.5.2009, the appellant/complainant requested the respondents/OPs for restoration of membership and for allowing him to pay AMC at old rates. The same was not restored as membership had already been forfeited. It was also alleged that the complaint was time barring as the week number. was changed in 1999 and was also not maintainable as per terms and conditions of the agreement.
4. Both the parties filed evidence by way of affidavits.
5. After hearing the Counsel for the parties, Ld. District Forum held that since the appellant/complainant was entitled to 'Right of Occupation' as per the agreement for a period of 33 years i.e. from 05.07.1998 to 4.7.2031 as such the complaint was not time barring qua restoration of membership. On merits, it was held that the appellant/complainant had impliedly agreed to the change of week from 33 to 08 and had acknowledged and availed of said facility vide his letter dated 21.2.01 i.e. he impliedly agreed for change made by the respondent/OP. Therefore, Ld. District Forum ordered for restoration of membership of appellant/complainant on the payment of arrears of past and continue to pay future maintenance charges. For other reliefs, the complaint was dismissed.
6. Aggrieved with the aforesaid order, present appeal is filed.
7. Ld. Counsel for the appellant/complainant has contended that the agreement between the parties is dated 5.7.98. The booklet of Bye-laws was circulated vide letter dated 17.6.2000 increasing maintenance charges from  Rs.2,500/- to Rs.3,500/- i.e. after signing of the aforesaid agreement. It is contended that the new set of conditions unilaterally imposed are not applicable. Ld. Counsel further contended that the appellant/complainant paid AMC of Rs.3,500/- under protest and that too by writing that it was accepted as one time increase which should not be subject to further increase.  It is contended that in the present case, the respondents/OPs had indulged in unfair trade practice by increasing the rate of AMC. It is contended that the appellant/complainant had requested for accommodation in the resort on 4^th Feb. 2002 (which is week 05 of the year and not week 08) by way of a special request and had not accepted the change of week from No.33 to No. 8.  It is further contended that the District Forum was wrong in ordering for the payment of past/future maintenance charges with revised rates on the assumption that the apartment was lying vacant during the occupancy period. It is contended that the possibility of respondents/OPs having resold the same or renting out the apartment to general public at higher price is not ruled out. It is contended that in these circumstances, the Ld. District Forum was not right in ordering for payment of maintenance charges.
8. Ld. Counsel for the respondents/OPs has contended that the impugned order is correct and the same is passed after considering the material on record as such appeal is liable to be dismissed.
9. We have heard the parties and perused the material on record.
10. As regards the change of week is concerned, we find that vide letter dated 26.10.1999 the respondents/OPs had informed the appellant/complainant about the said change as per the new RCI week classification and had also stated that a new membership certificate would be issued to that effect. Further vide letter dated 21.2.2001, the appellant/complainant had intimated the respondents/OPs that the week No.8 allotted for that year had already been deposited with the RCI meaning thereby appellant/complainant had agreed for change. In these circumstances, it is rightly held by Ld. District Forum that the appellant/complainant had acknowledged and availed the facility meaning thereby he impliedly agreed to the change made by respondent/OP.
11. About maintenance charges, as per the purchase agreement dated 5.7.08 entered into between the parties, the parties have agreed as under:-

"The Purchaser(s) shall pay an Annual Management Charges in respect of a contribution to the upkeep and maintenance of the resort. The Management Charges is at the initial rate as specified on the "Payment Terms". It is due on 1st November each year for the following year."