BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.328 of 2016

      Date of Instt. 26.07.2016

      Date of Decision: 21.10.2019

Anil Kumar Aggarwal son of Shri Sham Sunder resident of 21 Defence Colony Extension, Cantt Road, Jalandhar,

..........Complainant

Versus

1.       Cabbana Infrastructures Private Limited through its Managing Director, Central Mills, Old Railway Road, Jalandhar.

2.       Chairman and Managing Director, M/s Club Cabana, Village Saprod, G. T. Road, Phagwara-Jalandhar Highway, Phagwara, District Kapurthala.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. P. S. Sidana, Adv Counsel for the Complainant.

Sh. Umesh Dhingra, Adv Counsel for the OPs.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by Anil Kumar Aggarwal, Complainant, wherein alleged that the OP No.1 having a registered head office at Central Mills, Old Railway Road, Jalandhar, approached to the complainant through their representative to get a membership of the Club Cabana i.e. OP No.1 and also gave assurance that the OP No.1 will provide best services and accordingly, complainant got membership of the Club Cabana i.e. OPs after paying a fee of Rs.1,25,845/- on different dates i.e. vide receipt No.1153 dated 06.06.2007  paid an amount of Rs.50,000/- and similarly, paid an other amount of Rs.10,000/- on 28.07.2007 and then Rs.10,000/- on 30.08.2007 and thereafter, paid an amount of Rs.55,845/- and as such, the complainant become the consumer of the OPs.     

2.                At the time of selling membership to the complainant, OPs had lured the complainant that the complainant will enjoy the facilities like swimming pool, gymnasium, steam & sauna bath and many other sports facilities like lawn tennis, badminton, squash, golf etc. and all these facilities can be enjoyed by the complainant and his family members. Many other facilities like restaurant and guest room were also promised. Along with the other sports activities, the Club Cabana will be providing the ‘Reside in Style’ facility as per the actual site elevation, which was the main attraction of the club facility in which they promised to provide Gorgeous Cottage along the beautiful lake, cocooned in the midst of paradise, apart from super deluxe suites overlooking the beautiful landscape. The accommodations are ideal for putting up your business delegates, wedding guests and of course. It was also promised that facilities of associate clubs will also be made available and further it was promised that the club will be operational from April 2007 and the complainant will be able to enjoy all the said facilities onwards. On the above allurement of the OPs and keeping in view the facilities offered, complainant became interested in getting membership, but till date even after delay of 9 years, the Club Cabana failed to provide so many facilities like Golf course, lake, ‘Reside in Style’ facility as per the actual site elevations, which was the main attraction of the club facility. The complainant wrote letters, but OPs never respond to the same and now even if OPs starts the club, complainant is not interested to be member of OP/club and it has further also came to the knowledge of the complainant that OP has overcharged from the complainant. In this way OP has indulged in unfair trade practice, because of delay in starting the club, deficiency of service. The act of the OPs has caused mental agony, tension and harassment to the complainant and OP has also illegally retained the amount of membership of complainant as the OP has failed to start the club and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to reimburse the membership fee of Rs.1,25,845/- along with interest @ 18% per annum and further, OPs be directed to pay damages of Rs.50,000/- to the complainant for causing mental tension and harassment as well as deficiency in service and further, OPs be directed to pay litigation expenses, to the tune of Rs.11,000/-.

3.                Notice of the complaint was given to the OPs and accordingly, both the OPs appeared and filed joint written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable under the Law. The dispute as alleged in the complaint does not come under the preview of the complaint under Consumer Protection Act, as such, the present complaint is liable to be dismissed. It is further alleged that the complaint has been filed against a wrong person and the complainant has impleaded wrong and unnecessary party in the complaint as such, the complaint is liable to be dismissed. It is further averred that the present complaint is misconceived, vexatious, frivolous, false and is based upon concealment of true and corrects facts, as such, the present complaint is liable to be dismissed. It is further alleged that the present complaint has been wrongly filed at Jalandhar, where no cause of action has arisen, as such this Consumer Forum lacks jurisdiction to entertain, try and decide the present complaint and the same is liable to be rejected. On merits, the factum in regard to obtaining membership of the Club by the complainant is not disputed. It is further alleged that the facility of the Club Cabana has been provided to the complainant, but the complainant himself is negligent for not paying the monthly due and as such, there is no deficiency or unfair trade practice on the part of the OP. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.CW-1/1 to Ex.CW-1/14 and then closed the evidence.

5.                Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP1&2/A and closed the evidence.

6.                We have heard the learned counsel for the respective parties and also scanned the written arguments submitted by learned counsel for the complainant and also gone through the case file very minutely.

7.                From the pleadings of both the parties, it appears that the factum in regard to getting membership of Club Cabana after paying initially membership fee of Rs.1,25,845/-, is not in dispute because these factum have not been specifically denied by the OPs rather the complainant has established these facts by way of documentary evidence i.e. Payment Receipts Ex.CW-1/1 to Ex.CW-1/6 and further, this fact is also proved by way of payment plan issued by the OPs, which is Ex.CW-1/7. When the OP accepted the Club fee of Rs.1,25,845/- and agreed to provide services to the complainant as per rules and regulations, which are available on the file tagged with the application form Ex.CW-1/2 and as such, the complainant become a consumer of the OPs and thus, the complaint of the complainant is maintainable qua OPs.

8.                Now, we will take an other legal aspect raised by the OPs that this Forum has no jurisdiction because no cause of action has ever arisen in Jalandhar District because the office of the OPs as well as Club Cabana is situated in Phagwara, which falls within the territorial of District Kapurthala. We deeply considered this aspect and find that the plea taken by the OP is not sustainable in the eyes of law because the documents issued by the OP itself established that the head office of the OP is situated in the territorial jurisdiction of Jalandhar and this fact has been alleged by the complainant in Para No.1 of the complaint and in its reply, OPs categorically stated in Para No.1 on merits that it is correct the OP has its registered office as alleged in this para, means as alleged by the complainant in Para No.1 of the complaint, wherein the complainant stated that the OP has registered office at Central Mills, Old Railway Road, Jalandhar and this fact is fortified even by documentary evidence i.e. certificate issued by Ministry of Corporate Affairs, Government of India Ex.CW-1/1, wherein the address of the head office is categorically mentioned as “Central Mills, Old Railway Road, Jalandhar, Punjab”.

9.                Apart from above, the complainant made a payment of Club fee by way of cheques, which was encashed by the OP from the bank of the complainant situated in Jalandhar District and copy of the statement of account of the complainant is available on the file Ex.CW-1/8. So, it is established that the head office of the OP is situated in Jalandhar and payment was also made at Jalandhar. So, accordingly, we find that this Forum has territorial jurisdiction to entertain the present complaint and the plea taken by the OP is not correct one.

10.              Further, we have to analyze the allegations made by the complainant that the complainant got the membership by filling Form No.NA-187 on 06.06.2007 after depositing an initial amount of Rs.50,000/- and copy of the membership form is available on the file Ex.CW-1/2, wherein the date is put 06.06.2007 and further, in the rules and regulations No.14, the OP gave assurance to the complainant as under:-

“The Club is scheduled to be operational in April 2007”.

11.              Now, we have to adjudge the allegation of the complainant whether after elapsing of 9 years from 2007, the facility whatsoever agreed by the Club has been provided to the complainant or not, for that purpose, the learned counsel for the complainant categorically stated that the facility of swimming pool, gymnasium, steam & sauna bath as well as golf course, lake, ‘Reside in Style’ facilities are still not provided, once allegations have been raised by the complainant, then ball goes to the courtyard of the OP to disprove these allegations by bringing on the file cogent and convincing documentary evidence to establish that the agreed facilities have been started providing to the complainant as well as other members, but for that purpose, the OP has not brought on the file even iota of document, except the affidavit of the official of the OP, so, in the absence of any documentary evidence, it is very hard to accept that the facility whatsoever agreed as per rules and regulations are being provided to the complainant, if so, then it is established that there is a negligence as well as unfair trade practice on the part of the OPs.

12.              We have also considered the question raised by the OPs in its written reply that the complainant has himself defaulter by not depositing the amount of the arrear of due i.e. monthly subscription to the Club, but in order to prove that the complainant is not paying the monthly subscription, the OP has not brought on the file any copy of the ledger, where-from we can ascertain that the complainant has virtually not deposited the annual or monthly subscription.

13.              On the other hand, the complainant has brought on the file a copy of the ledger of the OPs Ex.CW-1/10, where-from we can ascertain that the complainant has been paying the subscription fee since the day of membership till September, 2015. The plea of the OP is further falsified from other documentary evidence i.e. rules and regulations, which are enclosed with the application form Ex.CW-1/2, as per Clause-10 of the said rules and regulations, which gave authorization to the OPs to cancel the membership of any member for nonpayment of dues, if there was any arrear due towards the complainant, then it was a duty of the OP to serve a notice to the complainant to deposit the said amount and if the complainant failed to comply that notice, then the OP has right to remove the membership of the complainant, but the OP did not to do so, for the best known reason, rather it proved that the complainant has been paying this monthly/yearly subscription fee. So, from all angles, we came to conclusion that the complainant has able to establish on the file that there is a negligence, deficiency in service as well as unfair trade practice on the part of the OP, who miserably failed to start to provide agreed facility to the complainant even after 9 years, if so, then the complainant is entitled to get refund the club fee from the OPs along with interest as well as other damages and litigation expenses.

14.              In view of the above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the membership fee amount of Rs.1,25,845/- to the complainant along with interest @ 12% per annum from the date of filing complaint i.e. 26.07.2016, till realization. Further, OPs are directed to pay compensation of Rs.35,000/-, to the complainant for causing mental agony and harassment and further, OPs are also directed to pay litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

15.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

21.10.2019                                        Member                          President