Order-14.
Date-16/03/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that complainant no.1 is house wife and complainant no.2 is a retired employee of Central Government working lastly as a Junior Engineer under Eastern Railway and depending upon pension. The complainants got a telephone call from the OP and/or their representative requesting them to attend office of the OP at Kasba to receive some gifts on 15-12-2012. The complainants went there and were provided with a brochure indicating the facilities to be provided to them as customers assuring them to provide services in terms of the said brochure. It was assured to the complainant that besides other facilities, facilities to be given for providing 24 hours Gym and Spa at Kasba Country Club situated at 124 Bosepukur Road, Purbapara, Kolkata – 700 042. The complainants were also assured and they would be enjoying swimming pool for swimming. The OPs entered into an agreement with the complainant after receiving an amount of Rs.1,30,000/- on 15-12-2015. After such payment was made on 15-12-2015, the complainants went to Kasba Country Club but on arriving there complainants were surprised to find that there was no such facilities of the SPA or swimming pool in the said club although it was assured to provide all such facilities to the complainants. The complainants made report over telephone to the OPs and OPs expressed their inability to provide SPA and swimming pool at Kasba Country Club. It is also stated that the complainants were assured that they would be provided facilities to stay in the resort at different tourist spots and places including Andaman and Nicobar Island but the complainants could not avail such facilities. Complainants, thereafter, asked the OPs to refund the said sum of Rs.1,30,000/- along with interest but to no good. Hence, this case.
OPs have contested the case in filing written version contending, inter alia, that the complaint is not maintainable either in fact or in law. It is alleged that the complaint petition does not disclose any deficiency in service on the part of the OPs.
The OPs stated that the name of the company is not Country Vacations. Country Vacations is a division of Country Club Hospital and Holidays Ltd. (formerly known as Country Club India Ltd.). It is stated that the OPs are one of the largest and known name of Holiday and Entertainment Industry. It is true that the complainants were requested to visited the office of OPs to receive a gift whereupon they were provided with a brochure and were assured that they would have access to 24 hours Gym and SPA at Kasba Country Club. The complainants were also assured that they would be provided with facilities of swimming pool. The complainants were provided with brochure explaining the business of the OPs but were not at all assured of anything else excepting which is not provided in the brochure. It is denied that the OPs assured the complainants to provide 24 hours Gymnasium and SPA at Kasba Country Club. It is stated that the complainant opted to buy the Country Vacations Holiday Brochure by paying a membership Rs.1,30,000/-, an agreement was executed by and between the parties on 15-12-2015. It is stated that the complainants neither visited either Gymnasium or Spa at Kasba or at Baruipur. It is stated that that OPs are not legally bound to provide any service to the complainants beyond the scope of membership agreement. It is denied that the OPs are deficient in rendering service or the OPs adopted unfair means. OPs have prayed for dismissal of the case.
Point for Decision
- Whether OPs have been deficient in rendering service to the complainants?
- Whether the complainants are entitled to get the relief as prayed for?
Decision with Reasons
We take up all the points together for the sake of brevity and convenience of discussion.
We have travelled over the documents on record namely brochure of Country Club in respect of Country Club, Kasba, Xerox copy of customer care call numbers, Xerox copy as well as original of Country Vacations Holiday Club Membership purchase agreement dated 15-12-2015 payment receipts, Xerox copy of letter dated 18-07-2016 addressed to Manager Country Vacations by the complainant and other documents on record.
It appears that complainants entered into an agreement with the OPs on 15-12-2015 and the OPs provided the brochure indicating the facilities to be provided to the complainants being the customer including the facility of providing 24 hours Gym and SPA and with the facility of swimming at Kasba Country Club, 1234, Bose Pukur Road, Purbapara, Kolkata – 700 443. It also appears that the complainants after making payment of Rs.1,30,000/- visited the Kasba Country Club but found that there was no facilities for SPA and Swimming pool in the said Club. The complainants, thereafter, wrote to the OP for refund of the amount of Rs.1,30,000/- received from them for deficiency in service but to no good. It is alleged that the OPs committed to provide SPA, 24 hours Gym and also with the facility of swimming pool at Kasba Country Club but the said facilities were not available there. It is also alleged that the OIPs expressed their inability over telephone to provide SPA at Kasba Country Club and to provide swimming pool at the said club when the complainants contacted with the OPs over telephone. It has been argued from the side of the OP that the project is upcoming and it is also mentioned in clear cut in the brochure. From the brochure we find the wording as follows: unleashing in yet another prime residential and upcoming lifestyle never-center, the property spread across vertical layers will soon have Country Club branded experience in state of art clubbing amenities. Watch out for Spice, the fine experience, the 24 hour Gym and SPA, Pulse, the lounge bar and live the matic entertainment dine out Gabbar Singh da Adda. All this with the host of regulars including swimming pool and indoor games. We are afraid how can the OPs collect/extract money from the customers when the project is up coming. We think that collecting money from the customers without existence of any Gym, SPA or Swimming Pool is deficiency in service and involvement in unfair trade practice. We find that no service of SPA was provided to the complainants. We also find that no facility of swimming pool is also existing at Kasba Country Club. We find that OPs have failed to provide facilities of SPA, swimming pool or Gym to the complainants.
We find that the OPs had push sold the purchase agreement to the complainants without rendering any services. We find that the first page of the agreement is computer typed/printed and other pages were previously prepared to printed form containing some terms and conditions and the points of which are totally one sided. The first page is only computer typed on non-judicial stamp paper and the names are thereon written in ink and the other pages of agreement are in printed form. The printed form appears to be a common stereotyped form used for all purpose. We think that OP company is guilty of deficiency in service and unfair trade practice. We find that the complainants have made payment of Rs.1,30,000/- but to no good. We are constrained to hold that the scheme was just designed to raise money by unfair trade practice. We also think that OPs have tried to take advantage of the terms of the agreement and of the brochure without rendering service to the complainants. The question that haunts how the OP could raise money from the complainants when the project is upcoming without any experience of swimming pool, SPA etc? There is no reasonableness of the terms of contract. We think that OPs have indulged in unfair trade practice in taking deposit in the name of so called non-refundable clause which has been designed to raise money for unfair trade practice. Moreover, we think that Club membership cannot be sold in such manner by way of such purchase agreement without rendering any service. No goods either movable or immovable property was sold in lieu of consideration by the OPs. The terms are framed as we find to put the consumer at a disadvantage and the argument appears to be virtually unilateral and OPs have drafted the same. The principle of contra proferentem is as such applicable
In result, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OPs.
OPs are jointly and severally are directed to refund Rs.1,30,000/- (Rupees One lakh and thirty thousand only) to the complainants apart from litigation cost of Rs.10,000/- (Rupees Ten thousand only) within one month from the date of this order.
OPs are also directed to pay an amount of Rs.20,000/- (Rupees Twenty thousand only) to this Forum for indulging in unfair trade practice within the stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OPs shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
