Haryana

Panchkula

CC/6/2017

ANURADHA GUPTA - Complainant(s)

Versus

COUNTRY CLUB AND HOSPITALITY AND HOLIDAYS LTD - Opp.Party(s)

S.S BADHRAN

31 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	6 of 2017
Date of Institution	:	10.01.2017
Date of Decision	:	31.07.2017

                                                                                          

1.       Anuradh Gupta w/o Sh.Arun Gupta, R/o H.No.71, Sector-10, Panchkula.

2.       Arun Gupta S/o Late Sh.Gian Chand, R/o H.No. 71, Sector-10, Panchkula.

                                                                                        ….Complainant

Versus

 

1.       Country Club and Hospitality and Holidays Ltd., Corporate Office, Hydrabad.

2.       Regd Off: Amurtha Castle, 5-9-16, Saifabad, Secretariat, Hyderabad-500063.

3.       Center Stage Mall, (Wave Mall), 2^nd floor, Office No.44-45, Sectir-18, Noida (UP)-201301.

                                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.Jagmohan Singh, Member.

 

For the Parties:     Mr.Sumnender Bhadrahan, Adv., for the complainants. 

                             Mr.Pardeep Sharma, Adv., for the Ops No.1 and 2.

OP No.3 already ex-parte.

ORDER

(Anita Kapoor, Member)

 

1. The complainants has filed this complaint against the Ops with the averments that the OP approached the complainant through authorized persons followed by SMS from Rahul Chaudhary who provided entry code No.CCIL76761 for promotion scheme at Welcome Hotel Bela Vista, Sector-5, Panchkula for obtaining membership of the OP. The Op convened a meeting with complainant on 07.07.2016 at 7.30 PM and there authorized persons of OP namely Aashish, Abhishek & Ahwani were present in the meeting on behalf of the OPs. In the meeting, the Ops offered the standard package i.e. (i) 7 days 6 night complete package anywhere in Europe as per choice (scheme valid for one year), (ii) 7 days 6 night complete package anywhere in India as per choice (scheme valid for 3 years), (iii) 3 nights stay in Singapore (scheme valid for 1 year), (iv) 3 nights sty in Dubai (scheme valid for 1 year), (v) 6 nights stay in Bangkok (scheme valid for 1 year) and (vi) 24 interest free EMI on deposits (if paid by credit card). On 07.07.2016 at about 10.30 PM, the complainant paid an amount of Rs.1,75,000/- through HDFC credit card No.5593000600047197. On 08.07.2016, the complainant came to knew through message sent by the Ops that there was only one scheme i.e. scheme No.3 for 3 nights stay to Singapore valid upto 06.01.2017 for the period of 6 months only and requested through a closure letter for refund of entire amount to the complainant and cancellation of membership. After receiving the letter for refund from the complainant, the authorized representative of Ops assured the complainant that his grievances would be redressed. Thereafter, the complainant has also made a written request to the Ops for refund of the money but the Ops did not take any step for refund of the amount. The complainant also sent various reminders through emails, registered post, telephonically and personally visited the office of Ops at Noida and met with their official namely Mr.Sachin on 03.09.2016 who assured him that the entire amount would be refunded within a short span but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Op No.1 and 2 appeared before this Forum and filed written statement by taking preliminary objection and submitted that the complainant paid a sum of Rs.1,75,000/- on 07.07.2016 towards one-time non refundable vacation charges under the vacation agreement and club membership was given to him free of cost alongwith vacation agreement on the same day. It is submitted that “Only Vacations Agreement” was signed by both the parties on the same day i.e. 07.07.2016 (date of purchasing the membership) but by mistake the date was mentioned as 21.07.2016 on the agreement. The plan opted by the complainants was “Blue Studio Season Premium” under which complainants were entitled to vacation membership only for 30 days. It is further submitted that the present complaint is not maintainable and has no territorial jurisdiction to entertain and adjudicate the present complaint as the Ops did not have any place of business and office in Panchkula. It is submitted that the complainant was explained by the sales team of the OP-Company about various benefits, terms and conditions under different plans and schemes, out of which complainant opted for “Blue Season” vacation membership and entered into Vacation Agreement. It is submitted that list of properties to which the complainant entitled to is clearly mentioned in clause 4 of the Agreement. It is submitted that various plans and schemes and their respective prices were explained to the complainant. It was never told by anybody that scheme was valid if complainant made the payment on the spot with credit card. It is denied that request for refund was made by the complainant on 08.07.2016 for refund of entire amount and cancellation of membership. It is submitted that emails were received from the complainant. It is submitted that the Ops vide email dated 25.07.2016 replied the complainant and after telephonic discussion, he was informed that Ops would not able to refund the membership fee based on personal reasons. The Ops suggested the complainant the alternate remedy that he could transfer the membership to any of the family member/friend or acquaintance. The complainants had no right to ask for an agreed non refundable deposit on false and frivolous grounds. It is submitted that the complainants are also equally bound by terms and conditions of the agreement and have no right to claim anything. Thus there is no deficiency in service on the part of the Ops No.1 and 2 and prayed for dismissal of the complaint with costs.
3. Notice was issued to the Op No.3 through registered post but none has appeared on behalf of the Op No.3. It is deemed to be served and the Op No.3 was proceeded ex-parte vide order dated 28.03.2017.
4. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-13 and closed the evidence. On the other hand, counsel for the Ops No.1 and 2 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 & R1/3 and closed the evidence.
5. We have heard learned counsel for the parties and have gone through the record.
6. The learned counsel appearing on behalf of the Ops argued, at the very outset, that the complaint is not maintainable before the Forum inasmuchas it involves disputed questions of fact which can be adjudicated upon only on the basis of evidence which (adducing of evidence) is not feasible in the proceedings before the Forum.
7. The plea was resisted on behalf of the complainants with an argument that the adjudication in the complaint can easily be done on the basis of the documentation available on record and the adducing of any oral evidence is not required.
8. We find ourselves in agreement with the plea on behalf of the Ops, for the simple reason that the determinative cue is available in the documentation which have been made available on record by the parties herein.
9. It is evident from a conjunctive perusal of the pleadings made by the parties and the documentation annexed therewith (Annexure C-2 and C-3 in particular) that while the payment of the amount of Rs.1,75,000/- was made through HDFC Credit Card at about 10.00 PM on 7^th July, 2016, the intimation about withdrawal from the impugned transaction was intimated by the complainant to the Ops on 08^th July, 2016. There is a precise averment made by the complainant in the course of Para-6 of the complaint that the withdrawal letter and the plea for refund of the amount was delivered to one Mr.Joginder, a representative of the Ops and it was the recipient official who assured that “readressal of the grievances within short time to refund the entire paid amount”. Though the Ops have controverted that averment, denial is not cemented by an affidavit of the named official and it is not even the averment that the aforementioned official is not available or that he is no longer in the employment of the Ops.

It is pertinent to notice in the context that in the first response to the e-mailed grievance, the Os responded (vide Annexure C-3) that “we will respond to your request within next 4 working days”. The present is, thus, not a case where the Ops resisted the plea for refund of the amount aforementioned in the very first instance.

In fact, the Ops have tried to wriggle out of the liability to refund by averring that the complainant had applied for the refund ‘for personal reasons’. The averment is that the complainant was informed that they would not be able to refund “the membership fee based on personal reasons”. There is nothing, however, in the withdrawal request (Annexure C-12) that the plea for refund was being made for personal reasons. All that was indicated in Annexure C-12 was that the complainant was not interested in the membership as she found that it is not suitable to her. The averment was that the complainant so found on checking the details (mentioned in the impugned agreement). It is very relevant to notice here that it is the amount payable towards the Country Club Membership which was “non-refundable” and was not a deposit. As against it, the averment made in the course of the written statement is that the Club Membership “was given free of costs alongwith vacation agreement on the same day”. If the Club Membership was free (though alongwith the vacation agreement) it is not open to the Ops to resist the grant of request made by the complainant for cancellation of membership.

10. Even otherwise, the terms and conditions of the impugned agreement are heavily loaded in favour of the Ops and are apparently of unconscionable tenor. The meeting between the parties, whereas the impugned documentation fructified, had taken place at a hotel late at about 10.30 PM. It cannot be expected that the complainant would have gone through the documentation in toto. The intimation about the cancellation was made to a representative of the Ops on the very morning of the following day. The Ops responded after four days thereof.

In the peculiar circumstances of the case, the Ops cannot be allowed to resist the grant of the plea made by the complainant as it (plea) had been made to a representative of the Ops within less than 24 hours of the execution of the impugned agreement and the complainant did not derive any benefit whatsoever under the impugned agreement. The validation of the impugned agreement of unconscionable tenor would not be appropriate in law and we hold accordingly.

11. It would not be out of place to mention here that the Ops do not appear to have filed an affidavit in reply on a proper format. Instead of denying the averments on affirmation, the affidavit filed by the Legal Officer on their behalf, purports to contain a parawise response to the complaint. Further, the affidavit, as also the verification thereof, is un-dated and it also does not contain an averment by the deponent about the place at which the affidavit had been filed. Further, the Notary Public, who purports to have attested it has not indicated whether the deponent was personally known to him or whether the deponent had been identified by anybody else. An affidavit of identical nature, with the deficiencies noticed herein above, cannot be validly received in evidence in any proceedings, muchless in proceedings before the Forum wherein the determination had to come about only on the basis of affidavit on counter affidavit.
12. In the light of foregoing discussion, we allow the complaint by upholding the grievance made by the complainant and order that:-

1. The Ops shall refund the amount of Rs.1,75,000/- with interest @ 9% per annum w.e.f. 8^th July, 2016 till the refund comes about.
2. The Ops shall pay a sum of Rs.50,000/- to the complainant on account of the mental agony and harassment caused to the complainant; and
3. The Ops shall pay an amount of Rs.5,000/- to the complainant as the cost of litigation.

13. The Ops shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

31.07.2017 JAGMOHAN SINGH   ANITA KAPOOR     DHARAM PAL

                      MEMBER                   MEMBER                PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                                         ANITA KAPOOR

                                                          MEMBER