ORDER

No.13

Date-16/07/2018.

         Shri Rabideb Mukhopadhyay, Member.

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant, in brief, is that the representative of OP by a telephonic call invited on a workshop at city centre to receive some gifts on 12-09-2017 and on that date provided the complainants a brochure indicating the facilities to be provided to them as customers assuring them to provide services in terms of the said brochure and besides other facilities, facilities to be given for providing 24 hours gym and Spa at City Centre II and further assured that the complainants also will provide the facility of enjoying the Swimming Pool for swimming.  OP entered into an agreement with the complainant after receiving the money of Rs.95,000/- as cash and a cheque of Rs.80,000/- on 12-09-2017 and the complainants paid this amount with an understanding to get such facilities including the facilities of services of Spa, Swimming Pool, 24 hours facility of Gym etc.   But after such payment when complainant made enquiry, came to know that no such facilities are provided to the customers and there are countless parties who offered the same from Country Club but they never could satisfy them.  Complainant made report over telephone but no response was obtained and on next date the complainants stopped the cheque that they had given to the agent of the OPs.  Complainant on 14-09-2017 apprised the Manager, Country Vacations under Registered Post with A.D. stating that they have misused the trust reposed upon them and failed to provide the services as assured and asked the OP to refund the sum of Rs.95, 000/- along with interest and further requested to pay Rs.1, 00,000/- for compensation for harassment and mental agony but OP remained silent.  This matter was reported before the Central Consumer Affairs Cell, Consumer Forum Department, Govt. of West Bengal who made request over telephone to refund the same but OP avoided.  OP wrongfully and illegally misappropriated the money received from the complainant and failed to provide the facilities, the OPs are liable to make refund of the amount.  Complainant filed this case before this Forum praying for refund of Rs.95, 000/- along with a compensation of Rs.1, 00,000/- for harassment and mental agony with interest thereupon from 12-09-2017 to the date of full payment  at the rate of18 percent p.a.

Point for Decision

1. Whether the complainants are consumer under the OPs;
2. Whether the OPs are deficient in rendering proper service to the complainants;
3. Whether the complainants deserve relief.         

Decision with Reasons

1. Perused documents including payment Receipts of 95000/-, Sale Agreement dated 12/09/2017, copy of letter dated 14/09/2017 sent under Registered Speed Post and a copy of unsigned letter of OPs to complainant.
2. In the WV filed by OPs, it is averred that they have no deficiency in service and the complainants have filed the complaint to get sympathy of Forum and the complainants deserve no relief.
3. We have also observed that what charges are brought against OPs like no provision of gym, swimming pool, spa etc. are based on here say.  The complainants did not undergo any tour under the Agreement.  So, no question of deficiency arises as far as the service of OPs is concerned.
4. It appeared from argument, after payment by cash of Rs.95000/- and cheque of Rs.80000/- the complainant got some feedback on the poor performance of OPs in the area and so, had a second thought.  Consequently, the complainants stopped the cheque and wrote letter through Registered Post on 14/09/2017 for cancellation of the Agreement allegedly made under pressure.
5. Whatever may be the reason of cancellation letter dated 14/09/2017 i.e. within 2 days of signing the Agreement, it remains the fact that OPs did not respond to such letter and did not take action as requested in the letter.  This is a part of deficiency of OPs who did not keep promises in replying the letter.  It stated, OPs sent a letter (seemingly not dated and not signed by OPs, as annexed in the complaint) to ShikhaKundu demanding balance money of Rs.1,06,000/-.  The letter of OPs under discussion might be extract of the original letter.
6. In the said letter as discussed under Para-5 of analysis above, the OPs offered for ‘One Time Settlement’, which recognizes the concern of the complainants.
7. Moreover, as per clause 34 of the Agreement, there is a cooling off period for 10 days within which the Agreement can be cancelled subject to deduction of Rs.3800/- from the deposited amount.

So, the complainant is entitled to cancel the Agreement as per provision 34 of the Agreement subject to deduction of Rs.3800/-.

8. The cancellation offered by the complainants was not effected by OPs as per the stated provision (Clause 34) of the Agreement and in spite of writing letter to OPs by the complainant no.1.  Such conduct indicates deficiency on the part of OPs.
9. When the complainants paid consideration of Rs.95000/- as cash in anticipation of getting a host of facilities, the complainants become a consumer under the OPs in terms of section 2 (1) (d) (ii) of the C.P. Act, 1986.

When the OPs failed to cancel the Agreement and return the money after deduction of Rs.3800/-, on the written letter dated 14/09/2017 of complainant no.1, OPs appear to be deficient.But since such deficiency is not related to any service deficiency in terms of section 2 (1) (g) read with section 2 (1) (o) of the Act, we do not intend to consider any compensation as prayed for by the complainant except claim of litigation cost.

So, the complainants do not deserve any compensation.

In the circumstances of above analysis, we are inclined to pass

ORDER

That the complaint be and the same is allowed on contest against the OPs, in terms of section 13 (2) (b) (i) of the C.P. Act, 1986;

                          That the OPs are directed to jointly and severally refund Rs.91200/- (Rs.95000/-  – Rs.3800/-) with 7 percent interest from 14/09/2017 till date of actual refund, and Rs.5000/- as litigation cost, to the complainants, within 30 days from the date of this order;

                     That failure of OPs to comply with the above orders within the stipulated time, will entitle the complainants to put the order into execution u/s 27 of the Act ibid. 

                     Let copies of the order be handed over to the parties when applied for.