Delhi

West Delhi

CC/16/352

NEHA WADHWA - Complainant(s)

Versus

COUNTRY CLUB HOSPITAL & HOLIDAYS LTD. - Opp.Party(s)

10 Nov 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES    REDRESSALcommission, WEST ,

COMMUNITY CENTRE C BLOCK, JANAKPURI,

NEW DELHI-110058

 

C C No. 352/2016

IN THE MATTER OF:

Neha Wadwa

AD-70, Shalimar  Bagh,

Delhi-110088

                                                                                 ....COMPLAINANT

VERSUS

Country Club Hospitality & Holidays Ltd.                     

Shop No.6, 2^nd Floor, City Square Mall,

Rajouri Garden, New Delhi-110027

 

Country Club Kool,

# 6-3-1219, 4^th Floor, Begumpet,

Hyderabad-16      

 

DATEOF INSTITUTION:         23.05.2016 JUDGMENT RESERVED ON: 07.11.2022 DATE OF DECISION :               10.11.2022

 

CORAM

Ms Sonica Mehrotra, President

MsRicha Jindal, Member

Mr Anil Kumar Koushal, Member

 

Present: Mr. Ankush, Husband/AR of complainant

     Mr. VineetAnand, counsel for OP.

 

ORDER

Per: Anil Kumar Koushal, Member

          Facts  of this complaint as  culled out from the record are as under:

1. Complainant states that she had taken membership of the OP  vide NO.CCDL10B10LB24169 and paid Rs.55,000/- vide receipt No.DR-38197 on 28.03.2016.  After 12 days of membership, the complainant  found undue business practice by country club membership. There was a lot of difference between what was promised to her and what was offered in return as per membership agreement. Therefore, feeling dissatisfied with  their conduct, she had emailed to the OP to cancel her membership after 12 days in writing.

But instead of refunding amount of Rs.55000/- paid by the complainant to the OP, it  started harassing her. According to the complainant, this is completely undue business practice and mental harassment.

2. According to complainant, she was committed to be provided 2 complimentary Air Tickets of Rs. 11000/- by one Mr. Akshit, Executive of OP, but OP refused to honour.  To fortify her case, complainant has placed on record CD of audio recording of conversation her husband Mr. Ankush  had with said Mr. Akshit, Executive of OP.  She further states that during the meeting with Mr. Akshit, she was committeed three nights four days Goa Package but same was also refused by OP.  Confirmation of the Goa package is also recorded in the said CD.  When the complainant approached the office of OP to avail of the said complimentary offer, she was directed to meet its employee Mr. Akshit in their Rajouri Garden Office and talk to him as he will fulfill all these commitments. In fact she had received an email date 10.05.2016 from   the OP directing the complainant  to line up with Mr. Akshit to resolve her issue. Complainant states that the OP is demanding more money but in conversation he (Mr. Akshit) had asked to pay Rs.55000/- initially and rest after 3 years.  It is stated by the complainant that she has no faith in the OP  now and wants her  advance returned in terms of  policy of OP to cancel the membership within fifteen days of taking the membership and get back the  money paid. According to complainant she had cancelled the membership within 12 days of membership and was well within the time to seek refund of money so paid to OP.
3. By way of the present complainant, the complainant has prayed to instruct the OP to refund  her advance amount of Rs.55000/- along with Rs.1,00,000/-  towards  mental harassment as being a lady she feels capable enough to fight with this type of crooked people. She regrets that she had failed in her decision making by applying for membership of OP. 
4. Along with the complaint, the complainant has filed on record, copies of emails exchanged with the OPs from 19.04.2016 to 10.05.2016, copy of receipt in the sum of Rs.55,000/- issued by OP, copy of vacations agreement entered into by her with the OP, copies of negative reviews against the OP found by the complainant on the internet.
5. Upon  notice being issued to the OP, it entered appearance and filed its written statement.  In the written statement the OP denied all the averments, allegation and contentions made by the Complainant as alleged in the complaint  as contrary to or inconsistent with whatever is stated hereinafter. The OP states that none of said contrary or inconsistent allegations, contentions should be deemed to be admitted by OPas being  non-traverse.
6. It is submitted by the OP that they are a leading hospitality company that offers state-of-the-art clubbing facilities, innovative family holiday packages and star-studded entertainment events. The present complaint pertains to the unfounded and misconceived allegations made by the Complainant regarding the Complainant being entitled to two air tickets of Rs. 11,000/-. The Complainant’s other grievance is that she is entitled to three nights and 4 days vacation to Goa. The Complainant’s misconceived premise is that the OP is bound to provide the two air tickets and an additional 3N and 4D vacation of Goa to the Complainant in addition to the 10 years vacation of 6 nights and 7 days under the Blue Season category which she is in fact entitled to as per the agreement between the parties.The aforesaid demands of the Complainant are not only frivolous but they are also mischievous because to mislead this forum, the complainant has appended an audio clip which is patently false and invented. The Complainant, admittedly is required to pay a sum of Rs. 1,05,000/-, out of which, the Complainant has admittedly paid Rs. 55000/- and the remaining amount has not been paid, which as per Complainant had to be paid by the complainant after 3 years but such an unrealistic assurance cannot be  given to her by an executive of the OP who is not a party to the present complaint. No prudent person will believe the false story created by the Complainant and as such, the OP submits that the  Complainant’s prayer should be rejected.The complainant’s exaggerated expectation arises from her own imaginations and is dehors the record of the case. It is in these circumstances and to avoid a situation such as present one that the parties had entered into an agreement that binds them and makes the terms therein enforceable so as to avoid any ambiguity about rights of each of the parties. It is this agreement/contract that the Complainant seeks to overreach by making false allegations.
7. As per OP, the complainant has relied upon a fake audio clip of a purported conversation with an executive of the OP. The authenticity of the clip is denied as the same is questionable. It is stated without prejudice to the other contentions that the Complainant has not even impleaded the purported person in the present complaint knowing fully well that the alleged clip is fake. The Complainant has also not disclosed the details of her further interaction with the said person, alleged to be one Mr. Akshit. The complainant herself filled the application form for purchasing the membership. The form clearly stated that the membership was non-refundable and that upon filling up of the form, she would enter into an agreement. The Complainant knew well that agreement shall bind the parties as the same is an enforceable and valid contract. According to the OP, the  Complainant had visited the OP on her own volition and had enquired about different products and services available and the terms and conditions attached thereto. All benefits were explained to the complainant who purchased the membership only after thoroughly satisfying herself about the terms and conditions regarding the membership. On queries being made, the Complainant was explained in details about the package. She was also handed over the brochure and was taken through the services, including the location and facilities so that she satisfies herself before buying the membership.Thereafter  Complainant  expressed an interest in purchasing membership of the services offered by the OP.It is stated that the Complainant is an educated person and had signed the binding agreement with the OP after understanding the contents thereof. The Complainant’s meeting with  OP’s executives lasted for more than two hours wherein, the complainant enquired about each and every detail of the membership and the agreement, thus acquainting herself with her entitlements for the monies paid. It is not even the Complainant’s case that the agreement was signed in a tearing hurry. The Complainant was under no duress and/or pressure to buy the membership by signing the contract and paying the consideration.The Complainant was informed that the OP has many schemes and different kinds of packages and therefore it is necessary for the parties to enter into an agreement to ensure that there is clarity of terms and the Complainant is aware of  his/her entitlements and the OP is aware of its duties towards the Complainant.At no point of time was the Complainant ever told that she would be entitled to two air tickets and/or the additional vacation to Goa as she contends now. In fact, she was repeatedly told to check the agreement, its terms and conditions and destinations so that there is no ambiguity with regard to any issue.The agreement is also necessitated because a valid contract binds the parties and makes it enforceable to ensure that there is no ambiguity regarding the terms that govern the membership of the Complainant and similarly situated members of the OP.In such a situation, entering into an agreement is imperative so that the agreement alone can bind the parties and no other oral/written communication or of any other kind, shall supersede the agreement.
8. As per OP,  the Complainant decided to finally purchase a Vacation Membership worth Rs. 1,05,000/-(One Lakh and Five Thousand) and paid Rs. 55,000/- towards the membership fee and accordingly, she was allotted a membership which entitled her to 10 yrs.,vacation under blue season category. It was communicated to the complainant that an amount of Rs.60,000/- remains pending and that she  was obliged to pay the same within 45 days of enrolment and before availing any facility. It was made clear to the Complainant that the Membership Fee so paid is not a deposit and was non-refundable under any circumstances. The Complainant herself filled the application form for membership which clearly stated the same.  The ‘non-refundable’ clause was thus, explicitly known to the complainant even before she paid any amount to the OP.The said fact is reiterated in the agreement as well as the bye-laws of the company which the Complainant is legally obliged to adhere to.
9. OP stated that  the Complainant appears to be under a mistaken belief that the agreement between the parties is merely a formality and in fact, the OP is to provide to her whatever she demands. When reminded of her agreeing to the said terms in the past and also the fact that she was clearly told about the same and also the fact that the agreement between the parties states the said terms, the Complainant had paid the said amount.  The complainant has weaved a story and filed the present complaint.
10.  According to OP, the aforesaid facts show that the present complaint has been filed with ulterior motives and no ‘deficiency of service’ or ‘unfair’ trade practice’ within the meaning of  Consumer Protection Act 1986 can be attributed to the OP as it has done all in its capacity to provide services to the Complainant as per her membership eligibility and as per reservation policy prevalent in the industry. The OP cannot be blamed for the Complainant’s own presumptions.In fact, the Complainant’s mala fides are demonstrated by the fact that the Complainant has not disclosed vital facts before this forum and concealed/misrepresented them.  The complainant has leveled a set of allegations in the present complaint only to extort from the OP.Not catering to such unreasonable and arbitrary expectations does not make the OP guilty of deficiency of service.
11. Further, the OP has been transparent and fair about its non-refundable membership fee policy even before the Complainant paid the membership fee. The membership application form vouches for the said fact. It is further submitted that the OP may have been guilty of unfair trade practice had it been ambiguous about whether the membership fee deposited is refundable or not. However, that is clearly not the case.
12. According to OP, this Commission lacks the jurisdiction to adjudicate the present complaint in terms of Clauses 45 and 46 of the Agreement between the parties.
13. It is further stated by the OP that membership which has been opted for once cannot be revoked unilaterally. The Complainant has failed to show any deficiency/defect in service and/or unfair trade practice.  It is nobody's case that the Opposite Party Indulged in unfair trade practice by not divulging the said fact.Thus the Opposite Party is not obliged to refund membership fee towards the services opted by the Complainant. It is therefore submitted that the complainant has no right to ask for the refund of the membership fee. Reliance is placed on the agreement between theparties. For ready reference, the said clause 19 is reproduced hereunder:

 "The Second Party understands that THE MEMBERSHIP FEE IS NON-REFUNDABLE UNDER ANY CIRCUMSTANCES and THAT THE MEMBERSHIP FEE IS NOT A REFUNDABLE DEPOSIT."

 

14. It is further submitted by the OP that  no cause of action ever arose in favour of the Complainant and against the Opposite Party to file the present complaint.The complainant has failed to show any deficiency of service, unfair trade practice and if the OP engages in any deviation from the terms of the agreement, only then the cause of action can arise.The Complainant has voluntarily paid only part of the Membership cost but has been trying to arm-twist the Opposite Party by filing this complaint only to extort freebies from the Opposite Party.  The Complainant is bound by the agreement.
15. It is the contention of OP that the  present Complaint is frivolous for the reason that the Complainant's grievance is based on the erroneous belief that a vacation membership can be for as low as Rs.1,15,000/- and the same will entitle the membership holder, free air tickets and vacations to Goa in addition to what the Complainant is entitled to. It is therefore strange that her grievance hovers around misconstruction of the binding agreement.  The Complainant had a Vacation Only Plan and she was well aware of the same. The present complaint is merely an effort to mislead this Forum on the basis of bald allegations without any evidence backing any of her false allegations.   The complaint lacks bona fide and is a clear abuse of the provisions of the Consumer Protection Act.
16. As per OP, the misconceived notion of the Complainant is that the agreement, particularly the Clause 39 of the agreement is immaterial and acadernic.Even if this Forum was to accept the Complainant's case that there was indeed a genuine conversation which the Complainant had with one Mr.Akshit, who interestingly is not before this Forum and without whose affidavit being filed, thisForurn cannot conclusively decide whether the said conversation is genuine or not, the grievance of the Complainant is hit by Clause 39 which reads as under:

"Second Party confirms that no other verbal/written promises or any other assurances in deviation of this agreement have been made by the CCHHL personnel."

17. According to OP, the Hon'ble National Consumer Disputes Redressal Commission in the matter of Country Club India Ltd vs L.Mahadevan(Revision Petition No.1191/2010) has held that the agreement between the parties in such cases and the terms and conditions enumerated therein are binding on the parties. Furthermore, the Hon'ble State Consumer Disputes Redressal Commission for the UT, Chandigarh has dealt with similar matters and has authoritatively decided identical matters in  favour of the Opposite Party. In the said matters, the Complainants had tried to extort from the Opposite Party by filing frivolous petitions. Said decisions, namely, Anil Hunjan vs Country Club India Ltd; Country Club India Ltd vs. Jaswinder Kaur are being relied upon. Further, the Hon'ble Supreme Court in Vikram Greentech (1) Ltd. & Anr. vs. New India Assurance Co. Ltd., (2009) 5 SCC 599, while dealing with consumer dispute Involving Insurance dispute categorically laid down the law that endeavour of the Court must always be to interpret words of contract. The Courts are not expected to venture into extra liberalism that may result in re-writing the contract/substituting terms not intended by the parties. The said decision has subsequently been followed by the Hon'ble Supreme Court Itself in Export Credit Guarantee Corp. of India Ltd. vs M/s Garg Sons International (2014) 1 SCC 686; Sikka Papers Ltd vs National Insurance Co. Ltd. &Ors(2009) 7 SCC 777 and a very recent decision of United IndiaInsurance Co. Ltd vs M/s. Orient Treasures Pvt. Ltd,all rely on the VikramGreentech (Supra) to uphold the said established legal principle.
18. On the question whether the Agreement/contract in question will bind the parties in a consumer dispute, OP submitted that parties to a dispute even in aconsumer dispute are bound by the provisions of Contract Act. The decision in Marine Container Services South Pvt. Ltd. v. Go GoGarments,(1998) 3 SCC 247 is relevant.Question which arose for consideration before the Supreme Court in Go GoGarments' case was in regard to applicability of Section 230 of the Contract Act tothe consumer complaint filed under the Act. The Apex Court held that the Contract Act does apply to the complaints filed underthe Consumer Protection Act, 1986.  The said decision was followed by the Hon'ble Supreme Court in PremNath MotorsLtd vsAnurag Mittal (2009) 16 SCC 274 and various other decisions. The aforesaid ratio laid down by the Hon'ble Supreme Court is good law and this  Forum is, therefore, bound by it due to doctrine of judicial precedence.Accordingly, in view of the aforesaid judgments of the Supreme Court and also the provisions of the Indian Contract Act, the Complainant is bound by the agreement that he read, understood, affirmed and signed.
19. According to OP, in any case, the Complainant is not entitled to cancel her membership arbitrarily. The Complainant cannot seek refund of the membership by overriding thespecific clause of the contract merely because she chose not to avail a holiday despite the same being offered to her. The Hon'ble National Consumer Disputes Redressal Commission in I (1996) CP) 37 (NC) Homoeopathic Medical College and Hospital, ChandigarhVs. Miss GunitaVirk observed as under:

"We do not think it necessary to go into the question whether the rule in theprospectus about the non-refund of fee is unconscionable or not, in detail. Suffice it to say that FORA constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any institution as unconscionableor illegal. It is for the Civil Court to determine this point. If a student/students apply for admission and deposit the fees and later on do not want to join the course, then the seat/seats so vacated will remain vacant throughout the academic year. In suchcircumstances it will become very difficult for any institution to run in a propermanner."

20. OP further relied upon judgment in T.V. SundaramIyengar& Sons Ltd. Vs. Dr.MuthuswamyDuraiswamy&Anr, reported in II (2003) CPJ 176 (NC), wherein the Hon’ble National Commission in paragraph 11 of the order observed as under:

"11, xxx One thing has to be kept in mind and that is that we cannot go against the terms of contract between the parties unless of course, the terms are illegal and the contract void. It has not been suggested before us that the terms and conditions stipulated in the application form are in any way  illegal. Some of the conditions may appeal to be unreasonable but that would not make contract void or even voidable...."

 

Likewise, the Hon'ble National Commission in M/S. Nugas Technologies India vs The GeetaBalBhartiVarishtdecided on 17 April, 2014, followed the same legal principle.

21. It is contended by the OP that in view of express clauses in the agreement, more particularly, Clause 34, 38,39 40 and other covenants of a purchaser, the Complainant is legally bound to adhereto the terms of the contract.It is therefore  submittedby the OP that the law laid down on the aspect under consideration is clear and settled. The Complainant cannot seek refund of themembership fee when the contract between the parties does not permit her to do so.
22. OP denied that the Complainant is entitled to any air tickets. According to it,  Clause 17 of the agreement is relevant which states that only members who purchase 30 years' vacation and make onetime full payment towards the membership are entitled to air-tickets as per the clause. The Complainant knows well that being a purchaser of the10 years membership, she is only entitled to what was mentioned in theagreement. The Complainant has misconstrued the said clause and has filed a false audio clip to mislead this Forum. Without prejudice to the other contentions, it is humbly submitted that the Complainant's case is hit by Clause 39 of the agreement.
23. As per OP, the audio clip filed by her is fake and no assurance of an additional Goa vacation was given to the Complainant. The Complainant is already entitled to 6N and 7D vacation as per the membership and this is subject to payment of full consideration and AMCs. The Complainant cannot hoodwink the Opposite Party by trying to circumvent the agreement executed between the parties. The Complainant has not come to this Forum with clean hands as she has deliberately not impleaded the person who is alleged to have had a conversation with an unknown man (purported to be the Complainant and/or her representative). According to OP, when the  authenticityand reasonableness of the audio conversation is questionable, the OppositeParty is not legally obliged to override the contract. The Opposite Party islegally bound to provide the facilities to the Complainant as per theagreement and subject to the Complainant paying the full consideration. The Opposite Party and/or it executives have not made any such assurances to the Complainant.Any prudent person will find such an offer suspicious.
24. As per OP, toclaim  deficiency of service against the Opposite Party, it is necessary for the Complainant to show how the membership offered by the Opposite Party and purchased by the Complainant was defective. In the present case, it is beyond a reasonable man's comprehension as tohow can demand of full consideration of the membership cost be termed as adeficiency in service, especially when the Complainant was well aware of the same. Prudence, common sense, equity and reasonableness also require fullpayment of the consideration and no deviation thereof can be termed as justand equitable.The complainant is not entitled to refund of the amount but to the contrary, theOpposite Party is entitled to the remaining part of the monies that theComplainant owes it as per the agreement.
25.  OP denied the allegation of the complainantthat  she  has not been served properly. The Complainant's booking to Shimla were confirmed and the Opposite Party has 'served the Complainant. The Opposite Party cannot be held liable for inflated expectations of the Complainant. Not utilising the benefits of the service does not make the same service deficient. The two facts are independent of each other. The Complainant cannot discard a concluded contract between the parties and claim a refund. The Complainant is entitled to get her vacation that she has purchased and the Opposite Party is legally bound to offer her the same as per the agreement.The Opposite Party had constantly been communicating with the Complainant telephonically. The Complainant was clearly informed the correct facts but her  adamant and stubborn approach led the dispute to reach this Forum. The Opposite Party tried its best and did all in its capacity and earnestness to satisfy the Complainant. The Opposite Party has not unjustly enriched itself. It is not even the Complainant's casethat the Opposite Party refused to give the vacation facility to the Complainant. The Complainant cannot terminate her membership unilaterally as per her whims.
26. Along with the written statement, OP filed on record copy of the Vacation agreement entered into by the complainant with it as also copy of the receipt issued by the OP for Rs.55,000/- paid by the complainant.
27. In rebuttal to the averments made in the written statement by the OP, complainant filed rejoinder and refuted all the averments made therein.   Complainant stated that  the OP never at the time of  filling the form told her that the membership fee is non-refundable. Complainant reiterated and reaffirmed the averments made in the complaint.
28. Evidence by way of affidavit was filed by the parties and they exhibited the documents filed on record.
29. Written arguments were filed by the parties on record.Oral arguments advanced by the husband of complainant were heard  on 30.08.2022 and he reiterated that there is deficiency in service as no service till date has been given to the complainant as per the assurance given to her by one Mr. Akshit of the OP.  Even in the audio clip, it is clearly evident that said Mr. Akshit had promised the Goa package as also air tickets worth Rs.11,000/-.
30. No one appeared on behalf of OP on 30.08.2022 to advance oral arguments. The matter was reserved for orders as pleadings were complete.  However, while going through the documents filed on record by the complainant, it was not clear as to what exactly is the deficiency in service which has been  alleged against the OP.  Therefore, to seek clarifications, the matter was adjourned to 14.10.2022.  On 14.10.2022, complainant’s husband sought some time to address the issue and accordingly the matter was adjourned to 04.11.2022.
31. On 04.11.2022, complainant’s husband submitted an affidavit on record to prove the deficiency in service.  In the affidavit, it is submitted by the complainant that no free look period has been mentioned in the agreement executed between the parties.  Even in the complaint, the complainant had raised this plea that the OP should have given atleast fifteen days time to consider the vacation plan and get the agreement cancelled in order to get back her money for deficiency in service.  The agreement to this effect is arbitrary  and one sided. The complainant had after 12 days of execution of agreement, on 19.04.2016 vide  email to customer care of OP  applied  for cancellation of membership and sought refund of the money paid by her but the OP flately refused refund and stated that  it does not know said Mr. Akshit.  This is unfair trade practice on the part of OP as on the one hand they engage their employees in the form of Mr. Akshit  to negotiate with customersand clinch the deal in the form of  membership by offering lucrative  incentives and when  a demand is made for honouring their commitment, it is very easily told that no such person by the name of Akshit exists.
32. During oral arguments on 04.11.2022, counsel for OP Mr. Vineet Anand also joined the proceedings and  raised the issue of jurisdiction. He submitted that the complainant is resident of Shalimar Bagh, New Delhi but  as per complainant,  she made the payment to OP at  Rajouri Garden, New Delhi.   The complainant should have clearly mentioned in the complaint as to where  she made the payment of Rs.55,000/-to OP, to attract territorial jurisdiction. The complainant should have made payment at the Office of OP which is nearest to her place of residence.  On a pointed query to counsel for the OP whether the OP has its Branch office at Rajouri Garden, New Delhi or not to which the answer of counsel for the OP was in the affirmative.  This itself contradicts the statement of counsel for the OP.  At this stage it is relevant to  refer to  Section 11 of the CP Act, 1986 which deals with the territorial jurisdiction of this Commission:

“11. Jurisdiction of the District Forum.—

(1)……………

          (2)   A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

 

(a)   the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)   any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

 

      (c) the cause of action, wholly or in part, arises. 

 

33. As per the above Section, the jurisdiction of this Commission is covered by Section 11(2(a) of the CP Act, 1986. As per complainant, all the deliberations between her and OP representatives, were held at Rajouri Garden, New Delhi Branch office of OP mentioned in the memo of parties.  In this regard we may refer to the verdict of  Hon'ble Supreme Court in the case of Alchemist Limited and Anr. v. State Bank of Sikkim and Ors, AIR 2007 Supreme Court 1812 wherein it was held as under:

"..It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition..

34. In view of  the above legal position, the present  complaint is very much maintainable before this Court.
35. As regards the verbal assurances made by said Mr. Akshit,  representative of the OP to the complainant,  as mentioned in the audio CD attached with the complaint, we have gone through the same and find that though the complimentary package tour of Goa and air tickets and payment of remaining amount towards membership  later on, as contended by the complainant in the complaint, were offered to the complainant and in fact said Executive had advised  the complainant’s husband (Mr. Ankush)  to speak to him  later on and he will arrange everything as promised, but we doubt the authenticity of  said audio clip as the complainant has not been able to prove the identity of Executive to whom the husband of complainant (Mr. Ankush) was talking. Further we are not able to decipher from the emails attached with the complaint whether the complainant had raked up the issue of promises made by said Mr. Akshit  with the OP specifically about the  promised package and what was the reply thereto. There are only verbal assertions on behalf of complainant which are not admissible in evidence under the law for want of proof of identity of said Mr. Akshit.  In addition, all these are unaccompanied with Certificate under Section 65B of the Evidence Act and inadmissible on this ground alone.
36.  As regards the contention of complainant that the agreement entered into between the parties was arbitrary, one sided and no time was given to the complainant to review the contract and seek refund of her money if not satisfied with the services offered,  it is relevant to refer to the judicial pronouncement in a similar matter relating to OP herein by the Hon’ble SCDRC at Chandigarh in  Country Club Hospitality  vs Dr. Janak Raj Singla (First Appeal No.292 of 2021), decided on 30 March, 2022 in which  the Hon’ble SCDRC, Chandigarh, held  that the contract entered into between the complainant was arbitrary, one sided  as no scope was made for the respondent to wriggle out of the contract and  since  no services were availed by the respondent therein from the appellant, no loss has been occasioned to the OP by  withdrawal of membership by the complainant. The OP cannot deny refund of the  money deposited by the complainant.  In the said case, reference was also made to the judgment rendered by the Hon'ble Supreme Court in the  case of  Supreet Batra v. Union of India 2003 (1) SLT 730, wherein it was  held that "service provider cannot forfeit the fee or consideration for services, which are not provided.   Further  in  Deepanshu Saini v. M/s S.S. Group Pvt. Ltd. 2019 (4) CLT 479 (NC),  the Hon'ble National Commission while dealing with a case of Builder-Buyer Agreement held that "all these conditions are totally one sided and are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time, a lot of money of the complainant is already blocked with the builder. The complaint was allowed."
37.  Same is the position in the present case.  Since no services were availed or provided by the complainant, she was not willing  to continue with the membership of OP for want of deficiency in service. Accordingly just after 12 days of  execution of agreement  on 06.04.2016, wrote to the OP on 19.04.2016 to cancel the membership agreement entered into with it.  However, the OP showing its highhandedness and arbitrariness, relying on the “No refund clause in the agreement” vide its return mail dated 19.04.2016 did not refund the amount of Rs.55,000/- deposited with it  by the complainant.  The complainant kept on interacting with OP through his emails from 02.5.2016 to 10.05.2016 but the OP did not offer any relief to the complainant and  kept the complainant on the tenterhook vide its email dated 03.05.2016 that they are looking into the matter and needed 7-10 working days  to solve the query of complainant and ultimately vide  its email dated 10.05.2016, the OP declined  the same on the ground that the issue raised by the complainant can be resolved by said Mr. Akshit and the complainant may line up with him. This was a vague reply given by the OP which smacks of arrogance. The OP never mentioned in the pleadings  that upon the withdrawal of membership and seeking refund of the amount  by the complainant, any loss has been suffered by it.  The conduct of OP in dealing with the case of complainant, clearly  depicts deficiency in service and especially unfair trade practice as no scope was given to the complainant to withdraw from the agreement which was altogether one sided.
38. As regards the other issue raised by the OP in the written statement that the jurisdiction of this Commission is barred in terms of clauses 45 and 46 of the agreement executed between the parties and the matter has to be decided through arbitration at Hyderabad alone, we may refer  to Section 3 of the Consumer Protection Act, 1986 (for short the CPA) and Section 100 of the CPA, 2019, 2019, which are similar in nature,  as under:

“3. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

“100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 

 

The  Hon’ble Supreme Court  in the case of M/S Emaar Mgf Land Limited vs Aftab Singh, (Review Petition (C) Nos. 2629-2630 OF 2018  in Civil Appeal Nos.23512-23513 OF 2017), deided on 10.12.2018, Secretary, Thirumuruganvs M. Lalitha (Dead) Through Lrs. &Ors, decided on 11 December, 2003, (2004) 1 SCC 395  and  State of Karnataka vs. Vishwabharathi House Building Coop. Society and others [(2003) 2 SCC 412] held that the Consumer Protection Act is a beneficial legislation specially enacted for  protection of consumers and provides an additional remedy in the shape of Section 3 of 1986 Act (old Act) and Section 100 of CPA, 2019(new Act) and is therefore, in addition to and not in derogation of any other provision of any other law for the time being in force and a harmonious construction of provisions  contained in the CPA  shall indicate that jurisdiction of Consumer Forums is not barred.Therefore, the  CP Act supplements and not supplants the jurisdiction of Civil Courts or other statutory authorities.

39.     For the foregoing conclusions arrived at by us, we allow the complaint holding the OP guilty of deficiency in service in not refunding  the amount deposited by the complaint upon a written request made on 19.04.2016.  Accordingly, OP is directed to refund the amount of Rs.55,000/- to the complainant.  The OP is also directed to pay a sum of Rs.7,500/- as compensation to the complainant for the deficiency in service and unfair trade practice.  Let this order be complied with within 30 days from receipt of copy of this order.

A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them in the name of  President of this Commission.

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President