BEFORE THE BANGALORE URBAN III ADDITIONAL DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION,

SHANTHINAGAR, BANGALORE–560027.

DATED THIS THE 05^th DAY OF FEBRUARY 2021

CONSUMER COMPLAINT NO.866/2019

PRESENT:

Sri.K.S.Bilagi, B.com, M.A., LL.M.….  PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….     MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.….       MEMBER

COMPLAINANT:

Ms.Vani B.L,

W/o Pradeep Kumar,

Aged about 31 Years,

R/a No.70, 17^th F Cross,

(Rep. by Sri.Prasad Subbanna, Advocate)

V/s

OPPOSITE PARTIES

1. Country Club Hospitality and Holidays Limited,

Corporate Office at,

Country Club Kool,

No.6-3-1219, 4^th Floor,

Rep by its Director.

2. Country Club Hospitality and Holidays Limited,

Registered office at,

Amrutha Castle, 5-9-16,

Saifabad, Secretariat,

Represented by its Director.

(OP No.1 & 2 is Rep. by Sri.D.Narase Gowda, Advocate)

3. Country Vacations,

A Division of Country Club(India) Limited,

Next to Kamath Hotel,

No.102, 1^st and 2^nd Floor,

No.48, SS Chambers,

Hospital Road, Commercial Street,

Rep by its Line Manager.

Written by SMT.L.MAMATHA, MEMBER

******

//ORDER//

1. This complaint has been filed under Section 12 of the Consumer Protection Act 1986 to direct the Opposite Parties jointly and severally to pay a sum of Rs.1,79,400/- along with interest at 18% p.a. from 04.06.2018 till the date of realization, Rs.1,00,000/- towards mental agony and legal expenses.

2. The case of the Complainant in brief is as under:-

On 03.06.2018 Complainant and Opposite Party No.3 entered into a sale agreement in respect of country Vacations Club Membership category blue and the Complainant paid Rs.1,83,200/- bearing receipt No.CV-HYD-C 87496.The agreement is signed by the Opposite Party No.3 and the Complainant.

3. It is further case of the Complainant that in the sale agreement i.e., Clause-19 of the terms and conditions states unequivocally that there shall be a cool off period of 10 days from the date of signing the Sale Agreement and a member can discontinue the agreement by paying nominal administrative charges of Rs.3,800/- to the Company.  The said Clause further stipulates that after deducting the amount of Rs.3,800/-, the remaining amount will be refunded within 120 days from the date of invoking cool off period.

4. It is further case of the Complainant that a member shall send a written communication either by Registered Speed Post or an E-mail.  What is conspicuous in this Clause is that a member has the right to cancel the membership within 10 days from the date of signing the Agreement, that a nominal administrative charge of Rs.3,800/- would be payable by the member to the Company, after deduction administrative charges, balance amount would be returned to the Complainant within 120 days.  The Complainant sent an email on 04.06.2018 seeking cancellation of membership.  The said email followed up with another Email on 05.06.2018.  The husband of the Complainant also sent an email on 25.06.2018.  Even after lapse of 120 days, the Opposite Parties failed to refund the amount.  On 07.05.2019 Complainant got issued a legal notice issued to Opposite Parties.  Even after receipt of legal notice, the Opposite Parties failed to refund Rs.1,79,400/-.  Hence, the Opposite Parties have caused for deficiency of service and mental harassment. Hence this complaint.
5. After receipt of notice, the Opposite Party No.1 to 3 appeared and filed version.  In the version, Opposite Parties admit that the Complainant entered into purchase agreement dt.03.06.2018 for having paid Rs.1,83,200/-.  The Opposite Parties upon receipt of the above said amount has issued the permanent Laminated Club Membership Cards to the Complainant and the same was duly acknowledged by the Complainant. The Opposite Parties admit terms and conditions of purchase agreement. The allegations of the Complainant is false and baseless, amounts to cheating and breach of trust.  There is no deficiency of service on the part of the Opposite Parties.  As per terms and conditions of purchase agreement, the Complainant is supposed to approach National Commission at New Delhi only.  Hence, the Opposite Parties request this Commission to dismiss the complaint with exemplary cost.
6. The Complainant files affidavit evidence and relies on the documents.  Affidavit evidence of official of Opposite Parties has been filed and document evidence to be marked. Heard the arguments of both side and perused the records.
7. The points that arise for our consideration are:-

1. Whether the complainant proves that there was deficiency of service on the part of the opposite parties ?
2. Whether the Complainant is entitle to the reliefs claimed in the complaint ?
3. What order?

8. Our findings on the above points are:-

1. Point No.1       :- In the Affirmative
2. Point No.2       :- Affirmative in part
3. Point No.4       :- As per final order

for the following;

:REASONS:

9. POINT NO.1 & 2:- Evethough, the Opposite Parties raise an issue with regard to Jurisdiction of this Commission contending that as per the purchase agreement, the Courts at Hyderabad alone will have the jurisdiction to entertain this complaint.  It is true that the Opposite Party No.1 & No.2 have been established in Hyderabad City.  Whereas Opposite Party No.3 office is at Commercial Street Bengaluru and Complainant is the resident of Bengaluru and the sale agreement is signed at Bengaluru by the Complainant and representative of Opposite Party No.3.  Eventhough, there is a clause about jurisdiction of Hyderabad alone, but when the agreement is at Bengaluru between Complainant and Opposite Party No.3 and payment Rs.1,83,400/- is made at Bengaluru  and Sec.3 of Consumer Protection Act, 1986, one of the clause of the sale agreement does not create the bar of entertaining this complaint. 
10. It is admitted fact that the Complainant executed the agreement by paying Rs.1,83,400 on 03.06.2018 to the Opposite Parties.   The clause No.19 of the sale agreement is most relevant which reads thus;

“There shall be a cool off period of 10 days from the date of signing of this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- to the Company.  After deduction of the aforesaid amount (Rs.3,800/-) remaining amount would be refunded to the member within 120 days from the date of invoking of cool off period.  For invoking the cooling off period the member shall send a written communication to the Country Club, Central Customer Care, 4^th Floor, Asian building, Begumpet, Hyderabad-500016 through registered speed post or an email to

11. The above clause clearly indicate that the cooling period of 10 days from the date of signing this agreement and member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- Opposite Parties shall pay the balance within 120 days from the date of invoking of cool off period.  The receipt annexed to the agreement indicates payment of Rs.1,83,400/- on 03.06.2018.  This fact is also proved from letter of Opposite Parties which is marked as EX.P2.  By email dt.04.06.2018 Complainant called upon the Opposite Parties to cancel her agreement and refund the amount as earlier as possible.    Whereas Opposite Parties had send a mail dt.04.06.2018 stating that as per agreement they will be refund the amount.  Eventhough, after receipt of legal notice dt.07.05.2019 Opposite Parties, neither replied nor refunded the amount.  It means Opposite Parties were liable to refund Rs.1,79,400/- out of Rs.1,83,200/- after deducting Rs.3,800/- to the Complainant.  The Complainant claims 18% interest p.a. from 04.06.2018 till realization which is exorbitant.  In the year 2018 the rate of interest of F.D was lessthan 8%.  Therefore, the Complainant is entitle to at the most 8% interest from 13.10.2018.  The Complainant claims Rs.1,00,000/- towards mental agony and legal expenses.  It is pertinent to note that the Complainant has not whispered how much fees she has paid and admittedly no fees is paid on the Complainant as claim is lessthan Rs.5,00,000/- on the date of Complaint.  It is summary proceedings.  Under such circumstances, the cost of litigation is considered as only Rs.5,000/-when we are awarding interest at 8% from 13.10.2018 i.e., after expiry of 10 days cooling period and 120 days for deficiency of service till the payment of Rs.1,79,400/-.  The Complainant is not entitle for mental agony in addition to interest. 
12. POINT No.3:- In view of the discussion made in the preceding paragraphs, we are of the opinion that the complaint requires to be allowed for Rs.1,79,400/- towards refund with interest @ 8% p.a. and cost of litigation Rs.5,000/- only.  The claim for mental agony has been rejected.  We proceed to pass the following final order;
13.  

The complaint is allowed.

The Opposite Parties are hereby directed to refund Rs.1,79,400/- (Rupees One Lakh Seventy Nine Thousand Four Hundred only) with interest at 8% p.a. from 13.10.2018 till realization.

The Opposite Parties are also directed to pay Rs.5,000/-(Rupees Five Thousand only) towards cost of litigation.

The Opposite Parties are directed to comply this order within 30 days from this date.                      

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the Complainant.

 (Dictated to the Steno, typed by her, transcript corrected, revised and then pronounced by the open Forum on 05^th day of FEBRUARY 2021)

    (L.Mamatha)              (M.B.Seena)                  (K.S.Bilagi)

       MEMBER                  MEMBER                    PRESIDENT

//ANNEXURE//

Witness examined for the complainant side:

Ms.Vani B.L, who being the Complainant has filed her affidavit.

List of documents filed by the complainant:

1. The Sale Agreement dt.03.06.2018.
2. Acknowledgement for receipt of payment.
3. Email dt.04.06.2018, 05.06.2018 and 25.06.2018.
4. Office copy of the Legal Notice dt.07.05.2019.
5. Postal receipts dt.07.05.0219.
6. Postal Acknowledgements dt.10.05.2019.

Witness examined on behalf of the Opposite Party:

Sri.Mohammed Akmal Pasha, Manager of the Opposite Party-Company has filed his affidavit.

List of documents filed by the Opposite party:

-Nil-

(L.Mamatha)                    (M.B.Seena)                 (K.S.Bilagi)

  MEMBER                         MEMBER                  PRESIDENT