Complaint No: 196 of 2019.
Date of Institution: 13.06.2019.
Date of order: 06.02.2024.
Rajiv Vohra Advocate, Chamber No. 109, Block-A, District Courts, Gurdaspur, Tehsil and District Gurdaspur, Punjab.
….......Complainant.
VERSUS
1. Country Club Hospitality & Holdings Ltd., # 6-3-1219, Begumpet, Hyderabad, Pin Code – 500016, through its Proprietor / Partner / Manager.
2. Country Club Wellness World, Shop No. 5, 2nd Floor, Paras Down Town Mall, Zirakpur, Punjab.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.K.S. Walia, Advocate.
For the Opposite Parties: Sh.Sandeep Ohri, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rajiv Vohra, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Country Club Hospitality & Holdings Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant became a member of Country Club Family Membership No. CCCDG203V5LB30554, with exciting five years vacations plan and paid Rs.60,000/- to the opposite parties on dated 28.09.2018 for becoming the member of the club for 5 years in good faith. It is pleaded that the opposite parties received the above said amount from the complainant at R.K. Regency (Hotel), Gurdaspur, Punjab on dated 28.09.2018 for which receipt was issued to him by the opposite parties for the process of membership. After becoming the member of club of opposite parties, the opposite parties assured the complainant to provide good services and hospitality. It is further pleaded that not only this, the opposite parties gave in black and white to the complainant that in 5 years he will be provided 21 days free boarding and lodging destination per year, but the opposite parties hoodwinked the complainant and started making more demands from him. After that in the month of December 2018, the complainant decided to spend winter vacations at Goa and contacted the opposite parties for the booking in their club at Goa, but the opposite parties kept on procrastinating the genuine request and morosed him. It is further pleaded that again in the month of January 2019, the complainant made a request for booking in Bangalore, Ooty etc. to spend the vacations with the family, but the opposite parties again dodged the complainant and started making illegal demand of Rs.10,000/- more from him due to which the complainant was filled with anger and he got disenchanted with the membership of the opposite parties. It is further pleaded that the opposite parties swindled the complainant and took Rs.60,000/- from him and lead his astray. The opposite parties take the innocent people for a ride and cheat them by giving fake plans which is an unfair trade practice and deficiency in service. It is pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is pleaded that the there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to return the hard earned money of Rs.60,000/- to the complainant alongwith interest @ 18% per annum and also be directed to pay Rs.50,000/- as compensation and Rs.50,000/- as mental pain, agony and harassment to the complainant and Rs.20,000/- as litigation expenses, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that this Hon'ble Court does not have territorial jurisdiction to entertain and adjudicate the present complaint. It is pleaded that the present complaint is not maintainable as the complainant has not come with clean hands and deliberately concealed from this Hon'ble Court that the complainant who is an advocate by profession, duly entered into an agreement dated 28.09.2018 with the answering OP’s company after thoroughly going through and understanding the contents thereof and hence is bound by terms and conditions of the said agreement. The complainant has also attended the welcome call done by the officials of the company and he has confirmed the membership over the call post which the answering OP's generated the online membership account so that he can use the services upon paying the full membership fee. The complainant has deliberately not attached the copy of the said agreement with the complaint. It is further pleaded that it is clearly mentioned in the agreement that apart from one time membership fees of Rs.70,000/-, the complainant party is also required to pay annual maintenance charges every year, which are applicable from the date of agreement and that the vacations cannot be utilized till the dues including annual maintenance charges are cleared. Moreover the complainant has paid only Rs.60,000/- out of agreed Rs.70,000/- vacation charges and failed to pay balance of Rs.10,000/- towards vacation charges inspite of reminders by the answering OP’s. It is further pleaded that the complainant in his complaint, has wrongly alleged that the answering OP’s started making illegal demand of Rs.10,000/- from him, whereas answering OP’s only reminded the complainant that he has to clear the balance of Rs.10,000/- towards vacation charges and also to clear annual maintenance charges of Rs.10,500/- excluding taxes in view of express clause No.10 of the Agreement in order to avail the vacations. As per the said clause No.10, the said amount of Rs.10,500/- excluding taxes is to be paid by the complainant irrespective of the usage. The said amount is due from the date of the agreement and must be paid before 1st holiday or within first 3 months or during the course of membership. It is further pleaded that there is one time special undertaking that can be given saying that after using the 1st holiday complainant party will pay the annual maintenance charges regularly. Failure to pay the said amount or any other amount due shall be considered as a default by the member and the member cannot utilize the facilities until the dues are cleared. Annual charges bill will be generated irrespective of whether the complainant party has made full or part payment towards the membership. Annual charges will increase by 15% every 3 years on the last paid amount without prior notice. Thus, present complaint is filed by the complainant in order to wriggle out of the contract and avoid paying the balance amount as well as annual maintenance charges. It is further pleaded that the answering opposite parties state that the present complaint, filed against them, is only a manoeuvre, with the intention to harass and extort money from them and no cause of action or part thereof has ever arisen against them by virtue of which the provisions of the Consumer Protection Act could be attracted against them. The complainant has filed the present complaint with avaricious mind, in order to wriggle out of the contract, which has been duly signed by her after going through and fully understanding the contents thereof. Thus, there is no question of any deficiency in rendering service or any unfair trade practice on the part of the answering opposite parties. It is further pleaded that the services to be provided to the complainant were strictly as per the terms and conditions of the Agreement without any deviation or breach thereof as articulated to the complainant. Hence, the present complaint is an abuse of the process of law, and as such the same is liable to be dismissed. It is further pleaded that present complaint is based on mere bald and oral allegations, without any evidentiary proof whereas documentary proof attached by the answering OP’s alongwith a written statement clearly proves the case of the answering OP’s. It has been settled in the case of Sanjib Kumar Dey vs. Chabbi Dey 2015 (4) C.P.R. 584 in which Hon'ble National Commission held “it is difficult to fathom without written proof how reliance can be placed on the oral submission of complainant. The documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that men may tell lies but the documents cannot'. Case of the complainant must stand on its own legs. Without documentary proof, the above said facts simpliciter do not go to lull Commission's doubts and suspicions. No doubt, a strong suspicion against the OP’s stand established but it is well settled that the suspicion so strong it may be cannot take the place of proof”. It is further pleaded that the complainant has wrongly alleged that the answering OP’s hoodwinked him and started making more demands whereas answering OP’s were and are ready and willing to provide the services as per the entitlement of complainant. It is pertinent to mention here that as per clause No. 2 under the agreement the complainant is entitled to stay for a period up to 6 nights and 7 days each year at the properties of answering OP’s is within India and as the membership opted for was for 5 years therefore the complainant is entitled to 30 nights and 35 days for the entire period of membership. Therefore, there is no question of giving in black and white to the complainant that in 5 years he will be provided 21 days free boarding and lodging destination per year (i.e. total 105 days). Neither any such alleged black and white document is annexed with the plaint by the complainant nor name of any official of answering OP’s is mentioned as to who gave him any such document in black and white. Moreover what complainant is alleging is against the terms and conditions of the agreement itself. It is further pleaded that as per clause No. 42 under the agreement, it is clearly mentioned that complainant party understands that this Agreement (in the printed form only) supersedes any communication whether written or oral or any variation or handwritten remarks rewriting the printed agreement made by the agents and/or the representatives of CCHHL or complainant party to this agreement and/or any other written communication issued by CCHHL representatives (including on company letterhead or stamp paper). It is further pleaded that complainant party understands that benefits in terms of the vacations as set out in this agreement are final and binding on CCHHL and complainant party. Further in clause No. 43 it is mentioned that complainant party confirms that no other verbal/written promises or any other assurances and deviation from this agreement have been made by CCHHL's personal. Further clause No. 48 states that complainant party confirms that he has gone through the terms and conditions and benefits / obligations and complainant party has understood and accepted the same. Further clause No. 38 states that complainant party has understood the benefits available under this agreement which is more particularly listed out in this agreement. Complainant party further understands that no benefits other than those listed in this agreement will be available to complainant party. It is further pleaded that the complainant has made false allegations without any evidentiary proof under complaint that he decided to spend winter vacations at Goa and contacted answering OP's for the booking, but the answering OP’s is kept on procrastinating and in the month of January 2019, the complainant requested for booking in Bangalore, Ooty etc. upon which answering OP’s dodged him and started making illegal demand of Rs.10,000 from him. Whereas the complainant has concealed that he has not cleared the balance amount of Rs.10,000/- out of agreed non-refundable vacation charges of Rs.70,000/- and not paid the annual maintenance charges of Rs.10,500/- as mentioned in clause No. 10 of the agreement. It is further pleaded that the complainant did not disclose that under clause No. 16 of the agreement it is clearly mentioned that holiday booking is to be done online only or through the country club mobile app. To make bookings online please visit www.countryclubindia.net, click on login and select your location from the drop-down menu. Login with the username and password mentioned on the online receipt (obtained as per clause No. 23) which will also be sent alongwith the welcome letter and the procedure for booking online booking holidays. It is further pleaded that the complainant party can utilize the vacations immediately on full payment of product and other dues even before receiving the card and welcome kit. The reservation is only confirmed once the booking voucher is issued. The reservation merely with an e-mail for confirmation without a booking voucher is not a confirmed vacation and therefore the same will not be accepted. During peak time if occupancy of CCHHL's owned resort opted for is high, only shorter holiday erasures are provided to accommodate others. It is further pleaded that the user id as "advrajivvohra@gmail.com and password as "8727913487" of the complainant is clearly mentioned on the Welcome Letter issued by the answering OP’s to the complainant. It is pertinent to mention here that in said welcome letter also it is mentioned that as a 5 years vacations (blue) member, complainant was required to pay Rs.10,500/- as mandatory annual administrative charges (AMC) irrespective of usage and that complainant was eligible for 6 nights, 7 days holidays for 5 years in season-blue, room type-studio and along with the welcome letter, a vacation membership smartcard was also enclosed which was delivered to the complainant on dated 13.11.2018 at 06.20 P.M. through Blue dart courier vide Way Bill No. 15583560451. Thus, oral allegations of the complainant that he was not provided accommodation in the month of December 2018 and January 2019 are absolutely wrong as the complainant never booked the accommodation online as per clause No. 16 of the agreement by using the username and password duly supplied to him. It is further pleaded that clause No. 25 states that "All holidays are subject to availability as answering OP’s follow a floating week. Every effort is made to ensure transparent booking system and other CCHHL's vacationers of higher season/points get an opportunity to book first. Week - 24 December to 3rd January are blocked out dates, RED week - Booking can be done between 90 days to 15 days before the desired holiday dates, WHITE week - Booking can be between 75 days to 30 days before the desired holiday date and Blue week - Booking can be done between 60 days to 45 days before the date of the desired holiday dates. After the stipulated dates mentioned as per the season/points, all CCHHL vacationers have an equal opportunity to book their holidays. Only after those CCHHL vacationers of higher category books his holiday a CCHHL vacationer of middle or lower category can book his holidays". It is further pleaded that no such proof has been attached by the complainant that he tried to book through online website as was the agreed procedure to book the holidays and faced any inconvenience in alleged booking for Goa and Bangalore, Ooty etc. Moreover, the complainant has not even mentioned as to when he tried to book the vacations and for which dates because as per the membership opted by the complainant i.e. blue season, he was required to book accommodation online at least 60 to 45 days in advance of the desired holidays.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed Self-Attested affidavit of Rajiv Vohra, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-4.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Bharat Reddy, (Legal Officer of M/s. Country Club India Ltd., New Delhi) as Ex.OP-1,2/A alongwith other documents as Ex.OP-1,2/1 to Ex.OP-1,2/8 alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by both the parties.
8. Counsel for the complainant has argued that complainant became a member of Country Club Family Membership for five years vacations plan and paid Rs.60,000/- to the opposite parties on 28.09.2018. The payment was made to the opposite parties at R.K. Regency (Hotel), Gurdaspur. It is further argued that the complainant was promised 21 days free boarding and lodging destination per year for a period of five years but instead of providing the promised bookings the opposite parties started demanding more and more amounts from the complainant. It is further argued that in December, 2018 complainant had planed vacations at Goa and when contacted the opposite parties for booking, the opposite parties declined booking and in January, 2019 also complainant made request for booking in Bangalore and Ooty, the opposite parties demanded Rs.10,000/- more from the complainant. Thereafter, finding no alternative complainant had served legal notice upon the opposite parties to refund the amount. The complainant has demanded refund of Rs.60,000/- and refusal to refund the amount, amounts to deficiency in service on the part of the opposite parties.
9. On the other hand counsel for the opposite parties has argued that this Commission has no jurisdiction and the complaint filed by the complainant is false. It is further argued that complainant is an Advocate by profession and after understanding the various plans, benefit and terms and conditions the complainant opted to purchase "Blue Season" for five years at price of Rs.70,000/- to be a one-time non-refundable vacation charges but the complainant had paid only Rs.60,000/- and Rs.10,000/- as balance towards vacation charges still not cleared by the complainant. It is further argued that complainant was also required to pay annual maintenance charges of Rs.10,500/- every year applicable from the date of agreement which was signed by the complainant on 28.09.2018. The complainant cannot take benefit of his own fault/wrong and as such there is no deficiency in service on the part of the opposite parties.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his affidavit Ex.C1, copies of legal notice Ex.C2 and Ex.C3, copy of payment receipt Ex.C4 whereas opposite parties have placed on file affidavit of Bharat Reddy Ex.OP-1,2/1/A, copy of resolution Ex.OP-1,2/1, copy of vacations sale agreement Ex.OP-1,2/2, copies of receipts Ex.OP-1,2/3, Ex.OP-1,2/4, copy of transcript Ex.OP-1,2/5/A, copy of copy of welcome letter Ex.OP-1,2/6, copy of tracking details Ex.OP-1,2/7 and CD Ex.OP-1,2/8.
12. It is admitted fact that complainant had deposited Rs.60,000/- with the opposite parties for obtaining membership of Country Club Family Membership. The only disputed issue for adjudication before this Commission is whether the complainant is entitled to receive refund of the amount of Rs.60,000/-.
13. The plea of the counsel for the complainant is that inspite of having paid full amount the opposite parties refused to give promised bookings. However, the said plea is controverted by the opposite parties by taking the plea that the bookings were to be made through user name and password mentioned on welcome letter Ex.OP-1,2/6 and the complainant has never tried to make booking on the said site of the opposite parties as such the plea of the complainant is without any evidence on record. Moreover, the complainant had also voluntarily signed the vacations sale agreement Ex.OP-1,2/2 and as such is bound by the terms and conditions. Perusal of vacations sale agreement Ex.OP-1,2/2 shows that the agreement is shown to have been executed at Hyderabad on 28.09.2018 whereas the complainant has asserted that he never went to Hyderabad to sign the agreement and payment was made by the complainant at Gurdaspur. Moreover, when the agreement itself is illegal and inspite of the fact that complainant never visited Hyerabad, the same is shown to be executed at Hyderabad. Moreover, the agreement is not executed on any stamp paper nor the same is witnessed by any witness as such the execution of agreement is of no help to the opposite parties for binding the complainant. As such we are of the veiw that since the payment was received by the opposite party at Gurdaspur and as such cause of action has arisen at Gurdaspur and as such this commission has jurisdiction to entertain the present complaint.
14. As far as, the plea of the opposite parties regarding admission of complainant of having understood the terms and conditions on the basis of transcript copy Ex.OP-1,2/ 5/A and Ex.OP-1,2/6 and CD Ex.OP-1,2/8 is concerned, we are of the view that said plea is not justified as when the CD Ex.OP-1,2/8 was opened and run in the open Court in the presence of counsel for both the parties the CD was found to be blank and crupt. As such exebhition of transcript as Ex.OP-1,/5/A is of no help to the opposite parties. Since the complainant was not provided with promised services by the opposite parties, as such complainant was within his right to seek refund of the amount of Rs.60,000/- and failure to refund the amount, amounts to deficiency in service on the part of the opposite parties.
15. Accordingly, present complaint is partly allowed and opposite parties are directed to refund the amount of Rs.60,000/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization within 30 days from the date of receipt of copy of this order. No order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 06, 2024 Member.
*YP*
