BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 18^th DAY OF APRIL 2022

                                      ORDER

SRI.K.S.BILAGI, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act, 2019 (herein under referred as an Act) for the following relief against the OPs:-

Direct the OPs to pay entire amount of Rs.70,100/- along with interest at 24% p.a. till the date of settlement and compensated the complainant for the financial loss due to non-refund of the amount and compensation towards wasting time, money, travel, mental tension, medical etc., and such other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant having agreed to avail certain facilities from the OPs, entered into an agreement dated 01.06.2019 by paying Rs.60,100/- from his account and by transferring Rs.10,200/-.  On the next date, he had been to the Country Club of OPs at Bengaluru and he could not find any amenities as told by the representative of the OPs.  Accordingly, as per the Clause 27 of agreement dated 01.06.2019, the complainant has exercised his right to cancel the agreement within cool of period of 10 days.

3. Accordingly, complainant by sending E-mail dated 03.06.2019 has cancelled the agreement and asked the OPs to refund Rs.66,300/- after deducting administrative charges of Rs.3,800/- out of Rs.70,300/-.  But, OPs failed to refund the entire amount of Rs.70,100/-.  The OPs have committed deficiency of service.  Despite receipt of notice dated 30.03.2021, OPs failed to refund Rs.70,100/- with interest at 24% p.a.  Hence, this complaint.

4. In response to the notice, OPs appeared and filed version.  The OPs admit the purchase agreement dated 01.06.2019 and payment of Rs.70,100/-.  But, as per the terms of the agreement, membership fee is not refundable and it is not an investment.  There is no deficiency of service.  The complainant is not entitled to refund of amount.  Therefore, OPs request to dismiss the complaint.

5. The complainant files his affidavit evidence and got marked 6 documents.  The OPs failed to lead evidence.  Heard the argument of advocate for complainant only.  No argument is advanced on behalf of Ops.

6. The following points arise for our consideration:-

1. Whether the complainant proves the deficiency of service on the part of OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What order?

7. Our answers to the above points are as under:

       Point No.1:-  In the affirmative.

      Point No.2:- Partly in the affirmative.   

      Point No.3:-per final orders

REASONS

8. Point No.1: Even though, OPs appeared through their counsel, but they have not challenged the oral and documentary evidence of the complainant and they were failed to file affidavit evidence.  The only contention taken by the OPs that the amount of Rs.70,100/- paid by the complainant under the purchase agreement is non-refundable. Whereas the complainant not only pleaded in the complaint and placed the evidence to show that he exercised his option during the cool of period of 10 days within 01.06.2019.
9. Ex.P.1 is the certificate under Section 65 (B) of Evidence Act.  Ex.P.2 is the purchase agreement between the complainant and OPs.  The terms and conditions of purchase agreement are not in dispute.  It is true that there is a clause in the first page of purchase agreement that the complainant being the 2^nd party agrees that charges are not refundable deposit and not an investment.  But, condition No.27 empowers the complainant that he can discontinue the agreement by exercising his option within cool of period of 10 days from the date of signing the agreement and in such case, the OPs shall refund the amount after deducting Rs.3,800/- towards administrative charges within 120 days from the date of invoking cool of period.  Therefore, it is necessary to refer condition No.27 of purchase agreement which read thus:-

There shall be a cool off period of 10 days from the date of signing 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 working 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 of an e-mail to

10. Ex.P.3 indicates that on 3^rd June 2019 at 8.24 PM, the complainant cancelled the agreement and requested to refund rest of the membership fee to his bank account.  This option has been exercised by the complainant within 10 days from 01.06.2019.  On the same day, E-mail communication was sent to the complainant that his request will be considered earliest based on the priority.  But, the OPs failed to heed the request the complainant.  Accordingly, the complainant by sending Ex.P.4 legal notice called upon the OPs to refund balance amount of Rs.66,300/- after deducting Rs.3,800/- out of the payment amount.  Despite service of this legal notice, as could be seen from Ex.P.5 and Ex.P.6, the OPs failed to refund balance amount of Rs.66,300/-.  The OPs were not right in retaining Rs.66,300/- when the complainant has exercised his option to cancel the agreement within cool of period of 10 days from 01.06.2019.  The non-refund of amount of Rs.66,300/- amounts to deficiency of service on the part of OPs.  Therefore, OPs are liable to refund Rs.66,300/- within 120 days from 03.06.2019.  Even after expiry of 120 days from 03.06.2019, the non-refund of Rs.66,300/- amounts to deficiency of service.  The OPs have wrongly retained Rs.66,300/- after 03.10.2019.
11. The complainant claims interest at 18% p.a. This claim is exorbitant.  Therefore, it is proper to award compensation of Rs.15,000/- and Rs.3,000/- towards cost of litigation.
12.  Point No.3:- Having regard to the discussion made above, the complaint requires to be allowed in part.  The OPs are liable to refund Rs.66,300/- with compensation of Rs.15,000/- and Rs.2,000/- towards cost of litigation to the complainant.  It is proper to put a time limit on the OPs to refund this amount and in case of failure on the part of OPs, the OPs shall liable to pay interest on Rs.66,300/- after expiry of time limit till realization.  We proceed to pass the following 

  O R D E R

1. The complaint is allowed in part.
2. The OPs shall refund Rs.66,300/- with compensation of Rs.15,000/- and Rs.2,000/- towards cost of litigation to the complainant within 30 days from this date, failing which the OPs shall pay interest at 8% p.a. on Rs.66,300/- after expiry of 30 days till realization.
3. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 18^th day of March, 2022)

Documents produced by the Complainant are as follows: