Chandigarh

StateCommission

A/78/2019

Suman Dhull - Complainant(s)

Versus

Country Club Hospitality and Holidays Ltd. - Opp.Party(s)

Polly Shera & Sudhir KR. Pandey Adv.

14 Oct 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	78 of 2019
Date of Institution	18.04.2019
Date of Decision	14.10.2019

Suman Dhull wife of Sh. Virender Dhull, resident of  House No.241, MDC, Sector 5, Panchkula.            

                                         …..Appellant/Complainant.

                           Versus

1.  Country Club Hospitality and Holidays Ltd., Amrutha Castel, 5-9-16, Safabad Opposite Secretariat, Hyderabad –   500 063, through its Managing Director.

2.      Country Club Hospitality and Holidays Ltd., SCO 44-45, above HDFC Bank, Sector 9-D, Chandigarh – 160 009, through its Manager.

                                .... Respondents/Opposite Parties.

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                   MR. RAJESH K. ARYA, MEMBER

 

Argued by:

 

Sh.Polly Shera, Advocate for the appellant.

Sh. Pradeep Sharma, Advocate for the respodnents.

 

PER PADMA PANDEY, MEMBER

            This appeal is directed against the order dated 05.03.2019, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short ‘the Forum’ only), vide which, it dismissed Consumer Complaint bearing No.805 of 2017.

 2.            The Forum noted down the following facts narrated by the complainant :-

“1.  Adumbrated in brief, the facts necessary for the disposal of the instant Consumer Complaint are that trapped into buying the holiday package by false promises made by the Opposite Parties, the Complainant paid Rs.1,00,000/- and also issued a Cheque of Rs.1,00,000/- towards the total membership fee of Rs.2,00,000/-. Later, on learning that the Opposite Parties had misled her on the crucial information regarding payment of annual charges of Rs.10,500/- each year as well as its 10% increase every 3 years and reviewing her financial commitments, the Complainant requested the Opposite Parties to refund Rs.1,00,000/- and also to return the unencashed balance Cheque of Rs.1,00,000/-. However, the Opposite Parties put off her on one pretext or the other and eventually, forfeited the aforesaid amount in the garb of sale agreement (Annexure C-1). Feeling aggrieved, the Complainant got served a legal notice (Annexure C-2) upon the Opposite Parties, but the same did not yield the desired results. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant Consumer Complaint.

3.             The Forum noted down the following facts narrated by the Opposite Parties to the complaint filed by the complainant :-

“3.  Opposite Parties contested the Complaint and filed their joint written statement, inter alia, admitting the basic facts of the case. It has been pleaded that the Complainant was specifically told that she was required to pay annual maintenance charges of Rs.10,500/- which was subject to increase by 15% every 3 year on the last paid amount without prior notice. The Complainant also signed the Agreement after going through the same. As per the said agreement, the charges/fee paid is not refundable under any circumstances. However, as per Clause 26 of the Agreement there was a cool off period of 10 days from the date of signing the agreement wherein a Member can discontinue the Agreement by paying a nominal administration charges of Rs.3800/- to the company. After deduction of the aforesaid amount of Rs.3800/- remaining amount was to be refunded to the Member within 120 days of the date of invoking of cool off period. It has been pleaded that the Complainant unilaterally terminate the contract and sought refund of an agreed non-refundable amount that too after the free cool off period of 10 days. Pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Parties have prayed for dismissal of the complaint.”

4.             The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.             The parties led evidence, in support of their case.

6.             After hearing Counsel for the contesting parties and, on going through the evidence, and record of the case, the Forum, dismissed the complaint, as stated above.

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.             We have heard Counsel for the parties and have gone through the evidence and record of the case, carefully.

9.             Counsel for the appellant/complainant has submitted that the complainant informed the respondents/Opposite Parties  on 03.08.2017 having submitted her application form on 30/31/07.2017 and the respondents having filled up the date of sale agreement as 08.08.2017 in the blank application form was well within the period of 10 days as per Clause 26. He further submitted that the respondents did not present the second time of Rs.1 lakh lying with them for payment is proof of the fact that the complainant asked for refund of Rs. 1 lakh amount deposited well within a period of 10 days as per Clause 26 of the application form, as such, the Opposite Parties wrongly forfeited the amount of Rs.1 lakh. He further submitted that the Sale Agreement dated 08.08.2017 was never delivered to the appellant/complainant. He prayed for allowing the appeal and setting aside the impugned order.

10.           On the other hand, Counsel for the respondents/Opposite Parties has submitted that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal, filed by the complainant. 

11.           After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.

12.           The core question that falls for consideration before us is as to whether the Forum has rightly passed the impugned order. The answer, to this, question is in the affirmative. It is the admitted fact that the complainant took holiday package for the period of 30 years from the Opposite Parties by paying an amount of Rs.2 lakhs (Rs. 25,000/- in cash, Rs.25,000/- vide debit card on 30.07.2017 and Rs.50,000/- vide cheque on 31.07.2017 and further Rs.1 lakh by way of cheque – as per the appellant/complainant). The allegation of the appellant/complainant is that after payment of the aforesaid amount, she was told to pay annual charges of Rs.10,500/- each year as well as its 15% increase every three years in addition to the amount of Rs. 2 lakhs, as such, the Opposite Parties misled her. However, the Counsel for the respondents/Opposite Parties submitted that the Opposite Parties did not mislead the complainant and the said fact was already within the knowledge of the complainant. To prove the fact,  the Opposite Parties filed an application before the Forum for placing on record additional evidence in the form of a CD as well as transcript copy and delivery proof (Exhibits R-4 & R-5), which was opposed by the appellant/complainant by filing reply. The said application was allowed by the concerned Forum vide order dated 08.10.2018. Perusal of the transcript copy (Exhibit R-4) of conversation between the official of the Company and the complainant (at page No.97 of the appeal file). The relevant portion of the said conversation of s.no.94 & 95 read thus :-

“94. COMPANY OFFICIAL – OK ONE SECOND I AM EXPLAINING YOU MA’AM, YOU NEED TO PAY ANNUAL MAINTENANCE CHARGES (AMC) THAT IS 10,500/- + TAXES WILL BE THERE, I MEAN IT IS MANDATORY TO PAY EVERY YEAR ANNUAL MAINTENANCE CHARGES (AMC).

95. RECEIVER FEMALE – I AM PAYING.”

 Not only this, the Sale Agreement was signed by the complainant, in which, Clause “Annual Charges” clearly mentioned regarding the said charges of Rs.10,500/-. Therefore, it is clearly proved that the Opposite Parties did not mislead the complainant regarding payment of the aforesaid charges.

13.           The plea taken by the appellant/complainant that the application form was submitted on 30.07.2017 and the complainant informed immediately on 03.08.2017 for refund of money within 10 days as per Clause 26 but the Opposite Parties made the application form which was signed blank into a Sale Agreement and dated it subsequently as 08.08.2018, which is in itself manipulation of records to deny the claim of the appellant/complainant. The appellant/complainant further submitted that the Sale Agreement was never delivered to her.

                The aforesaid plea taken by the appellant/complainant is not maintainable in the eyes of law because the Opposite Parties duly annexed copy of Sale Agreement, which was duly signed by the complainant in English on each and every page. Therefore, it is clearly proved that the complainant is not an illiterate person, who blindly reposed faith upon the Opposite Parties and signed the documents, wherever, they said. Even the objection taken by the complainant that she has not received copy of Sale Agreement is also not maintainable because Proof of Delivery upon the complainant was duly annexed by the Opposite Parties at Exhibit R-6. So, it is clearly proved that the Sale Agreement was duly received by the complainant.

14.           With regard to forfeiture of Rs.1 lakh is concerned, Clause No.26 of the Sale Agreement reads thus :-

“26. 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.3800/- to the Company. After deduction of the aforesaid amount (Rs.3800/-) 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, Bagumpet, Hyderabad – 500016 through registered speed post or an e-mail to centralcustomercare@countryclubmail.com. After expiry of the aforesaid period the fee is non-refundable under any circumstances.”

It is clearly proved that the Sale Agreement was signed by the complainant. She has failed to prove that she applied for refund within 10 days, as per the aforesaid clause. Not only this, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as “Dinakar Rao Vs. Green Fields (India) Pvt. Ltd. & ors.” Revision Petition No.1474 of 2007, dismissed the revision petition with the observation that “Purchase Agreement signed by the petitioner specifically provides that membership fee is non-refundable”. Ratio of judgment in the case is fully applicable to the facts of the case in hand. We are of the view that the Forum has rightly said in para No.9 of the impugned order that “ ....It is important to note that the Complainant herself is a signatory to the Agreement and the conduct of the Complainant in unilaterally terminating the contract without any concrete reasons and asking for refund of an agreed non-refundable amount that too after the free cool of period of 10 days as enshrined in Clause No.26 of the Agreement, could not prove any deficiency in service on the part of the Opposite Parties.” So, we are of the view that the Forum has rightly dismissed the complaint filed by the appellant.        

15.           For the reasons recorded above, we are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity. Hence, the appeal, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum is upheld.

16.           Certified Copies of this order be sent to the parties, free of charge.

17.           The file be consigned to Record Room, after completion.

Pronounced.

14.10.2019.                                    

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

                                                           (PADMA PANDEY)

        MEMBER

 

(RAJESH K. ARYA)

MEMBER

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