DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.393/2017
Mrs. Sharmila Goyal
W/o Sh. Sunil Goyal
R/o S-473, Greater Kailash-I,
New Delhi
….Complainant
Versus
- Country Club Hospitality & Holidays Limited
Formerly known as Country Club India Limited
Having its Registered Office at
Amrutha Castle, 5-9-16, Saifabad,
Secretariat, Hyderabad-500 063
- Country Club Hospitality & Holidays Limited,
1st Floor, C-Block, Hudco Palace, Ansal Plaza
August Kranti Marg, Andrews Ganj, New Delhi-110049
….Opposite Party
Date of Institution : 10.11.2017
Date of Order : 08.07.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. Briefly put, the Complainant entered into a holiday agreement with Country Club Hospitality & Holidays Limited (hereinafter referred to as OP). Complainant took membership of Platinum Club + 30 years 6N7D white U12 membership and paid consideration of Rs.2,75,000/- to OP for the same.
2. It is stated that the representatives of OP-2 informed the Complainant about the advantages of the membership and got the signatures of the Complainant on blank agreement. It was further promised that the membership card shall be delivered to the Complainant within three weeks from the day of payment received i.e 31.05.2017. However, in the month July, 2017, when the complainant received photocopy of the agreement alongwith membership cards, the complainant was shocked to learn about the misrepresentations made by the representatives of OP to the Complainant at the time of enrollment. It is also stated that OP company did not provide the membership card of the son of the Complainant although he was also entitled to all the facilities provided by OP Company under such membership programme.
3. It is next stated that OP-2 also misrepresented that the Gym facilities at Golds Gym, were available for lifetime whereas as per the Agreement dated 05.06.2017, the Gym facilities were only valid up to 22.06.2018 and that too for Talwalker’s Gym not the Gold’s Gym, which could only be availed at the properties owned by OP company. It was also misrepresented that the complainant could access the reservation and availability only at the website of DAE and members of OP company can enjoy their vacation at the properties of DAE. However the Complainant after speaking with the representative of DAE came to know that the said facilities were available only after paying a sum of Rs.12,000/- (USD 200) and the same is only valid for a period of six years. It was further revealed that the respondents have only limited properties and rest of the properties were of DAE. The Complainant was constrained to pay a sum of Rs.12,000/- subsequently as the said fact was deliberately and mischievously concealed by OP Company at the time of enrollment.
4. It is stated that OP also misrepresented that the membership is for 99 years, whereas Clause 08 of the Vacation Agreement clearly said the same is renewable after 30 years. It is further stated that Clause 24, of the Club Membership Sale Agreement dated 05.06.2017 which states that the agreement in printed form SUPERCEDES all other communication is illegal, void and amounts to breach of trust. Due to various misrepresentations made by OP, Complainant vide letter/email dated 11.07.2017 informed OP that she was not interested with their membership programme and requested to refund the membership fee of Rs.2,75,000/-alongwith Rs.12,928/- paid to the DAE.
5. As OP paid no heed to the request, Complainant approached this Commission with directions to OP to pay sum of Rs.14,16,000/- and to award pendent lite and future interest @18% per annum on the aforesaid amount alongwith cost of the complaint.
6. OP resisted the complaint stating interalia that Complainant being an educated person, after careful deliberations and on being thoroughly satisfied with all the terms & conditions of the membership signed the binding agreement with OP. It is stated that OP has many schemes and different kind of packages, therefore it is necessary for parties to enter into an agreement to ensure that there is clarity of terms & conditions and the Complainant is aware of his entitlements.
7. It is next stated that the Complainant has received an iphone and also that she was sent Air Ticket vouchers by OP vide an Email dated 23.06.2017 as per Membership Eligibility, fact which she has withheld to mislead this forum. Further, it is stated that Complainant insisted on getting waiver of AMC despite agreeing to the contrary and signing the agreement. As regards, the son of the Complainant not getting membership it is stated that Complainant herself failed to provide date of birth of her son which resulted in the card not being issued to her child. Further it is stated that the Complainant has misrepresented about the lifetime membership for Gym and Spa facility . As Talwalkar Gyms Annual Membership fee ranges from about 12,000/- INR to about Rs 1,00,000/- per month, the Complainant admittedly received a year’s membership as part of additional benefit.
8. It is stated that due to AMC defaults committed by the Complainant, her membership has been put in abeyance until she clears her dues of Rs 12,075/-. In the above stated facts and circumstances, it is prayed that compliant be dismissed with exemplary costs.
9. Rejoinder is filed on behalf of the Complainant, wherein it is clarified that since the membership of OP was being made in the name of a lady and entire payment was made on the spot a gift of iphone as token was given to the Complainant. Further, it is clarified that Air Ticket vouchers given by OP were not utilized as the conditions imposed by OP were not acceptable to the Complainant. It is also stated by the Complainant in the rejoinder that there is not a single outlet of Talwalker’s Gym in Delhi. Therefore, receiving of additional benefits by OP does not arise.
10. Evidence by way of affidavit and Written Arguments on behalf of parties are filed. Submissions made on behalf of complainant are heard. Material placed on record is perused.
11. Preliminary objection raised by OP as regards territorial jurisdiction is found to be unsustainable. As it is seen from the material placed before us that the agreement between parties was signed, membership card was delivered and gift was handed over to the complainat within the jurisdiction of this Commission. As regards Clause 49 and 50 of the agreement between parties, it is settled law that territorial jurisdiction mandated by a statute cannot be ousted by an agreement. As regards the Arbitration clause Section 100 of Consumer Protection Act, 2019 provides as under-
“100. 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.”
12. Second, preliminary objection raised by OP is that the agreement/contract signed by the Complainant binds the parties as per law. For reference Clause 24 of the Club Membership Sale Agreement is reproduced herein:
“Second Party understands that this Agreement (in the printed form ONLY) SUPERCEDES any communication whether written or oral or any variation or hand written remarks rewriting on the printed Agreement made by the Agents and/or representatives of CCHHL or Second party to this Agreement and/or any other written communication issued by CCHHL representatives (including on company Letter Head or STAMP PAPER). Further, Second party understands that the benefits and terms of membership as set out in this Agreement are final and binding on CCHHL, and Second Party.”
13. The above said clause is totally arbitrary and one sided, which gives liberty to OP and its representatives to misrepresent and lure the consumers. By showing vivid rosy picture to the consumers and entrapping them to sign on the dotted lines of the printed format without giving them enough time to go through the fine print and number of clauses. Therefore, we are of the opinion that OPs objection that since the Complainant has signed on the Club Membership Sale Agreement and is now bound as per law is rejected. As we find certain clauses to be unreasonable and unfair. It is settled law that the terms of the contract are not invincible or indestructible, if these are arbitrary, unreasonable or one sided.
14. It is not in dispute that the Complainant after having paid Rs.2,75,000/- did not avail any services of OP. It is seen that within 02 months of signing the Club Membership Sale Agreement ,Complainant sought refund from OP being dissatisfied by false representations made by representatives of OP. Therefore, this Commission is of the view that as complainant has not availed any services, OP is not entitled to retain full membership fee of the Complainant. However, it is seen that Complainant accepted an iphone given by OP as a promotional benefit. Therefore, we are of the opinion that ends of justice would be met if OP is allowed to retain Rs.60,000/- towards the cost of iphone and refund the remaining amount.
15. Accordingly OP is directed to refund Rs. 2,27,928/- to the Complainant @5% per annum from the date of refund sought i.e 11.07.2017 within 03 months from the date of receipt of the order, failing which OP shall pay Rs. 2,27,928/- @9% per annum till realisation. Additionally, OP is directed to pay Rs.5,000/- towards litigation cost.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
