Chandigarh

DF-II

CC/697/2018

Naresh Madan - Complainant(s)

Versus

Country Club Hospitality & Hoildays Ltd.(CCHHL) - Opp.Party(s)

Adv. Gaurav Pathak & Ritu Pathak

04 Mar 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	697/2018
Date of Institution	:	07.12.2018
Date of Decision	:	04.03.2021

 

                                       

                       

 

Naresh Madan s/o Late Sardari Lal aged about 71 years r/o H.No.1212, Sector 42-B, Chandigarh -160036.

                                ...  Complainant.

Versus

 

1. Country Club Hospitality & Holidays Ltd., (CCHHL), Head Office # 6-3-1219, 2^nd Floor, Country Club Kool, Country Club India Ltd., Begumpet, Hyderabad-16.
2. Srimoy Banerjee, Manager, Country Club Hospitality & Holidays Ltd., (CCHHL), SCO 44-45, 2^nd Floor, Sector 9-D, Chandigarh.
3. Managing Director, Country Club Hospitality & Holidays Ltd., (CCHHL), Head Office # 6-3-1219, 2^nd Floor, Country Club Kool, Country Club India Ltd., Begumpet, Hyderabad-16.

…. Opposite Parties

 

BEFORE:
		SHRI RAJAN DEWAN,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Gaurav Pathak, Adv. for the complainant.
	Sh.Pardeep Sharma, Adv. for the OPs.

 

      

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainant are that  on 19.12.2017, he received a call that his name was selected out of lucky draw.  He alongwith his wife reached the Office of the OPs where OP No.2 allured them to purchase a holiday package at a discounted rate. The complainant enrolled to the membership of the OPs by paying a sum of Rs.2.45 lacks.   On discussion amongst the family members i.e. complainant’s daughter who resides abroad, the complainant realized that they do not actually need such vacation tours and moreover, when he offered the vacation to his daughter, she refused to avail it. Finally, he decided to return/cancel the membership within cool off period of 10 Days and sent an e-mail dated 21.12.2017 to the Central Customer Care and Local Manager (OP No.2) requesting for cancellation/surrender of the membership within two days of its purchase. On coming to know about the cancellation of the membership, OP No.2 visited the premises of the complainant and persuaded him and his wife not to cancel the membership by stating that if they cancel the membership then he was to be terminated from the job and it was a bad situation for him as he is the only bread winner of the family. He offered that instead of cancellation, he could transfer the membership to some other client and pay in cash.  The complainant had recently lost his son and considering OP No.2 of the same age and lone bread winner of the family, the complainant got sympathic and trusted his words and OP No.2 asked him to open his e-mail account and then OP No.2 sent an e-mail dated 27.12.2017 from e-mail account of the complainant to his email ID stating “pl. Ignore the previous mail”.  He continued to demand the refund and cancellation of the membership but OP No.2 kept on replying to the messages and delayed the matter.  Finally, in July, 2018 when the complainant pressed OP No.2 for returning money, he flatly refused to transfer the membership or return the money. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.     
2.         In their written statement, the OPs have pleaded that the complainant along with his wife visited the OPs enquiring about various memberships plans and he opted for “Blue Season” membership at a negotiable agreed one time non-refundable fee (cash out price) of Rs.2.45 lakhs which was valid for 30 years and under which he and his wife/spouse, 2 children below 12 years of age were entitled to holiday in India for the next 30 years and accordingly signed the sale agreement on 19.12.2017 itself.  It was pleaded that the complainant after thoroughly going through the terms and conditions of the contract and after understanding the same and being fully satisfied signed the same without any protest or suggestion.  It has further been pleaded that as per e-mail dated 21.12.2017, the complainant wanted to withdraw the membership within cool off however immediately after 1 day on 23.12.2017 he sent another e-mail by mentioning ‘pl. Ignore the previous mail”.  It has further been pleaded that since the request within the cool off period was taken back by the complainant himself, therefore, the OPs did not refund the membership fee.  It was denied that OP No.2 himself sent e-mail dated 27.122017.  It has further been pleaded that the membership fee is not a refundable deposit and not an investment and the same is not refundable under any circumstances. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating the averments as made in the complaint.
4.         We have heard the Counsel for the parties and have gone through the documents on record.
5.         It has been argued on behalf of the complainant that the OPs have failed to refund the amount of Rs.2.45 lakhs to the complainant despite his repeated requests and e-mail dated 21.12.2017 within the cool off period of 10 days.       
6.         On the other hand, it has been contended on behalf of the OPs that no doubt, the complainant had sent an e-mail dated 21.12.2017 within the cool off period but subsequently he sent e-mail dated 27.12.2017 to ignore the said e-mail. It has also been contended that the membership fees is non-refundable under any circumstances.  However, we are of the considered opinion that the complainant who did not avail any facility of the said membership of the OPs and even made a request to the OPs to discontinue/cancel the membership cannot be deprived to seek refund of his hard earned money paid to the OPs towards the membership in question. As regards the plea of the OPs that the membership fee is non-refundable under any circumstances is concerned, they cannot be allowed to take the advantage of the terms and conditions of the agreement which are one sided.  Here reference is made to the judgment of the Hon’ble Apex Court, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018 decided on 2.4.2019,  wherein it was held where the terms and conditions of the agreement are one sided, the consumer is not bound with the same.     It has been observed by this Commission that these membership agreements are only a standard format of contract where the weaker party remains on the receiving end and therefore, it is the duty of the Consumer Fora to protect the gullible consumers from the hands of unscrupulous traders, which also is the prime aim & object of ‘The Consumer Protection Act, it being a benevolent piece of legislation. Thus, the terms and conditions, if any, were one sided, the same cannot be blindly foisted upon the consumer.  By not refunding the hard earned money of the complainant, the OPs have resorted to unfair trade practice and, thus, the complaint is liable to be accepted.
7.         Keeping into consideration the fair play and interest of justice, the complaint is allowed with direction to the OPs to:-
   1. Refund Rs.2,45,000/- along with interest @ 9% p.a. from the date of its deposit till its realization to the complainant.
   2. Pay a sum of Rs.11,000/- towards compensation for mental agony and physical harassment to the complainant.
   3. Pay a sum of Rs.7,000/- as litigation expenses.
8.      This order be complied with by the OPs, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(ii) shall also carry interest @9% per annum from the date of this order till its actual payment besides compliance of other directions.
9.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

 

Announced 04/03/2021	Sd/-
	(RAJAN DEWAN) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER