Chandigarh

StateCommission

A/207/2017

Anita Rathore - Complainant(s)

Versus

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

Manoj Pundir Adv.

10 Jan 2018

ORDER

   STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	207 of 2017
Date of Institution	23.08.2017
Date of Decision	10.01.2018

 

Anita Rathore wife of Chander Kant Thakur, resident of House No.320/A, Ward No.13, Kurali, District Mohali.

                                        …..Appellant/Complainant

                                Versus

1.     Country Club Hospitality & Holidays Ltd., Regd. Office: Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad – 500063, through its Managing Director.

2.     Country Club Kool, Country Club India Ltd., Head Office: # 6-3-1219, 2^nd floor, Begumpet, Hyderabad-16, through its Managing Director.

3.     Country Club Fitness & Vacations, SCO 44-45, 2nd         floor, above Punjab National Bank, Sector 9-D, Chandigarh – 160015.

4.     Mr. Srimoy Banerjee, Venue Manager, Country Club Fitness & Vacations, SCO 44-45, 2^nd Floor, above Punjab National Bank, Sector 9-D, Chandigarh-160015.

                            …..Respondents/Opposite Parties.

BEFORE:   MR. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh. Manoj Pundir, Advocate for the appellant/ Complainant.  

Sh. Pradeep Sharma, Advocate for the respondents.

 

PER PADMA PANDEY, MEMBER

              This appeal is directed against the order dated 31.03.2017, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short ‘the Forum’ only), vide which, it dismissed Consumer Complaint bearing No.564 of 2016.

2.           The facts, in brief, are that the complainant and her husband, during meeting with the Executive of the Company on 02.05.2016, were offered a plan for an amount of Rs.1,45,000/- for a period of 10 years and it was explained that after availing the said plan, the complainant would be offered 6 days 7 nights trip each year for a period of 10 years to avail free services at the 5 star hotels of the Country Club and its Associates all over the Country. It was also assured that apart from paying Rs.1,45,000/-, the complainant need not to pay any single penny that too for the accommodation, food and cabs etc. at the visiting hotel of the Company. Due to the aforesaid assurance, the complainant made the payment of Rs.40,000/- with the credit card on 02.05.2016 itself. Thereafter, Agreement was also executed between the parties on 02.05.2016. It was further stated that the complainant desired the Opposite Parties to book trip for Shirdi, Mumbai and Goa from 19.06.2016 to 26.06.2016 and on the said date, the complainant was handed over the aforesaid Agreement executed by the Company on 02.05.2016. But, shockingly, contrary to the assurance earlier made, the authorized persons of the Opposite Parties  Company apprised the complainant that she had to make the payment of meals, cabs and hotel rooms separately. It was further stated that after receipt of the Agreement, the complainant came to know that there were certain hidden things, which were not disclosed to her and that the stamp paper, on which, the Agreement was executed, purchased by the Company in advance i.e. 21.04.2016. It was further stated that the Opposite Party Company apprised the complainant vide email dated 03.06.2016 that for her trip, she would have to pay extra amount of Rs.11,360/-, whereas, she was earlier assured that the complainant need not to pay anything except the Membership. As such, the complainant requested the Opposite Parties to refund the Membership fee vide email dated 06.06.2016 (Annexure C-4). Thereafter, the complainant also served a legal notice dated 09.06.2016 (Annexure C-5) on the Opposite Parties but to no avail.  It was further stated that due to the aforesaid act and conduct of the Opposite Parties, the complainant suffered a lot, which amounted to deficiency in service and indulgence into unfair trade practice on the part of the Opposite Parties.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.         In their written statement, Opposite Parties No.1 to 3 while admitting the factual matrix of the case, pleaded that as per the convenience of the complainant, the date of meeting was fixed i.e. 21.04.2016 instead of 02.05.2016, as alleged by the complainant. It was further stated that the complainant opted for Blue Season Plan, according to which, she entitled to 6 days 7 nights vacation every year for 10 years at a price of Rs.1,45,000/- and signed the Agreement dated 21.04.2016. It was further stated that the complainant failed to make the full payment and only made partial payment of Rs.40,000/- on 02.05.2016 and further sought time to make the remaining payment. Accordingly, the date on the Agreement was mentioned as 02.05.2016 and a Holiday Gift Voucher was also issued to the complainant. It was denied regarding any assurance was given to the complainant that she need not to pay a single penny apart from Membership fee of Rs.1,45,000/-. It was admitted that a request was made by the complainant on 26.05.2016 for booking trip for Shirdi, Mumbai, Goa through the Gift voucher issued to her because she could not utilize the vacations of the Opposite Parties through the membership, as she had paid only a partial amount and major balance amount of Rs.1,05,000/- was pending under Membership Agreement. However, the complainant also asked for meals apart from accommodation, to which, it was told that as per Gift Voucher, she was entitled only to accommodation and if she wanted to have meals, she was required to pay only an amount of Rs.11,360/- & also Rs.4,000/- as administration charges, as mentioned in the Gift Voucher itself, but she was not willing to pay anything and wanted everything free. It was further stated that after repeated reminders to the complainant, finally her stay was cancelled.  It was further stated that the complainant refused to pay the amount and asked for refund of money vide email dated 06.06.2016, which was duly replied by the replying Opposite Parties on the same day, informing her that the vacation charges were non-refundable. It was further stated that the replying Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

4.           Opposite Party No.4 did not file any reply and evidence/affidavit.

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

6.           After hearing Counsel for the 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 the 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 Forum did not consider the fact that the stamp paper, on which, the Agreement was executed had been purchased by the Company in advance i.e. on 21.04.2016 and even the conditions got typed by the Opposite Parties in so small letters in the Agreement, so that their customers could not read out the hidden things mentioned therein, as such, it is a clear cut case of fraud & cheating. He further submitted that the appellant was dissatisfied herself with the service of the Opposite Parties, immediately within 45 days of the Agreement, on 06.06.2016 sent an email to the Company for refund of the amount and she specifically written in the email that she has not got membership confirmation till date and further she sent a legal notice on 09.06.2016. Thus, the question to deposit the balance payment of membership within 45 days did not arise, when there was no confirmation of the membership of the appellant. He prayed for allowing the appeal and setting aside the impugned order. 

10.          Counsel for the respondents/Opposite Parties submitted that the Forum rightly passed the impugned order and prayed for dismissal of the appeal filed by the appellant/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.          It is an admitted fact that the complainant opted Blue Season Plan, according to which, she was entitled to 6 days 7 nights vacations every year for 10 years at the price of Rs.1,45,000/-. Out of the aforesaid amount of Rs.1,45,000/-, the complainant made payment of Rs.40,000/-. According to the complainant, the Agreement was executed between the parties on 02.05.2016. However, as per the Opposite Parties, the complainant signed the Agreement on 21.04.2016 but could not make the said payment on that date and, therefore, they offered to make the payment later on. Copy of the Agreement is annexed as Annexure R-2. At the time of arguments, Counsel for the Opposite Parties submitted that the complainant instead of making full payment, made partial payment of Rs.40,000/- on 02.05.2016 and requested for more time to make the remaining payment, as such, the date on the Agreement was mentioned as 02.05.2016 and on the same date Holiday Gift Voucher was issued to her (Annexure R-3).  It was denied by the Opposite Parties that any assurance was given that the complainant need not pay a single penny apart from membership fee of Rs.1,45,000/-.  It is not in dispute that the major balance amount of Rs.1,05,000/- was pending under membership Agreement. The Opposite Parties stated in their written statement, before the Forum, that the complainant also asked for meal apart from accommodation, to which, it was told that  as per Gift Voucher, she was only entitled to accommodation and if she wished to have meals, she was required to pay Rs.11,360/- and also Rs.4000/- as administration charges, as mentioned in the Gift Voucher itself, but she was not willing to pay anything. Thereafter, after repeated reminders to the complainant, finally her stay was cancelled. The Opposite Parties also annexed copies of emails (Annexures R-5 to R-8). The complainant vide email dated 06.06.2016 (Annexure R-9) refused to pay the amount and asked for refund of money and the said email was duly replied by the Opposite Parties on the same day i.e. 06.06.2016 informing her that the vacation charges was non-refundable (Annexure R-10).

13.          In her appeal, the appellant/complainant has specifically alleged fraud and cheating on the part of the Opposite Parties vis-a-vis the purchase of stamp paper in advance,  Opposite Parties No.1 to 3 in their written statement clearly stated that the complainant signed the Agreement on 21.04.2016 but made the payment on 02.05.2016, which is the date mentioned in the Agreement. It is settled principle of law that the allegations of fraud and cheating are beyond the purview of the Consumer Fora and the only remedy available lies with the Civil Court.

14.          With regard to allegation made by the complainant that terms and conditions of the Agreement were got typed in small letters, has no value, at all, because such allegations are an after-thought. So, the aforesaid allegation made by the complainant has no force, at all, and the same stands rejected.

15.          Even otherwise, with regard to non-refund of the amount of Rs.40,000/-, a bare perusal of the Agreement, which was signed by the complainant, after going through the terms and conditions of the Agreement, clearly depicts that she unconditionally gave her consent and she was fully aware that the vacation charges are non-refundable. In this regard, Condition No.20 of the Agreement reads thus :-

“The Second Party understands that the Vacation Charges is non-refundable under any circumstances and that the vacation fee is not a refundable deposit.”

 The aforesaid condition clearly depicts that the said charges of Rs.40,000/- are non-refundable and it is not the case of the complainant that the Agreement was signed by the complainant under pressure. Not only this, even the condition No.12 of the Agreement reads thus :-

“This is a limited and exclusive offer. In case full amount of fee is not remitted within 45 days from the date of initial payment, the money remitted till then would be forfeited by the CCHHL and vacations allotted, if any, would be cancelled.

In the present case, the complainant only made the payment of Rs.40,000/- and major amount of Rs.1,05,000/- is pending. Thus, we are of the view that the Forum rightly held in para Nos. 9 & 11 of the impugned order, which read thus :-

“9.  Perusal of the Purchase Agreement for Vacation Membership, e-mail communication exchanged between the Complainant & the Opposite Parties and various other documents placed on record, makes it abundantly clear that the Complainant paid Rs.40,000/- towards the part- payment of the Membership fee of the OP-Company. The Purchase Agreement for Vacation Membership, which was duly signed by the Complainant herself, shows that the Complainant unconditionally gave her consent to the Vacation of the OP-Company and she was fully aware that the vacation charges are non-refundable. In this regard, Condition No.20 of the said Purchase Agreement for Vacation Membership, is very much clear, which reads as under:-

“The Second Party understands that the Vacation Charges is non-refundable under any circumstances and that the vacation fee is not a refundable deposit.”

       A perusal of afore extracted Condition shows that it is specifically stated that the Vacation Charges are non-refundable. It is specifically stated that the vacation fee is not a refundable deposit. At any rate, it is not the case of the Complainant that the said Agreement was got signed from her after exercising any duress and pressure.”

“11.The Complainant in the prayer clause of the Complaint has sought a direction to the Opposite Parties to refund a sum of Rs.40,000/- paid by her towards Membership Fee, along with interest. However, the Complainant has miserably failed to satisfy this Forum as to how she is entitled for the aforesaid refund, especially when there is an express Condition in the Agreement that in case full amount of fee is not remitted within 45 days from the date of initial payment, the money remitted till then would be forfeited. The clause Condition No.20, reads as under:-

 

“This is a limited and exclusive offer. In case full amount of fee is not remitted within 45 days from the date of initial payment, the money remitted till then would be forfeited by the CCHHL and vacations allotted, if any, would be cancelled.

 

       A perusal of afore extracted Condition shows that it is specifically stated that in the event of non-payment of entire amount of fee within 45 days from the date of initial payment, the money remitted till then is liable to be forfeited by the OP-Company and vacations allotted, if any, would be cancelled. In this backdrop, to our mind, the Complainant cannot be held entitled to the refund of the Membership fee paid by her.”

 Hence, 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.

16.          For the reasons recorded above, 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.

17.          Since the present appeal is dismissed, so the application filed by the appellant/complainant for condonation of delay of 102 days (as per the appellant), as per office report 98 days in filing the appeal is rendered infructuous. 

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

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

Pronounced.                                           Sd/-

10.01.2018                                         (DEV RAJ)

PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

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