Haryana

Panchkula

CC/208/2020

NEETU RAM - Complainant(s)

Versus

COUNTRY CLUB HOSPITALITY & HOLIDAYS LTD. - Opp.Party(s)

21 Apr 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Neetu Rani wife of Kamaldeep Singh Redhu Resident of house no.D2/34 FF DLF Valley Panchkula, Haryana.

                                                                           ….Complainant

Versus

1.     Country Club Hospitality & Holidays Limited, SCO-9, 2^nd Floor, Cabin No.203, Sector-26, Chandigarh.

2.     Country Club Hospitality & Holidays Limited, #6-3-1219/A, Second Floor, Country Club Kool, Begumpet, Hyderabad.

                                                                         ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.SushmaGarg, Member.

For the Parties:   Sh. Kamaldeep Singh, Advocate for the complainant.

Sh. Pradeep Sharma, Advocate for OPs No. 1 & 2.

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are thatthe sales persons, namely, Zara with Manoj, of OPs called the complainant many times on her husband’s mobile number saying that they have won a lucky free holidays coupon and fixed a meeting to give representation about the country club holidays and their hotels across all over India with great offers. The complainant alongwith her husband attended the said meeting on 10^th June, 2018 at Paras Down Town Mall, where the sales persons of Ops told that if the membership is taken in the name of female then they will get more discount on the Membership fees. They also told the complainant that the membership can be cancelled within 10 days of cooling period and if she is not satisfied with their services then the total membership fee will be refunded. On the allurement of the OPs, the complainant purchased the holidays package for 5 years from them by depositing Rs.70,000/- as total amount vide txn Id1297637395 on 10^thJune from debit card(Yes Bank) from her husband’s account. The Ops also charged AMC dated 20.04.2019 and after getting the money, the OPs issued the membership(CCCDG203V5LB29913). The OPs sends the free holidays offer on 10^th June 2018 on email for Solan and Corbett for 2 nights and three days. The joining offer was also not free but with a clause taxes applicable 999/- per days. The complainant with her family visited for that holidays resort in Solan on 13^th and 14^th June 2018 and they were surprised to see that it was not a country club resort it was a ordinary hotel to stay. The complainant with her family stayed for two days in the said hotel and experienced a horrible stay. There was no basic facility in the hotel. The details has been narrated in Para No.9 of the complaint. The complainant came back home and tried to contact sales persons/customer care of the OPs but no response received from them. She emailed the OP mentioning all the facts about such a bad experience and requested for cancellation of her holiday membership and return the money all in vain. Thereafter, the complainant served a legal notice dated 24.07.2018 upon the Ops but no reply of the same is received yet.  Due to the act and conduct of the OPS, the complainant has suffered financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice OPs No.1 & 2appeared through counsel and filed their written statement by raising some preliminary objections that complaint is not maintainable being based on false, frivolous and baseless; has not come with clean hands; time barred; territorial jurisdiction; the complainant does not fall within the definition of a consumer. On merits it is stated that the complainant alongwith her husband was only invited once for attending the presentation of the membership plans offered by OPs. It is submitted that the holiday voucher is given as complementary to the proposed member, which enable the proposed member to experience the resorts/hotels of OP company at nominal charges, which is independent of taking membership or not and accordingly, in the present case also holiday voucher was issued to complainant to experience the resort of OP company at Solan and Jim Corbett as per her choice which was totally independent of the membership. As per the Clause under the Agreement that the membership fee is not a refundable under any circumstances. It is also stated that clause no.10 under the agreement clearly talks about annual maintenance charges. Also, in the receipt(Annexure C-3) mention is about the annual maintenance charges of Rs.10,500/- which is payable irrespective of usage. Therefore, it clearly shows that complainant was aware of the said annual maintenance charges which were duly paid on 20.04.2019 after a gap of 10 months of entering into agreement dated 10.06.2018 without any protest or any grievances. The complainant was free not to accept the said holiday voucher if taxes applicable Rs.999/- per day mentioned therein was not acceptable to her. It is submitted that 18% as tax component on food bill is as per the law prevalent on that day. It is submitted that as per clause no.26 under the agreement, there is a cool off period of 10 days of entering into agreement by which member/complainant could see refund of the membership fees after deduction of nominal admission charges of 3800, post which the membership fee was non-refundable. It is further submitted that the email sent by the complainant to them, at a wrong email ID 

3.             Replication to the written statements of the OPs No.1 to 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             The learned counsel for complainant has tenderedthe affidavit as Annexure C-A along with documents Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand,the ld. counsel for the OPs No.1 & 2 has tendered the affidavit as Annexure R/A along with documents as Annexure R-1 & R-2 and close the evidence.

5.             We have heard the complainant as well as learned counsel for OPs No.1 & 2 and gone through the entire record including written arguments filed by the complainant as well as OPs No.1 & 2, minutely and carefully.

6.             Admittedly, the complainant availed the facility of holiday/ vacation package on 10.06.2018 vide membership no.CCCDG203V5LB29913 by making the payment of a sum of Rs.70,000/-to OPs on 10.06.2018(Annexure C-1) itself and in this regard, a sale agreement(Annexure R-2) containing detailed terms and conditions pertainingto the vacation package was executed between the complainant and the OPs. The complainant, feeling aggrieved with the services during her stay at Solan w.e.f.13.06.2018 & 14.06.2018sent a email to OPs on 16.06.2018(Annexure C-6) followed by another email dated 17.06.2018 (Annexure C-6(colly)) requesting for the refund of the deposited amount by cancelling the membership for holiday/vacation package.

                During arguments, the learned counsel for the complainant, while reiterating the averments as made in the complaint as well as affidavit (Annexure C-A) contended that the complainant accompanied by her family members experienced a very horrible stay, during their two days stay at Solan, on account of several deficiencies on the part of Hotel staff etc., the details whereof have been narrated in Para No.9 of the complaint. It is contended that the request for the cancellation of the agreement was duly sent to Ops by the complainant during the cool off period and thus, complainant is entitled to refund of the deposited amount as claimed in the complaint. Reliance has been placed upon the following judgments as under:

1. Sh. SukhwinderKaur&Anr. Vs. Country Club Hospitality & Holidays Limited & Others decided on 19.01.2021 passed by the DCDRC-I, U.T.Chandigarh
2. Sh. Bakshish Singh Vs. Country Club Hospitality & Holiday Limited & Others decided on 11.03.2019 passed DCDRF-II, U.T.Chandigarh.
3. Sh. Harbir Singh Vs. Country Club Hospitality & Holidays Ltd. &Anr. decided on 11.01.2019 passed DCDRF-II, U.T.Chandigarh.
4. Anita Verma Vs. Country Club Hospitality & Holidays Ltd. &Anr. decided on 03.10.2019 passed DCDRF-II, U.T.Chandigarh.

7.             The OPs have contested the complaint, apart from merits by raising preliminary objections qua the maintainability of the complaint on the ground that this Commission lacks the territorial jurisdiction to entertain and decide the present complaint. This objection is rejected as the complainant is resident of H.No.D2/34 FF DLF Valley, Panchkula (Haryana),which falls under the territorial jurisdiction of this Commission. As per provisions contained in Section 34(2)(d)of CP Act, 2019, complaint is maintainable in the Commission, where the complainant resides. 

                The next objection is that there exists no consumer dispute between the parties and in this regard, reliance has been placed upon the judgment passed by the Hon’ble National Commission in case titled Dalmia Resort International Private Limited Vs. Ranjana Gupta 1997(1) CPJ 63 and another judgment passed by the Hon’ble Chandigarh Consumer Commission in case titled as Sterling Holidays resorts Vs. V.P.Gupta 2003(3) CPJ 3.  The cited cases are of no help to the case of the OPs as the same are distinguishable on facts and law from the facts of the present case.

                On merits, it is reiterated that the complainant had deposited a sum of Rs.10,500/- on 20.04.2019 after a gap of 10 months w.e.f. the date of sale agreement(Annexure R-2) i.e. 10.06.2018 and thus, the complainant was willing to retain her membership. The learned counsel contended that the complainant has lost her right to claim the refund of the amount as she had deposited a sum of Rs.10,500/- as annual maintenance charges on 20.04.2019. Further, the contentions of the complainant that she had a horrible stay at Solan as alleged in Para No.9 of the complaint have been denied being false and incorrect as no documentary proof has been placed on record by the complainant in support of her contentions. It is contended that the holiday voucher was not free as alleged and the complainant was free not to accept the said voucher, if the terms and conditions of the same were not acceptable to her. Regarding the charging of annual maintenance charged(AMC), it is contended that the same was raised as per clause 10 of the Agreement (Annexure R-2). Concluding the arguments, the learned counsel prayed for dismissal of the complaint being baseless and meritless and reliance has been placed upon the judgment passed by the Hon’ble National Commission in case titled as Sanjib Kumar Dey Vs. Chabbi Dey (2015) (4)C.P.R.584 and another judgment passed by the Hon’ble National Commission in case titled as Dinakar Rao Vs. Greenfields 2011 decided on 22.02.2011.

                The relevant Clause i.e. 26 of the Agreement(Annexure R-2) which provides for withdrawal of the amount during  cool off period, for the sake of  clarity and convenience,is reproduced as under:-

                “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 days from  the date of invoking  the cool off period”.

8.             Admittedly, the complainant vide her email dated 17.06.2018 (Annexure C-6(colly)) had prayed for refund of her deposited amount i.e. 70,000/- by cancelling her membership. Undisputedly, the said request vide email dated 17.06.2018(Annexure C-6(colly)) was made by the complainant during the cool off period of 10 days as the agreement was executed on 10.06.2018 between the parties. As per clause 26 of the said Agreement, which is reproduced above, it was incumbent upon the OPs to refund the amount, but the OPs preferred not to adhere to the terms and conditions as contained in the clause 26 of the Agreement(Annexure R-2) as the OPs neither refunded the amount nor replied to the said email 17.06.2018(Annexure C-6(colly)). The payment of sum of Rs.10,500/- as annual maintenance charges on 20.04.2019 by the complainant do not absolve the Ops from its duty to refund the amount within the cool off period as per clause 26 of the Agreement(Annexure R-2). Needless to mention here that the OPs cannot be permitted to deviate from the explicit terms and conditions of the Agreement(Annexure R-2). The case laws as relied upon by the Ops are of no help to them as the complainant in the  present case has admittedly, exercised her option not to continue with the membership during the cool off period. Thus, we have no hesitation to conclude that there has been lapse and deficiency on the part of the Ops No.1 & 2while delivering services to the complainant; hence, the complainant is entitled to relief.

9.             Now adverting to the relief, it is found that a sum of Rs.70,000/- as membership fee and a sum of Rs.10,500/- have been deposited by the complainant with the OPs. The OPs are entitled to deduct a sum of Rs. 3,800/- as per clause 26 of the Agreement(Annexure R-2) while refunding the deposited amount to the complainant and thus, a sum of Rs.76,700/- is payable to the complainant, after a deducting the amount of Rs.3,800/-.

10.            As a sequel to above discussion, we partly allow the present complaint anddirect the OPs No.1 & 2 to compensate the complainant jointly and severely as ordered below;

1. The OPs are directed to refund a sum of Rs.76,700/- along with interest @ 9% per annum to the complainant w.e.f. the date of filing of this complaint till its realization.
2. To pay a sum of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay a sum of Rs.5,500/-as cost of litigation charges.

11.            The Ops No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the Ops No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:21.04.2022

Dr.Sushma Garg          Dr. Pawan Kumar Saini           Satpal     

           Member                     Member                          President

Note: Each and every page of this order has been duly signed by me.

                                        Dr. Pawan Kumar Saini                

       Member