Chandigarh

DF-I

CC/920/2019

Ram Duggal - Complainant(s)

Versus

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

Devinder Kumar

31 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/920/2019
Date of Institution	:	09/09/2019
Date of Decision	:	31/10/2022

 

Ram Duggal son of Shri Pinjru Ram resident of House No.2115, Sector 21, Panchkula.

… Complainant

V E R S U S

1. Country Club Hospitality & Holidays Limited through its Managing Director/Director, Office : SCO 44-45, 2^nd floor, Above Punjab National Bank, Sector 9-D, Madhya Marg, Chandigarh 160009.
2. Mr. R. Ramakrishna, Manager Administration, M/s Country Club Hospitality & Holidays Limited, Regd. Office : Amrutha Castle, #5-9-16, Saifabad, Secretariat, Hyderabad 500063.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. P.K. Kukreja, Counsel for complainant
	:	Sh. Pradeep Sharma, Counsel for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh. Ram Duggal, complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that OP-1 is a Limited Company being controlled by the Managing Director and other Director and OP-2 is further responsible for day to day working of the OP company.  One of the employee of OPs namely Sh. Nilesh Kumar, Venue Manager, posted at branch office at Chandigarh had made a tempting offer of membership of country club and for that purpose complainant was called to Zirakpur.  The complainant was informed by the said employee that he will have to pay an amount of ₹65,000/- as membership fee instead of ₹85,000/- as produce price since OPs had been providing discount of ₹20,000/- to the complainant in case he makes payment of ₹65,000/- within 30 days. The complainant was further informed by the OPs that in case payment is made through credit card of HDFC Bank, same will be adjusted in installments since the facility of payment through installments has also been incorporated in clause 8 of the agreement.  In this manner, complainant had made payment of ₹65,000/- to the OPs on 19.8.2017 and the copy of payment proof of the said banking transaction is Annexure C-1. At that time, the terms and conditions were not reduced into writing nor the same were supplied to the complainant. Subsequently, an agreement had taken place between the parties on 22.9.2017 at Chandigarh in the premises of OP-1 i.e. branch office of addressee No.1 where the same was signed by the OP and the copy of the said agreement is Annexure C-2. The complainant never visited Hyderabad and the terms and conditions were only shared by the OPs with him on 22.9.2017.  When the complainant contacted his banker for the adjustment of payment of ₹65,000/- in installments, it was denied by the banker on the ground that they have no tie up with the OPs. Immediately after that complainant contacted the OPs for refund of ₹65,000/-, but, they refused to refund the same without reasonable cause in view of clause 25 of the agreement. After knowing about the terms and conditions of the agreement (Annexure C-2), complainant immediately requested the OPs vide letter dated 25.9.2017 (Annexure C-3) to refund the aforesaid amount and at that time he was informed by the OPs that since the cool off period had already expired on 28.8.2017, it was not possible to refund the said amount. Thereafter the complainant issued a legal notice dated 13.11.2018 (Annexure C-4) to the OPs, but, with no result.  The OPs were requested several times to admit the claim of the complainant, but, to no avail. Alleged the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs which caused mental agony and financial hardship to the complainant. Hence the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written statement, inter alia, taking preliminary objections of maintainability, limitation, suppression of facts, non-joinder of necessary parties and jurisdiction. On merits denied that any official of the OPs from Chandigarh contacted the complainant by alleging that the complainant is resident of Panchkula and he was given a telephonic call by the branch office of OP company situated at Paras Downtown Square Mall at Zirakpur, District Mohali on 19.8.2017.  It is further alleged that on the same day, brief presentation of various membership plans, benefits, their respective prices and terms and conditions was given to the complainant and the complainant had opted for the present vacation plan “Blue Season” for five years, which suited his requirement and pocket and the vacations agreement was signed by the complainant on the same day.  It is further alleged that by making the payment at cash out price, complainant had saved ₹20,000/- and if he had opted for payment in installments, the price would have been full product price i.e. ₹85,000/-. Receipt (Annexure C-1) is admitted.  It is further alleged that since the complainant is resident of Panchkula and the said agreement was also accepted by the corporate office of OP company on 22.9.2017 at Hyderabad, this Commission as no jurisdiction to try the consumer complaint as the cause of action has also not arisen within the territorial jurisdiction of the Commission.  It is denied that any legal notice was received by the OPs.  It is further denied that letter dated 25.9.2017 was received by the OPs.  It is further alleged that no request was received for refund of the aforesaid amount from the complainant and further when the complainant had not exercised the option within 10 days of the agreement, in pursuance to clause 25 of the agreement, there was no question of refund of the said amount. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, the complainant re-asserted his claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of their respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments. For the reasons to be recorded hereinafter, following points are formulated for discussion and proper adjudication :-

1. Whether there is deficiency in service or unfair trade practice on the part of OPs?
2. Whether the complainant is entitled for the claim as prayed for?
3. Whether the consumer complaint of the complainant is not maintainable?

Point No.(i) & (ii)

4. Both these points are interconnected, hence are taken together to avoid repetition of facts and evidence.
5. Admittedly, the complainant had become a member of the OP-1 i.e. Country Club Hospitality & Holidays Limited by paying an amount of ₹65,000/- on 19.8.2017, as is also evident form the bank transaction slip (Annexure C-1).  It is further an admitted case of the parties that the Vacations Agreement dated 22.9.2017 (Annexure C-2) was executed between the parties and both parties had agreed to comply with its terms and conditions.  The case of the complainant is that as the complainant, after receiving the vacations agreement, was of the view that its terms and conditions do not suit him, therefore, he approached the OPs at Chandigarh with letter dated 25.9.2017 (Annexure C-3) and had requested to refund the amount and when the said amount was not refunded by the OPs, complainant issued a legal notice dated 13.11.2018 (Annexure C-4) to the OPs requesting them to refund the membership amount, therefore, the complainant is entitled for the reliefs as prayed for in the consumer complaint, as there is deficiency in service and unfair trade practice on the part of the OPs.  On the other hand, the defence of the OPs is that since the complainant has not requested for refund of the aforesaid amount as per clause 25 of the Vacations agreement (Annexure C-2) i.e. within 10 days from the signing of the Membership Agreement, consumer complaint of the complainant, being false and frivolous, is liable to be dismissed.
6. Close scrutiny of the entire evidence on record of the case file, coupled with the rival contentions of the learned counsel for the parties, are discussed as under:-

1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant became member of the OP-1 by paying an amount of ₹65,000/- as membership fee and both the parties had executed vacations agreement (Annexure C-2) and had also agreed to abide by its terms and conditions, the case is reduced to a narrow compass as it is to be determined if the complainant had approached the OPs within 10 days of the execution of the agreement i.e. cool off period as per clause 25 of the agreement (Annexure C-2) and the complainant is entitled for the refund of the amount after deduction of nominal administration charges of ₹3,800/-, as is the case of the complainant, or if the complainant could not approach the OPs within the aforesaid period of 10 days in pursuance to clause 25 of the agreement and the consumer complaint is not maintainable.
2. However, from the foregoing admitted and disputed facts by the parties, it is clear that the entire case of the parties is revolving around Annexure C-2 i.e. Vacations Agreement (No club/fitness) and in order to determine the real controversy between the parties, it is to be seen if the complainant has approached the OPs as per clause 25 of the agreement.  In order to prove his case, complainant has relied upon two documents in support of his case i.e. hand written letter (Annexure C-3) and the legal notice (Annexure C-4) to prove that he had approached the OPs within 10 days i.e. cool off period as per clause 25 of the agreement. On the other hand, OPs have categorically disputed the aforesaid documents by alleging that no such letter or legal notice was ever received by them. 
3. So far as the first document i.e. the hand written letter dated 25.9.2017 (Annexure C-3) relied upon by the complainant is concerned, same has been challenged by the OPs on the ground that it was never received by their office and that the same has been fabricated by the complainant later on in order to file the present consumer complaint, as has also been contended by the learned counsel for the OPs.  Close scrutiny of this document clearly indicates that the same does not mention the complete address of the OPs since nothing has been stated in the letter at which office the said letter was handed over to the authorized officer of the OPs.  The genuineness of this document further comes under suspicion from another document of complainant i.e. copy of legal notice (Annexure C-4) which was issued after about 45 days of the letter dated 19.8.2017 (Annexure C-3), since the said notice, sent on 13.11.2018, nowhere makes reference of the document (Annexure C-3) which makes it further clear that in fact, in order to cover up his case as per clause 25 of the agreement, complainant had prepared Annexure C-3 in the back date i.e. 25.9.2017.  Had Annexure C-3 been in possession of the complainant at the time of sending the legal notice, reference of same ought to have been made in the said legal notice as well.  Moreover, even the issuance of legal notice by the complainant is also doubtful since the complainant has not produced any postal receipt or acknowledgement showing that the said legal notice was sent by him to the OPs.
4. The learned counsel for the OPs has relied upon the judgment of the Hon’ble National Commission in case titled Sanjib Kumar Dey & Anr. Vs. Chabbi Dey & 2 Ors., Revision Petition No.631 of 2015 decided on 28.10.2015 in which it was held that the documentary evidence will get preponderance over the oral document because it is well known axiom of law that “men may tell lies but the documents cannot”.  The relevant headnote of the said judgment is reproduced as under :-

          “Consumer Protection Act, 1986 Section 21(b) SBI Life Unit Plus Super policies – In instant case, complaint alleging to have invested ₹6,00,000/- by obtaining two SBI Life unit plus super policies – Forged documents – Held, it is difficult to fathom without written proof how reliance can be placed on the oral submission of complainant – The documentary evidence will always get preponderance over the oral evidence because it is well known axiom of law that ‘men may tell lies but the documents cannot’ – Case of the complainant must stand on its own legs – Loopholes in the defence fall short of proving the case against respondent as the above cited judgment of State Commission wrongly suggests – Respondents are entitled to benefit of doubt though this finding should not be binding upon the criminal court – Impugned orders passed by fora below set aside and dismissed the complaint – Revision accepted.”

In the case in hand, as it has already been discussed above that Annexure C-3 does not seem to be genuine, therefore, no reliance can be made to the same in the present consumer complaint.  Similarly, as it is not proved on record that any legal notice has been sent to OPs as discussed above, copy of notice (Annexure C-4) is of no help to the complainant.

5. Now another question that arises for determination in this case is if the complainant had requested the OPs within the cool off period to refund the aforesaid amount in pursuance to clause 25 and he is entitled to the said amount. The relevant clause 25 of the agreement (Annexure C-2), which has also not been disputed by either party, is reproduced hereunder :-

        “25.    There shall be a cool off period of 10 days from the date of signing of the membership Agreement wherein member can discontinue the membership by paying a nominal administration charges of ₹3800/- to the Company.  After deduction of the aforesaid amount (₹3800/-) remaining amount would be refunded to the member.  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, Begumpet, Hyderabad – 500016 through registered post or an e-mail to centralustomercare@countryclubmail.com. After expiry of the aforesaid period the Membership fee is non-refundable under any circumstance as per clause No.26 of the membership agreement.”

As it has already been discussed above that Annexure C-3 is not genuine document which nowhere shows to whom and at what address the same was handed over to the OP and also that nothing has been revealed about the said document in Annexure C-4, sending of which by the complainant to the OPs has also not been proved and further it is proved on record that the complainant had not approached the OPs in pursuance to clause 25 i.e. either through registered speed post or an email to the centralcustomercare@countryclubmail.com within the cool off period of 10 days and even if it is presumed that the agreement was executed on 22.9.2017, as is the case of the complainant, complainant is not entitled for refund of the said amount. 

7. In view of the foregoing discussion, it is safe to hold that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of OPs and he is not entitled for the prayed reliefs.

Point No.(iii)

8. The consumer complaint has been resisted by the OPs on the ground that this Commission has no jurisdiction to try the consumer complaint as the vacations agreement (Annexure C-2) was not executed at Chandigarh, rather the same was executed at the branch office of the OP at Paras Downtown Square Mall, Zirakpur.  However, in order to prove this fact, OPs have not produced any document showing that the said agreement was executed by the complainant at Zirakpur or to prove that OP-1 has its branch office at Paras Downtown Square Mall, Zirakpur, District Mohali. As the complainant has come up with a specific plea that the employee of the OPs namely Sh. Nilesh Kumar, Venue Manager, posted at branch office Chandigarh called him and tempted him for membership, it is unsafe to hold that this Commission has no jurisdiction to try the consumer complaint, especially when it has come on record that the cause of action accrued to the complainant from whom the said vacations agreement was got executed by the OPs at Chandigarh.
9. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
10. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 31/10/2022 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member