DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.245/2015
Sh. Ajesh Yadav,
S/o Sh. Makkhan Lal Yadav,
R/o H. No.179, Street No.9,
Libaspur, Delhi-110042
….Complainant
Versus
1. M/s Country Club (India) Ltd.,
Through its Directors,
A-25, Upper Ground Floor,
Community Centre (Near Sapna Cinema)
East of Kailash, Delhi-110065
Also at:
Amrutha Castle, 5-9-16,
Saifabad, OPP. Secretariat,
Hyderabad-500063
2. Mr. R. Ramakrishna
M/s Country Club India Limited
Manager Administration,
Amrutha Castle, 5-9-16,
Saifabad, OPP. Secretariat,
Hyderabad-500063
….Opposite Parties
Date of Institution : 15.09.2015
Date of Order : 30.01.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K Tyagi
1. Complainant has requested to pass an award directing M/s Country Club (India) Ltd (hereinafter referred to as OP) to release the claimed amount of Rs.5,10,000/- alongwith pendent elite and further interest @16% compounded at monthly rate plus penal interest @2% from the date of filing the complaint i.e 09.02.2015 till the date of realization; (ii) to pay a sum of Rs.40,000/- as cost of litigation etc.
2. Brief facts of the case are as under:-
The complainant took the membership of the OP Club for Rs.1,50,000/- on discounted rate for the period of 30 years. It was also assured by the OP’s executives that the company shall provide two overseas trips in the affiliated properties of OP-1 in Dubai and Bangkok anytime during the currency of the membership period. The OP’s representative also stated that there is cooling off (free look) period of 10 days during which the member can cancel the membership and get the full refund. The Complainant gave Rs.10,000/- through his debit card at that point and he signed the agreement. On This, the OP’s representative made available the swipe machine and took Rs.50,000/- through his credit card and Rs.40,000/- through his wife’s debit card and Cheque of Rs.50,000/- was also obtained.
3. The Complainant got call from OP’s representative stating that the Dubai trip was available in the first year of the purchase of membership. On this, the complainant told the OP’s representative that initially, he was informed that the trip can be availed any time during the currency of membership period of 30 years. Later on, with the intervention of the Sr. Executives of OP, it was told that the trip can be availed within 2 years of the purchase of membership. The executive of OP also advised to send e-mail for cancellation of the membership if not satisfied with the terms & conditions. When the complainant stated that he would advise his bank to stop the payment. On this, he was made to believe that on the stoppage of payment, the other payments made so far would be in peril. The Complainant sent e-mail for cancellation of membership and also sent message to this effect through ‘Blue Dart’ the courier. He received e-mail in this regard stating therein that one representative from Delhi Office would meet him in this regard. The copy of email for cancellation is exhibited at Annexure-C-3. Another representative of OP also advised him to send his cancellation intent through post only. When he brought to the notice of Karan Gupta, the previous representative of OP, he advised that said e-mail of cancellation may be sent to Mr. Varun Reddy, Director in the Company of OP at his e-mail address. The Copy of said email is enclosed as Annexure-C-4. Meanwhile on 19.01.2015, the Complainant got the membership kit from OP despite cancellation e-mail from the Complainant within 10 days of “Free look”. The executive of the OP who was mover in membership stated that he had left the job and provided the mobile of Mr. Bharat, Law Executive of Delhi Office. Earlier, he was advised that the refund would be given within 45 days. The Complainant being aggrieved with mal-practice of OP, got legal notice on 09.03.2015. The OP sent the reply of legal notice on 08.04.2015, based on false submission. Hence, the complaint.
4. OP, on the other hand, filed its reply (WS) interalia raising some preliminary objections. OP stated that none of contrary, inconsistent allegation, contentions should be deemed to be admitted by OP unless specifically admitted. The name of the M/s Country Club India Ltd. has been changed to M/s Country Club Hospitality and Holiday Ltd. w.e.f 27.11.2014. It is a fact that the complainant visited the office of OP and showed interest in Blue Membership for which Rs.1,50,000/- was paid instead of Rs.1,70,000/- being cash-out price discount. It was made clear to the Complainant that the amount so given to OP is for purchase of said membership. The same is non-refundable. It is not a deposit of complainant with OP, this fact was reiterated in membership form also. The Complainant was entitled for 06 night &07 day’s annual vacation in blue-season for 30 years. Additionally, he was offered vouchers of 06 nights & 07 days for Dubai to be availed within one year of registration date of membership. The membership kit alongwith DAE card was made available to him on 17.01.2015.
Preliminary objections:-
- Jurisdiction
As per Clause 45 & 46 of the Agreement, in case any dispute arises between the parties, the jurisdiction shall lie as per Hyderabad Office & Arbitration and Conciliation Act, 1996 shall be invoked. The membership fee shall be non-refundedable. The OP has reproduced the said clause as under;
“The 2nd party understand that the vacation charges are non-refundable and under any circumstances, the vacation fee is not a refundable deposit”
No cause of action arose in favour of OP so question of deficiency in service does not arise. It was stated that the complainant himself waived the clause of ‘free look’ as per Clause 39 of the agreement. The verbal assurances of this agreement given by representative of OP are superceded by the Written Agreement once the same is signed by complainant. Hence, the Clause of said agreement prevailed on the verbal assurances given by representatives of OP as per Clause 38.
5. Both the parties filed evidence in affidavits. The OP was given last opportunity to file written arguments before the next date of hearing i.e 23.08.2022 as ordered by this Commission on 25.04.2022. The written arguments were not filed on or before 23.08.2022. On the next date i.e 23.08.2022, Case was listed for final arguments for 17.11.2022. On 17.11.2022, oral arguments were heard & concluded. The written statement is on record so is rejoinder.
6. This Commission has gone into the entire gamut of issues raised herein. It is a fact that the Complainant either on false promises or with full sincerity, purchased the blue membership of the OP’s company entitling him certain benefits. The Complainant stated that there were many gaps between verbal assurances. Earlier he was told to avail foreign trip during the currency of membership period of 30 years. Later on, he was briefed that of trip to Dubai can be availed in the first year of its registration of membership. The same was not found acceptable to him. And accordingly, he email dated 01.01.2015 to the OP for cancellation of membership and couriered the same email on 02.01.2015. The same email is enclosed as evidence by the complainant. It is also noticed that the membership kit was received on 17.01.2015 as reported by OP in its reply.
7. It is noteworthy to mention here that the complainant was asked to breakup of the amount claimed in the complaint. The complainant moved an application under Order 6 Rule 17 of CPC, 1908 and provided breakup as under:-
8. Claimed amount Rs.5,10,000/- (Rs.150,000/- amount paid by complainant, + Rs.10,000/- towards conveyance etc. charges + Rs.3,50,000/- towards compensation). The said application was allowed by this forum.
9. Complainant also vehemently denied some of the preliminary objections on jurisdiction, invocation of the Arbitration & Conciliation Act, 1996, refund of amount etc vide its replication.
10. The OP vide its reply, clearly exhorted that the non-refundable Clause clearly states that Complainant is bound by the same clause as agreed by him. OP placed its reliance heavily on Clause of Agreement which is reproduced here:-
“The 2nd party understand that the vacation Charges is non-refundable under any circumstanes and that the vacation fee is not a refundable”
11. The OP again made same exhortation in its evidence-in-affidavit.
12. This Commission closely looked into this aspect of vacation charges. It appears that the Complainant did not deposit vacation charges. The OP had tried to confuse with agreement of vacation with membership agreement. Since, the OP itself placing its reliance on the vacation charges, therefore, this Commission cannot go beyond his averments in writing, in its written statement & evidence-in-affidavit. Moreover, this Commission notices that the cancellation of membership in Free look period should have been accepted by the OP as the membership kit was received by Complainant. In 17.01.2015 much after his e-mail of cancellation intent on 19.01.2015 or 02.01.2015, In such circumstances, the company cannot be allowed to retain the whole amount deposited by complainant i.e Rs.1,50,000/-. We strongly opine that the OP should be allowed to retain 10% of the deposited amount as administrative expenses. The remaining amount of Rs.1,35,000/- is to be paid by OPs within two months from the receipt of this order alongwith interest @4% on the deposited amount from the date of cancellation of membership intent i.e 01.01.2015 till its realization of the entire amount failing which an interest shall be levied @ 7% p.a. till its realization.
File be consigned to the record room and order be uploaded on the website.
