Delhi

South West

CC/10/114

DR. HANSA GUPTA - Complainant(s)

Versus

COUNTRY CLUB INDIA LIMITED - Opp.Party(s)

24 Aug 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VII

GOVT. OF N.C.T. OF DELHI

LOCAL SHOPPING COMPLEX, SHEIKH SARAI, NEW DELHI-110017

 

 

Complaint No. DF. VII/114/10                                                  Dated:

 

In the matter of:

Dr. Hansa Gupta & Er. Deepak Gupta

H.No. 68, Sector-14,

Gurgaon, Haryana – 122007                                                     ….Complainant     

 

 

Versus

 

Country Club (India) Limited

25, Community Centre,

Upper Ground Floor,

East of Kailash, Near Sapna Cinema,

New Delhi-110065.                                                                  ….Opposite Party 1

 

 

O R D E R

 

(HARSHALI KAUR, MEMBER)

Briefly stated facts of the complaint are that the complainant’s applied for membership of the OP club by paying a sum of RS. 2, 67,750/- in cash and also by cheque dated 3.7.09 issued by the complainant’s.

The complainant’s have alleged that despite receiving upfront payments for the membership, the OP stopped replying to their e- mails and queries. The complainant’s were informed about their Membership No. CKP299N, vide letter dated 24.7.09 in which the benefits which were available to the complainant’s were also enumerated. A temporary card was also issued in the name of complainant no. 1.

The complainant’s sent an e-mail dated 26.07.09 to one Mr. Ravi Kumar, AGM (sales and marketing) of the OP, requesting for permanent CCIL cards and RCI cards or the whole family and the papers of the plot allotted to them. However it was only on 28.08.09, that one Ms. Paridhi Banerjee, Manager, informed the complainant’s that their RCI cards for the whole family would be dispatched within 45 working days. However even she did not mention anything about the free plot.

Further, it was only vide e-mail dated 29.08.09 that the complainant’s were intimated through the OPs representative Ms. Paridhi Banerjee, that the plot allotment would be sent till mid-September 2009 and RCI cards till mid October  2009.

The complainants received a letter of conditional allotment of plot but nothing regarding RCI card till 3^rd week of October. The complainants again requested the managers of the OP but only received false assurance of the RCI cards being in process.

The complainants finding no other option first expressed their grievance before Shri K. N. Prasad, executive coordinator for Chairman’s office and Shri Vamsi Kankipati, Regional Manager – customer care via emails and telephone calls. The complainant’s then wrote an email dated 09.12.2009 requesting for refund of the amount paid towards membership of the OP club but to no avail.

A legal notice was issued by the complainants thereafter, which again went unanswered by the OPs. The complainants then instituted the present complaint on 17.02.2010 alleging deficiency- in- service and Unfair Trade Practice U/S 12 Consumer Protection Act 1986, praying for refund of the paid amount of Rs 2,67,750 /- towards the membership in the OP club along with interest @ 2 % per month from date of payment till date of refund. The complainants have also prayed for a compensation to the tune of  Rs. 1,00,000/- for loss and injury to the family and Rs. 5,500/- towards cost and expenses of the present complaint.

Notice was issued to the OP who was proceeded exparte vide order dated 16.07.10 who despite service of notice issued by this Forum did not appear to contest the complaint. Later on the OP appeared and filed their reply along with application requesting to set aside exparte order which this forum allowed subject to cost, vide order dated 07.03.11.

Once the proceedings were complete we heard the Ld. Counsels of the contesting parties and the instant complaint was reserved for orders.

The OP has filed the affidavit of Sh. Sanjay Ghosh, Assistant General Manager for the OP to be read as evidence. He states that as per Annexure A1 which is the application form annexed with the OP evidence this Forum does not have any jurisdiction to adjudicate the present complaint for want of territorial jurisdiction as registered address of the OP lies in Hyderabad and only courts of Secundrabad and Hyderabad will have jurisdiction in case of dispute.

Further the plot offered to the complainants was complimentary along with the membership and hence there is no legal binding with the members in respect to the plot. Also the complainants was well aware of the Terms and Conditions of the application form which clearly state that the membership fee is not refundable.

The complainant’s have reiterated that the OP failed to provide service however have nowhere mentioned which service have the OP failed to provide. So far as the delay in the issuance of RCI, the OP states that since the RCI is issued by the concerned authority the OP club had already completed all the necessary formalities for its issuance

The OP had sent a letter dated 11.09.09 to the complainants regarding allotment of the complimentary free plot at Vedic Country Spa, Bangalore wherein the complainants were to pay Rs. 15000/- towards site confirmation administration charges. This amount was to be paid within 30 days otherwise allotment would become invalid. Annexure – F is the letter dated 11.09.09 annexed by the complainants with their complaint. The complainants however did not comply with the aforementioned provisions regarding the allotment of the plot. Hence under the circumstances no deficiency- in- service or Unfair Trade Practice can be laid at their door.

We have carefully perused all the documents annexed by the contesting parties to strengthen their averments but before getting into the merits of the case we think it expedient to deal with the preliminary objections raised by the OP in their reply to the complaint and reiterated by Sh. Sanjay Ghosh Assistant General Manager of the OP , who states that the complainants are not “ consumers”  as defined under the Consumer Protection Act , nor any cause of action has arisen against the OP and this forum also does not have any jurisdiction to entertain the present complaint.

According to the OP the allegations made in the complaint are based on the written contract which cannot be terminated unilaterally by either of the parties to the agreement.

It is further contended on behalf of the OP that the plot which is the subject matter of dispute in this case was offered free having no consideration, meaning thereby that it was offered as a gift but was subject to some special conditions strictly to be adhered by the complainant who did not abide by the conditions and illegally asked for the refund of payment made by them for the membership of the club as fees, which was not refundable under any circumstances as per the Terms and Conditions of the membership as agreed and verified by the complainants after fully understanding the same. It is the further contention of the OP that admittedly the Registered address of the OP is in Hyderabad which does not fall within the territorial jurisdiction of this forum and in clause 48 of the Terms and Conditions of the membership agreement it is clearly provided that “only courts of Secundrabad and Hyderabad will have jurisdiction in case of disputes arising if any” and no cause of action or part of cause of action has arisen within the territorial jurisdiction of this forum

We have given our thoughtful consideration to all the above stated preliminary objections but fail to find aby merit therein at all.

The first contention of the OP is that the complainant had paid no consideration for the allotment of the plot. However we find that the offer of free plot by the OP was an allurement which lured the complainants to apply for the membership of the OP club for which the complainants had paid Rs 2, 67,750/- to avail of the offer made by the OP and hence agreed to avail the services of the OP for himself and his family members.

Section 2(1) (d)( ii) of the Act postulates that “ consumers means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid or partly promised and includes any beneficiaries of such services besides that person”. In view of this statutory provision of law we hold that the complainant falls very much within the definition stated above.

So far as cause of action is concerned, we find that failure on the part of OP to provide RCI cards for the complainants and the family, “free plot”, “free 7 days, 6 nights holiday”   amounts to depriving the complainant and his family of the offered / promised services and benefits attached with the membership. Asking for certain charges on the other hand was nothing but unfair trade practice which gave rise to the cause of action brought before this forum against the OP by the complainant. OP’s lame excuse that they have taken some steps for RCI cards cannot be termed as sufficient compliance by the OP.

The third and most crucial objection raised by the OP in this case is about the jurisdiction of this Forum. In this respect, we find that Section II (2) (b) of the Act clearly provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction any of the OP’s, where there are more than one at the time of the institution of the complaint actually and voluntarily reside or carries on business or has a branch office or personally works for gain.

Proviso to this clause further state that in such case either the permission of the district forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution.

          There is no denying the fact that the OP have their branch office at 14, community center , second floor, East of Kailash, New Delhi and the OP have been served on this address as is evident from the copy of notice dated 15.6.2010. Thus it is an admitted fact that the OP is actually and voluntarily carrying on business and working for gain within the local limits of Delhi. Furthermore, while admitting the complaint on 17.2.2010 by this Forum, the requisite permission as per proviso to clause (b) sub section 2 of section II is deemed to have been given by this Forum, which in our view meets the requirement of law in every respect. It is well settled law that any agreement entered into between the parties restricting the jurisdiction to a particular court constituted under general/ common law cannot be extended to the Consumer Fora because the Consumer Protection Act is a complete code in itself to adjudicate in the consumer disputes.

We therefore, find no substance in the contention of the OP that since the agreement between the parties provided for jurisdiction for settlement of disputes only at Secundrabad or Hyderabad cannot override the provisions of law.

Coming to the merits of the case, we find the grievance of the complainant is that the OP did not provide the RCI cards for the whole family, free plot, free 7 days 6 nights holidays at different promised locations for the first year of membership and thus deprived him and his family of the specially offered services/ benefits attached with the membership and failing to pay attention to his repeated requests is deficiency- in- service, while asking him to pay annual administrative charges without completing membership card formalities and also asking payment of Rs 15000/- for the free plot with some more conditions applicable later on, all these acts are amounting to Unfair Trade Practice.

It shall not be inappropriate to refer to the definitions of the relevant terms as provided in the Act.

Clause (o) of section 2 (1) defines “service” which means service of any description which is made available to potential users and includes facilities in connection with entertainment and amusement etc. while “deficiency” means any fault or imperfection, short coming or inadequacy in the quality, nature and manner of performance undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Thus, the case of the complainant squarely falls within the definition of deficiency-in- service , because the OP admittedly did not perform their undertaking in providing the services for which the complainant had paid to them Rs. 2,67,750/-. It is Unfair Trade Practice on the part of the OP to incorporate in their contract that the amount paid shall not be refundable while it was promised that the consideration paid for the service, i.e. membership of the club was attached with certain benefits like providing free plots and issuance of RCI cards for the family of the complainant with free holiday stay at two locations for the first year of membership, which had lured the complainant to apply for membership.

Unfair Trade Practice has been defined in  the Act U/S 2 (1)(r)  to mean “ trade practice, which , for the purpose of promoting the sale , use or supply of any goods or for the provision of any service adopts unfair method or unfair or deceptive practice etc.”

In the light of facts stated above we hold the OP guilty of deficiency- in- service and Unfair Trade Practice.

As a result of our above discussion, we allow the complaint and direct the OP to refund Rs. 2, 67,750/- to the complainant with interest @ 6% p.a. w.e.f.  the date of filling of the complaint i.e. 17.2.2010 till realization.

No order as to compensation or cost of litigation as the interest awarded on refunded amount shall adequately meet the ends of justice

Order is to be complied within 30 days of receipt of copy of this order failing which OP shall be liable to pay the interest @10% p.a. on the refunded amount.

• One true copy each of this order be sent to the concerned parties by registered post.
• This final order be sent to the server (www.confonet.nic.in).
• Thereafter, the file is consigned to record room.

 

Order Pronounced on: __________________ 

 

 

 

(S.S.SIDHU)                  (HARSHALI KAUR)                    (DIVYA JYOTI JAIPURIAR)

  MEMBER                       MEMBER                                              PRESIDENT