Delhi

North East

cc/439/2011

Mrs. Rashmi Shihani - Complainant(s)

Versus

Country Club India ltd. - Opp.Party(s)

17 Dec 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  439/11

 

In the matter of:

	Mrs. Rashmi Shihani W/o Shri Manish Shihani R/o- DA-569, Shalimar Bagh New Delhi-110088	Complainant
	Versus
1                 2	Country Club India Ltd. 2, Community Center, First Floor East of Kailash, Opp. Sapna Cinema New Delhi-110065   Regd. Office: No. 25, First Floor Community Center East of Kailash New Delhi-110065   Country Club India Ltd. Amrutha Castle 5-9-16 Safabad, Opp. Secretariat Hyderabad-500063   Corp. Office: Country Club Kool,4th & 5th floor 6-3-1219, Begumpeth Huderabad-500016	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

26.12.2011 17.12.2019 17.12.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Grievance of the complainant in the present complaint are that the complainant had received a Telemarketing call on 24.12.2010 from OP congratulating her on being selecting for eligible membership of OP and a meeting between them was fixed for 28.12.2010 at Ansal Plaza, New Delhi where both complainant and her husband were trapped to join the OP club on allurement of OP being owners of and running exclusive hotels, clubs, resorts etc throughout India showing complainant of various such locations on brochure which could be availed of on payment of membership fee of Rs. 1,60,000/- on payment of which they shall avail direct access to 190 clubs and 130 resorts all over India with life time membership including all members of immediate family and complementary week stay annually in a studio type apartment for 30 years. OP also gifted holyday gift vouchers to the complainant and her husband dated 28.12.2010 and 30.12.2010 with validity of one year to lure the complainant’s further. Complainant and her husband agreed to take the membership on payment of Rs. 1,60,000/-  in installments and accordingly paid Rs. 82,000/- in cash on 29.12.2010 and Rs. 30,000/- in cash on 07.01.2011 thereby totaling Rs. 1,12,000/- to the OP. Complainant were made to sign the approval application form on pretext of it being a mere formality and then OP representative brought an agreement on stamp paper bearing No. M777910 pre typed which was in the nature of purchase agreement for vacation card alongwith OP membership form which they made complainant sign. Complainant received fancy membership cards bearing membership Numbers CC11DEL10L2003 from OP. However in the thanks letter, OP revealed its true color wherein it impose unilateral conditions requiring complainant to pay Rs. 5,000/- as Annual Administrative Charge Irrespective of Usage with advance booking clause which complainant has alleged as unfair trade practice. Complainant never got any free or paid holyday package from OP and OP failed to fulfill its commitment to provide free boarding in hotels / properties which as per the complainant were actually owned by other parties and OP was a mere tout but impressed upon the complainant as being real owners thereof by way of false representations of prefixing ‘Country Club’ on such properties which only existed in their books and brochures. OP concealed the facts to procure signature of the complainant on the so called ‘written contract’. The terms and conditions of the said contract were illegal since it did not give any right to the complainant to ask for refund and does not mention a single service to be provided by OP and on top of it, made membership fee non refundable. Therefore, complainant alleging harassment, unfair trade practice and deficiency of service on the part of OP, wrote several written request to refund the membership fee of Rs. 1,12,000/- but to no avail thereby compelling the complainant to file the present complaint before this Forum alleging deficiency of service and unfair trade practice and prayed for issuance of directions by this Forum against OP to refund Rs. 1,12,000/- with interest @ 18% alongwith compensation of Rs. 50,000/- towards mental agony and harassment and Rs. 50,000/- towards cost of litigation.

Complainant has attached OP brochure with list of hotels and resorts all over India with phone number, coy of holyday voucher dated 28.12.2010 and 30.12.2010 with one year validity for each, copy of receipts issued by OP dated 29.12.2010 and 07.01.2011 acknowledging receipt of Rs. 82,000/- and Rs. 30,000/- from complainant, copy of OP approval form signed by complainant and her husband and manager of OP, copy of purchase agreement for vacation card signed by complainant and OP, copy of membership form with membership card valid upto 05.03.2011, copy of membership letter by OP to the complainant acknowledging of Rs. 82,000/- out of Rs. 30,000/- and copy of e-mail dated 03.02.2011 from complainant’s husband to OP requesting for reservation for Pokhra (Nepal) for himself, complainant and their two children from 19.03.2011 to 21.03.2011.

2. Notice was issued to OP on 06.02.2012. Counsel for OP appeared on 05.07.2012 and apprised this Forum that an earlier complaint bearing number 124/2011 was dismissed by this Forum on grounds of territorial jurisdiction with directions to complainant to present the same to a proper Court/Forum having jurisdiction. Thereafter OP filed an application on 09.08.2012 praying for dismissal of the complaint relying upon judgment of Hon'ble Supreme Court in Rajeev Hitendra Pathak Vs Achyut Kashinath Karekar 2011 (9) SCALE 287 baring District Forum to review its own order urging that the complainant has willfully concealed this fact from the Forum. Complainant filed reply thereto urging that this Forum has jurisdiction to adjudicate this complaint and the same was filed in compliance of order dated 05.11.2011. The erstwhile bench of this Forum vide order dated 21.12.2012 had posted this application at the time of final disposal which the matter has reached. Therefore on lines of law laid down by Hon'ble Supreme Court in Hewlett Packard India Vs Sri Ramachandra Gehlot in CA No. 7107/2003 decided on 16.02.2004 vide which the Hon'ble Supreme Court held that the issue of maintainability has to be decided before hearing the matter on merits. The Hon'ble National Commission in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC) held that question in which law point is involved can be decided at any stage of the proceedings. Therefore, without going into the merits of the case, we shall adjudicate the admissibility / non-admissibility of the present complaint.
3. Therefore vide order dated 20.05.2019, both parties were directed to address arguments on the application filed by OP and reply thereto on the aspect of maintainability / non maintainability of the complaint in view of similar / earlier complaint No. 124/2011  praying for similar relief was dismissed by this Forum on 05.11.2011 on grounds of territorial jurisdiction.
4. We have heard the arguments addressed by both parties on this aspect / key question for adjudication.

Undisputedly the earlier complaint No. 124/2011 seeking same relief was dismissed by this Forum vide order dated 05.11.2011 on grounds of territorial jurisdiction. The complainant filed the present second complaint on the same cause of action. In our view attempt by the complainant to escape from the said decision is fallacious. Whether that complaint was dismissed on merits or on technical grounds, result is only one viz second complaint is barred since it is on the same cause of action. Complainant was granted liberty to file the complaint before an appropriate Forum but neither he complied with the said order nor challenged it before Hon’ble SCDRC. We also note that the reason adduced by the complainant for maintainability of complaint before this Forum is opaque without any just of sufficient cause. The matter being directly and substantially in issue in the present complaint was also the matter directly and substantially in issue in the first complaint bearing no. 124/2011. Therefore a second fresh complaint is barred within the principle contained in Section 11 of CPC i.e. Res Judicata which shall definitely operate against the present complaint in view of the dismissal of the original / earlier complaint vide order dated 05.11.2011 which had attend finality binding all parties. Therefore the present complaint is not maintainable under the Consumer Protection Act. We are guided by law laid down by Hon'ble National Commission in Anwar Husein Mohmed Chokwala Vs SBI III (2018) CPJ 199 (NC) and in Mridulika Gupta Vs Aggarwal Associates (Promoters Ltd) II (2019) CPJ 102 (NC) in which judgments Hon'ble National Commission held that the first complaint dismissed by Forum on merits or on technical acts as Res Judicata against any second complaint having same cause of action and/or relief claimed with party so moving it at liberty to approach Civil Court on permission granted by the Forum. Even otherwise as per the settled law, District Forum and Hon’ble State Commission do not have power to review their own orders as held by Hon'ble Supreme Court in Rajeev Hitendra Pathak Vs Achyut Kashinath Karekar (2011) 9 SCC 541 following its earlier judgment in Jyotsna Arvind Kumar Shah Vs Bombay Hospital Trust (1999) 4 SCC 325 (SC). The said ratio has been consistently followed by Hon'ble National Commission in Mohd. Shaffan Vs. Kotak Mahindra Bank Ltd. & ANR II (2018) CPJ 31 (NC) vide which it held that State Commission had no power / right to review to its own order in light of judgment of Hon'ble Supreme Court in Pathak’s (supra) case which has settled the issue that State Commission or District Forum are not vested with power to review their own order.

In view of the settled proposition of law and exhaustive discoursed on the legal aspect dealing with second complaint / Res Judicata, we dismiss the present complaint as barred by Res Judicata under Section 11 of CPC in view of this Forum already decided the issue of non-maintainability of earlier similar complaint bearing No. 124/2011 on grounds of territorial jurisdiction which order has attain finality in view of not having been challenged or agitated before a higher Commission.  

5.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
6.   File be consigned to record room.
7.   Announced on 17.12.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member