Delhi

North East

cc/282/2012

Shri Shailendra Kumar Gupta - 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.  282/12

 

In the matter of:

 

	Shri Shailendra Kumar Gupta S/o Late Shri Ram Avtar Gupta R/o- H-48/3, Shankar Vihar Delhi Cantt. New Delhi-110010	Complainant
	Versus
	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	Opposite Party

 

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

25.07.2012 17.12.2019 17.12.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated fact relevant for disposal of the present complaint are that the complainant received a Telemarketing call by OP on 05.11.2011 congratulating for being selected as eligible for membership for OP club to use its hotels, resorts and properties for recreative stay and other services on nominal charges. Accordingly a meeting was fixed for 12.11.2011 at OP’s office located at Ansal Plaza, New Delhi where on the said date representative of OP offered membership in OP club for a consideration of Rs. 60,000/- to the complainant in a preplanned move to trap him. The complainant who had plans to visits Goa for Christmas with his family enquired about Goa package of OP and OP officials lured him with lucrative packages and excellent stay in hotels there and therefore being convinced of the Goa Christmas holiday week package assurance given by OP, complainant agreed to take membership of OP named ‘Blue Studio Membership’. Complainant was made to sign application form on 12.11.2011 by OP in an already printed format and he paid Rs. 35,000/- to OP through his debit card broken up into Rs. 10,000/- + Rs. 25,000/- on the same day. Thereafter, on receipt of payment, OP representative brought another document and made the complainant sign on the same by telling him that it was a mere formality to process the membership. However, the complainant was caught unaware when on reaching home, he went through the documents given to him by OP as contains therein were totally different from the commitment given to him orally by OP and the said membership amount was non refundable. The complainant called up the OP executive and asked for refund of the membership fee paid by him and wrote several e-mails to OP’s Central Customer Care between 13.11.2011 to 15.04.2012 asking for refund of the membership fee paid by him but to no avail. In the interim complainant received a letter dated Nil on 29.11.2011 from OP mentioning several terms and conditions including that the complainant is liable to pay annual administrative charges of Rs. 6,500/- irrespective of usage as a Ten Years Vacation (Blue) Member. The complainant was shocked to receive such a letter containing demand therein. On 21.12.2011 the complainant requested OP to book a six night seven day stay for his family in any hotel in Goa which the OP flatly refused on pretext that the membership has not been activated yet. On 29.12.2011, complainant received Membership Purchase Agreement for vacation membership made on 27.12.2011 from OP which document a complainant already had a copy of but the same was dated 12.11.2011 which clearly shows that OP had fraudulently the date of its execution from 12.11.2011 to 27.12.2011 in order to not provide complainant Christmas Holiday package for 25.12.2011. Complainant has alleged that OP is running a scam in the name of ‘Country Club’ for which it has not even taken approval from Government Agencies and selling membership and collecting money from innocent consumers illegally for which reason complainant decided not to pay further installments. Complainant has therefore alleged unfair trade practice on the part of OP in view of taking signatures on illegal terms and conditions and exercising arbitrary authority to impose such terms and conditions on the complainant and not offering a single service showing their dishonest intension. Complainant further averred that ‘Holidays’ and ‘Vacations’ do not mean any service as is evident from agreements which OP is using boldly and widely to misguide general public as it is beyond its authority to give any ‘Holiday’ or ‘Vacation’. Therefore, in view of OP having failed to refund the sum of Rs. 35,000/- to the complainant taken by it for selling a scam membership, complainant was constrained to file the present complaint against OP alleging deficiency of service and unfair trade practice and prayed for issuance of directions against it to refund Rs. 35,000/- with interest @18% to the complainant alongwith compensation of Rs. 50,000/- for mental agony and harassment and Rs. 10,000/- towards litigation charges.

Complainant has attached copy of membership purchase agreement dated 12.11.2011 signed only by the complainant as second party thereto, copy of debit card transaction slip for payment of Rs. 35,000/- made by the complainant to OP through his ICICI Bank card, copy of country club membership form dated 12.11.2011, copy of e-mails by the complainant to OP between 13.11.2011 to 15.04.2012 with sole response e-mail dated 14.04.2012 from OP to the complainant, copy of undated letter by OP to the complainant confirming his Ten Years Vacation (Blue) membership with OP vide membership No. CCDL11V10LB10576 and copy of membership purchase agreement for vacation dated 27.12.2011 signed by both parties.

2. Notice was issued to the OP on 30.07.2012. OP entered appearance on 29.08.2012 when complete paper book of complaint was supplied to its counsel for filing written statement. On the next date of hearing i.e. 01.10.2012, OP offer to settle the matter with the complainant for which 10 days time was given to it and when the matter was next listed on 11.10.2012, complainant refused to accept the refund of Rs. 35,000/- offered by OP and therefore settlement failed. On the next dated of hearing on 23.10.2012, counsel for OP appeared and filed an application informing the Forum that the counsel for complainant never approached OP for settlement but only submitted before this Forum on 11.10.2012 that he was unwilling to compromise and prayed for extension of time to file written statement. Thereafter written statement was filed by OP on 10.04.2013 in which OP took the preliminary objection of complaint not maintainable for want of territorial jurisdiction since both branch office and head office of OP were located at South Delhi and Hyderabad respectively and ever otherwise the payment and agreement formalities were entered into between parties at Ansal Plaza, New Delhi and therefore the complaint was barred under Section 11 of CPA as this Forum has no competence to adjudicate the present complaint and even vide membership agreement, courts of Hyderabad and Secunderabad have jurisdiction to try the matter. On merits OP resisted the complaint on grounds that the complainant had himself agreed to the terms and conditions of membership agreement of OP company which categorically provided that membership fee was non refundable and therefore he cannot claim refund of the same by making false allegations in this complaint to defame the reputation of the OP. OP relied upon clause 12 of the membership / purchase agreement for referring the dispute between the parties to arbitration. OP refuted allegation of deficiency in service and unfair trade practice averring that no cause of action has ever risen against it as it is engage in business of leisure Infrastructure and recreational activities which are not lawful. The OP submitted that it was mentioned clearly in the contract entered between the parties that levy of annual administrative charges OP was authorized to receive from complainant from time to time as well as registration charges and only after verifying / reading all terms and conditions has the complainant signed the membership agreement. OP relied upon clause 3 of terms and conditions of membership agreement that the membership fee was not refundable under any circumstances and pleaded that  complainant has failed to prove / show any deficiency of service on part of OP to provide what kind of services to the complainant. Rather it is the complainant who has failed to complied with mandatory steps to avail of benefits of membership and instead has leveled malicious allegation against OP vide the present complaint. OP alleged that the complainant himself does not know from whom he had purchased the membership whether country club or country vacation. Further OP submitted that it never gave any commitment to complainant for his stay in Goa or having being approached for the same. OP submitted that the complainant has contradicted his own stand of having asked the OP to cancel the membership and refund the money on 12.11.2011 and then asking OP to book a holiday in Goa. OP submitted that vide letter dated 29.11.2011, the membership given to complainant was activated in contrast to complainant’s false averment of non activation. OP denied having giving any assurance to the complainant to refund membership fee as it was non refundable and ever otherwise the complainant has never paid the entire consideration amount for the same. Lastly, OP submitted that if the complainant does not consider holiday and vacation as service, the complaint is liable to be dismissed on this very grounds and complainant be put to strict proof of alleging that OP was beyond authority to provide holiday or vacation. Therefore OP prayed for dismissal of the complaint on the grounds of defence so taken.
3. Rejoinder to the written statement of OP was filed by the complainant in rebuttal to the defence taken therein and submitted that the cause of action arose in Delhi and Delhi being one District as held by Hon'ble State Commission, Delhi, this complaint was maintainable before this Forum and relied upon judgment passed by the Hon'ble State Commission during the period of this complaint i.e. 2010 onwards. Complainant urged that the arbitration clause in the agreement was not a bar against consumer Forum to adjudicate upon consumer complaint as laid down under Section 3 of CPA and reiled upon judgments of Hon'ble Supreme Court in Secretary Thirumurugan Cooperative Agricultural Credit Society Vs M Lalitha (dead), Fair Air Engineer Pvt Ltd Vs N K Modi and Hon’ble National Commission in Smt. Kalawati Vs M/s United Vaish Cooperative Thrift and Credit Society all of which give a wider impute to Section 3 of CPA. Complainant submitted that OP is engaged only in collecting money from general public without giving any services and by making membership fee non refundable. Further complainant urged that even if membership fee is not refundable, it does not entitle OP to forfeit it without giving any service to its customers. Complainant further challenged the OP to prove its ownership of properties which it does not actually own and therefore OP has indulged in unfair trade practice to obtain signature of complainant on the application form which stipulated that ‘no refund is applicable’ without giving in writing what service OP was offering and therefore its ‘Non Refundable Membership’ may be called ‘Non Serviceable Membership’. Lastly complainant submitted that OP is not providing any services and therefore defect cannot be shown in the same and it has very cleverly pleaded the application as contract showing it as a ‘written contract’ which is manifest of unfair trade practice on its part of OP 
4. Evidence by way of affidavit was filed by both parties exhibiting the documents filed / relied upon.
5. Written arguments was filed by the complainant alleging unfair trade practice on the part of OP having committed offence under Section 2 (1)(r) of CPA and has failed to show ownership of property mentioned and has also failed to prove its tie-up / sponsorship / approval / franchise / hoteliers / properties and has adopted deceptive practice and in view of its own admission of not given any service to the complainant, the present be allowed and relief prayed for granted.

Written argument was filed by OP in reassertion of its grievance.

6. We have heard the rival contention of both the parties and have carefully perused the documentary evidence placed on record.

After having bestowed our anxious consideration to material on record, the key issue for adjudication before us is whether OP was guilty of unfair trade practice and deficiency in service for taking membership fee from the complainant and not having rendered any services. However prior adjudicating on this issue we shall dispose of the preliminary objections.

In so far as the issue of the territorial jurisdiction is concerned, In this regard though, bare perusal of Memo of parties clearly and unequivocally establishes that OP did not have corporate / registered / branch office within the territorial jurisdiction of this Forum and as such the condition stipulated in Section 11 sub clause 2 (a) or (b) or (c) of CPA were not fulfilled, however the OP did not strongly oppose or question/dispute the jurisdiction of this Forum and therefore in accordance with proviso 11 (2)(b), it was deemed acquiescence on part of the OP with respect to jurisdiction of this forum and therefore as per section 11 sub clause 2 sub clause (b) this Forum granted permission to the complainant for being heard on the said complaint. In such cases, the advisable course of action is seeking permission of the District Forum right at the time of institution of complaint. Clause b of sub Section (2) of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the district Forum would, in all probability grants such permission; this therefore is a matter within discretion of District Forum. Thus the objection taken by the OP for non-maintainability is dismissed in this light.

The second objection of invoking arbitration has already been settled in catena of judgments passed by Hon'ble Supreme Court as complainant has relied upon / quoted in his rejoinder to the written statement and has also been followed by Hon'ble National Commission in landmark judgment of Aftab Singh Vs EMAAR MGF Land Ltd III (2017) CPJ 270 (NC) passed on 13.07.2017 which held that in light of overall architecture of consumer act and court evolved jurisprudence, the arbitration act cannot be construed as mandate to Consumer Forum to refer parties to arbitration and any such clause cannot circumscribe jurisdiction of Consumer Fora notwithstanding amendment to arbitration act. Therefore both issues to territorial jurisdiction and arbitration are decided in favour of the complainant.

Now adverting to the key issue for adjudication, admittedly the complainant paid a sum of Rs. 35,000/- to the OP for the ‘Blue Studio Membership’ in November 2011 as part consideration amount of Rs. 60,000/- for the said membership. The said amount as can be determined from documents signed by the complainant and OP was non refundable in nature but as per records no services or vacation booking was provided by the OP to the complainant in lieu of such payment made and OP is also silent in so far as rebuttal to this allegation is concerned. Hon'ble National Commission in Country Clud Hospitality and Holidays Ltd Vs Navratan Nahata I (2018) CPJ 384 (NC) and Neelakshi Chopra Vs Sterling Holiday Resorts (India) I (2018) CPJ 433 (NC) held the hospitality companies deficiency of service for not extending any holiday facilities and awarded compensation. To this extent we find OP guilty of unfair trade practice notwithstanding that we do not find force in the claim of the complainant of having signed the documents without reading them since he is a well read and educated Indian Army Officer well acquainted with English language.

On perusal of order sheets, it has been seem that post on notice, when OP appeared on 01.10.2012, it offered amicable settlement to the complainant and order sheet of 11.10.2012 and 23.10.2012 reveal that the entire received amount of Rs. 35,000/- was offered to be refunded back to the complainant but the complainant on the other hand never approached the OP in this regard but only refused to accept the settlement amount before this Forum. Even though the settlement offer came within 10 months of payment of membership fee by complainant to OP, the said offer was made only when the subject matter was filed before us and not prior.

Hon'ble Supreme Court in Landmark judgment of Charan Singh Vs Healing Touch AIR 2000 SC 3138 observed that while quantifying damages, consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, which not only serves the purpose of recompensing the individual but also aims to bring about a qualitative change in the attitude of service provider. Indeed no hard and fast rule can be laid down for universal application / calculation of damages but relevant factors be taken into a count for assessing compensation on the basis of accepted legal principles or moderation. It is for the consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.

Therefore, in our view the complainant is not entitled to interest on the said amount for the entire period of pendency of this complaint but deserves interest only for one year from 2011 to 2012 and compensation for inaction on the part of OP to not only failed to refund the said amount despite 5 months long follow-ups but also failure to provide any services compelling complainant to knock the doors of law after which only the OP made an offer to refund the membership fee amount.Therefore, on equity and in the interest of justice we allow the present complaint and direct the OP to refund Rs. 35,000/- + Rs. 2100/- (interest @6% p.a. from November 2011 till November 2012) totaling Rs. 37,100/- to the complainant alongwith compensation of Rs. 10,000/- towards harassment and mental agony inclusive of litigation expenses. Let the order be complied with OP within 30 days from the receipt of copy of this order.

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

 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member