DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.37/2012
1. Sh. Bipin Karwal
2. Smt. Ratna Karwal
Both R/o
L-45, Kirti Nagar,
New Delhi-110015 ….Complainants
Versus
M/s Country Club India Ltd.
25, Community Centre,
Near Sapna Cinema, East of Kailash,
New Delhi-110065
Also at:
2, Community Centre,
East of Kailash, Near Sapna Cinema,
New Delhi-110065 ….Opposite Party
Date of Institution : 27.01.12 Date of Order : 28.01.19
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
Naina Bakshi, Member
ORDER
The case of the complainants, in nutshell, is that the complainants were highly influenced by the tall claims of the OP that they had more than 5 lakhs members across the country and the lucrative offers made by the OP, the complainants joined the club of OP vide membership No.CC06DEL30L2102 by paying a huge sum of Rs.1,35,000/- through Credit Card bearing No.5176 5370 7488 2000 and D.D. No. 333185 vide receipt No.724 dated 03.01.11. The membership was for 30 years with life time membership. It is stated that the facilities so offered under the scheme were never made available as even after completion of all the procedural formalities the OP never confirmed the bookings to any resort given in their own list. It is submitted that the complainants felt cheated and lodged a protest sent by e-mail. The complainants later on realized that they were cheated and defrauded by the rosy picture as was portrayed by the OP at the time of inducing the complainants to become their member. All the persons/staff of the OP whosoever picks up the telephone give information which are quite contrary to the information given by the other person. They themselves are not clear that what are the fixed terms and conditions for becoming the member of their so called esteemed club. The contradictory stand taken by the OP is appearing on the letters issued by the OP. It is stated that the complainants opted for a low-season- BLUE CATEGORY SCHEME and even then the reservations made months in advance were not confirmed at many destinations in the OP’s list of location because it was all a fraud. The local owner had not even heard of the OP having a name and style of business and forwarding the name of a resort when no arrangement ever exists. It is submitted that till date only paper work have been done and not even a single features/facilities offered by the OP have been availed by the complainants and they have not caused any monetary loss to OP while on contrary huge loss both on the account of precious time as well as monetary loss in conveyance, telephone calls have been suffered by the complainants. Hence, the complainants are entitled to seek refund of entire amount alongwith 18% interest, while amount the OP was legally bound to pay to the complainants and there was no fault on the part of the complainants in believing their words as well as their written introductory offer. It is submitted that the complainants before filing of the complaint tried their level best to get the refund of their hard earned money from the OP by sending emails to which there was no response from OP. Hence, pleading deficiency in service & unfair trade practice on the part of the OP, the complainants has filed the present complaint for the following reliefs:-
- Direct the OP to pay Rs.1,35,000/- with interest @ 18% from the date of deposit till the date of refund.
- Direct the OP to pay Rs.1,00,000/- as cost of mental agony, harassment and cost of litigation and other misc. charges.
OP in the written statement has inter-alia stated that the complainants does not have any right to terminate the membership unilaterally as per his whims and fancies and in deviationof the express terms to which he is a signatory. The terms and conditions of the membership are categorically stated in the application forms and read and understood by the customers before signing.It is unmistakably stated in the 3 para of the agreement/application form that the membership fee is not refundable under any circumstances.The complainants verified the terms and conditions as stated in the membership application forms and only after that chose to be become member of the OP, therefore, cancellation of the membership is untenable in the eye of law and the question of refund of membership fee does not arise in the light of specific clause in the agreement. It is submitted that there is not a single tenable sentence of deficiency in service as leveled in the complaint filed by the complainants even for the sake of maintaining a consumer complaint against the OP. It is stated that as per Clause 12 of the membership/purchase agreement, in case of any dispute between the parties, parties should take recourse to arbitration to settle the dispute. The arbitration clause reads as under:-
“It is agreed between the parties herein that in the event of any disputes, claims or differences arising under the present purchase agreement, the same shall be referred to arbitration under the provisions of Arbitrationand Conciliation Act 1996 and amendments thereof, by arbitrator to be appointed by the company/I Party herein and the award passed by the arbitrator shall be final and binding on all parties herein and that the courts in Hyderabad and Secundrabad alone shall have jurisdiction.”
It is denied that no gift voucher was issued to the complainants alongwith the membership by the OP.The alleged gift voucher annexed by the complainants clearly shows that the same can be availed only on payment of administration fee of Rs.4000/-. The complainants did not pay the administration charges and hence was not entitled to the said gift voucher. It is denied that no facility was offered to the complainants by the OP or that the OP never confirmed the complainants’ booking. It is further stated that only enquiries were made by the complainants which were duly answered by the OP, the complainants never booked any resort with the OP, hence the question ofconfirming the reservation does not arise at all. It is denied that any protest was lodged by the complainants.Complainants sent email to the OP to enquire about the resort booking at Kashmir. Though the resorts at Kashmir are not owned by the OP, yet arrangements are made with the owner of the resort in Kashmir to provide booking to members of OP Company for which nominal charges were to be paid. It is denied that complainants have suffered any loss of any nature. It is denied that the complainants are entitled to seek refund of the amount of membership alongwith any interest.It is submitted that at the time of opting to become a member of the OP, the complainants signed the written membership agreement which clearly states that the membership amount is not refundable under any circumstances and was also explained the same, hence the question of refund does not arise.OP has prayed for dismissal of the complaint.
Complainants has filed rejoinder to the written statement of the OP and reiterated the averments made in the complaint.
Complainants has filed her own affidavit in evidence. On the other hand, affidavit of Sh. Sanjay Ghosh, Assistant General Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments of the complainant No.2. No one has appeared on behalf of the OP to advance oral arguments despite opportunity given in this behalf. We have also gone through the file very carefully.
Admittedly, the complainants joined the club of OP vide membership No.CC06DEL30L2102 by paying a huge sum of Rs.1,35,000/- vide receipt No.724 dated 03.01.11. The membership was for 30 years with life time membership.
The complainants have filed copy of membership card as Ex. C-1/Colly. The receipt dated 03.01.11 for an amount of Rs.1,35,000/- issued by the OP has been filed as Ex. C-1/2 (Colly). The OP vide letter No. CCIL/DEL/CC/A 3376 dated nil whereby OP confirmed the membership has been filed as Ex. C-1/3. The complainants have filed copy of web connect guide as Ex. C-1/4. The complainants have filed copy of membership form alongwith terms and conditions as Ex. C-1/8.
It may be correct that some negotiation had taken place between the complainants and the OP’s representative before executing the Agreement but, however, the Agreement had been signed by the complainants and it is their case that the same was not got signed from them under false pretext out of their free consent. If it is so, the written Agreement between the parties will be binding upon them. Despite there being enforceable contract between the parties, the OP was also supposed to comply with the terms and conditions thereof in letter and spirit. A perusal of record shows that the complainants were not satisfied with the services to be provided to them by OP and they had started making request to the OP and did not avail any service. The contract did not give any opportunity to the complainants to get rid thereof under any circumstances and it was one sided agreement.
There must have been included at least one clause in the agreement whereby the purchaser must have been given a right to cancel the membership within a particular period (freelook period) though subject to some conditions and deductions but, however, no such liberty has been afforded to the customer/ consumer in this case. Agreement is thus not conscious and justified to that extent.
The complainants had not availed any services of the OP as they requested to refund the amount when they did not get booking. Therefore, the OP must have considered the request of the complainants to refund the entire amount paid by them. However, as stated hereinabove, no such freedom had been given to the complainants in the one sided agreement which contained total beneficial stipulations in favour of the OP.
Therefore we hold the OP guilty of deficiency in service and unfair trade practice so far as providing no option to the member to cancel the membership within a reasonable time subject to some deduction is concerned. OP must have incurred some amount of money towards administrative charges.
Keeping in view the above facts discussed hereinabove, we allow this complaint and direct the OP to pay sum of Rs.1,30,000/- to the complainants within 30 days of receipt of copy this order failing which the OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.130,000/- from the date of filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 28.01.19.
