DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.371/13
Mr. Abhishek Aggarwal
House No.117, GF Sector 2B
Vaishali, Ghaziabad. .…Complainant
VERSUS
Country Club India Ltd.
Ansal Plaza, Khelgoan Marg
Hudco Place, new Delhi-110049.
Mr. Y Rajiv Reddy
Chairman and Managining Director
Country Club India Ltd.
Amrutha Castle
5/9/16, Saifbad Opp. Secretariat
Hyderabad-500063. ....Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 20.06.2013
Date of Order : 27.04.2023
President: Ms. Monika A Srivastava,
The complainant has filed the present complaint seeking refund of membership charge of Rs. 60,000/- along with interest at 24% per annum from the date of payment till the date of actual realisation. The complainant also seeks damages of Rs. 5,00,000/- for mental pain, agony and harassment and cost of litigation.
- It is stated by the complainant that OP no. 5 situated at Ansal Plaza approached the complainant with an offer for blue studio membership for tours to different destinations. The cost of blue studio membership with the validity of 10 years was Rs. 60,000/-and for 6 nights and 7 days per year for 10 years. It is also stated that the said membership came with 5 complimentary vouchers for 6 nights and 7 days each. It is further stated that that both the parties agreed that in the DAE membership member could avail 2 weeks per year in addition to the normal weeks with Country Club India limited by paying Rs. 4,000/- per week for domestic and Rs.8,000/- for abroad.
- It is stated that the OP misrepresented and falsely assured that the DAE members are entitled to every DAE location where the OP do not have any property and nothing goes to be paid except the annual maintenance charges. It is also stated that the OP misrepresented that along with the aforesaid club membership number of the complainant Zing club membership, free Bollywood event passes were offered free and the complainant was entitled to Rs. 5,000/- voucher on the first trip
- It is stated by the complainant that the OP falsely assured that for booking of a tour 30 days prior notice was required to be given by the complainant.
- The complainant purchased 10 years blue studio membership from CSM Noida through OP 4 by making a payment of Rs. 60,000/-in advance to the OP and was issued receipt of payment which is annexed as annexure A.
- It is also stated that OP in the agreement has specifically mentioned that the annual maintenance charge for blue studio membership shall be payable only if the complainant avails the said facilities during the year.
- It is stated by the complainant that the OP told the complainant to sign the blank form stating that the agreement was to be signed by some senior official in Noida and that the agreement copy would be notarised in Noida in the presence of the complainant.
- It is stated by the complainant that despite the receipt of the entire membership fee, the OP has blatantly denied the gift voucher of Rs. 5,000/- to him which amounts to gross deficiency of service. It is stated that he received an email dated 12.07.2011 where in the OP mentioned the member benefits which were vague and were not as promised and assured to the complainant at the time of purchase of the membership.
- It is further stated by the complainant that he received some documents in September 2011 which were not in accordance with the agreed terms and conditions. These documents were notarised in Andhra Pradesh on 05.08.2011 whereas the complainant was in Delhi NCR on that day. The said policy documents are annexed as Annexure C.
- It is further stated by the complainant that he received a vacation smart card from the OP which mentions an annual charge of Rs. 6,500/- irrespective of usage which was contrary to the agreed terms and conditions and malafide in nature. It is stated by him that he made several telephonic complaints to the OP with regard to this demand of Rs. 6,500/- but the OP did not bother to reply.
- It is stated by the complainant that he did not pay the annual maintenance charge for the year 2011 and 2012. It is further stated that the OP blocked an attempt of an online booking of holiday reservation made by the complainant seeking Rs. 14,700/- as membership fee arrear.
- It is also stated that OP cancelled the bookings of the complaint in the year 2011 which the OP was due to bound to carry forward as per the terms and conditions of the agreement. It is also stated that the online portal of the OP mentions that the complainant can take vacations only for 4 nights instead of 6 nights. It is the case of the complainant that all these acts of the OP amount to gross deficiency in services.
- It is also stated that the complainant was falsely misrepresented that the OP owned 55 locations where in fact the OP owns only 9 to 10 locations. It is further stated that he was promised that a notice of 30 days prior to a tour is sufficient for guaranteed booking but has not provided any services.
- The complainant sought refund of his payment through email on 03.04.2013 but OP failed to respond.
- In their reply, the OP have taken the preliminary objections that the present complaint is based on a written contract and unilateral termination of the written contract is untenable in the eyes of flow. It is also stated that the complainant has signed the membership agreement being aware of the terms and conditions after executing the membership application and therefore cannot seek cancellation of membership or refund as it is unmistakably stated in the application form that the membership fee is not refundable under any circumstance. The OP has also challenged the territorial jurisdiction of this Commission by stating that in case of any dispute the courts at Hyderabad will have exclusive jurisdiction and that the agreement contains an arbitration clause.
- It is also stated by the OP that no case is made out against the OP and the complainant has failed to show any deficiency on their part for which a compensation can be ordered. It is stated that the complaint has alleged delay in deficiency of services on the part of the OP but there are no averments as to what kind of services were not provided to the complainant. It is also stated by the OP that as per the membership agreement, the disputes are to be decided by arbitration and hence the present complaint is not maintainable.
- It is stated by the OP that the complainant has made malicious untenable allegations against the OP without any proof but has failed to state any deficiency of service on the part of the OP. It is stated that the present complaint is without any cause of action as not even a single incident and complaint regarding the deficiency of service.
- On merits, the OP does not deny that the complainant had taken their membership wherein the booking period is clearly mentioned under clause 4 of the membership purchase agreement and that the complainant had to pay AMC charges and utility charges which is specifically mentioned in clause 3 and that the averments made in this regard are in deviation of the agreement signed by him.
- The OP further states that the complainant is confused as to whether he had taken the membership from CSM Noida or from an office which was situated at Ansal Plaza, New Delhi.
- The OP has specifically denied that the complainant will pay AMC only if the said facility is availed. It is stated that the AMC needs to be paid irrespective of usage of vacation and the failure to pay this amount shall be considered as a default and the member cannot utilise the facilities until the dues are cleared.
- The OP has denied that it was ever agreed that the agreement copy would be notarised in Noida in the presence of the complaint. It is denied by the OP that they falsely provided 6 nights 7 days holiday for 10 years and 5 complimentary vouchers for 6 nights and 7 days. All the other averments made by the Complainant regarding membership details and benefits have been denied by the OP.
- It is treated by the OP that the complaint was not eligible for DAE card yet as a gesture of goodwill and to retain the member the DAE card was issued to him as an exception and that the complainant had to pay taxes and utility charges as per clause 3 of the agreement. It is denied by the OP that the complainant was to get a food voucher of Rs. 5,000/-. It is later stated by the OP that the food voucher was offered to him as a pure gesture of goodwill which could not be finalised as the complainant kept on demanding one thing or the other.
- It is denied by the OP that they blocked the attempt of online booking reservation of a tour by the complainant and it is stated that reservation online can be done irrespective of whether the AMC is paid or not however the voucher will only be received when the AMC is paid.
- It is denied by the OP that they have cancelled the booking of the complainant pertaining to the year 2011 and that the online portal is showing 4 nights instead of 6 nights or vacation. It is further denied by the OP that they own only 9 to 10 properties. It is also stated that reservations are made online and dates can only be provided if the particular hotel is available as the OP is a time sharing company.
- In their rejoinder, the complainant has reiterated that OP 5 came with an offer of membership and he being the office bearer of OP no. 1 having its office at Ansal Plaza, therefore, this Commission has the jurisdiction to try the present complaint. The complainant has also denied that DAE was given to him in exchange of his holidays but he was not to get additional 2 weeks.
- The complainant places reliance on the various emails sent by the OP wherein it is said that AMC would be paid only when the facilities are availed off. It is also denied by the complainant that he was not eligible for DAE card but has been given to him as a gesture of goodwill. It is denied by the complainant that he had taken a blank membership form to read the terms and conditions and that the agreement does not bear the signatures of the OP. It is reiterated by the complainant the policy documents were forged by the OP and notarised in Andhra Pradesh bearing forged signatures of the complainant.
Both the parties have filed their respective evidence affidavits as well as their written submissions. Oral arguments were heard. At the time of oral arguments the counsel for the OP had raised an objection pertaining to the territorial jurisdiction of this Commission stating that no part of cause of action has arisen within the territorial jurisdiction of this Commission whereas in their preliminary objections they have merely stated the reason for not having territorial jurisdiction as having an arbitration clause in the agreement and that the court only at Hyderabad will have jurisdiction.
As far as the objection of the OP regarding territorial objection is concerned as per section 3 of the 1986 Act and Section 100 of the CPA 2019 this Act is in addition and not in derogation of any other Act. The other objection regarding courts at Hyderabad having jurisdiction does not hold good as it is established law that parties cannot by their consent confer or take away jurisdiction of any court.
Further, as per Section 21 of the Code of Civil Procedure, objection pertaining to territorial objection of this Commission being not there as no part of cause of action has arisen here cannot be upheld as this objection had to be raised at the initial stage and not at the stage of final arguments and not after 10 years as in the present case. Moreover receipt dated 26.06.2011 issued by the OP bears the address East of Kailash, the authorised signatory of the OP has filed his own affidavit stating the place of work as East of Kailash, which at the time of filing of complaint was within the jurisdiction of this Commission.
The OP has also raised the objection stating that there is no cause of action as the complainant has not complained of any deficiency of service. This objection of the OP is also not maintainable as the emails placed on record speak volumes about the conduct and promised services of the OP. The OP has been blowing hot and cold over the services offered and perks offered with the membership. The OP is making contradictory statements in view of email filed on record dated 12.07.2011. Therefore, OP is found guilty of unfair trade practice and deficient in its services.
The OP is directed to refund the entire amount of Rs. 60,000/- along with interest @ 6% p.a from the date of deposit till realisation within three months from the date of this order failing which the OP would be liable to pay 8% p.a from the date of deposit till realisation. OP is also liable to pay an amount of Rs. 20,000/- as compensation to the Complainant.
Copy of the Order be given to the parties as per rules. Order be uploaded on the website. File be consigned to the record room.
