DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.538/2013
Ms. Sneha Agrawal
W/o Dr. Harshvardhan Bharadwaj
R/o F-904, Aditya Urban Casa,
Sector-78, Noida-201301 ….Complainant
Versus
1. Country Club India Ltd.
MGF Metropolitan Mall, Saket,
New Delhi
2. The Managing Director
Country Club India Ltd.
7-1, 19/13, Pagidi Nilayam
Opp. Country Club Begumpet,
Hyderabad …...Opposite Parties
Date of Institution : 06.11.2013
Date of Order : 19.01.2019
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
Ms. Kiran Kaushal, Member
Naina Bakshi, Member
ORDER
The case of the complainant, in nutshell, is that she had taken a membership vide membership No.CCDL11V10LB13722 from the OPs for a package worth Rs.70,000/- for 10 years membership and she had made the payment on various dates using her credit card and in cash. The executive of the OPs verbally informed her that if she was not satisfied with the services she can cancel the membership and her money would be refunded. The OPs sent the agreement No.12237 only in November, 2012 alongwith membership card. When she saw the agreement, she realized that whatever was promised to her verbally it was entirely different what was mentioned in the agreement. As there was so many hidden cost were shown in the terms and conditions such as outside property requires utility charges, no properties available in North India, Free usage of country club property means just the accommodation, but excludes food charges and site seeing facilities, yearly maintenance charges were hidden at the time of giving membership. She sent three emails to Mr. Narendra Bharti of the OPs but to no response. She tried to contact the representative of the OPs sending several emails but no reply was received. Therefore, she decided to cancel the membership immediately. She tried to resolve the issue and sent a letter to the Manager at Hyderabad and copy to Saket Office but no reply was received from the OP. Hence, pleading deficiency in service and unfair trade practice on the part of the OPs, it is prayed that the OPs be directed to refund the entire amount spent in purchase of the package alongwith a reasonable rate of interest and also to pay Rs.50,000/- towards the mental agony suffered by the complainant alongwith litigation charges of Rs.1000/-.
In their reply OPs have inter-alia stated that the complaint is based on a written contract and unilaterally termination of the written contract is untenable in the eyes of the law as the contract entered into between the parties levy the annual administration charges plus addition taxes if any as applicable from time to time. Only after verifying all the terms and conditions of the membership, the complainant had signed the membership agreement and she was well aware of the said terms and conditions after executing the membership application form. The complainant has no right for cancellation of the membership or asking for refund of the membership fee as well as administration charges. It is mentioned in the application form that the membership fee is non refundable under any circumstances. Therefore, cancellation of the membership is untenable in the eyes of the law. The OP office is registered at Hyderabad which does not fall within the territorial jurisdiction of this Forum. As per clause 12 of the Membership/Purchase Agreement, in case of any dispute between the parties party should take recourse to arbitration to settle the dispute. The arbitration clause as under:-
“12. 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 Arbitration and Conciliation act of 1996 and amendments thereof, by Arbitrator to be appointed by the COMPANY/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 Secunderabad alone shall have jurisdiction.”
It is submitted that it was agreed between the parties to refer matter to arbitration. The complainant without even considering the said clause has filed this complaint before this forum which is not maintainable. It is submitted that the complainant asked for vacation at Shimla for the period from 16.02.2013 to 20.02.2013. However, the same was cancelled by her with a confirmation over the email that she would avail the same at a later date. The email sent by her 6 months after getting enrolled in membership is nothing but just a pressure tactic on the OPs. Hence it is prayed that the complaint be dismissed.
Rejoinder to the reply of the OPs has been filed and reiterated the averments made in the complaint.
Complainant had filed his affidavit in evidence. On the other hand affidavit of Sh. Bharat Reddy, Legal Officer has been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the parties.
We have heard oral arguments advanced on behalf of the parties and have also perused the file very carefully.
Admittedly the Complainant had paid a sum of Rs.70,000/- for purchasing the membership of the OPs Club. Copy of membership purchase agreement for vacation is filed on the record which we mark as Annexure-A for the purposes of identification. Relevant portion of the membership purchase agreement reads as under:-
“ And whereas the II party hereby unconditionally gives his/her/their immovable consent to purchase the vacation membership of CCIL. The II party understand that the membership fee is non refundable under any circumstances and the membership fee is not a deposit.
And whereas, the II party hereby declares that he/she they will abide by rules and regulation and byelaws prevailing in CCIL in respect of the membership concerned and also shall punctually and correctly comply with the terms and condition agreed upon and hereafter set out and UNDERSTAND THAT THE MEMBERSHIP FEE IS NON REFUNDABLE AND NOT A DEPOSIT.”
Undeniably the registered of the OP is situated in East of Kailash, New Delhi and hence this Forum has territorial jurisdiction to entertain the complaint.
It may be correct that some negotiation had taken place between the complainant and the OP’s representative before executing the Vacation Agreement but, however, the Agreement had been signed by the complainant and it is her case that the same was got signed from her under false pretext out of her free consent and the it is also admitted fact that Agreement was not signed by the authorized signatory of the OP. If it is so, the written Agreement between the parties will not 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. Email messages exchanged between the parties have been filed on the record, a perusal of which goes a long way to prove that the complainant was not satisfied with the services to be provided to her by OP and she had started making correspondence in this regard. The contract did not give any opportunity to the complainant 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.
It is also matter of common knowledge that such country club alluring the innocent people to buy the membership of their club by making false promise and offering free gifts, and when such customer make the request for facilities they take an objection once such contract was signed or amount paid then it was not refundable. Such practices on the part of OP not only amount to gross deficiency in service on their part but amount to unfair trade practice also. Therefore, we allow the complaint and direct the OP to refund the membership fee of Rs.70,000/- alongwith interest @ 6% to the Complainant from the date purchase of agreement i.e. 09.10.12 till its realization. Besides OPs shall also pay a compensation of Rs.10,000/- on account of harassment and mental agony and cost of litigation suffered by the Complainant due to wrongful act and conduct of OPs.
The order shall be complied within 30 days of receipt of this order failing which OP shall become liable to pay interest @ 9% per annum on the above said amount of Rs.70,00/- from the date of filing of the complaint till its 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 19.01.19.
