DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.478/14

Nishant Verma

R/o RZF-91, Street No.3

Mahavir Enclave-I

New Delhi-110045.                                                        .…Complainant

                                                VERSUS

M/s Country Club India Limited

Through – manager

#25, UGF, Community Centre

East of Kailash, New Delhi-110065.

Also At:

M/s Country Club India Limited

Through – Managing Director /Director

Amrutha Castle

5-9-16, Saifabad, Opp. Secretariat

Hyderabad, Telangana-500063.                                     ….Opposite Party

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Date of Institution: 22.12.2014

Date of Order        :25.05.2023

President: Ms. Monika A Srivastava,

   The complainant has filed the present complaint seeking refund of an amount of Rs.1,23,600/- alongwith AMC charges of Rs.13,500/- with 18% interest from the date of the complaint.  Complainant is also seeking compensation of Rs.7 Lakhs towards mental agony and torture and cost of litigation of Rs.20,000/-.

1. It is stated by the complainant that on 04.06.2013 he entered into an agreement with the OP and an amount of Rs.1,23,600/- for availing their services i.e. stay in the properties of OP for duration of 6 nights 7 days which would be valid for a period of 30 years.  It also included  availing free food vouchers free access to the clubs of the OP and holidays without being worried for the stay and enjoyment of five star properties.

2. The complainant has also paid Rs.13,500/- as three years AMC charges as it was offered by the OP on discounted rates.  The written agreement along with receipt is enclosed with the complaint as Annexure-1. 

3. It is the case of the complainant that during this first year of membership he realised that he was not being offered free food vouchers and club membership as was promised by the OP. And even after repeated requests OP failed to give these services as well as vouchers. To support his point the complainant has attached a screenshot as Annexure-2.

4. It is stated by the complainant that in the first year of membership he availed the services of stay in OP’s Goa property which was procured by the complainant after much struggle to book a stay in Goa. 

5. It is stated by the complainant that during the representation made by the OP they offered multiple stay options at various destinations but in reality there is one or two stay options and that too which are associated with other’s properties.  It is further stated that OP do not have their resorts in Northern India as was claimed.  It is also lodged by the complainant that services offered by the OP during stay at Goa was not even close to anything that can be rated as five star.  It is stated that the kitchen had only one microwave though he was promised and he would be able to get home cooked food but in reality he got nothing and was dissatisfied with the stay and services offered by the OP.

6. It if further stated by the complainant that even after paying a three year AMC amount, the complainant was time and again harassed to make the same payment as the OP with their own negligence had not updated the status of complainant. The said communications between the complainant and OP is enclosed as Annexure-3. 

7. It is stated by the complainant that he faced a lot of hardship in booking his stay at Kasauli and felt aggrieved by the restrictions imposed by the OP in their agreement which are fraudulently and intentionally made to restrict the complainant from availing the services of the OP and which amounts to denial of services.

8. The complainant on visiting Kasauli found out that he was demanded a charge of Rs.500 per night for a total stay of three nights as this property did not belong to OP.

9. This amount was demanded vide e-mail dated 26.11.2014 wherein it was also stated that in case the complainant takes another shorter vacation, one day free stay would be revoked.  It is stated that the complainant repeatedly wrote to the OP against unfair and unreasonable amount imposed on him by the OP and was disappointed and betrayed by this conduct of OP and as a result of which, he finally cancelled his trip vide email dated 26.11.2014.

10. It is stated by the complainant that he searched for the reviews of the OP the internet booking and was shocked to see hundreds of consumer complaints about deficiency in service on the part of the OP.

11. In their reply, the OP has taken the preliminary objections that this Commission does not have the territorial jurisdiction to entertain and adjudicate the complaint and that by virtue of Clause 21 in the Agreement which contained an “ouster Clause”.  The OP supports this contention by giving the judgment of the Hon’ble Supreme Court passed in ABC Laminart Pvt. Ltd. Vs. A.P. Agencies AIR 1989 Supreme Court 1239 and Swastik Glasses Pvt. Ltd. Vs. Indian Oil Corporation (2013) 9SCC 32.  The OP has also relied on Clause 21 of their Membership which contains an arbitration clause.

12. It is next stated that the complainant is not a consumer and that OP is not providing any service and the product of the OP relates to time sharing of immovable properties. It is further stated by the OP that the complainant has entered into a valid contract with OP wherein the vacation charges are no refundable.  It is stated that the complaint has been filed only to harass and extort money from OP and that no cause of action has arisen against the OP.

13. On merits, the OP does not deny that the complainant had taken their membership for 30 years for 6 nights and 7 days and that he had availed of holidays at Goa for the period 23.08.2013 to 29.08.2013.  As far as the holiday at Kasauli is concerned it is stated that the booking was reserved in an affiliated property of the OP at Kasauli and therefore, the complainant was required to pay an amount of Rs.500/- per day as utility charges which was already explained to the complainant at the time of taking membership.

14. It is stated by the OP that complainant had cancelled the booking due to his personal reasons and has raised the concern of utility charges only as an afterthought.  It is stated by the OP that they had issued a welcome letter to the complainant which categorically stated that affiliated properties are governed by the local club rules and that normal utility charges shall be applicable on the members.  The copy of the bye-laws alongwith the welcome letter is annexed as Annnexure-2.

15. It is further stated by the OP that the complainant has levelled several malicious untenable allegations against the OP without any proof.

16. It is next stated that the complainant had enrolled for membership “Blue Season” category covering eligibility for 6 nights and 7 days for 30 years and the relation of complainant and OP is based on legally binding agreement and not as per the whims and fancies of both the parties.  It is stated that benefits which are available to him are listed in the agreement and the agreement supercedes the communication, if any,  with the representative of OP.  It is stated that the membership agreement does not state anything about free food vouchers and that the complainant had only opted that vacation membership and not club membership therefore, though he can visit the club but he will have to pay applicable charges for availing the facility.

17. It is also stated by OP that it is a time sharing company having number of members, the booking is done on a first come first service basis which is clearly mentioned in the agreement that booking is subject to availability.  Therefore, the OP cannot be expected to cancel the booking of one member to accommodate the other.

18. It is also stated in the reply that list of owned and affiliated properties are available on the website of OP and the question of it not being disclosed, does not arise.  It is further stated by the OP that the payment made by the complainant towards AMC was not made by following the due procedure therefore, the same was not reflected in the records and after being approached the query was resolved within two days.  It is stated by the OP that entire story made by the complainant is nothing but an afterthought to get back money paid by him which was understood by him as non-refundable.   It is further stated that the complainant has failed to prove deficiency in service and unfair trade practice against the OP hence no refund of membership is required as alleged by the complainant. 

19. In their rejoinder, the complainant has relied on the judgment of the Hon’ble Supreme Court Laxmi Engineering Work Services vs PSG Industrial Institute (1995) 3 SCC 583 wherein it has been stated about the consumer fora “they are quasi judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers.  It is equally clearly that these fora/Commissions were support to supplant but supplement to the existing judicial system”. The complainant further relies on Fair Air Engineers vs. N.K.Modi AIR 1997 SC 533 “…… these forums created under the Act are to proceed that the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration pursuant to a contract entered into between the parties……..”

20. The complainant denies that he is not a consumer and states that he is availing the services of the OP in getting the facilities at clubs, hotels and resorts for a paid consideration and therefore, he falls within the category of consumer.

21. It is further stated by the complainant that the fee being non-refundable, the clause forms part of their unfair trade practice.  And the OP is fleecing the consumers by taking money and giving deficient services.

22. It is further stated that as per the agreement even if the complainant takes accomodation in affiliated properties there is no extra charge of stay and imposing such a charge on stay in affiliated properties is unreasonable and unfair.

23. The complainant has also denied that he was provided with any bye-laws or additional terms and this being additional to the agreement were never accepted by the complainant.  It is further stated by the complainant that the word “Memberships” on the website of the OP reflects “a membership includes access to all country clubs and country club fitness”.  Therefore, it was presumed by the complainant that he would also to get country club fitness membership. 

24. The complainant as well as the OP have filed their respective evidence affidavits as well written submissions.  This Commission has gone through the entire material on record and oral arguments were heard.  It is seen from the record that the approval Form of the OP states clearly ‘2600 food vouchers under special offer and  two complementary vouchers which were collected at the time of presentation.’

25. It is also seen from the website of OP placed on record that membership actually includes a membership includes access to all country clubs and country club fitness across the globe however, the agreement is limited for vacations.

26. The OP has taken preliminary objections that this Commission does not have the jurisdiction to try the present case. It is seen from the record that in the agreement both the offices of the OP at Hyderabad and Delhi are mentioned however on the top of the page of the agreement it is stated “Country Club Division- Delhi” meaning thereby that agreement was issued from the office of the OP situated at East of Kailash therefore this Commission has the territorial jurisdiction to try the present case.

27. It is also seen that clause 4 of the agreement deals with vacation benefits wherein it is stated the vacation entitled second party a holiday package which includes accommodation charges of the room only. Vacation entitlement also covers CCIL’s affiliated properties which are on short/long term lease/tie ups(CCIL Dubai is not included in this scheme)…..

28. It is also seen that clause 24 of the agreement states that this agreement supersedes any communication whether written or oral or any variation or handwritten remarks rewriting the printed agreement made by the agents and/or representatives of CCIL or second party to this agreement……. . Though it is clearly stated by the OP that this agreement is in supersession of any written or oral offers made by the representatives of the OP however, in this case there were 2 offers made by the representatives of the OP, one being providing 2 free airline tickets to the complainant which was duly honoured by the OP but the other relating to free food voucher is being denied by the OP. This Commission is unable to understand the reason behind choosing to carry out one written offer made by the representatives of the OP while the other is being denied by them.

29. Considering the material stated above, this Commission is of the view that OP has indulged in unfair trade practices in not providing food vouchers.  It is also seen that the complainant has availed of a holiday with the OP and therefore the OP cannot be directed to refund the entire amount received from the complaint. The OP is directed to refund a sum of Rs. 75,000/- along with interest @ 6% p.a from the date of the complaint till realisation. The amount stands payable within 3 months from the date of this order failing which the OP would be liable to pay interest at the rate of 8% p.a till realization.

Copy of the order be provided to the parties as per rules. Order be uploaded on the website. File be consigned to the record room.