DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.520/2013

Sh. Sunny Jain

S/o Sh. Naresh Kumar Jain,

R/o H.No.23, Basant Kunj,

Kalindi Road, Near Transport Nagar,

Meerut-250001 (U.P.)                                                        ….Complainant

Versus

Country Club (India) Limited

Delhi Office:  14, Community Centre,

2^nd Floor, East of Kailash, Opposite Sapna Cinema,

New Delhi-110063                                                         ….Opposite Party

                                                  Date of Institution        : 15.10.13          Date of Order     : 22.09.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the case as stated by the complainant are:-

1. The complainant, Sh. Sunny Jain took membership of M/s Country Club Ltd. hereinafter after referred to as OP.  The complainant was approached by the representative of the OP, who discussed the clubbing/holidays offer. It was only after going through the website of the OP and also getting good response   from the society regarding OP the complainant accepted the membership offer and made a payment of Rs.1,30,000/- on 11.07.11. The payment receipt dated 11.07.11 has been annexed as Annexure C-2.
2. The complainant on 19.07.12 received an email from Assistant Sales Manager of the OP as greeting message. Thereafter, the complainant on the same day reverted back seeking certain clarifications and also requested to confirm some benefits. Queries raised by the complainant were addressed by the OP but the complainant was not satisfied with the reply and wrote another email seeking further clarification.
3.  Lot of correspondence took place between the parties. But the complainant states, the OP failed to remove the doubts of the complainant. OP only sought time by giving unnecessary excuses and after a given point of time started avoiding the calls of the complainant. Complainant even approached the Central Customer Care Department as well as CEO of OP, namely, Mr. Shazi Mathew seeking clarification, but all in vain.
4. The complainant aggrieved by the above circumstances sent an email dated 26.09.12 with a request to cancel his membership and refund the entire amount paid by him. The complainant further states that he even tried to cancel the credit card transaction with his banker HDFC Bank whereby he paid Rs.1,30,000/- to the OP, but to no avail.
5. After having not received any reply to the email dated 26.09.12 the complainant moved a complaint in this Consumer Fora with the prayer that the OP be directed to refund the amount taken in lieu of the membership i.e. Rs.1,30,000/-, OP be also directed to pay litigation expenses of Rs.15,000/- and to pay Rs.50,000/- as compensation to the complainant for harassment and mental agony etc.            

2.       OP resisted the complaint by filing its written statement wherein the preliminary objection taken by the OP is that the parties have jointly entered into Agreement wherein it is stated that in case of any dispute the Courts at Hyderabad and Secundrabad shall have jurisdictions and the same has been incorporated in Clause 12 of Annexure of Membership Agreement. Hence, this forum lacks the territorial jurisdiction under the Agreement.

2.1     It was further contended by the OP that the complaint is not maintainable before this Forum on the ground that as per Clause 12 of the Agreement, matter ought to have been referred to an Arbitrator.

2.2     OP further states that the complainant has not come with clean hands as he has concealed the fact that as per  the Country Club membership the amount paid for membership is non- refundable. The complainant was very much aware of this condition at the time of signing the membership agreement. 

2.3     OP in its written statement submits that the complainant had voluntarily approached the OP for membership and it was only after getting a good feedback about OP in the society did he opt for the same. OP specifically denied that they never promised to give 2 bonus week’s holidays to the complainant at any point of time. OP further submitted that the two air tickets coupons were provided to the complainant as promised. 

2.4     It is also contended that as per the Membership Purchase Agreement Form, the terms and conditions Annexure-2 clause 4 very categorically states that all the holidays are subject to availability as the OP follows the floating week.  Therefore, as the complainant demanded bookings at Thekkeday and Munnar OP could not provide the bookings as arrangements could be made only if they were available.

2.5     OP further submits that the complainant was handed over the Agreement copy at the time of becoming the member, which was duly signed by him. The membership details and facilities are clearly mentioned in the Agreement, therefore the complainant was aware of all the terms and conditions since the very beginning. But still the complainant wrote emails seeking clarification which was duly provided to him. OP further submits that in every email the complainant raised different point and tried to gain undue benefit in deviation to the Membership Agreement.

2.6     OP further averred that the complainant on one hand tried to first reverse the money paid through credit card and on the other was exchanging the emails with the OP seeking clarifications and asking them to increase the benefits beyond what was offered to him. Hence, the OP prays for dismissal of the complaint with cost.

3.       Complainant did not file any replication and reiterated everything said in the complaint in his evidence by way of affidavit.

4.       Affidavit of Sh. Bharat Reddy, AR of the OP has been filed in evidence.

5.       Written arguments have been filed on behalf of the parties.

6.       We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

7.       It is an admitted fact that the complainant purchased membership from OP and paid Rs.1,30,000/- towards the membership fee. A Membership Agreement was signed between the parties wherein the complainant is entitled for vacation for 6 nights & 7 days under blue season.

Before we go into the merits of the case let us first deal with the preliminary objection raised by the OP.

First preliminary objections raised by the OP is that this Forum does not have territorial jurisdiction as the parties had agreed that in case of any dispute the Courts at Hyderabad and Secundrabad shall have jurisdiction. The same has been incorporated in Clause 12 of Annexure of Membership Agreement. This contention of the OP does not hold ground as it is a settled law that territorial jurisdiction cannot be ousted by an Agreement between the parties. Therefore, the complainant cannot be stopped from filing his complaint in the present Forum.

Second preliminary objection raised by the OP is that the complaint is not maintainable before this Forum also on the ground that as per Clause 12 of the Agreement matter ought to have been referred to an Arbitrator. It is very categorically stated in Section 3 of the Consumer Protection, 1986 that the provisions of this Act are in addition to other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching the consumer forum.

8.       Now on the merits of the case. The main contention of the complainant is that the representatives of the OP made false promises and imposing full faith in the Company the complainant believed and thought that everything that was told by the representatives was true. It was only on the oral promises made by the representatives that the complainant paid Rs.1,30,000/- to the OP. But to his dismay the complainant received an-email as a greeting message dated 19.07.12 which was quiet vague with respect to the benefits assured to him. Within few days of signing the Agreement the complainant had started seeking clarification regarding the benefits promised to him. But he was disturbed to know that whatever was orally promised by the representatives of the OP was very different from the actual benefits provided to him. Copy of the Agreement is placed on the record. We have gone through the copy of e-mails exchanged between the parties carefully. In the e-mail dated 26.09.12 it is very clearly mentioned by the complainant that he has no problem staying with the membership if the promises made by the representatives of the OP are fulfilled.

9.       OP contested the case stating that the complainant had executed a Purchase Agreement for Country Club membership with OP after the terms and conditions were explained to the complainant. OP further averred that the complainant filled the form and scribed his signatures on the Agreement after thoroughly studying the terms and conditions. The agreement categorically mentions that the membership fee is non- refundable under any circumstances and the membership fee is not a deposit.

10.     Complainant has alleged that he along with his family wanted to go for vacation to Munnar and Thekkeday. But could not go as OP failed to make requisite arrangements. Emails  requesting  for arrangement reads as under :-

“also please confirm my booking for DAE property for Mountain Club, Munnar for 23^rd December 2012 to 25^th December 2012, i.e. 3 nights and for DAE property for Thekkady Wild Corridor, Thekkady for 21^st December 2012 to 22^nd December 2012 i.e. 2 Nights for one studio.”  

To this, OP submits procedure for holiday booking that is as per the Membership Purchase Agreement Form terms and conditions. Annexure-2 Clause 4 of the Agreement read as:

 “all the holidays are subject to availability as we follows the floating week.”

It is also submitted that the holiday booking process is online and has been provided under Clause 1 & 3 of Annexure-1 of the Membership Agreement. The booking period is provided under clause 4 of the Annexure 2 of the Membership Agreement wherein it is categorically mentioned that the booking period is between 90^th to 45^th day for the Blue Season member.

11.     On perusal of the records it is noticed that the complainant was not satisfied with the services to be provided by OP and had started making correspondence in this regard from the very beginning.

12.     The complainant was agreeable to retaining the membership if the OP would fulfill the commitments made by its representatives. Though the complainant is bound by the Agreement signed by him but the Agreement did not have a free look period wherein the complainant is given a right to cancel the membership subject to certain conditions and deductions. However, no such liberty has been afforded to the consumer in this case. Therefore, the Agreement is non-conscionable and unjustified to that extent.

13.     OP has relied on various judgments to support its case. The ratio of all the judgments is that the terms and conditions which are agreed upon, are binding on the parties. This preposition of law is not disputed in ideal circumstances. However in the present case, the agreement seems to be hit by an element of absence of free consent in as much as the representatives of OP had promised better services than offered in the written agreement. Moreover the absence of Exit Clause makes the Agreement unconscionable as it is one sided.

14.     Therefore, in our considered opinion the complainant had not availed any services of the OP for which he had paid an amount of Rs.1,30,000/-. The OP should have considered the request of the complainant to refund the amount paid by him after making some deductions on account of processing charges and office expenses incurred. However, no such freedom was given to the complainant in the one sided agreement which contained total beneficial clauses in favour of the OP. Therefore, we hold the OP guilty of unfair trade practice.

However, complainant submits that he signed the agreement after having gone through the website of OP and enquiring about the reputation of the OP in the society. The complainant himself was negligent to a some extent in the completion of the transaction.

15.     Keeping in view the above facts and circumstances of the case we allow the complaint and direct the OP to refund Rs.1,00,000/- in lumpsum to the complainant alongwith Rs.10,000/- towards mental agony and litigation expenses within 45 days of receipt of copy of this order. Failing which OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.1,00,000/- from the date of the filing of the 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 22.09.18.

Devendra