DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.640/2012
Smt. Anju Jain w/o Shri Pankaj Jain
r/o 9B, 64 Rang Rasayan, Sec.13,
Rohini, Delhi-110085
….Complainant
Versus
Country Club India Ltd.,
25, Community Centre,
1st Floor, East of Kailash,
Near Sapna Cinema,
New Delhi-110065
Through: Mr. Y. Rajeev Reddy, Managing Director
….Opposite Party
Date of Institution : 29.11.2012
Date of Order : 02.12.2021
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
The Complainant has been filed for the deficiency of service. The Complainant alleged that he was approached on telephone by the OP stating that he had won a ‘Gift’ and invited to the office of OP at Shop No. SF-21, Second Floor, MGF Mall, Saket, New Delhi-110017. On reaching there, the representative of OP offered various schemes to become the member to her and her husband. It was narrated that if the complainant paid Rs.2,40,000/- she would get a scheme-‘C-2K’, in return, the OP would provide free boarding, lodging, free site seeing in India and abroad to her and her family for 6 nights/7 days, once in a year for 30 years. On their persistent request, the Complainant initially paid Rs.5,000/- at their office.
It was also further allured by the representative of OP that if she makes payment atleast half of the scheme amount, today itself, the Complainant would be entitled to get Membership Card and Free Passes for the Eve of 31st December, 2010. It was also stated that the scheme is only up to 12.00 am. Despite the denial to give further amount at such odd hours, Mr. Girish, representative of the OP accompanied them to their house. The Complainant gave a cheque of Rs.24,720/- and sum of Rs.64,330/- in cash in addition to Rs.5,000/- already paid to avail the benefits of the scheme. As such, the Complainant paid a sum of Rs.83,050/-. She alleged that she did not receive the Membership Card and Free-Passes.
In such compelling circumstances, the Complainant got stopped the payment of cheque of Rs.24,720/-. However, she also visited the office of OP on 31.12.2020. On hearing the grievance and a long discussion Mr. Mukesh, the representative of the OP pursuaded the Complainant to continue with this scheme and also offered the Complainant with cash discount and a new scheme known as ‘Kool Silver Fractional Condos’ for Rs.1,58,580/-. To get the new scheme, she had to deposit a sum of Rs.89,250/- on 31.12.2010 and it was assured that by the Complainant, she will get a Membership Card within a week. On inquiry from the OP, as to why they have not issued and sent the Membership Card, the OP asked her to send the Photographs of herself and her family members. In compliance of the requirement, she sent photographs through email on 10.01.2011. Despite all compliance of the requirements, the Complainant did not receive the Membership Card till first week of June, 2011.
It is further alleged by her that the OP had miserably failed to give the service to the complainant as promised/agreed to. On seeing, the negligence of the OP who had failed to issue Membership Card, despite expiry of about six months on having been deposited the huge amount of Rs.1,58,580/-. The Complainant lost faith in OP for providing the declared facilities and requested to cancel the proposed Membership and return the deposited money Rs.1,58,580/- to the complainant vide e-mail dated 13.06.2011.
Sh. Bharat Reddy, Legal Officer duly authorised by the OP, has filed written statement and affidavit to this effect denying the averments/allegations made by the Complainant.
It was also objected by the OP that the Complainant was issued receipt in 2010 as she did nothing about the said grievance and filed the present complaint after the lapse of two years. The present complaint has been filed with malafide intention to harass, humiliate and defame the respondent company.
He further pleaded that there is no territorial jurisdiction to try the said matter. In the instant case, there is a membership agreement wherein it is clearly provided that the courts of Hyderabad and Secunderabad shall have jurisdiction. It is settled law on the point that when the contract/agreement between the parties contains an exclusive jurisdiction clause, the case shall be filed in that court where the jurisdiction is vested with the consent of the parties. The parties should have taken recourse to arbitration to settle the dispute. Nevertheless, the Complainant without even having any regard for the said clause, has filed a complaint before this Hon’ble Court which is not a maintainable as being devoid of merit. The Complainant is having no cause of action in her favour. The Complainant has also signed the membership agreement after reading the contents and understanding the binding force of the same. As such a party cannot unilaterally cancel the contract. Moreover, the membership fee is a non-refundable specially when the Complainant is herself at defaulting end. The OP has also submitted that a complaint can be filed under this act if he or she is aggrieved in any of the following:
- Any unfair trade practice or restrictive trade practice adopted; by the trader
- Defective goods
- Deficiency in service
- Excess price charged; by the trader
- Excess price charged; by the trader
- Unlawful goods sale, which is hazardous to life and safety when used.
As such, as contended by OP, the Complainant is neither aggrieved by the deficiency of the service nor unfair trade practice. The Complainant does not have faith under any of the clause for filing the case in this court. The Complainant in her e-mail straightway asked for money even without mentioning the specific grievance. The Complainant has not produced the terms and conditions to which the parties are binding.
The OP has filed the written statement and replication application by the Complainant is also on record. Both the parties have also filed evidence by way of affidavit. All the above documents are on record. Both the parties filed their written arguments. Oral Argument were also heard and concluded.
It is seen that the Complainant had been provided the money receipts which are exhibited as Ex. CW1/1 and Ex. CW1/2 for the scheme known as “Kool Silver Fractional Condos” after allowing cash discount etc. for Rs.1,58,580/-. Despite all compliances, the OP did not issue membership card till first week of June, 2011.
At the same time, it is noticed that the OP had not denied the receipt of amount as exhibited by the Complainant. It was also contended by the OP that since the Complainant did not deposit the full amount at the time of issuance of free passes for the Eve of 31st December, 2010 and further did not provide the photographs of the family so as to enable the OP to issue the membership card.
As regards to territorial jurisdiction, membership agreement clearly provides that the Courts of Hyderabad and Secunderabad alone shall have the jurisdiction. The OP has also given a reference of the case titled as Chahat Khan Vs CCIL (Case No.437/12) wherein the Hon’ble District Consumer Forum, Saini Enclave held that “the terms and conditions of the agreement are binding on the parties to the contract”. OP has also referred the case titled Rahul Jain Vs. CCIL (Case No.638/2009) wherein it is observed that “as per agreement only courts of Hyderabad and Secunderabad have jurisdiction hence the present forum is barred by jurisdiction”. Copy of the order is exhibited at Ex. OP-1. The OP has also placed reliance on the ratio of judgement in the case of Country Vacation Holiday Club (Copy of order exhibited at Annexure-3). The OP has exhorted that unless full amount for a particular membership is deposited with the OP no benefits attached to membership can be allowed. As such the facility of free passes of the OP could not be extended. The OP has also denied the receipt of e-mail dated 13.06.2011 for cancellation of membership and refund of money and further stated that a party cannot unilaterally cancel the contract. The membership agreement clearly provides that money paid for membership is non-refundable especially when the Complainant is herself at defaulting end.
This Commission has gone through the material on record carefully that neither of the party has enclosed the copy of agreement whereas the OP is placing reliance on the signed agreement. In support of his case, and has also referred the judgements on signed agreement being binding force on both the parties.
It was also categorically stated that the Complainant has not completed the terms and conditions of the membership agreement, therefore, it does not suffer any kind of deficiency in service. Whereas it was clearly proved by the Complainant that the certain amount of Rs.1,58,580/- was paid to the OP for “Kool Global Condos membership” and proof of the same are placed and shown as exhibits. It was also noticed that the Complainant had also sent the photographs of her and her family to the OP for issuance of membership card. It was a case of Complainant that she made the payment and the representative of OP even accompanied to her house for collection of amount as mentioned in the above Paras. It is also noted that the representative of OP was bringing her round to the terms and conditions of various schemes by providing cash discounts etc. and other allurements at each time as and when the complainant raised some reservation. It is also noticed that no agreement has been provided by either of the party. Therefore, the judgment referred by OP is of no help to him. It is also noted that on the point of territorial jurisdiction; the ratio of judgement passed by Consumer Forum in the particular cases cannot override the provisions of Consumer Act.
In view of the facts and circumstances, this Commission is convinced that there was a “deficiency in service” on the part of the OP and also directs the OP to refund the amount of Rs.1,58,580/- with interest @6% from the date of institution of the case in this Commission. This amount should be paid by the OP within 3 months from the date of receipt of this order failing which interest at the rate of 9% shall be levied on the above mentioned amount of Rs1,58,580/- till its realization.
File be consigned to the record room after giving copy of the complaint.
