DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.387/2018
Smt. Suman Agrawal
W/o Shri Rakesh Kumar Agarwal
R/o Flat No.401
Aster-6 Supertech Emerald Court
Sector-93A, NOIDA
UTTAR PRADESH-201304.
Shri Abhishek Aggarwal
S/o Shri Rakesh Kumar Agarwal
R/o Flat No.401
Aster-6, Supertech Emerald Court
Sector-93A, NOIDA
Uttar Pradesh-201304. .…Complainants
VERSUS
M/s Country Club Hospitality & Holidays Ltd.
Having registered offce at:
Amrutha Castle
5-9-16, Saifabad Secretariat
Hyderabad, Telangana-500063
Andhra Pradesh.
Also Having Regional Office at:
No. 25, Community Centre
East of Kailash
New Delhi-110065.
Country Vacations
A Division of Country Club Hospitality &
Holidays Ltd.
Having office at:
Center Stage Mall (Wave Mall)
2nd Fllor, 40-45
Sector-18, NOIDA-201301
Uttar Pradesh. .….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Praful Jindal for complainant.
Present: Adv. Pallavi Yadav proxy counsel on behalf of Adv. Manish Kumar for OP.
ORDER
Date of Institution:29.12.2018
Date of Order :23.10.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking refund of Rs. 1,70,000/- along with pendente lite interest and future interest at 12 % per annum from the date of making payment; compensation of Rs.2,00,000/- towards mental harassment and agony and Rs.50,000/- towards cost of litigation. Complainants are wife and husband. OP 1 is Country Club Hospitality Ltd. and OP 2 is Country Vacations.
- It is stated by the complainant that believing the promises and assurances made by their representatives of the OP in respect of lucrative features and additional benefits promised to them under a membership of the OP. The complainants jointly applied for their membership. It is stated that the complainants were directed to make a payment of Rs.1,70,000/- instantly out of a total sum of Rs.1,75,000/- in order to avail the extra benefits under the membership.
- This payment was made by the complainant through his various debit and credit cards as they had merely gone to collect their holiday gift voucher and was lured by the OPs to make payment by contending that the offer stands for one day only and shall not be available next morning. At almost midnight, the representative of the OP took signatures of the complainant on certain documents perfectly required for applying for the membership of the OP which the complainants did not even get a chance to read and neither was supplied a copy thereof.
Copy of the Approval form along with the receipts annexed is annexure C4 (colly).
- It is stated by the complainants that they received the letter dated 08.10.2016 from OP 1 providing the details of membership of 30 years vacations blue, letter showed that only complaint no.1 was singly allotted membership though both the complainants had applied for joint membership. Copy of the letter along with the vacations agreement dated 08.10.2016 is annexed as annexed C5 (colly).
- It is stated by the complainants that they were surprised to see the agreement that most of the terms, features, benefits provided under the said agreement were contradictory to the features and benefits promised to the complainants at the time of applying of the membership. Complainants then approached OP and their representatives and sent an email dated 25.10.2016 which OP acknowledged and agreed to incorporate few of the missing features in the membership of the complainants which were agreed on 02.10.2016. Copy of the email dated 25.10.2016 is annexed as C6.
- It is further stated that thereafter the complainants made several attempts to speak to the representatives of the OP to provide all the benefits and features promised and assured to them at the time when the membership package was offered however, no positive response was forthcoming from the OP. The complainants then demanded complete refund of the amount deposited by the complainants towards membership. These are reflected in emails dated 31.10.2016, 20.11.2016 which are annexed as annexed C 7.
- Pursuant to the demand of refund by the complainants, senior executives of the OP approached the complainants and agreed to settle the issue by incorporating all the additional benefits and features however, the OP vide their email dated 26.12.2016 again went back on their words and incorporated only certain features and the issue regarding AMC complementary flight tickets, DAE exchange fees remained unresolved. Complaint no.2 vide email dated 27.12.2016 reiterated that all the points agreed between them have not yet been complied with by the OP. Reminder of the same was sent on 29.12.2016 and in response to the email dated 29.12.2016 OP informed that all the features promised to the complainants at the time of applying for membership cannot be included in the package.
- Thereafter the complainants vide email dated 31.12.2016 and vide email dated 20.12.2018 requested the OP to refund the entire amount deposited. Copy of the said emails are annexed as annexed C8 (colly).
- It is stated by the complainant that OP have adopted unfair trade practices to get business from the complainants by providing them false information regarding the actual features and benefits provided under the membership alluring them into purchasing the membership of OP. It is stated that OP have fraudulently and by misrepresenting the features and benefits made the complainants to believe that there was special/additional features under the membership and induced them to make payment.
- In the reply, OP has stated that the complaint is an abuse of the process of law being frivolous and vexatious. It is stated that complainant herself had visited the OP and had enquired about different products and services where all benefits were explained to the complainant and after being satisfied about the terms and conditions regarding the services and as well as after going through the fine print of the agreement, the complainant expressed her interest in purchasing blue star membership offered by OP for 30 years. The complainant were was eligible for an annual vacation of 6N 7D and also an additional holiday of 3N 4D at Singapore.
- OP has not denied the payment of Rs.1,70,000/- being made and that the complainant was offered additional vouchers towards flight tickets coupons. It is stated that the gift vouchers were independent and could be used even when there is no membership taken by the OP. It is stated that the complainant is an educated person and had signed the binding agreement after understanding the contents of the agreement thereof.
- It is reiterated by the OP that the complainant was never forced to purchase the membership and had voluntarily decided to pay a non-refundable membership fee. It is further stated by the OP that to ensure that there is clarity of terms and to make the complainant is aware of his entitlements an agreement is necessitated so that there is no ambiguity regarding the terms that govern the membership of the complainant and of the OP.
- OP has stated that the additional benefits which the complainant is claiming have already been clarified by the officials of the OP both over telephone as well as emails and it is stated that the points raised by the complainant are merely after thought as the agreement defines the services which could be used by the complainant. It is further stated that complaint does not talk about any deficiency on the part of the OP or any unfair trade practice on the part of the OP.
- It is stated that the grievance of the complainant as can be seen in email for July replied by the OP time and again and OP’s advice and explanation has not gone well with the complainant due to his obstinacy to revoke the membership for reasons best known to him.
- OP has relied on Country Club India Ltd. vs L. Mahadevan RP No. 1191/200 and Vikram Green Tech(I) Ltd. vs New India Assurance company limited (2009) 5 SCC 599 and Export Credit Guarantee Corporation of India Ltd. vs M/s Garg Sons International (2014) 1 SCC 686; Sikka papers Ltd vs National Insurance Company (2009)7 SCC 777 and Marine Container Services South Pvt. Ltd. vs Go Go Garments(1998) 3 SCC 247.
- Further, the OP has raised preliminary objections relating to the territorial jurisdiction of this Commission as well as limitation which stands decided by an order of this Commission dated 15.01.2020. Since it has not been challenged by either party, the said order has assumed finality.
- In their rejoinder, complainant has denied the averments made by the OP in their reply and reiterated the averments made by them in their complaint. Complainant has reiterated that the consent was not free and that there is an element of fraud and misrepresentation by the OP in getting the agreement executed by the complainant.
- Both the parties have filed their respective evidence affidavits as well as written arguments. This Commission has gone through the entire material on record. It is cleared from the material on record that the complainant immediately after signing of the agreement was continuously following up with the OP stressing that the terms agreed in the agreement were not in consonance with the picture provided by the OP at the time of signing of the agreement.
- The emails on record filed by the complainant are clear in this regard. Complainant has placed on record the holiday gift voucher issued by the OP also the handwritten notes of the representative of the OP signed by one Mr. Ashwani Tyagi stated to be the representative of OP. Complainant has also placed on record the approval form clearly specifying that the membership had to be in the joint name of both the complainants. Receipts of payment are also placed on record. It is also seen that the complainant immediately after receiving the agreement was following up with the OP stating that the promises made to them at the time of selling the membership of the OP are not in consonance with the agreement that was sent to them.
- Complainant has been complaining of breach of trust from the side of the OP and seeking refund as early as November 2016. It is also seen that after the complainants making various complaints OP has given certain benefits to the complainant which were not included in the agreement signed by both the parties. Some air tickets, waiver of 1st year AMC fees, complimentary stay at Singapore were provided but the promises relating to no season wise restriction, no DAE charges etc. whereas these terms are seen handwritten by the representative of OP. OP has merely stated oral/written communication will be superseded after an agreement however the communication has not been denied by the OP.
The Hon’ble SC in Lucknow Development Authority vs M.K. Gupta AIR 1994 SC 787 held
If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. ……. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice.
This Commission is of the view that the OP has indulged in unfair trade practices and is therefore liable to refund the amount of Rs.1,65,000/- to the complainant with interest at 5% per annum from the date of payment till realisation after deducting Rs. 5,000/- towards administration charges. This payment is to be made within three months from the date of pronouncement of the order failing which the interest to be paid would be 7% per annum. Complainant is not found entitled to any other relief.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
