Anil Kumar Gupta filed a consumer case on 11 Oct 2022 against Country Club in the West Delhi Consumer Court. The case no is CC/15/70 and the judgment uploaded on 12 Oct 2022.
Delhi
West Delhi
CC/15/70
Anil Kumar Gupta - Complainant(s)
Versus
Country Club - Opp.Party(s)
11 Oct 2022
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST
GOVT. OF NCT OF DELHI
C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI
NEW DELHI
Complaint Case No.70/2015
In the matter of:
Anil Kumar Gupta,
54-C LIG Flats,
Prasad Nagar,
Karol Bagh, New Delhi- 110005.
Versus
The Managing Director,
Country Vacations,
Country Club India Ltd.
6-3-1, Country Vacations 219,
Begumpet, Hyderabad-500016.
The Managing Director,
Country Vacations,
Country Club India Ltd.
Amrutha Castle, 5-9-16,
Saifabad, Opp. Secretariat, Hyderabad-500063.
The Manager,
Country Club India Ltd.,
Shop No.6, 2nd Floor, City Square Mall,
Rajouri Garden,
Delhi-110027...........Opposite Parties
......Complainant
DATE OF INSTITUTION:
JUDGMENT RESERVED ON:
DATE OF DECISION:
27.01.2015
13.09.2022
11.10.2022
Ms. Sonica Mehrotra, President
Ms.Richa Jindal, Member
Mr. Anil Kumar Koushal, Member
Order passed by Ms Richa Jindal, Member
ORDER
1. The complainant has filed the present complaint against OPs u/s 12 of the Consumer Protection Act, 1986. The facts as alleged in the complaint are as follows:
The Complainant is a resident of 54-CLIG flats, Prasad Nagar, Karol Bagh, New Delhi. The Complainant availed the services of Opposite Parties.
The Opposite Party No. 1 and Opposite Party 2 are the registered offices carryingits services in Hyderabad and the Opposite Party 3 is the branch office carrying itsservices in Delhi.
On 7th July 2013, the Complainant received a call from the executive of Opposite Parties informing him that the Complainant had won a gift voucher and invited him to collect the prize at the Opposite Parties office. The Complainant says that when he went to the office of the Opposite Party 3 then they explained all the services and told the Complainant about various lucrative deals.
According to the Complainant, the executive of Opposite Party 3 forced him to take a membership for Rs. 70,000/-. The Complainant was somehow convinced with their assurances and after much insistence by the executive of the Opposite Party 3, the Complainant had paid Rs 70,000/- via credit card towards the membership vide membership no. CCDL10V10LB16195 to the office of the Opposite Party 3.
when the complainant read the agreement, he found lot of differences in the agreement and all the presentations, which were shown to him and the promises made by the Opposite Parties are false. Moreover, the Complainant had received several calls from the Opposite Parties forcing him to pay AMC charges, which were never told to the Complainant at the time of taking the membership.
The Complainant had been mentally harassed by the frequent calls for AMC and the Opposite Parties also forced him to buy various plots in different areas through frequent phone calls. The commitments made by the Opposite Parties are not fulfilled. The Complainant also complains that there is no prompt customer service available and the Opposite Parties have misguided him towards the purchasing of membership.
The Complainant further dissatisfied with the services of the Opposite Parties, visited the office of the Opposite Party 3 and told them to cancel the membership and refund his money. The Complainant says he had already given a letter at the outlet of Opposite Party No. 3 and had also mailed an application on the customer care number of the Opposite Parties but till date neither he had received his money nor any kind of response from the Opposite Parties. Therefore, the Complainant wants to get the membership redeemed.
The Complainant tried several times to communicate with the officials of Opposite Parties but nobody has provided him with any solution and was given false assurances. The complainant has wasted unreasonable amount of time and money in trying to resolve this issue but to no avail.
The Complainant tried to resolve the dispute amicably by sending a letter on 17 December, 2014 to the Opposite Parties but to no avail.
The complainant is a consumer under Section 2 (1) (d) since he has paid for the goods and availed the services of Opposite Parties for a consideration that the Complainant has fully paid. The actions of the Opposite Parties are liable under Section 2(1)(g) of the Consumer Protection Act for deficiency in service (where deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service) and also under Section 2(1)(r) of the Said Act for unfair trade practice which includes but is not limited to misrepresenting facts to promote the sale of any goods or provision of any service'. Hence this complainant wherein the complainant prayed following reliefs:
i. Direct the Opposite Party to apologize for all the inconvenience caused to theComplainant, AND
ii. Direct the Opposite Parties to refund the entire amount of Rs. 70,000/-
iii.Direct the Opposite Parties to pay additional Rs 80,000/- compensation for monetary losses and mental agony suffered by Complainant due the actions of Opposite Parties, AND
iv. direct the Opposite Parties to pay a sum of Rs. 2,000/- towards cost of this petition,
After hearing the arguments on admission, a court notice was issued on 29-01-2015 to be returnable on 10/04/2015. on 10/04/2015 counsel for OP appeared and took time for filing a reply. On 03/07/2015, OP’s filed written statementwherein they took the following preliminary objections in their reply:
The name of Opposite Party, "M/s Country Club India Ltd." has now been officially changed to "M/s Country Club Hospitality and Holidays Ltd" with effect from 27.11.2014. Further, Opposite party No. 1, 2 & 3 are the same company hence a common reply is filed herein and there is no conflict of interest among opposite parties.
The Opposite Parties, is an Indian company and engaged in business of entertainment and leisure conglomerates in India. Opposite Party is having its registered office at Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad - 500 063.
As per vacation purchase agreement, Terms and Conditions (Annexure II), Clause 22, it is clearly stated that "any legal notice or complaint issued by the second party is to be addressed to the registered office of First Party only", hence opposite party no. 1 & 3 should not be a party in present complaint under reply.
That the averments herein are in alternative and without prejudice to one another and Opposite party reserves its right to file the evidence by way of affidavit at the appropriate time of proceedings.
The Opposite parties having registered address is at Amrutha Castle, 5-9-16, Saifabad, Opp. Secretariat, Hyderabad - 500 063, which does not fall within the territorial jurisdiction of this Commission, hence the LdCommission is not having any territorial jurisdiction to entertain the present complaint.
The present Forum is having no territorial jurisdiction to entertain and adjudicate the present complaint of the Complainant due to complete lack of territorial jurisdiction. The said objection is duly taken up at the time of filing of the written statement and the Opposite Party duly call upon the Ld Forum to decide the issue of jurisdiction as preliminary issue before proceeding further in the case.
It is cardinal principle that the question of jurisdiction shall always be decided as preliminary issue and shall also be raised at first available opportunity with regard to maintainability of the Complaint, goes to very root of the matter and as such these objections need to be considered at outset and Opposite party prays to this Hon'ble Forum to dismiss the summarily without going into merits thereof on ground of lack of territorial jurisdiction in limini with exemplary cost on the complainant.
That in the present case as per the terms & conditions of the Membership Agreement in clause (21) of Annexure II, there is arbitration clause entered between the parties under the provisions of the Arbitration and Conciliation Act, 1996, hence in view of arbitration clause as duly contained under the membership agreement jurisdiction of Ld CDRF is ousted and the parties shall be relegated to the arbitration agreement as per the provision of The Arbitration and Conciliation Act 1996.
The complainant is not a consumer as per definition of consumer under the Consumer Protection Act. It is stated that product of the opposite parties relates to time sharing of immovable property, hence the opposite parties are not providing any servicesand in view of above present complaint is liable to be dismissed as such without proceedings further in the matter.
That the complainant had entered into a valid contract with opposite party by signing and executing the membership documents. That the vacation purchase agreement inter alia clearly provides that "THE VACATION CHARGES IS NON REFUNDABALE UNDER ANY CIRCUMTANCES AND THAT THE VACATION FEES IS NOT A DEPOSIT". That the complainant has entered into a binding agreement which cannot be terminated unilaterally.
The complainant had himself signed the membership agreement and admitted to abide the terms and conditions of the membership agreement. The Complainant had not produced copy of the purchase agreement and terms & conditions thereof in his complaint and deliberately concealed the same to avoid bringing into notice the true facts before the Ld Forum. This categorically demonstrates that present complaint is filed by circumventing the facts before this Ld Forum to gain undue advantage from the Opposite party.
The present Complaint, filed against the Opposite party, is only with the intention to harass and extort money by way of demanding compensation from them and no cause of action has ever arisen against it by which the provisions of the Consumer Protection Act could be attracted against them. The Opposite party state that present Complaint is not at all maintainable against it and therefore deserves to be dismissed.
That present complaint is filed with a concocted story of the complainant coupled with suppression of material facts and also by distorting actual facts of case and entire complaint is nothing but a pressure tactics adopted by the complainant to exert pressure on Opposite party.
The Opposite party states that subject matter of present complaint is based on a written contract hence unilateral termination of written contract is not permissible, in aforesaid circumstance it is most respectfully submitted that this Hon'ble Forum does not have jurisdiction to try, entertain and dispose the present Complaint outside the preview of legally executed Contract. That without admitting allegations of the Complainant and in fact denying each of said allegations since the same are not true, the Opposite party states that the present Complaint is not maintainable on the grounds presented by the Opposite party herein which are independent and without prejudice each other.
The Opposite party request to mention that on face of the Complaint itself, no case at all is made out against the Opposite party as the Complainant has failed to show any deficiency in service by the Opposite party for which it can be held responsible and ordered to pay any compensation or any amount to the Complainant. The Opposite party denies each and every allegation made against it and nothing should be construed as admitted, which is not specifically denied herein.
That the complainant had taken a 10 years vacation membership of opposite party vide Membership No. CCDL10V10LB16195 worth Rs. 70,000 and paid entire fees by a transaction of Rs 67,500/- using his credit card and Rs 2,500/- by cash. That as per executed agreement complainant is eligible for availing 6 Nights and 7 Days vacation every year for 10 years in Blue season.
Opposite parties herein acted as per the mandate given to it in the agreement form and issued the membership in conformity of the signed agreement received by it. It is stated that the clause 10 of the Annexure II (Terms and conditions) of the agreement categorically states that Annual Maintenance Chagres (AMC) needs to be paid on time irrespective of usage of vacation. It is further noted that in the welcome letter as received by the complainant also mentioned that AMC of Rs 6,500/- shall be payable annual as mandatory charges.
There been deviations in the terms and conditions of the agreement and offered benefits then complainant would have contacted the Opposite Parties immediately on receipt of the duly executed agreement along with welcome letter in year 2012. Whereas complainant approached Opposite Parties for the first time in December 2013 i.e. after the lapse of 1%½ years when his AMC got due and he started getting reminders for timely payment of AMC. It is pertinent to mention that AMC is a mandatory charge to be paid as per duly executed agreement. From the chronology of events, it is amply clear that complainant doesn't want to pay AMC as scheduled and in order to avoid said AMC payment, he filed present complaint for cancellationof membership without any fault from the end of Opposite Parties. Hence there is no deficiency in services provided by the Opposite parties accordingly the present complaint is liable to be dismissed on this ground alone.
It is pertinent to note that it became the practice of the consumers sometimes once they joined the membership, filing erroneous complaint before the Hon'ble consumer forums based on their bogus claims on experimental basis for sole purpose to wriggle out their contractual obligation and to avoid payment of outstanding dues,
Only after verifying all the terms and conditions of membership, the Complainant had agreed to take membership. The Opposite party states that as the Complainant was well aware of said terms and conditions and after executing the membership application, the Complainant has no rights of asking for refund of membership fees and therefore once the party of contract accepts terms and conditions thereof, the same cannot be repudiated as unilateral whims of Complainant.
The Complainant does not reserve any right to terminate the membership unilaterally in deviation of express terms which were duly apprised to the complainant at the first stage itself. Whereas at the time of presentation itself by the representative of opposite party to the complainant as well as in the Membership Agreement, it was categorically mentioned that the membership fees are not refundable under any circumstance. The complainant duly understood the terms and conditions stated in application forms thereafter he decided to become member of Opposite Parties therefore cancellation of the membership is untenable in the eyes of law.
The Complainant has made several malicious untenable allegations against the opposite party without any proof and with the aid of a coloured cooked up story in his complaint; but miserably failed to state defect or deficiency of service on the part of the opposite party. In fact there is not even a single tenable sentence of deficiency is levelled in the complaint filed by the Complainant even for the sake of maintaining a consumer complaint against the opposite party. The said complaint does neither make a probable case nor supported by any evidence.
The complainant is not entitled to any refund of membership fees or compensation or cost as alleged by the complainant. The opposite party state that it had strictly acted as per theterms of the membership agreement and prayed for dismissal of complaint
Rejoinder and complainant Evidence was filed by the complainant on 20/01/2016.
The complainant has filed his evidence by way of an affidavit affirming the facts alleged in the complaint. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has proved the following documents.:
copy of the credit card statement and
Agreement as per Annexure and Annexure II
letter dtd 17 December, 2014 and a counter receipt as Annexure iii and Annexure IV
On 31/05/2016, OP also filed evidence by way of an affidavit and they have proved the following documents.:
The copy of the vacation purchase agreement as duly signed and executed by the complainant with opposite party is attached herewith as Exhibit OPW-1/1 (colly).
The introduction and manner of business of the opposite party company is attached herewith as Exhibit OPW-1/2.
The welcome letter is attached herewith as Exhibit OPW-1/3".
Both Parties filed their written argument on 28/11/2016. Oral arguments wereheard on 13-09-2022. We have carefully gone through the record of the case and have heard submissions from both the parties.
We have carefully gone through the record of the case and have heard submissions from the complainant.
After going through the material placed on record, it reveals that the only aspect for consideration before us is whether the present Complaint is maintainable in lieu of territorial jurisdiction under Section 34(2) of the Consumer Protection Act, 2019.
As per the law of land, it is already settled that issue of maintainability can be decided at any stage. Reliance is placed on the following judgements: -
Hon'ble Supreme Court in case tilted as “Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot” in CA No. 7107/2003 decided on 16/2/2014 held that “Issue of maintainability has to be decided before admitting or hearing the matter on merit.”
in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that
“It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.
In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed as being not maintainable with no order as to cost.”
To appreciate the controversy, it would be relevant to extract Section 11 of the Act of 1986, which reads as under:-
"Section 11. Jurisdiction of the District Forum - (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services, and the compensation, if any, claimed [does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business, or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually or voluntarily resides, or carries on business, or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry-on business or have a branch office or personally work for gain as the case may be, acquiesce in such institution: or
(c) the cause of action wholly or in part arises."
On the point of territorial jurisdiction, the OP No.2 in their reply filed on behalf of OP No. 2, it was categorically stated that it is an admitted fact that OP’s are situated at Hyderabad, whereas for jurisdiction purposes although the complainant mentioned the address of OP pertaining to Rajouri Garden, the same is a wrong address. This fact can be verified through the accompanying affidavitfiled by OP showing address of East of Kailash. However, the complainant did not file any document to prove that any part of the cause of action was arisen within the territorial jurisdiction of this Commission.Further the complainant did not make any averment in rebuttal to the defence specifically taken by the OP’s on territorial jurisdiction.
Admittedly the address of complainant as well as address of both OP’s are beyond the territorial jurisdiction of this Hon'ble Forum, therefore present complaint is liable to be dismissed for want of jurisdiction as held by Hon'ble Supreme Court in Sonic Surgical vs. National Insurance Co reported as (2010) I SCC 135 dealt with the issue of territorial jurisdiction and held that
"13. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office in Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but the such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation. Ninth Edition, 2004 P. 79] 14. In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint."
The Hon'ble National Commission in similar circumstances in Melanie Das Vs. Royal Sundaram Alliance Insurance Co. & Others I (2014) CPJ 302 (NC) has held that: -
"Mere existence of Branch Office of a Company would not ipso facto be determinative of territorial jurisdiction. The cause of action must also arise at that place. Pithily stated, both the said conditions have been held to be cumulative and not independent of each other."
The Hon'ble National Commission in similar circumstances in several landmark judgments recently in Gati Ltd. V/s Synergetic Automation Technologies [2017(1) CPR 335], United Airlines V/s Saurabh Kalani &Anr [2016(3) CPR 351]. New India Assurance Co. Ltd. Vs/ Poonam Sahai [2016(2) CPR 242] upheld the settled legal position as held by the Hon'ble Supreme Court in Sonic Surgical v/s National Insurance Co. (Supra), therefore in view of the above judgment, this Hon'ble Forum lacks territorial jurisdiction and cannot decide the present case.
Admittedly the present case is mainly against OP No.1, however the actual address of OP 2 also is not situated under the territorial jurisdiction of this Commission. It is pertinent to mention here that as per the settled law since neither OP No. 1 or 2 works for gain or no cause of action ever arose in favour of complainant and against OP No.1 & OP No.2, within the territorial jurisdiction of this Commission, hence the present complainant is liable to be dismissed before this commission especially in context of address of OP 1 at Rajouri Garden, Delhi mentioned in memo of parties. The complainant has failed to place on record any document which proves that any cause of action or part of it arose within the territorial jurisdiction of this Commission. Hence, neither the complainant nor the OP or the cause of action arose within the territorial jurisdiction of this District Commission.
Further National Consumer Disputes Redressal also took the same view in United Airlines vs Saurabh Kalani & Anr to vide Revision PETITION NO. 294 OF 2016 decided on 4 August 2016 and held that :
“From the facts available on record and a perusal of the copy of the complaint, it is very clear that the complainant travelled from Mumbai to the USA and also returned to Mumbai on the ticket booked by him, through a travel agent. It is quite clear that neither the travel was performed from Delhi, nor the tickets were booked from Delhi, but the complaint has been filed before the District Forum at Delhi on the ground that the Airlines have a branch office in Delhi. I, however, do not find any justification to agree with this contention of the complainant. the complainant should have filed the complaint where the cause of action had arisen, i.e., in Mumbai, from where the complainant travelled to the USA and also returned to that place. Therefore, there is a force in this revision petition and the same is allowed and the orders passed by consumer fora below about territorial jurisdiction are set aside.
In view of the above, since the complainant has failed to place on record any incident or document which shows that the cause of action occurred in Moti Nagar, New Delhi.
The Hon’ble Supreme Court in the case of Sonic Surgical vs. National Insurance Co. Ltd. 2010 CTJ 2 Supreme Court) (CP), while dealing with Section 17 of the Act of 1986, which deals with the jurisdiction of the State Commission, has held that the expression 'branch office' means branch office where the cause of action has arisen. The Supreme Court observed that it will lead to absurd consequences of bench hunting if the complainant is allowed to file a complaint anywhere in India where the branch office of the OP is situated.
In the present case admittedly the said vacation package in question was purchased from Hyderabad and also having Delhi office at East of Kailash. In the circumstances, in our considered view, this commission will not have jurisdiction, since the wrong office address cannot be given a meaning that the complaint against the OP’s could have been filed anywhere in the State, wherever it has a branch office. Thus the approach of the Forum in entertaining such a complaint outrights its territorial jurisdiction is contrary to Section 11 of the Act of 1986 and the law laid down by the Supreme Court in the case of Sonic Surgical vs. National Insurance Co. Ltd. 2010 CTJ 2 (Supreme Court) (CP) (supra).
We are, therefore, of the view that this Commission does not have the territorial jurisdiction to entertain the complaint about the want of territorial jurisdiction. We are expressing this view in light of the judgement of the Hon’ble Supreme Court titled M/s Sonic Surgical v/s National Insurance Company Limited and Hon’ble NCDRC titled United Airlines vs Saurabh Kalani & Anr.
In a case titled “Oriental Insurance Co vs Pankaj” decided on 6 November 2018 decided by M. P. State Consumer Disputes Redressal Commission in APPEAL NO. 540/2013 held that
“The other contention of the learned counsel for the respondent also cannot be accepted that the appellants had waived or acquiesced the institution of complaint at Mandleshwar, as we find that the appellants had objected to the territorial jurisdiction. The fact that the deletion of prayer to remove the Branch at Mandsaur from the array of respondents, if not opposed cannot be construed that the appellants have waived the objection about territorial jurisdiction.
In the circumstances, we are of the view that the Forum has erred in deciding the complaint by holding it to be within the territorial jurisdiction, as in our view it had no territorial jurisdiction, as required under Section 11 of the Act of 1986.
In the result, The Forum at Mandleshwar is directed to return the complaint to the respondent/complainant for its presentation before Forum at Mandsaur. The Mandleshar Forum to transmit the record to the Forum at Mandsaur. The Forum at Mandsaur to decide the complaint if presented, by the law.”
The consumer complaint filed before the Commission stands dismissed on the grounds of territorial jurisdiction. However, the complaint is given the liberty to file a fresh complaint at the place where the cause of action had arisen in the present case. Accordingly, the complaint filed by the complainant is dismissed without prejudice to the rights of the complainant to seek him appropriate remedy before the appropriate Commission.
The time spent by her before the District Commission while prosecuting the complaint shall be excluded by that authority while computing the period of limitation for filing the case before appropriate authority, etc. as mandated by Hon’ble Supreme Court Judgement in a case titled as M/S Laxmi Engineering Works vs P.S.G. Industrial Institute; Equivalent citations: 1995 AIR 1428, 1995 SCC (3) 583
“The appeal accordingly fails and is dismissed but without costs. If the appellant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a complaint. “
The complaint is therefore directed to be returned to the complainant along with annexures against acknowledgement. A copy of the complaint should be retained for records. The complaint is disposed of accordingly in the above terms.
A certify copy of the order may be given to all parties after receiving the application for obtaining certify copy as per the direction received from Hon’ble State Commission. Order be sent to www.confonet.nic.in.
Announced in open Commission on 11/10/2022.
(Richa Jindal)
Member
(Anil Kumar Koushal)
Member
(Sonica Mehrotra)
President
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