Delhi

East Delhi

CC/4/2019

MAMTA RAJWAR - Complainant(s)

Versus

COUNTRY CLUB - Opp.Party(s)

04 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 4/2019

 

	MRS. MAMTA RAJWAR, W/O NAVIN RAJWAR, 19, VANDANA APARTMENTS, PLOT 42, I.P. EXTENSION, DELHI – 110092   MR. NAVIN RAJWAR 19, VANDANA APARTMENTS, PLOT 42, I.P. EXTENSION, DELHI - 110092	….Complainant
Versus
	COUNTRY CLUB HOSPITALITY & HOLIDAYS LIMITED. THROUGH ITS MANAGING DIRECTOR, OFFICE AT V3S MALL, LAXMI NAGAR, NEW DELHI – 110092   ALSO AT:- THROUGH ITS MANAGING DIRECTOR, REGD. OFFICE AT:- AMRUTHA CASTLE, 5-9-16, SAIFABAD, OPPOSITE SECRETARIAT, HYDERABAD – 500063   ALSO AT:- MAIN ROAD, AUGUST KRANTI MARG, HUDCO PLACE, ANDREWS GANJ EXTENSION, ANDREWS GANJ, NEW DELHI – 110049   COUNTRY CLUB HOSPITALITY & HOLIDAYS LIMITED COUNTRY CLUB  KOOL E-12, 2ND FLOOR, KALKAJI, NEAR DESHBANDHU COLLEGE, NEW DELHI – DELHI -110019   ALSO AT:- 6-3-1219/A, 2ND FLOOR, COUNTRY CLUB KOOL, BEGUMPET, HYDERABAD, ANDHRA PRADESH - 500016	……OP

 

Date of Institution	:	02.01.2019
Judgment Reserved on	:	07.06.2023
Judgment Passed on	:	04.07.2023

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Shri S.S. Malhotra (President)

 

JUDGMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service in not refunding the deposited amount despite cancellation of the purchased membership of the OP. 
2. Brief facts stated by the complainant in the complaint are that complainant No.1 who is the wife and complainant No.2 her husband,  (herein after jointly referred as complainants) were solicited by the marketing team of the OP and accordingly they visited V3S Mall Laxmi Nagar in the office of OP where OP showed various Holiday Packages including Holiday Membership ‘Blue’ for 30 years period and made so many promises i.e. complimentary membership of Gold or Talwalkar’s Gym for the entire duration of the Country Club Membership, International Travel in Asia, Complimentary Seven Days Six Nights stay in Asia with Return Air Tickets, Domestic Travel Complimentary Seven Days Six Nights stay in India with three return Air Tickets, 40%-50% discount on Alacarte Bills at all Country Club Properties, One Complimentary Meal for family at Country Club, Membership of DAE (Dial an Exchange) for 30 years where client could exchange her Country Club Holidays for stay in Non-Country Club Properties and as such they were told that complainant have to pay Rs.1,75,000/- out of which Rs.50,000/- was the down payment whereas the remaining amount of Rs.125000/- was payable in interest free EMI for 18 months and complainant were also informed that subscription charges of Rs.8,000/- was also required to be paid which will remain fix for all the thirty years and believing all these the complainants took vide membership No.CCDL 216V30LB26503, however, the complainant came to know the mischief on the part of OP for the first time on 14.02.2017 when they found that EMI was not interest free but was bearing interest @15% p.a. and they immediately wrote to the respondent requesting to get this reversed and issue card charging Zero interest as promised, but the same was not done rather the agreement sent by respondent was much shocking as the agreement was completely different than, what was explained and promised.  The complainant wrote another mail dated 25.02.2017 but again there was no response and finally on 07.03.2017 the OP had written a letter thereby assuring the complainant that the matter would be resolved by their Delhi Department and accordingly one number of Ms. Sakshi Nanda was shared but again there was no response and then the complainants were told to meet one Mr. Manish at V3S Mall but despite making various visits, no solution was finalized rather the mails of the complainant were not being replied and ultimately complainant told the respondent to cancel the membership and refund the amount and even issue notice on 30.07.2018 thereby asking to refund Rs.1,75,000/- along with interest by submitting that the respondent’s action amounts to Unfair Trade Practice and also there was complete deficiency on the part of OP and therefore it is prayed that OP be directed to refund the amount of Rs.1,75,000/- with interest @ 18% p.a., compensation of Rs.20,000/- and litigation cost. 
3. Affidavits of both the complainants are on record.   
4. Letter of having received of Rs.1,75,000/- by OP is also attached. 
5. The OP was served and filed its Written Statement claiming itself to be one of the leading hospitality company and it is stated that the present complaint pertains to the unfounded and misconceived allegations made by the complainant regarding interest charges imposed by the Bank on EMI charges payable by the complainant and it is submitted that OP is not at all concerned with any interest which is levied by the bank nor OP is beneficiary of the interest payable by the complainant on the EMIs and Bank who has levied the interest has not been made a party and accordingly complainant has mislead the Commission when she claims that she received the agreement where all the terms and conditions were contrary to the promises made to her.  It is submitted that complainant had agreed to pay the AMCs to the OP as per terms of the agreement and the welcome call substantiates the said facts.  It is further submitted that the complainant entered into an agreement on 14.02.2017 title ‘Purchase Agreement for Vacation only Membership’  and paid Rs.175000/- adopted a category of ‘Blue’ season under which there were certain benefits for 30 years and after negotiation the said amount was paid by the complainant towards one time non-refundable charges and even signed the same where it is specifically written ‘the second party understands that the vacation charges is non-refundable under any circumstances and that the vacation fee is not the deposit and after representing various terms and conditions of the agreement inter alia clause No.7,8,11,38,39 and 44 it is prayed that complaint case of the complainant is not maintainable.  It is further submitted that the complainant was explained and she visited/ enquired the office of the OP and discussed w.r.t. various schemes and various benefits of these memberships thoroughly, and after satisfying herself about the terms and conditions regarding the services, the complainant was offered membership package and it is not the case of the complainant even that she was compelled to sign the Application Form then and there.  It is further submitted that complainant made an application for membership, she was informed w.r.t. various schemes and various type of packages and after satisfying herself w.r.t. all facts, she signed the agreement and made the payment therefore there is no deficiency in service on the part of OP.  It is further submitted that there is no cause of action in favour of the complainant and the OP has rendered all its commitments as per the understanding arrived at even there is no specific allegation w.r.t. deficiency in service on account of Unfair Trade Practices.  It is further submitted that the agreement as entered in between the parties was a legal agreement and in terms of various judgments of the Hon’ble Supreme Court of India as well as of Hon’ble NCDRC the terms and conditions has to be complied with since there is no deficiency on the part of OP and therefore the complaint is not maintainable.  It is denied that any person made any call to the complainant rather it is submitted that the complainant had visited the OP office on her own and had enquired about different products and services as well as the terms and conditions of each package and only after satisfying herself she opted for the package and then paid the amount in different installments.  It is further submitted that there are no subscription charges imposed upon the complainant by the OP rather there are annual maintenance charges which are to be paid irrespective of usage and this fact is clearly stated in the application form itself as well as in the agreement.  After reiterating the contents of the preliminary objections it is prayed that the complaint of the complainant be dismissed. 
6. Complainant has filed Rejoinder to the Written Statement of the OP and reaffirm and reiterated the contents of the complaint. 
7. Complainant has filed evidence of Ms. Mamta Raajwar and OP has filed evidence of Sh. Bharat Reddy, the authorized representative of OP. 
8. Both the parties have filed their Written Arguments. 
9. The Commission has heard the arguments of both the parties and perused the record. 
10. The complainant alleges that on the various calls made by representative of OP she visited the office of OP where she was given a rosy picture of facts and was allured to have the package for 30 years on payment of Rs.1,75,000/- but when she actually received the agreement, the oral promises which were made during the conversation were not found rather totally different set of terms and conditions were given, whereas OP submits that complainant visited herself on her own, understood the terms and conditions of the package and then one of the package in which 30 years membership is given, was selected by her against the consideration of Rs.175000/- and it was after explaining each and every fact. 
11. The complainant has not filed any documents as to who allured her and why she got allured.  There is no evidence on this aspect.  However, visiting of the complainant in the office of OP is not disputed.  What was assured by the OP’s representative which was not found in the written agreement is also not proved by the complainant.  Unless and until the complainant would specify as to who was the particular person, with his name who promised the alleged benefits claiming to be the Manager/Representative of the OP told certain facts orally to her and then filing her affidavit to that extent by name is required to prove the allegation and there is no such name and complainant’s complaint in this regard is too vague to be considered.  Even otherwise what was orally conveyed cannot be believed in the presence of a written agreement containing the terms and conditions under the provision of section 91 of the Indian Evidence Act where it is specifically mentioned and provided that written document would prevail over the oral conversations, and therefore what was orally conveyed to the complainant which complainant alleges was contrary to the written agreement has not been proved by her. 
12. The complaint of the complainant in this regard also cannot be appreciated.  However, after the charging of interest on EMIs the issue started and then lot of email got exchanged and complainant even met Ms. Sakshi and then also Mr. Manish so that issue be resolved but the issue was not resolved which compelled the complainant for getting the agreement cancelled as the services which were assured to be provided or services which were understood by the complainant as stated were not found mentioned in the agreement in writing.  The writing of the letter by the OP for cancellation and service of legal notice upon the OP for cancellation of the contract and refunding the amount is not disputed.  Admittedly the complainant had not availed any services promised by the OP during all 5-6 months of conversation.  No doubt the issue only started from the EMIs part or the interest on EMIs and there was no other issue in between the parties.  The issue before the Commission therefore is as to whether the OP is required to refund the amount which were taken by it on the pretext of certain services or whether that amount is liable to be forfeited by the OP and whether not refunding the same amounts to unfair trade practice or whether the entire amount can be forfeited by the OP or not.  NO doubt as per the various judgments pronounced by the Hon’ble Supreme Court of India as well as Hon’ble NCDRC the terms and conditions of the agreement has to be abide by each parties so as to confer sanctity of the agreement entered into in between the parties.  Agreement may be standard agreement or agreement may be one sided that can be looked into but generally the terms and conditions as entered in between the parties have to be given respect.  A detail written agreement in this matter has been placed on record and it is reiterated that complainant has not availed any services during the 5-6 months of correspondence.  In view of the fact that no services was ever availed by the OP and in view of the fact that OP has not mentioned in the entire reply that after giving the membership to the complainant the OP has incurred certain expenses so as to secure the services to be provided to the complainant in future either by booking certain Resort or by giving certain free services or by giving certain complimentary services to the complainant.  This is not the case of the OP even.  No doubt the issue started on the interest being claimed by the bank on EMIs then it got escalated to such a level that complainant made her opinion not to have the membership.  There are certain level of communication gap in between the parties on this aspect and it cannot be said more than a trivial issue.  If a person is purchasing the membership of a Resort for 30 years it cannot be expected that everything would be mathematically précised or there may be a complete precision in providing all their services for all those 30 years.  Services cannot be contemplated or anticipated to be mathematically précised, that too services which were to be provided for 30 long years.  It cannot be said after enjoying the services for 29 years, with full satisfaction on one fine day the complainant may say that there was some deficiency in the services in 30^th year.  That has to be explained by logical inferences which are not present in the present case. 
13. However, despite all such facts the issue again which revolves around the present controversy is whether the OP can forfeit the amount or whether a condition that amount is non-refundable even if the complainant has not availed a single service of the OP is justified.  In the considered opinion of this Commission this condition is also not equally poised.  There have to be certain guidelines as to what would happen if any services have been availed for how much period those services have been availed, and how the amount would be adjusted, returned or refunded.  Therefore, there is certain deficiency on the part of OP in this regard.  The Commission is of the opinion that although the complainant has signed the agreement having fully understood but having no explanation as to how the amount would be refunded in case no services is availed by the complainant, amounts to Unfair Trade Practices on the part of OP and it is covered under the definition of Deficiency of Services.  The Commission therefore hereby orders as follows:

• OP would refund 80% of the amount to the Complainant within a period of one month and if he returned the amount of 80% he would not be liable to pay any interest on this amount.  However, if the OP would not return the 80% of the amount within a period of one month after having received the order he would pay interest @ 7% to the complainant from the date of order and would also pay compensation of Rs.10,000/- to the complainant. 

This order be complied with within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.     

Announced on 04.07.2023