DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.339/2017
Anuradha Bansal Wife of Shri Brij Mohan Bansal
Resident of:-
C 21 2nd Floor, Green Park Extn
New Delhi 110016
….Complainant
Versus
Country Club Hospitality & Holidays Limited
Manager-in Charge
C 103, 2nd Floor, Ansal Plaza
Andrews Ganj, New Delhi 110049
Also at:
(1) Country Club Hospitality & Holidays Limited
Manager-in Charge
E-12, 2nd Floor, Kalka ji,
Near Deshbandhu College,
New Delhi 110019
- Country Club Hospitality & Holidays Limited
Through the Chairman and Managing Director
6-3-1219/A, Country Club Kool,
Begumpet, Hyderabad 500 016
….Opposite Parties
Date of Institution : 21.09.2017
Date of Order : 30.01.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The Complainant has filed the present complaint seeking refund of Rs.2,00,000/- of membership with interest at the rate of 24% per annum and Rs.50,000/- as compensation for mental harassment and agony, cost on account of deficiency of service and unfair trade practice of the OP and Rs.20,000/- as cost of litigation.
- It is the case of the Complainant that he paid Rs.2,00,000/- on 08.03.2017 to the OP towards 30 years vacations membership (blue) of the OP and was allotted membership number CDSL64V30LB 26687. The receipt of the money given is annexed as Annexure C1. As per the terms and conditions of the membership, the Complainant was required to pay a sum of Rs. 10,500/- plus taxes as annual maintenance charges.
- As part of the scheme, OP was to provide benefits such as i.stay up to 6 nights 7 days at their properties within India and abroad for next 30 years from the date of execution of the agreement, ii. short term accommodation in regular and superior rooms.
- It is stated by the Complainant that when she researched about the services of the OP it was noted the rating was given as 1.5 based on nearly 600 votes at mouthshut.com website with very bad review. It is stated that the Complainant also read large number of complete consumer complaints are pending various consumer foras therefore, on the very next day i.e on 09.03.2017 she informed the OP that the facilities were not as per the contract, promises made at the time of opting of membership and that she has been misled into agreement on the basis of wrong information and that she would not like to continue with the membership.
- It is further stated that on 16.03.2017 OP offered some properties to the Complainant for vacation in Bali though the properties were listed as 4 star but actual rating of the properties were 2.5 and 3 star and then they realised that OP is offering some properties with good listed rating but poor facilities/ services.
- The Complainant then informed representative of the OP on phone as well as through email on 17.03.2017 that the properties are not up to their standard and sought refund of the amount paid to the OP on 08.03.2017 towards membership.
- It is stated by the Complainant that the representative of the OP refused to refund the amount which was taken under the garb of providing the amenities of world class and therefore the OP is guilty of unfair trade practice.
- It is further stated by the Complainant that she visited Bali in the last week of April 2017 with her family and made her own arrangements as the facilities offered by the OP was not good. During the visit to Bali she visited 2 properties offered by the OP and did not find them to be of proper quality. The Complainant further states that after visiting the facilities at Bali she realised that information gathered earlier through social media was correct and that she had become prey to the unholy motive of OP.
- It is further stated by the Complainant that the pre-printed standard form of the contract fulfils the test of unconscionability of contract because there is no condition for refund of membership fee and if no refund clause exists then such clause is unfair, oppressive and is liable to be ignored. The Complainant has also relied on the judgment passed in consumer case number 694/14 decided by this Commission.
- The OP, in their reply have taken the preliminary objections stating that as the registered office of the OP is situated at Hyderabad therefore the competent jurisdiction is at Hyderabad. It is also stated that the membership amount deposited by the Complainant is non-refundable since it is not a deposit and the Complainant being an educated person knew the details of the membership that she was purchasing. It is also stated that there is no cause of action which has arisen in favour of the Complainant as her case is only based on apprehension that she may not get a good service. It is also stated that the complaint is based on a frivolous ground/reason on an erroneous belief that the membership bought once can be revoked at the Complainant’s pleasure overriding the valid contract entered into between the parties.
- The OP have further denied all the averments and contentions made by the Complainant and as stated the Complainant’s grievance is based on hearsay and on conjectures and surmises. It is stated that her complaint does not fall within the realm of a consumer dispute because the complaint does not clearly state any deficiency of service or unfair trade practice at all.
- The OP has totally denied that the Complainant was allured or induced to purchase the product or services of the OP and it is further stated that the Complainant was offered a membership package by way of detailed presentation and after careful deliberations and on being thoroughly satisfied with the terms and conditions with the membership, the Complainant had expressed an interest in purchasing membership of the services offered by the OP.
- It is stated that the Complainant is an educated person and had signed the binding agreement after understanding contents thereof, it is further stated that Complainant’s meeting with the executive of the OP lasted for more than 2 hours wherein she inquired each and every detail of the membership and after being acquainted with the entitlements, did she pay the membership fee.
- It is further stated by the OP that the Complainant has voluntarily entered into the agreement with OP and made the part payment of the non-refundable membership fee as per the agreement entered between both the parties. It is stated that the fact that the membership was non-refundable was made clear to the Complainant and it is reiterated in the agreement.
- It is stated by the OP that there is no deficiency of service or unfair trade practice within the meaning of the Consumer Protection Act which could be attributed to the OP as it has done all in its capacity to provide services to the Complainant and the Complainant has filed the present case by creating a false story and fabricating details.
- The OP has also placed reliance on the judgment of the Hon’ble NCDRC in Country Club India Ltd vs L. Mahadevan (Revision Petition no. 1191/2010) wherein it has stated that when a consumer has only paid for part payment and has insisted on a refund, the OP was legally empowered not to refund the amount as stated in the contract between the parties and the terms and conditions enumerated in the contract are binding between the parties.
- The OP has also placed reliance on the judgment passed by the Hon’ble SCDRC Chandigarh namely Anil Hunjan vs Country Club India Ltd. and Country Club India Ltd. vs Jaswinder Kaur. Reliance has also been placed on the judgment of the Hon’ble Supreme Court in Vikram Green Tech vs New India Assurance Co. Ltd. wherein it was stated that endeavour of the court must always be to interpret words of contract. The courts are not expected to venture into extra liberalism that may result in rewriting the contract/ substituting terms not intended by the parties. The said decision was subsequently followed by the Hon’ble Supreme Court itself in Export Credit Guarantee Corporation of India Ltd. vs M/s Garg Sons International (2014) 1 SCC 686.
- OP has also placed reliance on the judgment of the Hon’ble Supreme Court in Marine Container Services South Pvt. Ltd vs Go Go Garments (1998) 3 SCC 247 wherein court has held that the contract act does apply to the complaints filed under the Consumer Protection Act 1986. OP also been placed on the judgment of the Hon’ble NCDRC in Homeopathic Medical College and Hospital Chandigarh vs Miss Gunita Virk I(1996) CPJ 37(NC) and other judgments as TV Sundaram Iyengar vs DJ Muthuswamy Duraiswamy and M/s Nugas technologies India vs Geeta Bal Bharti Varisht.
- It is stated that Complainant is not entitled to any refund as she has voluntarily paid the amount to the OP and does not reserve any right to terminate her membership unilaterally as per her own whim on the basis of information that she has got from unknown sources.
The Complainant has filed the rejoinder and both the Complainant as well as the OP have filed their respective evidence affidavits as well as written submissions. This Commission has gone through the entire material on record.
This Commission is of the view that the complainant has been able to make a case against OP for unfair trade practice as the complainant is asking for refund on the ground that she was promised certain class of facilities however when she visited the hotels in Bali provided by the OP she did not find them to be of that class. The grievance is not relating to refund because the services were not good but because the promised services were not seen to be provided at the hotels in Bali.
It is also seen from the record of the case that the complainant is an educated person who signed the contract but is wanting to rescind the contract as it does not meet the promised services agreed to be availed therefore this Commission is of the view that ends of justice would be met if we allow the OP to keep 30% of the amount as administrative charges and the rest of the money i.e Rs. 1,40,000/- ought to be returned to the complainant within two months from the receipt of date of the order failing which the amount will carry an interest @ 5 % p.a from the date of the order till realization.
No order as to costs.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
