Karnataka

Bangalore 4th Additional

CC/2504/2017

Gopalkrishna Samaga, - Complainant(s)

Versus

Country Vacations, A Division of Country Club Hospitality and Holidays Limited, - Opp.Party(s)

07 Feb 2020

ORDER

Complaint Filed on:06.09.2017

Disposed On:07.02.2020

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

   07^th DAY OF FEBRUARY 2020

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.2504/2017

 

 

 

COMPLAINANT

Sri.Gopalkrishna Samaga, S/o Late B.Vittaldas Samaga, Aged about 48 years, No.323, 1st Floor, 1st Cross, 4th Block, 3rd Stage, Basaveshwaranagar, Bengaluru – 560 079.   And also at:   Sri.Gopalkrishna Samaga, S/o Late B.Vittaldas Samaga, Aged about 48 years, Presently stationed House No.502, 5th Floor, Himagiri Apartment, T.H Kataria Road, Mahim, Mumbai – 400 016.   Advocate – Sriharsha R. Londhe V/s

OPPOSITE PARties

1) Country Vacations, A Division of Country Club Hospitality and Holidays Ltd., A company registered under the Companies Act, 1956, Having its Corporate office at 6-3-1219, 4th Floor, Begumpet, Hyderabad – 500016.   2) Country Vacations, No.102, 2nd Floor, S and S Corner, Next to Kamath Hotel, Bowring Hospital Road, Shivajinagar, Bengaluru – 560001.   3) Manjunath R, Branch Manager/Line Manager, Country Club, Opp. Punjab National Bank, Modi Hospital Road, Near Shankaramutt, Basaveshwaranagar, Bengaluru – 560 079.   Advocate – Sri.D.Narase Gowda

                                        

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs jointly and severally to refund a sum of Rs.1,16,100/- towards membership collected along with interest @ 6% p.a from 22.09.2016 till the date of realization to pay Rs.10,000/- towards loss, mental agony, hardship etc., to award cost of the proceedings and to grant such other reliefs.

 

2.      The brief facts of complaint is as under:

 

Complainant submitted that during September 2016 the representative of OP-1 & 2 Sri.Manjunatha R OP-3 here-in approached the complainant with regard to their business with some proposals to become a member of their organization.  Later OP-3 lured the complainant to become a member of their organization by offering various incentives, services, perks, etc.  After several discussions OP-3 offered various incentives, benefits and concessions, if the complainant become a member of their organization.  Thereafter, on discussions and deliberations and also on the assurance of the OP-3, had consented to become member of their organization and in this regard submitted an application on 22.09.2016.

 

Complainant further submitted that at the time of submitting application on 22.09.2016 the complainant had paid a membership fee of Rs.1,16,100/- by way of credit card to the accounts of OP-1 & OP-2 and the same has been accepted and credited to their account.  On the same day the complainant had received a confirmatory call through their customer care centre with regard to the details of the membership.  That on receiving the confirmatory call, the membership of the complainant was confirmed but to the shock and surprise, the incentives, concessions, perks and various benefits offered by the OP-3 on behalf of the OP-1 and OP-2 were not confirmed by the customer care executive of their organization for the best reasons known to them.

 

Complainant further submitted that immediately the complainant then and there had negatived his acceptance of membership and requested the customer care of OP not to process the membership application and requested to cancel the membership forthwith and further he had intimated the customer care that he had withdrawn his application for membership from immediate effect.  Further it is also submitted that in the mean-time the complainant had also approached the local office of OPs situated at Bengaluru and submitted a cancellation letter to cancel the application for membership and the cancellation letter is duly acknowledged by the OPs at Bengaluru.  At the time of submitted that cancellation letter, the officials at Bengaluru office had confirmed to refund the amount within 60 days as per the endorsement found therein. 

 

Complainant further submitted that an email is also sent to the customer care of the OPs requesting not to process the application as the same is withdrawn by the complainant.  That the representatives of OP-1 and OP-2 have approached the complainant and they have made false representations with regard to the benefits attached to the member if he becomes a member of OPs-1 & 2.  That the offers and perks offered by the business representative that is the OP-3 to get the membership of the complaint were not confirmed by the customer care while confirming the membership, which fact goes to show that there were false representations made by the company and its business representatives to get the business of their expanded at the cost of other without any ethics and morality.  The misrepresentation of OP-3 at behest of OPs.1 & 2 manifestly and categorically goes to show that they committed breach of trust while offering the benefit to become a member and subsequently on receipt of the membership amount declining the offers assured by them is nothing but deficiency in service and unjust enrichment at the cost of others by false representations.

 

Complainant further submitted that the complainant had also sent a letter dated 30.01.2017 to the OPs requesting them to refund of the amount but the same has not been answered till date.  It is also relevant to state that inspite of cancellation of the membership by the complainant on the very next day, the OPs have failed to cancel the membership and refund the membership amount collected by them by misleading him which is nothing but un-ethical trade practice and business ethics rendering deficiency in service in the course of business carried by them.  Further the complainant caused a legal notice to the OPs intimating them about withdrawing of his acceptance and calling upon them to refund the membership fee paid by him.  Notice has been duly served on OPs.  OPs sent a reply repudiating to refund the membership fee amount collected by them.

 

Complainant further submitted that there is no concluded contract between the complainant and the OP.  Complainant has not at all made use any of the facilities offered to him till date and the offers made by the OP-3 while obtaining the membership consent are not made available to him while issuing the membership of the OPs.  Therefore there is deficiency in service rendered by the OPs.  There is no delay or laches on the part of the complainant in withdrawing the membership offered by them.  The complainant on the very next day when he received a phone call by the customer care of the OP had withdrew his acceptance made without any delay in any manner.  Further it is also submitted by the complainant he withdrew from membership when the officers made by the OP-3 were not accepted and confirmed by the customer care, hence he had every right to repudiate the officer made by them and the same has been done by him without any loss of time or laches on his part in rejecting or withdrawing the acceptance of membership, hence the complainant is entitled for refund of the entire amount with interest as the OPs have caused deficiency in service.  Hence the complainant filed this complaint.

 

3. In response to the notice issued, OPs appeared through advocate and filed their version in brief as under:

 

That the complaint filed by the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine as the complainant has not approached this Forum with clean hands.  Complainant has paid Rs.1,16,100/- in various installments towards the Club Membership.  OP and the complainant have entered into the Purchase Agreement dated 22.09.2016.  OPs upon receipt of the above said amount has issued the Laminated Club Membership Cards to the complainant.  The complainant has duly acknowledged the Membership Card issued by this OPs.

 

OPs further submitted that entering into the purchase agreement is not in dispute and in terms of the agreement clause 12 there is no provision for refund of amount or cancellation of the Club Membership.  However the complainant is at liberty to sell or transfer or gift the Club Membership to any third party.  Inspite of that the complainant for the reasons best known to him has filed this false and frivolous complaint for cancellation.

 

OPs further submitted that the main allegation of the complainant is the incentives, concessions perks and various benefits offered by the OP-3 and negative his acceptance of membership and requested the customer care to cancel the membership and to refund the amount within 60 days and neglected to provide any services to the complainant.  Complainant has not approached the OP branch several times to cater to his vacation plan.  The OP has not provided any service even a single time since 22.09.2016 the OP has played fraud on the complainant has made false and frivolous allegation against this OP.  The entire allegation made in the complaint is baseless and for which there is no piece of document produced by the complainant to establish that the OP engaged in un-trade practice and also rendered deficiency in service.

 

OPs further submitted that the complainant with a dishonest and malafide intention has filed the complaint by making all false and baseless allegations for which there is no basis.  This OP performed its contractual obligation and at no point of failed and this OP respectfully submits that they are providing best services in their field without any blemish.  The complainant is not entitled for any relief much less than he has sought in the complaint.  The complainant is trying to take aid of this Forum for his illegal claim.

 

OPs further submitted that the complainant is not an illiterate person.  The main benefits for club membership and a holiday/vacation package and in terms of the offer, the complainant is entitled for holiday vacation for 3 nights and 4 days in a year for a period of one year and club membership for life time, subject to the terms of conditions mentioned in the purchase agreement dated 22.09.2016 and rest of the averments are totally denied as false.  OPs are always ready to provide the holiday vacation to the complainant but he should book the same 30 days in advance for making necessary arrangements.  Further the Club Membership is for Life Time and it is transferable to their family members.  The complainant has not made any booking for availing of holiday package at any point of time and in this regard piece of document has not been produced and without booking has made false allegation the OP hand offered holiday vacation.

 

OPs further submitted that the complainant has not paid the annual maintenance charges from the last two years and he is due a annual maintenance charges and in order to escape from his liability has filed the false and frivolous complaint by making false and baseless allegations for which there is no basis.  There is no any deficiency of service on the part of OPs.  Complainant is not entitled for refund of amount any paying of interest thereon as claimed when there is no contract in regard to payment of interest and also towards the mental agony of Rs.10,000/- does not arise.  Hence, OPs prayed for dismissal of the complaint with exemplary cost.   

 

4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant has submitted written arguments.  Complainant and OPs have produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he is entitled for the relief sought for?

 

 

2.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1:  Partly in the Affirmative

Point No.2:  As per the order below

 

REASONS

 

 

 

7. Point No.1:  The case of the complainant is that the OP-3 has offered various incentives, concessions and benefits.  After detailed discussions with the OP-3 signed the application on 22.09.2016 and paid membership fee of Rs.1,16,100/- through credit card.  On the same date the complainant received the confirmation call from the customer care with regard to the details of membership.  As per the confirmation call the complainant surprised that they have not confirmed regarding incentives, concessions and benefits offered by OP-3.  Next day the complainant sent mail and also issued cancellation letter to the OP.  OP-3 has confirmed to refund the amount within 60 days but till today the OPs have not refunded the amount.  To substantiate this contention the complainant has produced application form, membership sale agreement, cancellation of membership letter dated 24.09.2016 and 30.01.2017/Ex-A2 and A-3, legal notice dated 31.03.2017/Ex-A4.

 

8. Per contra OPs submitted that after receipt of the membership amount from the complainants, the OPs have issued a club membership card to the complainant.  The complainant has duly acknowledged the membership card issued by the OPs.  Further as per clause-12 of the terms and conditions there is no provision for refund of amount or cancellation of the Club Membership.  However the complainant is at liberty to sell or transfer or gift the club membership to any third party.  To substantiate this contention the OPs have produced online generated membership card/Ex-B2, receipt/Ex-B3 & B4.  On perusal of the Ex-B2 the OPs have generated the said card on 13.10.2016.  The OPs have not produced any documentary proof that the said card has been duly served to the complainant.  Hence the contention of the OPs that the OPs have issued a laminated club membership card to the complainant and the complainant has received the said card from the OPs cannot be acceptable.

 

9. Admittedly the complainant entered into an purchase agreement on 22.09.2016 as per Ex-A1.  Complainant approached the OP-3 for cancellation of membership on 24.09.2016 as per Ex-A2.  On perusal of the receipt/Ex-B3 and B4 it clearly shows that the OPs have generated the bill on 24.09.2016 i.e., after complainant made a request to OPs for cancellation of membership and the OPs have issued receipts.  This act of OPs highly deprecated and condemnable.  Further the OPs contended that as per clause-12 of the terms and conditions there is no provision for refund of amount or cancellation of the Club Membership.  However the complainant is at liberty to sell or transfer or gift the club membership to any third party.  The OPs have not given sufficient time to look into agreement clause to the complainant.  Further in the said agreement there is no provision for cancellation of agreement.  Hence the said agreement is only one sided agreement and not binding on the complainant.  In this regard the judgment passed by Hon’ble Supreme Court of India, in CIVIL APPEAL NO.12238 OF 2018 in a case between Pioneer Urban Land & Infrastructure Ltd. v/s Govindan Raghavan is held as under: 

 

 

“7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent – Flat Purchaser. The Appellant – Builder could not seek to bind the Respondent with such one-sided contractual terms”.

 

 

 

 

10. Based on the above said judgment and facts and circumstances of the case we are of the considered view the conduct of OPs by not honouring the request of the complainant and not cancelled the agreement and not refunding the amount found to be deficiency in rendering the service and in indulging into unfair trade practice.    Hence we come to the conclusion that there is deficiency of service and unfair trade practice on the part of OPs by not responding the request of the complainant.  Therefore, we are of the opinion that the OPs shall have to be directed to refund the amount of Rs.1,16,100/- to the complainant together with interest @ 6% p.a. from the date of complaint till the date of realization along with litigation cost of Rs.5,000/-.  Accordingly, we answer the point No.1 partly in the affirmative.

 

11. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

 

 

 

                 

  O R D E R

 

 

1) The complaint filed by the complainant is allowed in part. 

2) OPs are directed to pay a sum of Rs.1,16,100/- (One Lakh Sixteen Thousand One Hundred Only) to the complainant together with interest @ 6% p.a from the date of complaint till the date of realization along with litigation cost of Rs.5,000/-.

 

3) This order is to be complied by the OPs within 30 days from the receipt of this order.      

 

         

4) Supply free copy of this order to both the parties.

   

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 07^th day of February 2020)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

                       
             

 

 

 

 

 

 

 

                      

Witnesses examined on behalf of the complainant by way of affidavit:

 

Sri.Gopalkrishna Samaga.

 

 

Copies of documents produced on behalf of complainant:

 

Ex-A1	Copy of membership agreement.
Ex-A2	Copy of cancellation of membership addressed by complainant with acknowledgment.
Ex-A3	Copy of letter addressed to 1st OP with regard to cancellation of membership.
Ex-A4	Copy of letter notice along with acknowledgment.
Ex-A5	Copy of reply to the legal notice.
1)	Copy of order of Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 C/w Civil Appeal No.1677/2019 dated 02.04.2019.

 

Witnesses examined on behalf of the OPs by way of affidavit:

 

Sri.Mohammed Akmal Pasha.

 

Documents produced on behalf of Opposite Party/s

 

Ex-B1	Copy of purchase agreement dated 22.09.2016.
Ex-B2	Copy of permanent membership cards.
Ex-B3	Copy of the password.
Ex-B4	Copy of the AMC details Rs.5,900/-.
Ex-B5	Copy of indemnify letter.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT