Order-14.
Date-02/03/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that OP through its authorized agent called up the Complainant No. 2 stating that she won some lottery and became the lucky winner of 7 days accommodation at the beautiful Country Club Property and also claimed that they would deliver the gift only if she would visit their local Sarat Bose Office at Jyotibehar,3rd floor,85 A, Sarat Bose Road (Near Sishumangal), PS . Kalighat,Kolkata-700026. The representative of OP also informed that there would be one small presentation as a part of their promotion and there was absolutely no money charges for anything. He, thereafter, kept on pressurizing the Complainants time and again to make visit on 5th May, 2015 and to collect the gift. The Complainants’ visited the office of the OP on 5th May,2015 in the afternoon. The representative of OP made several verbal presentations to the Complainants highlighting facilities for providing all the best holidaying in India and abroad. They also made several directives, offers and insisted the Complainants to make payment on spot as now or never basis. The OP became well aware about the Complainants’ son, who stays in England and that the Complainant has a plan to visit him soon and holidaying in Europe in July, 2015. The OP also lured the Complainants to make payment of huge amount of Rs.2,06,000/-. The Complainants also were given to understand that using vacations scheme by utilizing the membership, they could themselves go to meet their son or can transfer the membership by their Overseas Associates too. The Complainants further stated that they were not given any time to think, the Complainants gather cash from ATM being accompanied an agent of O.P. for making part payment. The OP after collecting the full membership fees of Rs.2,06,000/- brought out an agreement typed on a non judicial stamp paper. The OP also stated that refusal to sign the agreement would mean that the Complainants’ losing everything and therefore, the Complainants had no other option but to sign the same. The Complainants alleged that they found, thereafter, that the said agreement did not provide any complimentary Dubai/Bangkok tour by the OP and it had also nothing in the name of any Platinum status. The Complainants sent e-mail on 14.05.2015 to the OPs, stating illegalities. The Complainants also sent several e-mails to the OPs thereafter but to no reply. The Complainants vide e-mail dated 09.10.2015 asked the OP to cancel the membership and refund the amount of Rs.2,06,000/-, but the OPs refused to refund the same. It is alleged that the OPs had given false promises. The Complainants have alleged deficiency of service against the OPs and have also prayed for reliefs in terms of prayers in the petition of complaint.
One Subrata Mistri on behalf of OP has contested the case in filing w.v. contending, inter alia, that he is an official of Country Club India Limited, which has been changed with effect from 27.11.2016 from Country Club India Ltd. to Country Club Hospitality and Holidays Ltd. and Country Club is a division of Country Club Hospitality and Holidays Ltd. It is stated that the present complaint is not maintainable in fact and in law.
It is stated that the membership and amount deposited by the Complainants is non refundable since it is not a deposit and the same is written on the face of the Billionaire Platinum Club Membership. Membership Agreement form which has been filed by the Complainants, it is stated that being an educated person the Complainants knew the details of the membership, he has purchased. It is also stated that the OP party has been transparent about the sanctity of the agreement and the Complainants had voluntarily agreed to purchase the membership. It is stated that the Complainantshas failed to show any deficiency or defect in service and the unfair trade practice. It is stated that the Complainants have not at all made use of any of the services of the OP which the OPs was/is/will always be ready to provide within the four corners of the agreement. It is also alleged that Complainants have filed this instant case based on baseless and unfounded assumption /presumption and speculations. This OP has prayed for dismissal of the case.
Point for Decision
1) Whether OP has been deficient in rendering service to the Complainant?
2) Whether OP has indulged in unfair trade practice?
3) Whether the Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have travelled over the documents on record I.e. photocopy of Holiday Gift Voucher, photocopy of payment receipts, photocopy of confirmation of receipt of Rs.2,06,000/- issued by the OP, photocopy of purchase of agreement dated 05.05.2015 as well as original purchase agreement dated 05/05/2015, photocopies of ‘e-mails’ on different dates between the parties and other documents on record.
The main allegation against the OP is unfair trade practice and deficiency in service. It is alleged by the Complainants that OP practiced unfair trade on the Complainants and mis-sold the so called Club Membership. It appears from the evidence and materials on record that the representative of the OP had called on the Complainant to the office saying that the Complainant had won some lottery and became the lucky winner of Seven day accommodation at the beautiful Country Club property. It is also alleged that being pressurized by the OP the Complainants visited the office of the OP on 05.05.2015. It is also alleged that on 05.05.2015 in course of discussion and across the table presentation, the authorized representative of the OP made several presentations to the Complainants highlighting the facilities and claimed to provide to the members for holidaying in India and abroad and also made several offers. It is also stated that the OP kept on pressurizing the Complainants to make payment on spot as ‘now or never’ basis. It is also alleged that the OP came to know that the son of the Complainants stays in England and the complainants have planned to visit him soon and holidaying in Europe on July, 2015. The OP party took the advantage and made promises to enroll the Complainants for Platinum Membership and lured them to make payment of a huge amount of Rs.2,06,000/- on the self same date. It is also stated that the representative of O.P. escorted to the Complainants to the ATM booth to collect cash from ATM and complainants had to make the payment to the OP through its agent through debit card and hard cash. We have also seen payment receipts and ATM Slips on record in this regard. It is alleged by the complainants that after collecting the full membership fees of Rs.2,06,000/- through Debit Card and cash, the Opposite party through agents brought out an agreement typed on a Non Judicial Stamp Paper and a previously printed terms and conditions for the Complainants’ signature. It is alleged that the Complainants signed on such agreement in good faith and could not even dream of that the terms were otherwise highlighted during verbal presentation. It is alleged that such promises did not find a place in the body of the agreement.
It is also alleged that the OP party till then had not issued any receipt for money collected by cash. The Complainants found themselves in difficult situation and thinking that the agreement would show some proof of the payment made to the OP they signed on the agreement. The Complainants thereafter were informed either to agree to the terms of the said agreement or to leave the scheme as there was no option of no cash refund to the Complainants.
It is alleged that the OP obtained the signature of the Complainants after collecting the membership fees of Rs.2,06,000/- and without giving any opportunity to go through the contents of the agreement. It also appears that the OP vide letter dated 15.05.2015 sent to the Complainants, stated that the Complainants were eligible for the Holiday Gift Voucher but that would include additional booking charges and utility charges.
We find that OP party had push sold a 30 year membership to the Complainant who were both 65 + years of age. It is quite obvious that a person who is more than 65 years of age will never think of opting himself 30 year old membership at abroad places. A mere perusal of the questionnaire by the Complainant and the corresponding reply of the OP will reveal that they had known the age of the Complainants. It is a natural fact that no person who is of 65 + years of age will ever opt for a 30 year membership for leisure purpose. We find that the agreement is computer typed one previously prepared and on printed terms and conditions and the points of which were totally one sided. The first page is only computer typed on a Non Judicial Stamp Paper, the names are also are written thereon in ink. The other pages of the agreement are printed form.
We think that‘informedconsent’ was not obtained from the Complainants. ‘Informed consent’ is full disclosure of information. The printed form appears to be a common stereotyped form used to all purposes and it cannot be said that valid consent is procured from the Complainants. The ‘consent’ we think should be real and valid which means that the Complainants must have the opportunity to go through the terms and conditions. The consent should be voluntary and free as envisaged under Section 10 of the Indian Contract Act. A duty is cast upon the OPs to prove that OP did not use any undue forcee or misrepresentation to get a legally valid consent from the Complainants and OP had at no points of time utilized its dominant and superior position in obtaining consent from the Complainants. ‘Informed consent’ is full disclosure of information. We think that no valid consent or ‘informed consent’ was procured from the Complainant before signing of the agreement. Moreover, we find that the OPs collected full membership fees of Rs.2,06,000/- from the Complainants before signing of the agreement typed on Non Judicial Stamp Paper and on a previously prepared printed form containing some terms and conditions.
We think that OP Company is guilty of deficiency in service and unfair trade practice. It appears that the agreement was never provided to the complainants prior to the payment. The OP thereafter in the following ‘e-mails’ kept on adding one point after one which were not even present in the impugned contract.
Moreover, we find that the product price is Rs.1,75,600/- as per printed form. We find that the OPs took a payment of Rs.2,06,000/- from the Complainants. We find that Complainants have made excess payment for the service, but to no good. We find that the scheme was just designed to raise money by unfair trade practice.
We find that OP is trying to take advantage of the terms of the agreement without rendering any service to the Complainant and obtained signatures of the Complainants on some previously printed forms without obtaining valid consent from the Complainants and procuring payment before signing of the agreement. We think that the OP has indulged in unfair trade practice and the deposit in the name of so called non refundable clause has been designed to raise money for unfair trade practice. Moreover, we think that the Club Membership cannot be sold in such manner by way of purchase agreement. No goods or movable or immovable property was sold in lieu of consideration by the O.Ps.
The Ld. Lawyer for the OP argued that original agreement is not produced but we find that the Complainant has filed the original agreement at the stage of final hearing of the case. Moreover, it is an admitted document and it is the own document of the O.Ps.
Thus the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the O.Ps.
OPs are directed to refund an amount of Rss.2,06,000/- to the Complainants apart from litigation cost of Rs.10,000/- within one month from the date of this order.
OPs are also directed to pay an amount of Rs.15,000/- to this Forum for indulging in unfair trade practice within the said stipulated period.
Failure to comply with the order will entitle the complainants to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OPs shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
