Tamil Nadu

North Chennai

CC/320/2018

B.Chandrasekar & C.Jayanthi - Complainant(s)

Versus

Country Vacations - Opp.Party(s)

-

22 Sep 2022

ORDER

Complaint presented on  :15.09.2011 Date of disposal               :22.09.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

 PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

                     TMT. KAVITHA KANNAN,M.E.,                           : MEMBER-1

                                 THIRU V. RAMAMURTHY, B.A.B.L., PGDLA    : MEMBER II

 

C.C. No.320/2018

 

DATED THIS THURSDAY THE 22^nd   DAY OF SEPTEMBER 2022

 

1. B.Chandrasekar,

S/o.Balasubramanian

 

2. C.Jayanthi,

W/o.B.Chandrasekar,

Both at Flat #:6 VIP flats 2^nd floor,

#:2 Jawaharlal Nehru street,

T.Nagar, Chennai-17                                                                .. Complainants.                               

..Vs..

1.Manager

Country Vacations

#:78 3^rd floor Real Diamond Building

Mount Road Guindy

Chennai-32

 

2. Manager Country Vacations,

(a division of Country Club (India)Ltd)

#:6-31219 Begumpet Hyderabad-16

                                                                                       ..  Opposite parties.

 

Counsel for the complainant                      : M/s. S.Natarajan and P.N.Swaminathan

Counsel for  opposite parties                    : M/s.T.Narendiran, P.Prathap Singh

                                                                  K.Rajangam and Guna Ramachandran

 

ORDER

THIRU. V. RAMAMURTHY, B.A., B.L., PGDLA, MEMBER

          This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite parties to repay Rs.1,50,000/- with interest @ 24% from 23.01.2010 till repayment and to pay Rs.5,00,000/- for deficiency of service and to pay Rs.2,00,000/- for the unfair trade practice and to pay Rs.2,00,000/- for mental agony and pain and to pay Rs.25,000/- as costs.

This complaint was originally filed before the District Commission, Chennai (South) and taken on file in C.C. No.284/2011.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.320/2018.

1.THE COMPLAINT IN BRIEF:

         The complainants on invitation and phone call from opposite parties marketing personnel visited opposite parties office for the presentation on the scheme of membership for holidays as well as club facilities of opposite parties that was said to be available in various locations in India and abroad.  The opposite parties made various promises regarding benefits and advantages of availing membership under the banner Country Club and Country Vacations.  It was promised that facilities and privileges included for their 2 sons till they attain 25 years and purchase the time share which among other things included 7 days free stay in a year during any time of the year with prior intimation, free membership of RCI for life time, Life membership of country club to avail their facilities anywhere in India and out of India, Discount on selected hotels and resorts in India and abroad, Discount in various shopping malls, 10% discount on food items in country club in and around Chennai and 20% discount on food in Hotel Amrutha Castle, Hyderabad Free use of TAASHA the Health club city for 3 years with only payment of minimum subscription and complementary stay at the club facility in Goa and Kerala for 2 nights and 3 days each.  Lured by the rosy offers, the complainants entered into an agreement with 2^nd opposite party, purchased TIME SHARE on 23.09.2010 on payment of Rs.1,50,000/- receipt for which duly acknowledged.  The agreements were pre-printed without any discussion as standard formats and complainants had to sign on the dotted lines without any option to alter, delete or add any of the clauses therein.  The agreements contain reference to certain rules, by laws and conditions which had not been made available to complainants then and till now and the agreement was signed in good faith and trust.  It is further submitted by the complainants that they found that all the offers and benefits assured and explained at the time of signing the document, were not the part of the agreement.   The complainants were informed that they can avail any type of accommodation based on availability but now informed that they will be eligible only for studio type which was not informed before taking money.   The RCI membership for life assured by them was given for 5 years only that too after much persuasion.   Further claimed that nothing was found mentioned in the agreement as was assured and committed by Opposite Party No.1. Claimed further that Opposite Party No.1 misled the complainant by false promises in order to induce the complainant to part with his hard-earned money. The complainant claimed further that the complainant after exhausting all their efforts in contacting the representatives of opposite parties finally sent emails on 30.09.2010, 09.11.2010 and 20.12.2010 to the opposite party for which there was no proper reply.  Tired with the answers provided by the opposite parties, the complainants sought for cancellation of their membership and seeking refund of Rs.1,50,000/-.  Hence this complaint. 

 

 

2. WRITTEN VERSION OF OPPOSITE PARTIES IN BRIEF:

Opposite Parties in their joint reply stated that the complaint is misconceived on facts and has no merits and deserves to be dismissed.  The opposite party submits that Resort Condominiums International (RCI) for which complainant has sought membership has not been party in the complaint and they never promised to give RCI membership.   Under the agreement, membership entitles the complainants to use their Holiday Ownership Rights in the available resorts.  The agreement between both parties does not provide for cancellation and is non-refundable and non-cancellable.  The opposite parties denies the allegation of complainants that they are entitled for 10% discount on food bills and the complainants has not utilized anything and hence they cannot blame the opposite parties.  The opposite parties denies that the complainants had signed the agreement without any knowledge because they are educated individuals.  Since the agreement is not cancellable, the question of refund does not arise and the opposite parties still ready and willing to provide obligations as per the agreement.  It is clearly indicated that accommodation is subject to availability and the complainants never placed any bookings for accommodation and cannot claim for deficiency of service.  The documents provided by complainants itself shows no deficiency except they had requested for refund and hence the allegations and  averments made by them are imaginary.  The OPs submit that the complainants failed to pay till date the management fee which they are liable to pay.  The complainants does not have any grounds to claim for refund since the contract is not disputed or challenged and hence no agony or damages were suffered by complainants.  The opposite party states that are in constant touch and had performed their obligation and still willing to do as per the contract and hence non reply of notice would not in any way admit the allegations by complainants.  The opposite party submits that there is no consumer deficiency or consumer dispute and also no mental agony or economic suffering to complainants and hence the amount claimed is unsubstantiated and hence the opposite parties prayed for dismissal of complaint with punitive cost. 

3. POINTS FOR CONSIDERATION:

1. Whether there is any deficiency of service and unfair trade practice on the part of the opposite parties as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint. If, so to what extent?

The complainants had filed proof affidavit, written arguments and documents Ex.A1 to Ex.A9 were marked on his side.The opposite parties have filed written version, proof affidavit, written arguments and no documents were marked on their side.Oral arguments of learned counsels also heard.

4. Point No.1:-

The complainants on invitation and phone call from opposite parties’ marketing personnel, visited opposite parties office for the presentation on the scheme of membership for holidays as well as club facilities of opposite parties that was said to be available in various locations in India and abroad.  The opposite parties made various promises regarding benefits and advantages of availing membership under the banner Country Club and Country Vacations.  It was promised that facilities and privileges included for their 2 sons till they attain 25 years and purchase the time share which among other things included 7 days free stay in a year during any time of the year with prior intimation and other facilities as detailed in complaint.  Lured by the rosy offers, the complainants entered into an agreement with 2^nd opposite party, purchased TIME SHARE on 23.09.2010 on payment of Rs.1,50,000/- receipt for which duly acknowledged.  The agreements were pre-printed in standard formats and complainants had to sign on the dotted lines without any option to alter, delete or add any of the clauses therein.  The agreements contain reference to certain rules, by laws and conditions which had not been made available to complainants then and till now and the agreement was signed in good faith and trust. It is further submitted by the complainants that they found that all the offers and benefits assured and explained at the time of signing the document, were not the part of the agreement.   The complainants were informed that they can avail any type of accommodation based on availability but now informed that they will be eligible only for studio type which was not informed before taking money.   The RCI membership for life assured by them was given for 5 years only that too after much persuasion.   Further claimed that nothing was found mentioned in the agreement as was assured and committed by Opposite Party No.1.  Claimed further that Opposite Party No.1 misled the complainant by false promises to induce the complainant to part with their hard-earned money. The complainant claimed further that the complainant after exhausting all their efforts in contacting the representatives of opposite parties finally sent emails on 30.09.2010, 09.11.2010 and 0.12.2010 to the opposite party for which there was no proper reply.  Tired with the answers provided by the opposite parties, the complainants sought for cancellation of their membership and seeking refund of Rs.1,50,000/-.  The complainant also issued notice to opposite parties on 26.02.2011 which were received by the opposite parties but no response.  

5. On the contrary, the Learned Counsel for the OPs submitted that the complainants had joined the Country Vacation membership in the year Sep. 2010 and paid a sum of Rs.1,50,000/- which is not a deposit and the agreement entered between the complainants and opposite parties is non-cancellable and non-refundable clause.  The opposite parties alleged that the complainants are liable to pay management fee and the same has not been paid till date.  The opposite parties denies that their personnel assured RCI membership would be given along with country vacations membership.   The complainants have no right to ask for the refund of membership fee as the said membership agreement was duly signed by the complainant after going through the terms & conditions of the same. The counsel for the OPs referred the agreement in Ex.A1 the extracts are as given below :

“Whereas the purchaser / member irrevocably agrees to purchase the membership of the Country Vacations International Holiday Club and the Country Vacations agreed to sell the membership of the Country Vacations International Holiday Club to party of the second party which is non-refundable.”

“Whereas the party of the second part irrevocably agree to become member and undertake that he/she will and acknowledge all other documents and do all such acts if any, necessary on his part to enable him to be registered as a member of the Country Vacations International Holiday Club.”

 The terms and conditions annexed to Agreement the extract of clauses are given below:

Clause 3 says “The membership fee is non-refundable and is not a deposit towards the membership and is accepted subject to terms and conditions”

Clause 4 says “The member, spouse and children 25 years are entitled for membership cards of the country club”

Clause 11 says “This agreement is legally binding and final.   The purchaser acknowledge that he/she enters into it of his/her own will and it is neither rescindable nor cancellable”.

6. The opposite parties submitted further that the complainant himself visited the Office of opposite parties where the representatives of the Opposite paties explained various plans as were available to the perspective members as per need/wish and requirement of the complainant.  After thorough verification, the complainant with their free consent entered into an agreement with opposite parties for becoming member of the Opposite parties Club.   The opposite parties are still ready to give membership card to the complainant and provide all facilities as entitled to under the contract and there is no deficiency on the party of opposite parties. 

7. It is no doubt that the opposite parties who invited the complainant at their end for the presentation on the scheme of membership and the contract agreement was signed by the complainants as second party to the contract, meaning thereby that the contract between the parties completed when the same was signed by the opposite parties being the first party to the contract. It is further clear on record that the complainant on being received the copy of the said agreement disputed the terms & conditions mentioned in the agreement being contrary to the assurances, promises made by the representative (OP No.1) of the opposite party No.2 at the time of signing the said agreement. It is observed from the above clauses that in clause 4 the children upto 25 years of age eligible whereas in clause 6, children below 12 years can be accommodated with parents.   This is clear indication of contradictory commitments by opposite parties.

8. The complainant vide mail dated 13.09.2010 marked as Ex. A2 informing that the commitments made during the presentation were not confirmed in writing inspire of repeated requests.  In reply to the mail the opposite parties had sent a mail on 22.09.2010 which is marked as Ex.A3 stating that eligible membership details are attached but the details are contrary to the commitments made at the time of agreement.  Again the complainant sent another mail dated 23.09.2010 marked as Ex.A4 requesting to give the details in letter head signed by authorised signatory and also raised certain doubts. In return the opposite parties sent an e mail dated 08.10.2010 informing that Letter head were by courier and RCI card will be sent soon.  But as committed by the opposite parties nothing happened.  The complainants further sent e-mails on 09.11.2010, 02.11.2010, 20.12.2010 which are marked as Ex.A6 to Ex.A8 giving chances to opposite parties for taking necessary corrective actions but everything went in mail.  Finally the complainants sent legal notice dated 26.02.2011 which is marked as  Ex. A9 claiming for refund of amount.

9. It is observed from the above correspondence that the opposite parties despite receipt of the mails failed to provide solutions/clarifications sought by complainants.  The opposite parties in their defence pleaded that the complainant out of his free will signed the Agreement after understanding all the terms & conditions of the same and once the said offer was accepted, it becomes a complete contract, and the complainant cannot go out of the same. 

10. We do not agree with the contentions made by the Opposite Parties as one of the vital conditions of the contract is that there must be free will of the parties and there must be meeting of minds on the terms & conditions of the contract in the similar way. Even in the Indian Contract Act, some of the contracts are voidable when the same are based on or created by mis-representation.  In the present complaint too, the complainant claimed that he was allured and explained about the different terms, benefits and facilities, which were not part and parcel of the copy of the agreement received by him.  It seems that the complainant never gets an opportunity to go through the terms & conditions of the said agreement while signing the same, being influenced by the allurements made by the representative of the opposite party-2 and only get an opportunity to read the same when the copy of the said agreement was received by complainants.

11. The opposite parties contended that there was no deficiency of service since the complainants never made a request for accommodation or made bookings.  It is a common understanding that when the agreement itself in question for complainants, how one can expect to book for accommodation or avail facilities.  We are of the opinion that the complainant without any delay apprised opposite parties that the terms & conditions of the present agreement were not inconsonance with the initial proposal or invitations to offer made by the representative of the company. By not honouring the request of the complainant to cancel the contract and by not refunding the amount, the opposite parties are found to be deficient in rendering service and indulging into unfair trade practice. 

12. The learned counsel for complainants relied on number of orders issued by various State Commissions but the order issued by State Consumer Disputes Redressal Commission, Chandigarh in Appeal A308 of 2015 dated 16.11.2015 between Country Club India Ltd., Vs Gurmukh Singh aptly suited to the facts of this present case.  The extract of the order, which reads as under:

13. The incorporation of aforesaid clause reveals that the appellants, in fact, presented a rosy picture and assured certain benefits to the respondent, which were not stipulated in the Agreement. It is a fact that the respondent neither availed of the gift voucher nor any holiday and finding the terms of the agreement to be one sided, opted to choose for cancellation.

14. The next question, which falls for consideration, is, as to whether the respondent in such a situation is entitled to refund or not. No doubt, the first page of Vacations Purchase Agreement (Annexure C-2), stipulates that the vacation charges are non refundable under any circumstances the same being not a deposit. Nevertheless, such a clause is clearly unconscionable and unreasonable. In the instant case, the respondent immediately after receipt of the agreement, within a reasonable time expressed his intention not to continue with the agreement and requested for cancellation. Apparently, by offering gift voucher and in all probability some other benefits also, the appellants made the respondent to sign the agreement and he (respondent) apparently did so in good faith believing the version of the appellants to be correct. In our considered opinion, forfeiture of entire amount in the sum of Rs.80,000/-, when the respondent did not avail of gift voucher and any holiday package, is too harsh and unreasonable. It may be stated here that in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.01.2015, by the National Consumer Disputes Redressal Commission, New Delhi, as per the Agreement, 20% of the sale price of the premises was to collectively constitute the earnest money, which was to be forfeited, in case, the allottee made a default in payment of instalments(s) and asked for refund of the amount deposited. Such Clause came up for interpretation, before the National Commission, in the aforesaid case. The National Commission, ultimately, held that an Agreement having forfeiture Clause of more than 10% of the sale consideration, would be invalid, as it would be contrary to the established legal principle that only a reasonable amount could be forfeited, in the event of default on the part of the buyer. In the aforesaid case, the National Commission placed reliance on Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704, wherein the Hon’ble Supreme Court of India accepted the contention that in appropriate case, the Consumer Forum, without trenching upon acute disputed questions of fact, may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts. Similarly, as already discussed above, the clause in Vacations Purchase Agreement (Annexure C-2) stipulating non-refund of vacation charges in any circumstances, is unconscionable and unreasonable. On the basis of ratio  in DLF Ltd. Vs. Bhagwanti Narula’s case (supra), the appellants could at best forfeit 10% of Rs.80,000/- and ought to have refunded a sum of Rs.72,000/- but they did not do so and retained the money of the respondent for around two years. By not refunding the amount, the appellants were deficient in rendering service. The respondent was forced to file complaint before the Forum, by engaging a Counsel. He, thus, underwent immense mental agony and physical harassment. In these circumstances, the respondent is entitled to refund of the entire amount.

15. In the present complaint too, the complainant claimed that he was allured and explained about the different terms, benefits and facilities, which were not part and parcel of the copy of the agreement received by him.  It seems that the complainant never get an opportunity to go through the terms & conditions of the said agreement while signing the same, being influenced by the allurements made by the representative of the OP-2 and only get an opportunity to read the same when the copy of the said agreement landed in the hands of the complainant on 27.10.2013.

16. We are of the opinion that the complainant without any delay apprised opposite parties that the terms & conditions of the present agreement were not inconsonance with the initial proposal or invitations to offer made by the representative of the company. By not honouring the request of the complainant to cancel the contract and by not refunding the amount, the opposite parties are found to be deficient in rendering service and indulging into unfair trade practice.” 

17. Based on the observations from the above, this commission of the

considered view that there is deficiency in service and unfair trade practice on the part of opposite parties and hence the complainants are entitled for the reliefs sought and Point No.1 is answered accordingly.

18. Point No.2.

                  Based on findings given to the Point.No.1 since there is deficiency in service and unfair trade practice on the part of Opposite parties and hence the complainants are entitled for refund of Rs. 1,50,000/-  paid towards membership fees, further entitled for Rs.30,000/- towards compensation for deficiency in service and unfair trade practice and Rs.5,000/- towards cost of this case. Point no.2 answered accordingly.

          In the result the Complaint is allowed.  The 1^st and 2^ndOpposite Parties are directed to pay jointly or severally Rs.1,50,000/- towards refund of membership fees with 9% interest from the date of deposit to date of payment,  Rs.30,000/-(Rupees Thirty Thousand Only) towards compensation for deficiency in service and unfair trade practice and Rs.5,000/- towards cost of this case.  The above amount shall be paid to the Complainants within one month from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order to till the date of payment.

Dictated  by Member II to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 22^nd  day of September 2022.

 

MEMBER I                                  MEMBER – II                           PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	23.01.2010	Agreement
Ex.A2	13.09.2010	Complainant’s Email
Ex.A3	22.09.2010	Opposite party’s Email
Ex.A4	23.09.2010	Complainant’s Email
Ex.A5	08.10.2010	Opposite party’s  Email
Ex.A6	09.11.2010	Complainant’s Email
Ex.A7	02.11.2010	Complainant’s Email.
Ex.A8	20.12.2010	Complainant’s Email.
Ex.A9	26.02.2011	Complainant’s letter.

 

 

 

 

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY:

 

 

No documents

MEMER – I                           MEMBER – II                       PRESIDENT