Date of Filing: 08-05-2018

                                                                                         Date of Order:27 -02-2020

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

   HON’BLE  Sri  P.VIJENDER, B.Sc. L.L.B., PRESIDENT

HON’BLE Sri  K.RAM MOHAN, B.Sc. M.A L.L.B.,  MALE MEMBER

HON’BLE Smt. CH. LAKSHMI PRASANNA, B.Sc. LLM.,(PGD (ADR) LADY MEMBER

Thursday, the   27^th day of February, 2020

C.C.No.201 /2018

Between

Cinimol Joseph, W/o.Lins Thomas,

Aged about  38 years, Occ: Teacher,

R/o.Varukuzhiyil (H), Oliyappuram (P.O),

Moovattupuzha, Ernakulam District -686662,

Kerala                                                                              ……     Complainant

And

Country Vacations,

Represented by Manager,

S.Ravinder,

At: Corporate Office: Country Club Kool,

#6-3-1219, 4^th floor,

Begumpet, Hyderabad- 500016                                               ….Opposite Party

Counsel for the complainant          : Mr.B.Sri Kiran

Counsel for the opposite Party      :  Mr.V.Sreenivasa Rao

O R D E R

(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has  been preferred under Section 12 of C.P. Act 1986 alleging that refusal to refund the amount collected from the complainant  towards house plot and  membership fee in the club amounts to unfair trade practice and   deficiency of service , hence a direction for refund of the same and to award compensation  for  causing mental agony  by not refunding  the same. 

1. Complainant’s case in brief is that in the month of January 2017 the representative of opposite party approached the complainant and offered to allot a plot admeasuring 150 Sq.yards being developed in the business venture of opposite party if complainant becomes  member of it by paying a sum of Rs.2,50,000/-  towards membership fee.  Believing the same  complainant paid Rs.2,50,000/- and on payment of it the complainant was given Thumbs up Silver membership. After enrolling  as a  member in the  opposite party club the complainant enquired  about the allotment of plot  promised,  then she was informed that  amount paid by her  is only for membership and she  needs to pay further  sum of Rs.55,000/- for allotment of the plot in her name and she has to wait for a few  more months.  Later she was  shown  lay out situate at  far away from  Hyderabad city.  The complainant was not  happy  about the location of the plot  as it  is far  from city and there is no development  in that area.  When she was enrolled  as a member  the opposite party’s executives informed that   the allotment of the plot will be at prime location and by not  keeping up the promise and offering the  plot  at remote place without any development  amounts to unfair trade practice.  The efforts made by the complainant  and her husband to prevail  upon the opposite party to allot the plot at a good location as promised earlier was resulted in vain.  Since the opposite party has not  come forward to allot the  plot at prime location  as offered earlier she sought for refund of the  amount,  but there was no response.    By not allotting the plot at developed area and  refusal to refund the amount collected from her, the opposite party subjected her  to inconvenience and harassment  and it amounts to deficiency in service. Hence the present complaint for a direction to opposite party to refund the amount of Rs.2,50,000/- with interest at 12% P.A from the date of  the complaint  to  the date of payment and to award a compensation  of Rs.1,00,000/- for causing mental agony and  cost of the complaint. 
2. The stand  of the opposite party  in the written version  is that the complainant after knowing the terms and conditions  of the scheme of membership  signed purchased  Vacations agreement on 12-2-2017 and paid a sum of Rs.2,50,000/- out of total amount of Rs.2,70,000/- leaving an  amount of Rs.20,000/-as due .  As per the  terms of  membership agreement  signed and executed  by the complainant  the amount paid towards membership fee is non-refundable.  Hence the complainant cannot seek refund of the same.  The complainant was already  issued membership card enabling her to   enjoy the facilities  available in the club of the opposite party subject to terms and conditions  of membership.  Since the membership agreement is a written contract between the parties the complainant  cannot unilaterally seek termination of it.  It is up  to the complainant to utilize the  facilities  and benefits available  with the opposite party club.  The complainant as a member  is entitled  benefits of  stay for a period of six nights and seven days per year at the properties of it within India by advancedly booking. 

          The complainant was offered a plot in a project known as “Sagar Sundarvan” situate at Nalgonda District and she needs to pay an amount of Rs.59,000/- towards registration stamp duty and development  charges but  she failed to pay the said amount  within the stipulated period and  she  has shown dis-interest  for registering the  plot in her favour.  The claim of the complainant  that  she was offered a house plot  in the prime location  is absolutely false.  It will be   impossible  to get  plot  in  a prime location with  the offered price.  The complainant has to pay the  balance amount of  Rs.20,000/- towards plot  and Rs.59,000/- for development charges and registration expenses and the opposite party would have allotted the plot in the project known as Sagar Sundarvan if she paid the same.  The question of non-allotment of  plot in prime area infavour of the complainant does not arise.  The complainant has not paid Annual maintenance  charges to the club  as a member and failure on the part  to utilize the facilities   available  at the club does not amount  deficiency of service or  unfair trade practice  towards  the complainant.  The present complaint is devoid of  cause of action,  hence the  complainant is not entitled for  any amount  and  the complaint  is liable to be dismissed with exemplary costs. 

            In the enquiry  the complainant has  got  filed her evidence affidavit reiterating the  material facts of the complaint and  to support  the same  she  got exhibited  three (3) documents.   For the  Opposite Party  evidence affidavit  of its legal Manager is got filed  and substance of the same is in line with the stand taken in the written version. Two  (2) documents are exhibited for the  opposite party.   Both sides have filed written arguments and made oral submissions. 

              On a consideration of the  material brought  on the record for both sides  the following points have emerged for consideration :

1. Whether  the complainant could make out a case of  either unfair trade practice    or deficiency in  service    on the  part of the  opposite party?
2. Whether the complainant is entitled for the amounts claimed in the complaint?
3. To what relief?

Point No.1:  In the light  of the admission  made by the opposite party that  an amount of Rs.2,50,000/-  was collected from the complainant  towards membership fee and offering  club facilities  subject  to payment  of Annual maintenance  charges and  offer of house plot  subject to payment of  further amounts  towards registration and  another expenses  to the  plot  no further enquiry on this aspect from this Forum is needed.  Ex.A1 is the  original receipt  evidencing  payment of Rs.2,50,000/- by the complainant  through the  credit card.   As per this receipt an amount of Rs.2,70,000/- is required to be paid to become a member  and since the complainant  paid only Rs.2,50,000/- and an amount of Rs.20,000/- is due from the complainant side. This Ex.A1 receipt  does not contain terms and conditions  to become a member of the opposite party club.  The amounts  paid  by the complainant to the opposite party was  during the period from 17-2-2017 to 9-4-2017. Ex.A2  is stated  to be membership enrollment  letter issued by the opposite party.  This letter also does not contain  terms and conditions  to become a member  of the opposite party club.  It only refers about the total amount payable  to become a  member and amount paid by the complainant and the  balance payable by her.  However there is a mention that the complainant as a member   is entitled  the facility  of stay of six (6) nights and seven (7) days  at the property owned by the opposite party club for five(5) years subject to payment of annual maintenance  charges.  There is no mention of allotment of plot  or its location.  Ex.A3 is the so called purchase agreement for club and vacations membership signed by the complainant on 12-2-2017.  This purchase agreement contains terms and conditions  between the parties  in relation to club membership sale agreement.  As already said  the amount paid by the complainant  as per Ex.A1 receipt was  dt.17-02-2017 to 9-4-2017 whereas  Ex.A3 membership agreement  is dated 12-2-2017 by which date admittedly  the complainant has not paid the  amount.  So it is evident  that without  receiving any amount  she was made to sign  on Ex.A3 agreement.

     The stand of the  opposite party  is as per the  terms and conditions  incorporated  in the Ex.A3 agreement  the amount paid towards membership  agreement is  non-refundable  and complainant  being a signatory  of it is bound by there  terms as such cannot seek refund of the amount paid.  The opposite party has not filed the evidence affidavit of  the person who signed  Ex.A3  agreement on its behalf  stating that the  complainant  was either  explained the terms and conditions  incorporated in Ex.A3 agreement or she has gone through them before  signing it.  As could be  seen from  written version  and evidence affidavit  filed  for opposite party they are not signed by the  same person.  The signatory of Ex.A3 on behalf of opposite party is not the same person who signed  Ex.A2 filed for opposite party. Hence it is not open  for  opposite party to say that  the complainant  having agreed  for terms and conditions  signed Ex.A3.  There is an annexure  in Ex.A3 agreement containing as many as ten clauses  out of them only four are filled  leaving  rest as  blank.   Clause  8 deals that the name of the venture  and area of  the plot  offered  and location of the venture.  Only blank relating to  number of Sq.yards  of the plot is filled  as 150 Sq.yards  offered to the complainant.  The blank relating  to the venture   and its location  are  not filled up.  Similarly  name of the  member who paid the amount and  signed Ex.A3 agreement  is not filled up similarly  membership  number  and date column’s are  also not filled up and left  blank.  So it is evident that the complainant  was not   informed   either  location or  name of the venture  from which  the house plot was offered  without disclosing these important aspects the  opposite party cannot plead that the  complainant was aware of not only terms and conditions  of membership agreement but also  the location and name of the venture  from which she was offered house plot.  Collecting the huge amount of Rs.2,50,000/- under the guise of  allotment of plot  on becoming a member of club  in  a venture  agreed to be developed by the opposite party certainly amounts to unfair trade practice. 

           Now coming to the  aspect of  the clause  relating  to non-refundable  of amount paid  as per membership  fee admittedly  even as  on today  the complainant was not provided  with any services  by the opposite party.  Even according to the opposite party complainant  did  not come forward  to avail any facilities  at club  so as to say that the   amount cannot be refunded to the complainant.  Under the guise of a non-refundable  clause  the opposite party cannot be allowed   to enrich  itself  with the  amount collected from the complainant.  The very collection of the amount from  complainant  by opposite party by offering  house plot without disclosing the  name of the venture or its location  itself amounts to unfair trade practice and refusal to refund the amount  when the complainant has not  agreed  for location  of the venture  in which  a plot was offered amounts to subjecting  her to the  harassment.  Accordingly point is answered infavour of the complainant. 

Point No.2: In view of the findings of this Forum  that the opposite party collected huge amount of Rs.2,50,000/- from the complainant  on the guise of  allotment of house plot  after becoming a member and failure to allot the plot at the  promised  location  amounts to unfair trade practice and refusal to refund  the amount  when sought for  amounts  to deficiency of service.  Hence the complainant  is entitled for the reliefs  sought for.

Point No.3: In the result, the complaint is allowed in part directing the opposite party

1. To refund an amount of Rs.2,50,000/- to the complainant  with interest  at 12% P.A  from the date of complaint to the date of payment.   
2. To pay a sum of Rs.50,000/- towards compensation for  causing inconvenience and mental agony by not refunding the amount
3. To pay a sum of Rs.10,000/- towards cost of this complaint.

Time for compliance: One month from the date of service of this order

                        Dictated to steno, transcribed and typed by her, pronounced  by us on this the 27^th  day of February , 2020.

LADYMEMBER                   MALEMEMBER                               PRESIDENT

APPENDIX OF EVIDENCE

Exs. filed on behalf of the Complainant:

Ex.A1-  copy of receipt ( transaction details)

Ex.A2-  copy of the  club membership enrollment letter  issued  by the opposite party

Ex.A3- copy of  purchase agreement  for club and vacations membership dt.12-02-2017

Exs. filed on behalf of the Opposite party

Ex.B1- Welcome call CD

Ex.B2- Membership and Vacation agreement  

LADYMEMBER                   MALEMEMBER                               PRESIDENT