West Bengal

South 24 Parganas

CC/325/2014

MR. RABINDRA NATH BANERJEE, - Complainant(s)

Versus

COUNTRY VACATIONS ( A Division of Country Club India Limited ). - Opp.Party(s)

Sankar Mukhopadhyay.

09 Jul 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _325_ OF ___2014_

 

DATE OF FILING : 22.7.2014                             DATE OF PASSING JUDGEMENT: 9.7.2015

 

Present                        :  

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :      Mr. Rabindra Nath Banerjee, Mrs. Mukta Banerjee of 14A, Satya Doctor Road,

                                                  Kolkata – 23.

 

 

-VERSUS  -

 

O.P/O.Ps                            :     Country Vacations (A Division of Country Club India Limited)                                           

                                                 B-2, Gajraj Chamber, Kolkata and also carrying on business at Canning Road, 

                                                 Ramnagar 2, P.S. Baruipur, Kolkata-144.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Jinjir Bhattacharya, Member

 

             The case of the complainants, in brief, is as under:

            The complainants were offered to purchase Country Club International Holiday Club Membership with the facility for enjoying some benefits which includes 7 days and 6 nights vacations at their 4000 resorts spread over domestic and international destinations every year free of cost for 30 years , an apartment with kitchen, free airport transfer, free chauffer & car (except fuel) etc. On being allured by the offers, the complainants put their signatures in several documents and paid a sum of Rs.2,30,000/- through credit card. The complainants were not given sufficient time to go through the clauses mentioned in the documents and being aged person and in a fix signed the documents containing 74 clauses densely printed without proper verifications and in good faith. O.P assured the complainants that they could revoke the agreement within 10 days “Cooling off” period. Having detected the offers as per clause 38 and clause 44 of the documents as bogus, the complainants wrote to the O.P on 13.6.2014 for rescinding the agreement dated 4.6.2014  & claimed refund of entire amount paid to the O.P and also communicated through E mail and courier service. But the O.P declined to refund the amount showing the reason that the membership fees was not refundable. The complainants alleged that the O.P by misleading them sold out vacation rights which have not been consumed by them. Within the allegations of adopting unfair trade practice by the O.P, the complainant filed the instant petition of complaint with the prayer for a direction upon the O.P to refund Rs.2,30-,000/- paid by the complainant to the O.P with interest @9% p.a on and from 4.6.2014 till realization and to pay compensation of Rs.50,000/- for mental agony and harassment and Rs.20,000/- towards litigation cost.

            The O.P contested the case by filing a written version denying all material allegations against it and challenging the maintainability of the complaint petition. A separate petition challenging the maintainability on the ground stated therein has been filed in the course of the proceedings and the petition was disposed of with some observation on 25.11.2014 with the liberty to the O.P to raise the point at the time of final hearing of the case. It is stated that everything was explained to the complainants giving one hour interaction session and on being satisfied ,the complainants agreed for obtaining the membership. It is further stated that the O.P assured to provide facilities as per agreement only in respect of properties which are enlisted in the said agreement and in the brochure. As regards complainant’s claim for refund of the amount paid to the O.Ps by revoking the agreement it is contended that “Cooling Off” period is not applicable because the complainants applied for both international vacation membership and club membership of the country vacation for 30 years. It is alleged that the complainants did not apply for refund under letter dated 13.6.2014, but the said letter was undated one. Alleging that the statements made in the complaint petition as incorrect, the O.P has prayed for dismissal of the complaint.

            Following points have come up for decisions:

1. Whether the case is maintainable?
2. Whether the O.P adopted unfair trade practice?

 

Decision with reasons

The O.P challenged the petition of complaint stating that one of the two addresses of the O.P as mentioned by the complainant in his petition falls within the jurisdiction of this Forum. In the course of argument , Ld. Counsel for the O.P has stated that the O.P does not carry on business from and does not maintain any office at Canning Road, Ramnagar-2 , P.S. Baruipur, Kolkata – 144 and that there is only a resort of the O.P at that address. Ld. Counsel for the complainant argues that resort is a place from which the O.P carries on business in addition to other places of business including the premises at B-2 Gajraj Chamber, Kolkata. On a careful consideration of arguments of both sides and the records made available to us, we hold that resort is also a place from where the O.P carries on his business because the O.P has to maintain records relating to booking of resort by his club members, took into matters relating to facilities agreed to be given to the club members etc. in addition to that O.P has to procure trade license and other licenses from the appropriate local authorities for running the resort. Now. The resort being located at a place within the jurisdiction of this Forum, the complainants are held to have filed his complaint petition before the proper District Forum. Hence, the petition of the O.P on the ground of non-maintainability of the complaint petition is rejected and stands disposed of. The matter is decided in favour of the complainant.

            Next question is whether the O.P adopted any unfair trade practice as alleged by the complainant in accepting money by making bogus offers and by making misleading statements. So , far it can be gathered from the complaint petition and evidence of the complainant, we see that the complainant’s main allegations are as under:

1.   That the complainants visited the O.P’s office at City Centre on 4.6.2014 on receiving phone call for winning free gifts and other offers where they met one MS. Nitu Mahato and two others. These persons offered the complainants to purchase Country Club International Holiday Club Membership offering 7 days and 6 nights vacations at their 4000 resorts spread over domestic and international destinations every year free of cost for 30 years , providing facility of an apartment with kitchen, free airport transport, free chauffer and car(except cost and fuel), free language interpreter and guide and several other things.
2. That the complainants were not given few days time to go through the clauses mentioned in the documents but representatives f the O.P hurriedly got the documents containing 74 clauses densely printed signed by the complainant who are very aged persons.
3. That the  representatives of the O.P assured the complainants that the agreement could be revoked within 10 days “Cooling off” period.
4. That on going through the documents (Annexure A to the petition of complaint ), the complainants understood all the offers made verbally were bogus and they referred to clause 38 & Clause 44 of the documents.
5. That the complainants on 13.6.2014 requested the O.P for rescinding the agreement dated 4.6.2014 and claimed refund of entire amount of Rs.2,30,000/- procured by the O.P from them with false offers and adopting unfair trade practice.
6. That the O.P is bound to refund the amount within cooling off period as per guidelines of the apex body All India Resort & Destination Association (in short AIRDA) as assured by the O.P at the time of  signing the documents.

The O.P in his written version,  has stated that on the given date and time in the office of the O.P everything has been explained to the complainants by giving one hour interaction session and on being satisfied, the complainants agreed for obtaining membership. The O.P has denied that he agreed to provide the facilities which the complainants have mentioned in their petition of complaint and asserted that the O.P assured to provide the facilities as per agreement only in respect of the properties which are enlisted in the said agreement and in the brochure. It is further stated in the written version that the O.P did not give any assurance in the matter of revoking the agreement within 10 days “cooling off’ period mentioning that the said condition was not applicable because the complainants applied for both international vacation membership and club membership of the Country Vacation for a period of 30 years.

1.   Although the complainant has submitted that the O.P is bound to follow the guidelines of AIRDA for allowing refund during cooling off period, nothing has been made  available to us that the O.P is a member of AIRDA and he was under compulsion to refund the money collected form the complainants by revoking the agreement within ‘cooling off period’ of 10 days. But the documents filed show that the complainants entered into the agreement with O.P on 4.6.2014 and wrote to the O.P on  13.6.2014 for rescinding the agreement. In the letter dated 17.6.2014 the O.P acknowledged receipt of complainant’s letter and declined to refund the amount of Rs.2,30,000/- to the complainants on the ground that membership fees was not refundable.
2. The complainants referred to a judgement of National Consumer Disputes Redressal Commission in RP 705 of 2014 Amit Goel Vs. Avlon Resorts Pvt. Ltd. and Anr. To defend their case. But the case cited does not help the complainants because the facts of the case cited differ from the facts in our case.
3. It is an admitted position that the complainants paid Rs.2,30,000/- and signed an agreement for international vacation membership and club membership of the Country Vacation for a period of 30 years. It is also an admitted position that the complainants were not allowed to go through the terms and conditions of the agreement for such membership for some days and only one hour’s interactive session with the complainants were held before getting the agreements signed by them and collecting an amount of Rs.2,30,000/- from them through credit card. Now had the complainants not been given assurance by the representatives of the O.P for the facilities as mentioned in the petition of complaint, the O.P would not voluntarily mention in clause 38 of the agreement that “second party confirms that no other verbal/written promises or any other assurances in deviation from this agreement have been made by CCIL’s personnel”. It can be concluded from clause 38 that it is the practice of CCIL’s personnel to make verbal/written promises or assurances in deviation of a future agreement. This clearly indicates that the O.P adopted unfair trade practice by making bogus offers to the complainants through his representatives and thereafter, got the agreement signed by the complainants hurriedly without explaining the terms and conditions of the agreement.

In view of the above findings, we hold that the complainants are entitled to get refund of Rs.2,30,000/- paid by the complainants to the O.P on 4.6.2014 along with interest accrued thereon. We further hold that the complainants should be compensated by an amount of Rs.20,000/- for the mental agony and harassment caused to them . The complainants are entitled to get the litigation cost . Considering the facts and circumstances of the case , we allow litigation cost of Rs.5000/- only.

Thus,we hold that  the petition of complaint be allowed and hence, it is

                                                                                    Ordered

That the petition of complaint is allowed in part on contest against the O.P.

The O.P is directed to pay to the complainants Rs.2,30,000/- in equal shares by separate account payee cheques in favour of the complainants along with interest thereon @9% p.a with effect from 4.6.2014 till realization within 30 days from the date of this order.

The O.P is further directed to pay by way of compensation an amount of Rs.20,000/- to the  complainants  and Rs.5000/- as litigation cost in equal shares by issuing separate account payee cheques in favour of the complainants within  30 days from the date of this order.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                              

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

Ordered

That the petition of complaint is allowed in part on contest against the O.P.

The O.P is directed to pay to the complainants Rs.2,30,000/- in equal shares by separate account payee cheques in favour of the complainants along with interest thereon @9% p.a with effect from 4.6.2014 till realization within 30 days from the date of this order.

The O.P is further directed to pay by way of compensation an amount of Rs.20,000/- to the  complainants  and Rs.5000/- as litigation cost in equal shares by issuing separate account payee cheques in favour of the complainants within  30 days from the date of this order.

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member