BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 08^TH DAY OF AUGUST 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-
   1. Direct the OP to activate his membership K-712 as per Vacation Time Share Apartment.
   2. Direct the OP to withdraw the demand letter with regard to payment of Rs.84,848/- as mentioned by them in their emails and letters.
   3. Direct the OP to pay Rs.50,000/- as compensation.
   4. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.
2. The case set up by the complainant in brief is as under:-

OP is a registered company and it is running a resort in the name and style of Hill Country Holiday Resort at Kodaikenal, Tamilnadu.

3. The complainant had obtained membership of OP and entered into vacation time share agreement dated 14.12.1998 with membership No.K712. As per the said agreement he has paid Rs.23,000/-, comprising cost of time share Rs.13,595/- and advance annual facility subscription of Rs.9,405/-. As per the share agreement the OP has allowed the complainant to utilize the amenities as per schedule B to D of the said agreement.
4. It is the specific grievance of the complainant that as per clause 12.3 of the said agreement the member shall pay prescribed charges or costs for amenities and utilities/services like water/electricity/telephone/gas/oil used during his stay in the resort.  As per the said clause the member is liable to pay the charges which have been used during his stay in the resort. But now the OP has violated the terms and conditions of the said agreement illegally demanding this complainant to pay Rs.84,848/- even though he has not stayed during such period as claimed by the OP. The complainant making payments towards service charges during his stay at the OP resort.  He has received letter from the OP surprisingly on 17.07.2006 with regard to demand notice to pay maintenance fees for amenities and interest.  Irrespective of whether a member avails his holiday or not. He has written a detailed reply to the said letter on 22.07.2006.  Again he has received the letter from OP on 01.02.2007 and he issued reply on 10.03.2007.  After that he has received a reply letter on 19.03.2007 from one Manager Customer Service namely Mrs.Kalpana Roy by quoting clause 12.3 of the agreement and once again demanded to pay charges towards the amenities.  The complainant has issued a reply letter on 10.04.2007 stating that the charges shall be paid only if a member uses the services etc., during his stay.  In all the emails and letters of OP they have misinterpreted the clause 12.3 of the membership agreement and nowhere it is mentioned that the member is liable to pay the cost of amenities and utilities even if he do not use the same.
5. On 22.11.2021 the complainant has contacted the OP for his holiday week. At that time the OP has informed the complainant that his membership has been inactivated due to nonpayment of yearly amenities and requested him to pay the alleged outstanding dues of Rs.84,848/-.   The demand made by the OP is not in accordance with law and the same is in violation of the agreed terms and agreement of the membership agreement.  Complainant issued legal notice on 13.12.2021 by calling upon the OP to withdraw the demand letter and to reactivate his membership with immediate effect as he is not liable to pay any dues or interest as claimed by this OP.  The OP has issued reply on 17.01.2022 again misrepresenting the clause 12.3 time share agreement.  The OP has arbitrarily and unilaterally fixed the maintenance charges and interest there on which is contrary to the said share agreement. In view of this the complainant was put to mental agony and hardship. The OP is liable to be prosecuted for the offences breach of trust, fraud and deficiency for rendering services. The claim made by the OP is illegal and time barred.
6. It is further case of the complainant that the time share agreement has been entered between him and his wife and the OP and all the transactions and payments has done by him only. The OP has issued notice for payment of alleged amenities and utility charges addressed only to this complainant. They have not issued any demand notice to his wife Sadia M Bhojani.  The OP has not issued any termination notice either to complainant or to his wife as such the alleged termination or inactivation of the membership is totally not in accordance with law and the OP has not complied the principles of natural justice.  The OP cannot terminate the membership. The OP cannot raise any dispute with regard to the consumer service provider relationship.  Hence the complainant prays for allowing this complaint.
7. In response to the notice, OP appears and files version. The OP has admitted about the membership obtained by the complainant and also the time share agreement entered between this OP and the complainant and his wife on 14.12.1998. 
8. The OP has further stated that as per clause 12.3 of the time share agreement the member is liable to pay such amenities as defined under schedule B and utilities/services like water, electricity etc., morefully mentioned in the agreement.
9. It is further case of the OP that the complaint is barred by time and it is bad for non-joinder of necessary parties since the complainant has not made his wife as a party in this complaint.
10. It is also the contention taken by the OP that the complaint does not fall under the definition of the consumer. The complainant would be entitle to avail the services of the OP upon his due confluence of payment of amenities as prescribed under schedule B therein.  The complainant has not paid any money towards amenities.  The complaint deserves to be dismissed.  This commission has no jurisdiction to entertain this complaint since the registered office is at Madras, Tamilnadu. The time share agreement was executed at Madras, Tamilnadu. The complaint ought to have been initiated at the registered office of the OP. hence this commission has no territorial jurisdiction to entertain this complaint.
11. It is the specific case of the OP that the complainant’s membership account has been classified as inactive since 2009, since he has not paid the amenities from the year 2009 to 2022 and utility charges incurred during his stay in 2008 levied by the OP.  Hence the complainant is not entitled for the relief sought in this complaint.  The complainant has to seek for his activation of his membership after making the payment due as per the time share agreement. The complainant has no locus-standi to file this complaint. There is absolutely no cause of action.
12. The complainant is not entitled for the relief sought in this complaint, since he has not made the payments for amenities and utilities and also not entitled for activation of his membership. The membership of the complainant is liable to be activated only upon the payment of amenities and utility charges as demanded by this OP. the complainant is not entitled for any sum much less the sum of Rs.50,000/- towards compensation since it is the complainant who has not complied by their agreed terms and conditions of the time share agreement. Hence OP prayed for dismissal of complaint with exemplary cost.
13. The complainant has filed his affidavit evidence and relies on 19 documents.  Affidavit evidence of official of OP has been filed and OP relies on 04 documents.
14. Heard the arguments of advocate for both the parties. Perused the written argument filed by the complainant.
15. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

17. Point No.1 AND 2: These two points are inter-related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence filed by both the parties, written argument of complainant and documents filed by both the parties.
18. It is clear from the complaint and evidence and the version and documents filed by both the parties that the OP is a registered company and it is running the resort in the name and style Hill Country Holiday resort at Kodaikenal, Tamilnadu.  It is also undisputed fact that the complainant and his wife have entered into vacation time share agreement with OP on 14.12.1998 and they have obtained the membership with membership No.K712.  As per the said agreement the complainant has paid Rs.23,000/- comprising cost of the time share Rs.13,595/- and advance annual facility subscription Rs.9,405/-.  As per the time share agreement the OP has allowed the complainant to utilize the amenities as per schedule B to D of the agreement.
19. It is the specific case of the complainant that as per the time share agreement the member shall pay such prescribed charges for amenities and utilities/services like water electricity, telephone, gas and oil used during his stay in the resort.  But the OP by violating the terms and conditions of the said agreement illegally demanding the complainant to pay Rs.84,848/- even though this complainant has not stayed during such period.  There are several notices were exchanged between the parties relating to the demand made by the OP and the demand rejected by the complainant.
20. When the complainant has contacted the OP on 22.11.2021 for his holiday at that time he came to know that his membership has been inactivated for nonpayment of the amenity charges. 
21. In support of their contention, the complainant has relied on 19 documents. Ex.P1 is the original vacation time share agreement entered between the complainant and OP.  Ex.P2 to P9 are the letters exchanged between the parties and Ex.P10 is the main exchanges from 22.11.2021 to 30.11.2021, Ex.P11 and 13 are the legal notice and the reply notice exchanged between the complainant and OP, Ex.P14 is the brochure of the OP company, Ex.P15 is the receipts, Ex.P16 is the copy of the letter of OP with receipts, Ex.P17 is the bunch of copy of letters, Ex.P18, copy of bunch of bills and Ex.P19 is the letter.
22. It is the specific contention taken by the OP that in said agreement as per Ex.R1, time share agreement talks about amenities as well as utilities. Utilities are what the complainant pay for his stay in the resort. Utilities cover services like water, electricity, telephone, gas oil used during the stay.  Amenities however is collected for the general upkeep of the resort the facilities and the services regard less of whether the member uses his /her scheduled week during the year or not.  There is a clear mention about the amenities mentioned in schedule B of the VTS agreement.
23. It is further case of the OP that they have not charged for amenities for over 10 years incurring huge loss, hence they have called the complainant for payment of amenities from the members like complainant in order to keep the resort running in the interest of their members. In addition to this, it is also the contention taken by the OP that they have clarified the position to the complainant vide communication dated 09.03.2007 and 13.04.2007 but the complainant has not responded. He has paid amenities charges for the year 2007-08 and he has not paid the amount till this day. Hence they have demanded the complainant to pay the amount of Rs.84,848/- towards maintenance charges.  When the complainant has failed to pay the amount they have inactivated the membership of the complainant. It is also the contention taken by the OP that they are ready to reactivate the membership of the complainant if he pays the arrears of Rs.84,848/-.  
24. In support of their contention the one of the director of the OP company Ms.Sherene Mary George has filed her affidavit evidence and relied on four documents.  Ex.R2 is the bunch of email exchanged between the parties, Ex.R3 is the printout of the software maintained by this OP and Ex.R4 is the copy of the payment receipt made by the complainant on 08.07.2008.  
25. On these back ground we have gone through the Ex.P1 Time share agreement entered between the complainant and OP. we have gone through schedule B page No.12 of the agreement entered between the complainant and OP.
26. We have gone through clause 12.3 of the agreement which reads as follows;

The member shall pay, such prescribed charges/fees/prices/costs for amenities, and utilities/services, like, water/electricity/telephone/ gas/oil used during his stay in the RESORT.

27. The OP have provided the list of amenities in the schedule B which reads as follows;

1. Restaurant service
2. House keeping service
3. Common facilities for recreation & entertainment
4. Resort property up-keep and maintenance

28. According to clause 12.3 of the agreement the member shall pay the charges for amenities and also utilities and services. It is also clear from schedule B that is list of amenities which includes resort property upkeep and maintenance apart from restaurant service, housekeeping service and common facilities for recreation and entertainment.
29. It is clear from the aforesaid clause 12.3 of the agreement and the schedule B that the member of the OP has to pay restaurant, housekeeping common facilities recreation for entertainment services, during his stay in the resort. The member has to pay the yearly maintenance to upkeep the property of the resort and for its maintenance.  Admittedly Ex.P1 was entered between the complainant, his wife and OP on 14.12.1998. The complainant ahs paid Rs.23,000/- at the time for entering into share agreement. After that he has never paid any amount.  When he again requested the Ops for his holiday week on 22.11.2021 the Ops have informed him about the deactivation of his membership.  The OP have demanded him to pay Rs.84,848/- towards maintenance charges from 2009 to 2021. There was so many letters exchanged between both the OP and the complainant from 17.07.2006 till 13.04.2007. Now the Ops have demanded the complainant to pay the amount of Rs.84,848/- for reactivation of his membership demanding maintenance amount from the year 2009 to 2021.
30. As per the agreement the complainant being a member of the OP resort has to pay the yearly maintenance charges as per the agreement and also as per schedule B to upkeep the resort property and for its maintenance.  When the complainant has failed to pay the annual maintenance to the OP, they have rightly deactivated his membership.
31. Now the complainant has approached this Commission to direct the Ops to activate his membership K712 as per the Ex.P1 Vacation time share agreement and to withdraw their demand for payment of Rs.84,848/- and also claiming compensation of Rs.50,000/-.  The complainant being the member of the OP has to pay the amount to upkeep the resort and for maintenance of the property and it is a basic necessity.  If the complainant is not willing to pay the annual maintenance fee the OP can deactivate his membership. When the complainant wants to take his holiday week from the OP he has to pay the maintenance charges. If he fails to pay the maintenance amount the OP need not entertain his demand. This commission cannot direct the Ops to reactivate the membership of the complainant K712 as per the agreement without paying the amount of maintenance charges of Rs.84,848/-. The Ops are not at all demanding any other charges towards restaurant, housekeeping and common facilities for recreation and entertainment. They are demanding only the maintenance charges and the complainant is liable to pay the same from 2009 to 2021 if he is interested in activation of his membership in the OP resort.  It is very difficult for the Ops to maintain their property without collecting the maintenance charges from its members. Under these circumstances the complainant has failed to establish the deficiency of service and also negligence on the part of the Ops. Therefore the complainant is not entitled for the relief claimed in the complaint.  Hence we answer point No.1 in and point No.2 in the negative.
32. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No cost.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 08^TH day of AUGUST, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;