Chandigarh

DF-I

CC/837/2015

Dr. Avtar Singh - Complainant(s)

Versus

JUKASO Resorts Pvt. Ltd. - Opp.Party(s)

Sahil Khunger

30 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/837/2015
Date of Institution	:	15/12/2015
Date of Decision	:	30/09/2016

 

Dr. Avtar Singh, owner of Avtar Hospital, Opposite Civil Hospital, Tantry Market, Barnala, Punjab.

…..Complainant

V E R S U S

1.     Jukaso Resorts Pvt. Ltd. through its Divisional Manager, S.C.O 222-223, 3^rd Floor, Sector 34-A, Chandigarh.

2.     Jukaso Resorts Pvt. Ltd., Corporate Office : I.T. Composite Towers, Plot No.1, I.D.C, Mehrauli Road, Gurgaon-122001 through its Managing Director.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                               

ARGUED BY	:	Sh. Sahil Khunger, Counsel for complainant
	:	Sh. Vinay Kumar Mishra, Counsel for OPs (OP-2 already exparte)

                       

                 

PER DR. MANJIT SINGH, PRESIDENT

1.         Dr. Avtar Singh, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Jukaso Resorts Pvt. Ltd. & another, Opposite Parties (hereinafter called the OPs) for directing the OPs to refund the deposited amount of Rs.29,800/- with interest @ 18%, pay Rs.3,00,000/- as compensation for mental agony and harassment and Rs.33,000/- as litigation expenses.

                The facts, in brief, as pleaded are that on the false representation and allurement of the OPs, the complainant got himself enrolled with OP-2. It is alleged that on 30.1.2014, a meeting was held at Midway Hotel Barnala in which Mr. Rohit Chauhan and one Mr. Ditta were representing themselves on behalf of the OPs and they convinced the complainant about their plans.  On the false promise of better services and schemes, the complainant paid a sum of Rs.29,800/- by cash vide receipt dated 30.1.2014 and also gave cancelled cheque of SBI for ECS purpose for payment of EMI out of his account.  The membership form was got signed from the complainant on 21.4.2014. The complainant was even issued a welcome kit containing membership for next 25 years with subscription of Rs.29,880/- annually vide which he was entitled for breakfast upto 15 years at Jukaso resorts; 1 week international holiday through DAE, 5 nights holidays in JRPL.  In addition to this, a 12/13 inch HCL laptop approx. Rs.15,000/- was also promised to the complainant. After a few months of enrolling himself, the complainant decided to avail the services of the OPs as offered to him for the membership taken.  He called the OPs but unfortunately he was not replied satisfactorily.  He visited the office of the OPs, but, a false assurance was given. The complainant realized that he had been cheated and even served a legal notice, but, without any success. The complainant requested the OPs for refund of his money obtained on false promises, but, the matter was put off on one pretext or the other.  Hence, this complaint praying for the reliefs mentioned above.

2.         OP-1 in its written reply resisted the complaint, inter alia, taking the preliminary objections that the complainant and the OP entered into a membership agreement and for the same he paid a part payment of Rs.29,880/- towards white membership ID W0201240 having the total membership price of Rs.2,49,000/- and he opted for 36 EMI amount into Rs.7,174/- per month. The said membership, cash receipt, welcome kit and the membership application form is not disputed but the complainant has not filed the terms and conditions annexed with the membership application form (MAF) knowing very well that as per the terms and conditions of the MAF no refund was payable to the complainant against the cancellation of the membership more specifically clause No.6. It is alleged that as per the record of the company, the complainant never sent any booking request to the reservation department of the OP.  Hence, without receiving any booking request, the OP could not process his booking request.  The allegations of the complainant are false and vague about visiting the branch office at Chandigarh.  It is also alleged that OP-2 is ready to give the services to the complainant if he is ready to pay the EMI and ASF charges to the company. Hence, the cancellation request made by the complainant was with ulterior motive. Taking similar pleas on merits, OP-1 prayed for dismissal of the complaint. 
3.         OP-2 did not appear despite due service, hence it was proceeded exparte vide order dated 2.2.2016.
4.         Replication was filed by the complainant denying all the averments in the written statement of OP-1.
5.         The parties led evidence in support of their contentions. 
6.         We have gone through the record and heard the arguments addressed by the learned Counsel for the parties.
7.         The learned counsel for the complainant argued that on the false assurance given to the complainant, he obtained membership of OPs, but, when the complainant approached the OPs for reservation of his trip, the OPs did not respond well and when he asked for the refund of his money, the matter was put off on one pretext or the other.  He argued that the OPs are deficient in services as after receiving the booking amount, the complainant had right for reservation on the resorts of the OPs and other facilities which he was entitled to as per the terms and conditions, but, no such reservation was made nor any other facility was provided to the complainant.
8.         The learned counsel for the OPs, on the other hand, argued that no request was made by the complainant for reservation, as such, his request could not be processed.  He further argued that the complainant only paid the booking amount and has not paid the 25% of the total amount, as such, he was not entitled for booking or reservation of the resort and other facilities.  He further argued that after the rescission period, the complainant had been left with no right to get the amount refunded and the complainant can avail the services of the OPs only after complying with the terms and conditions of the agreement.  Hence, the complaint is liable to be dismissed.
9.         When there is a written agreement between the parties, then the allegations of cheating etc. or false representation lose its significance. Annexure C-1 is a copy of the receipt issued by the OPs on 30.1.2014 which proves that the complainant made the payment of Rs.29,880/- which was a down payment. Annexure C-2 proves that the complainant was provided with the membership for the tenure of 25 years, season white, apartment studio. Now the question which requires determination is as to whether the complainant was entitled to avail the facilities of the OPs only after making the down payment of Rs.29,880/- or if he was further under obligation to pay the balance amount to get the facilities of the OPs?
10.         Annexure C-2 proves that the complainant was entitled to 15 years free breakfast at Jukaso; 1-week(s) international holidays through DAE; 5-Night(s) holidays in JRPL; 5-Resort Food Vouchers worth Rs.1000 and 12/13 inch HCL Laptop (Approx. price – 15) after payment of 25% of the membership price. Annexure C-2 proves that the complainant filled a form which was duly signed by him and as per this, total membership price was Rs.2,49,000/-. Thus to avail the facilities of the OPs, the complainant was required to pay 25% of the total membership price of Rs.2,49,000/-. Admittedly the complainant did not make the payment of 25% of the total membership price and only made the down payment of Rs.29,880/-. As such, he was not entitled to any facility merely on making payment of Rs.29,880/-. 
11.         The OPs have placed on record the complete membership form filled in by the complainant alongwith the terms and conditions of the membership form which was also signed by the complainant. Since the complainant signed the membership form and also signed the terms and conditions of the agreement, as such, he is bound by the same. Clause 3.3 of the agreement reads  as under ;-

“3.3  The Membership usage Period for Members who are opting to pay the Down; Payment of less than 25% of the Membership Fee (Product Price) shall commence as under :

Members opting for 15% can avail holidays after realization of 25% of the membership price (including taxes and interest components etc.)”

Thus as per the terms and conditions, since the complainant did not make the payment of 25% of the membership price, so he was not entitled to any of the facilities as a member and is estopped by his own act and conduct to allege that no facilities were provided to him. The complainant is also estopped by his own act and conduct to allege that he was cheated by the OPs because the complainant signed the written agreement and he is bound by the terms and conditions of the same.  Furthermore, after receiving information of the membership, if the complainant was of the view that he had been cheated, he could ask for termination of the contract or membership within 10 days or 90 days, but, no such steps was taken by him. As such, it can be said that the complainant was satisfied with the terms and conditions of the membership and he voluntarily obtained the said membership. 

12.         Now the question which requires determination is as to whether the complainant is entitled to cancellation of his membership and get the refund or not?  In this regard clauses 6.1 and 6.2 of general conditions read as under:-

                “6.    Termination

6.1   In the event of termination/cancellation of JJM, the following shall apply.

Rescission Period Termination/Cancellation

Withdrawal of application for JJM shall be permitted within the Rescission Period which is 10 days from the date of execution/signing of the membership application form, provided such request for withdrawal is made in writing and signed (by both the Applicants/Members in case of Joint Membership) and reaches JRPL within 10 days from the date of execution/signing of the membership application form.  In the event of such withdrawal within 10 days, JRPL shall refund the amount received from the Member towards Membership Fee, after deducting processing fee of Rs.3000.00 (Rupees Three Thousands Only) along with other statutory and necessary charges paid by the JRPL within 45 days from the date of receipt of request for withdrawal.  In case of joint applications, refund shall be made to the first applicant only. 

Post Rescission period termination/ cancellation (by Applicant/Member/JRPL):

(a)    In the event of withdrawal of the application by an Applicant/Member within 90 days from the date of execution/signing of the membership application form after the period of Recession, the Applicant/Member will be entitled to the refund of amount received by the JRPL after the deduction of 40% of membership fee, DAE enrollment fee paid by JRPL, holidays availed by the member, outstanding ASF with interest if any, Tax dues, and other charges payable by the member etc. 

(b)    In the event of withdrawal/termination of JJM by JRPL or the member, the Member shall not be entitled to the refund of any service tax that may have been paid by the JRPL in connection with the JJM.

        xxx                   xxx                   xxx

6.2   After 90 days from the date of execution/signing of the membership application form member shall not be entitled to ask for the termination of membership on account of any reason and the total amount paid by the member towards the membership fee shall be forfeited by the JRPL.”

Admittedly, the complainant did not request for cancellation of the membership within the prescribed period of 90 days. As such, the OPs were within their right to forfeit the amount paid by the complainant.  Hence the complainant is not entitled to refund of the amount paid by him as per terms and conditions of the agreement.

13.         The complainant has failed to prove that the OPs adopted any unfair trade practice or have remained deficient in rendering services.  On the other hand, the complainant himself defaulted in making the payment of the EMIs as well as 25% of the membership price to get the facilities entitled to a member
14.         Taking into consideration all the facts and circumstances narrated above, we have no hesitation to hold that the present complaint is devoid of merit and the same is hereby dismissed, leaving the parties to bear their own costs.
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
30/09/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President