BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 408 OF 2014 AGAINST C.C.NO.678 OF 2011 DISTRICT CONSUMER FORUM-II HYDERABAD
Between
Srinivas Gupta
Customer Care Manager, The Country Vacations,
Division of the Country Club (India) Ltd.,
H.No.3-6-12/13, 4th Floor, Al-Samad, Liberty X Roads
Himayath Nagar, Hyderabad
Appellant/opposite party
A N D
K.Satyanarayana S/o K.Ashaiah (late)
Aged about 32 years, Occ: Service Manager
in HP India, F-101, P-69, Vasudha Residency Apts.,
Madhavaram Colony, Hyderabad-500 072
Respondent/complainant
Counsel for the Appellant S.Rajesh Jaiswal
Counsel for the Respondent M/s Gopi Rajesh & Associates
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE SECOND DAY OF JUNE
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite party aggrieved by the orders of District Consumer Forum-II, Hyderabad dated 01.10.2013 made in CC No.678 of 2011 in partly allowing the complaint directing the opposite party to pay Rs.85,000/- with interest @ 9% from the date of filing of the complaint till realization together with costs of Rs.2,000/-.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that induced by the opposite party take membership of their club during the month of April 2011 paid Rs.90,000/- and the opposite party issued membership Master Life #8799. Subsequently the complainant approached the opposite party to book a hotel in Shirdi and he was asked to pay Rs.1,000/- per night which was very high. The complainant was initially promised that all facilities were available in the country club and can be utilized at free of cost but contrary to that the complainant was informed that only gym is available for free. Besides the opposite party promised to allot a plot at Aler Nalgonda District in which there are no details of plot mentioned in the agreement. Therefore, the complainant approached the opposite party requesting it to refund the amount as it failed to execute any document relating to the plots as promised. Hence, the complaint praying to direct the opposite party to pay Rs.90,000/- with interest @ 4% per month from the date of payment together with compensation of Rs.50,000/- and costs of Rs.5,000/-.
4. The opposite party resisted the case contending that the complainant made an application to become member of Master Life (Local) membership and the complainant was allotted members for an amount of Rs.90,000/- on 19.04.2011. On 25.05.2011 the opposite party sent a letter to the complainant along with membership card, list of programs, list of affiliated clubs and also offered gym facility i.e., Tassha membership for 3 years. The opposite party entered with complainant memorandum of understanding for upgradation of existing membership herein the terms and conditions were clear that the amount paid towards membership is non-refundable and the required facilities are available at the opposite party and there is no deficiency on their part. The complainant was allotted complementary plot at Fairway Extension of country club admeasuring 150 sq.yds and the same will be registered after the complainant pays the developmental charges of Rs.20,000/-. No sale consideration was paid or received towards the said plot and as such there is no obligation on the part of opposite party to register the plot in favour of the complainant. The complainant failed to pay developmental charges inspite of demands made by the opposite party. The membership amount paid by the complainant is non-refundable and hence it prayed for dismissal of the complaint.
5. During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his evidence affidavit and the documents Exs.A1 to A3 while on behalf of the Opposite party, the Customer Relations Manager, got filed his evidence affidavit and the document Ex.B1.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.678 of 2011 by orders dated 01.10.2013 granting the reliefs, as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It is contended that the complaint is barred by limitation. As per clause 3 of the Agreement dated 17.04.2011 the membership fees is non-refundable and is not a deposit towards the membership. The complainant on 17.04.2011 the opposite party entered with complainant Memorandum of Understanding for up gradation of existing membership wherein the terms and conditions are clear that the amount paid towards the membership is non-refundable. As per Ex.B1 the complainant agreed to pay the development and registration charges of Rs.30,000/- to the opposite party. Hence, the opposite party prayed to allow the appeal.
8. The counsel for the Opposite party and the complainant had advanced their arguments reiterating the contents of the complaint and the written version in addition to filing written arguments on behalf of the complainant. Heard both sides.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
10. It is not in dispute that the Complainants paid a sum of Rs.90,000/- on 19.04.2011 towards membership fees and it is also not in dispute that the opposite party issued membership MASTER # 8799 to the complainant. It is also not in dispute that the complainant has not availed any facilities under the agreement for the reason that when the complainant intend to go to Shirdi requested the opposite party for the accommodation but it demanded payment of Rs.1,000/- per night which was very high and contrary to the promises made by it. Ex.A3 is the welcome letter dated 25.05.2011 where under the complainant was informed that the members were required to remit rs.1200/- plus service tax per year. It is also stated therein that the club does not offer any credit facilities and members are to settle their bills on “ Spot Cash Payment Basis” only. Further it was offered gym facility i.e., Tassha membership for three years and list of affiliated clubs, list of programs etc.
11. The complainant submitted that when he received the agreement signed by the opposite party 17.04.2011, he realized that promises/benefits assured were not part of the agreement and immediately he approached the opposite party regarding the failure of mentioning the benefits and facilities in the agreement as promised at the time of selling the product. On the other hand the learned counsel for the opposite party would contend that it had entered with complainant memorandum of understanding for up gradation of existing membership wherein the terms and conditions are clear that the amount paid towards membership is non-refundable. He also contend that the complainant was allotted complementary plot at Fairway Extension of country club admeasuring 150 sq. yds and the same would be registered after the complainant pays the development charges of Rs.20,000/-.
12. It is, thus, clear from the contention of the complainant that he disputed the terms and conditions of the agreement within reasonable time. No doubt, the first page of Vacations Purchase Agreement (Ex.A1), 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 and in all probability some other benefits also, the appellants made the respondent to sign the agreement and he apparently did so in good faith believing the version of the opposite party to be correct. In our considered opinion, forfeiture of entire amount in the sum of Rs.90,000/-, when the complainant did not avail of gift and any holiday package, is too harsh and unreasonable.
13. With regard to allotment of the plot Ex.A2 is the Memorandum of Understanding and as per clause 11 of it was agreed between the parties that on completion of the Membership Upgradation Fee, Member will be allotted One Complimentary Plot of 150 sq.yds at Fairway Extension Venture. A separate allotment letter/communication will be issued/sent to the member specifying plot number and other relevant details. Apparently, there was no such allotment letter was issued mentioning the plot number and other details of the plots. Except stating that the complainant have not paid the registration charges and development charges, the opposite party club had not adduced evidence to show that it had discharged its part of the contract. The opposite party has not stated the stage of the project and whether the layout is approved and whether there was any change in the dimensions of the plot etc. It is not the case of the opposite party that the complainants had not paid the entire membership fees.
14. The complainants had paid the entire membership fee, the obligations rests on the opposite party club to inform them the stage of development of project and changes made if any, either in layout plan or in the policy of government regarding land acquisition etc. The opposite party cannot take shelter under non-payment of registration charges and development charges by the complainant when it had not allotted any plot or allotment leter mentioning all the details of the plot. It is not clear whether the amount of Rs.30,000/- mentioned in memorandum of understanding is consolidated amount or the development charges claimed are different from the registration charges.
15. No single piece of paper is brought on record by the opposite party to show their bonafides that the plot which it was promised to allot to the complainant on complimentary basis have been acquired, surveyed, obtained lay-out and completed the development work in accordance with the approvals from the competent authorities. Admittedly, though the complainant became member of the scheme, they could not avail the benefits and accordingly requested for refund of the amount paid by them.
16. May be, for the reason that the opposite party is allotting the complimentary sites, the complainant was lured to become as member. On physical verification of the site by the complainant , there appeared no such venture physically and that the sites mentioned in the agreement also not really existing. Though the counsel for opposite party would contend that the sites really exist at the places mentioned therein in the agreement, no evidence is placed on record to vouchsafe their contention. Had really the sites been existing, the opposite party would have filed the service tax particulars for the particular period so as to show that the sites are really existing. In such a circumstance, an adverse inference is to be drawn that without providing any realistic sites, the opposite party offered the scheme to the public including the complainant and thereby lured them to shell out the money. In any view of the matter there has been deficiency in service on the part of the opposite party club in its failure to inform the complainants the stage of development of the project and the amount to be paid by them towards registration charges and development charges.
17. It is settled law that the parties are bound by the terms and conditions of contract. The complainant requested the opposite party to refund the amount paid by him. The opposite party has not responded to his request and it has not allotted the accommodation at the request of the complainant. The inaction of the opposite party in this regard is made basis for claim for return of the entire amount paid by the complainant. Admittedly, though the complainant became member of the scheme, he could not avail the benefits and accordingly requested for refund of the amount paid by them. These facts would certainly constitute deficiency of service and negligence on the part of the opposite party. The forum below after considering the facts in detail, passed the orders which do not require any interference.
18. In the above facts and circumstances, we do not see any merit in the contentions of the Appellants and accordingly find no fault with the findings of the forum below. In the circumstances discussed supra, we answer the point framed for consideration in paragraph No.9 , supra, in favour of the complainant/respondent and against the opposite party/appellant.
In the result, the appeal fails and accordingly dismissed but no costs. Time for compliance four weeks.
PRESIDENT MEMBER
Dated: 02.06.2017
