ORDER
Per – Hon’ble Mr. Dhanraj Khamatkar, Member
This appeal filed by the Appellants/original Complainants (hereinafter referred to as ‘the Complainants’ for the sake of brevity) takes an exception to an order dated 14/03/2013 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum dismissing Consumer Complaint No.230 of 2010.
[2] Facts, leading to this appeal, can be summarized as under:-
It is the case of the Complainants that they were called by a representative of the Respondent/original Opponent – Mahindra Holidays & Resorts India Ltd. (hereinafter referred to as ‘the Opponents’ for the sake of brevity) on 04/06/2006 at the R-Mall, Mulund (West), Mumbai for presentation being made to the prospective members and the Complainants attended the same. In the presentation, the representative of the Opponent explained advantages of being a member of Mahindra Holiday Resorts. Representative of the Opponent painted a rosy picture before the Complainants of being members and the Complainants believing in Mahindra & Mahindra corporate entity and its brand image, paid the consideration towards membership fees for becoming the members of Mahindra Holidays & Resorts. It is further contended that the representative of the Opponent had explained the types of memberships viz. Red, White and Blue and told that Red type of membership would have an assured preference over White & Blue types of membership during peak, mid and low seasons and with the Red type of membership, one was assured to get an accommodation reserved on demand without any difficulty. Believing what-ever presented as true, the Complainants have paid the entire consideration for Red Membership i.e. an amount of Rs.1,92,755/-. Complainants further allege that they have paid to the Opponents an amount of Rs.6,647/- on 18/12/2006, Rs.7,038/- on 15/10/2007, Rs.7,948/- on 12/10/2009 and Rs.7,333/- on 12/10/2009. Thus, the Complainants claimed that they have made a payment of Rs.2,21,721/- till filing of the complaint.
[3] It is alleged by the Complainants that in the membership form, there is a part under the title ‘Review of Confirmation of Understanding’. Under the said heading, there is an instruction to the members that there are certain points about their membership that they should be clear about and that the members acknowledge having gone through them. It is contended that the Complainants signed the Membership Application Form on the basis of terms & conditions and Rules & Regulations explained by the representative of the Opponent. Reality was drastically different which was discovered later on by the Complainant. However, the booklet containing membership rules was never given to the Complainants. It was subsequently sent to the Complainants alongwith Welcome Letter Kit in the first week of July-2006 and it amounts to unfair trade practice. Complainants further contended that they have received a receipt entitled ‘Instrument Acknowledgement’ which bears the date – 20/06/2006 as the date of their enrollment in the membership programme. It is contended that thereafter, a certificate of membership was received alongwith Welcome Letter Kit on 28/06/2006 which was received by the Complainants in the first week of July-2006. It is further contended that sometime later, rules of membership were forwarded to the Complainants on 03/07/2006. It is further contended by the Complainants that from the year 2006 to 2009, the Complainants tried making reservations at the resorts. However, each time they called, they were told that some other member had already booked the resort. It is also contended by the Complainant that they have requested for cancellation, transfer, sale of membership vide an e-mail dated 17/10/2008 together with a request for effecting change of address. However, said e-mail was not replied.
[4] Complainants contended that they made a request for booking 03 studio apartments vide an e-mail dated 12/10/2009 for a week’s stay anytime between the period 05/12/2009 to 09/12/2009. However, the Complainants received an e-mail from the Opponent to the effect that the resort was not available during the requested period and if the Complainants were interested, they could be accommodated in a hotel named ‘Goa Jasmine’, a new property acquired and developed by the Opponent. Complainants sent another e-mail to the Opponents on 12/10/2009 requesting the Opponents to confirm the dates on which ‘Varca Resort’ was available so as to enable them to alter the leave period and modify/revise the travel plan. It is stated by the Complainant that despite putting a specific query to the Opponents seeking confirmation about the dates on which the resort was available, the Complainant received another e-mail from the Opponents stating that they would have loved to confirm the reservation. However, since the resort was not available during the period requested, they were willing to offer to the Complainants, accommodation at Hotel Goa Jasmine as an alternate arrangement. The Complainants further stated that to validate the Opponent’s bonafide or otherwise, the Complainants put in a request through internet, not as a member of the Opponents but, as an outsider who wanted to book the Varca Resort against payment. It is stated by the Complainants that they received an e-mail stating availability and money tariff which shows that resort was available against the payment for the non-members. In other words, resort was available when the request was made by the Complainants posing as an outsider and this amount to unfair trade practice.
[5] Again the Complainants contended that they wrote to seniors of the Opponent expressing dissatisfaction over what happened and sought cancellation of membership for unfair trade practice and on unethical behavior of the Opponents and providing resorts to the outsiders by depriving the members who paid the entire consideration. In response to the said mail, the Complainants too got a call from Mrs. Gayatri, Senior Manager of the Opponent who confirmed the availability of the resort at Varca and also sent e-mails to that effect and tried to put blame on the Complainants. It is further contended by the Complainants that they have gone through data released to various media, terms and conditions of the scheme, booklet, website of the Opponents, Prospectus of the Opponents lodged by them with the SEBI in the year 2009 when they made public issue of their securities and a document entitled ‘Code of Conduct’. Complainants stated that while registering the members, critically important and relevant information was being concealed from the prospective members. Actually, the entire sequence of events starting from making presentation to the prospective purchasers to till dispatch of rules and regulations upon enrollment smacks of conspiracy. It starts with rosy presentation, accepting payment, followed by issuance of instrument acknowledgement after a period of ten days, giving welcome kit to clarify if the members had any doubt about rules & regulations even before rules and regulations are actually sent to them, preventing the consumers from taking an exit route by cancellation of membership etc. It is alleged by the Complainants that the Opponent had never had adequate number of resorts to fulfill the demands of the members, offering of the properties meant for member’s stay to the non-members. Complainants have attached voluminous record alongwith the complaint and alleging deficiency in service on the part of the Opponents the Complainants have filed a consumer complaint seeking refund of amounts paid together with interest alongwith other consequential relief of compensation and costs.
[6] Opponents contested the complaint by filing its written version inter-alia raising standard defence such as filing of present complaint is a gross abuse of process of law and filing of this complaint is nothing more than a deliberate and willful attempt on the part of the Complainants to extract monies from the Opponent on false and frivolous grounds. It is also contended that complaint is bad for misjoinder of party. Since, the complaint involves mixed question of law and fact, only Civil Court can adjudicate the complaint. It is also contended that the Complainants have suppressed true and material facts. Complaint is filed beyond the period of limitation. It is contended that there was no adoption of unfair trade practice resulting into deficiency in service on the part of the Opponent. On these main grounds and other grounds as set out in the written version, Opponent prayed that the complaint may be dismissed.
[7] After considering the rival contentions, the District Forum came to dismiss the complaint by the impugned order. Being aggrieved by the said order, the Appellants/Complainants have filed this appeal.
[8] We have heard learned Adv. Smt. Anita Ashutosh Marathe on behalf of the Appellants/Complainants. Learned Counsel for the Respondent/Opponent chose to remain absent and did not advance oral submissions. However, later on upon no objection being given by the Learned Counsel for the Appellants/Complainants, Learned Counsel for the Respondent/Opponent filed written notes of arguments. In the interest of justice, those written notes of arguments were taken on record though filed belatedly and we considered the contentions raised therein. Suffice to say that written notes filed by the Respondent/Opponent is nothing but reproduction of those contentions which were already raised in the written version filed before the District Forum.
[9] First contention raised by the Respondent/Opponent is that the complaint as filed is barred by limitation because the cause of action for filing the present complaint arose in the month of June-2006 when the Complainants received the welcome kit, while the present complaint was filed in the month of April-2010 i.e. after lapse of a period of four years from the alleged cause of action. In support of this contention, Respondent/Opponent relied on decision of this Commission in the matters of Tolani Shipping Co. Ltd. Vs. Sterling Holiday Resort (I) Ltd. ~ II-(2012)-CPJ-233. Said decision was later on confirmed by the Hon’ble National Commission. However, said decision will not be of much help to the Respondent/Opponent and said decision will have no application to the facts of the case on hands. In the said case, the Complainant therein had sent a letter dated 27/02/2002 to the Opponent therein demand refund of money besides liquidated damages and compensation. Thereafter, the Complainant therein ought to have filed a consumer complaint within a period of two years from 27/02/2002 whereas in fact, it was filed only 29/08/2011 and thus, this Commission rightly held that the complaint was barred by limitation. However, in the present case, even though it is true that the Complainants paid the amount and the Opponent sent the welcome kit to the Complainants in the month of July-2006, in fact, the cause of action for filing the present complaint arose on 20/10/2009 when the Complainants sent an e-mail to the Opponent seeking refund of the amounts paid for the first time together with interest. A copy of said e-mail is produced on record at page (97) of the appeal compilation. Subsequently, after exchange of series of e-mails, Smt. Gayathri Umashankar, Sr. Manager – Member Relations (Corporate), representing the Opponent, sent a feedback e-mail dated 28/10/2009 to the Complainants and offered refund of an amount of Rs.52,601/- to the Complainants towards cancellation. A copy of said e-mail is produced on record at page (109) of the appeal compilation. However, even though this amount was offered, it was not paid to the Complainant. Thereafter, the Complainants filed consumer complaint on 13/04/2010 seeking refund of amounts paid. Thus, the complaint was filed within a period of two years from the date of accrual of cause of action. Hence, the complaint filed was well within limitation. Thus, the District Forum was not right in concluding that the complaint was filed beyond the period of limitation.
[9-A] As regards the argument of the learned counsel of the Respondents that since Condition No.13 in Membership Rules provides that all or any disputes, differences or questions arising out of this transaction shall be settled by Arbitration by a sole arbitrator to be appointed by MHRIL and provision that in respect of all the matters pertaining to this transaction only the Civil Court in Chennai City shall have jurisdiction in the exclusion of all other Courts, the District Forum in Mumbai have no jurisdiction to try the dispute between the Complainants and the Opponents; Section-3 of the Consumer Protection Act, 1986 provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Since the provisions of the Consumer Protection Act, 1986 are in addition, the Fora in Mumbai can adjudicate the grievances of the Appellants/Complainants. Further, the agreement is executed in Mumbai and the Opponents have an office in Mumbai and as such, a complaint can be filed in Mumbai. Thus, we do not find any force in the argument of learned counsel on the point of jurisdiction.
[10] We find that other objections raised by the Opponent such as complaint is bad for mis-joinder of party, since the complaint involves mixed question of law and facts, it should be tried by Civil Court; there is suppression of material facts on the part of the Complainant, Fora constituted under the Consumer Protection Act, 1986 have no jurisdiction to entertain, try and decide the present complaint, are vague and baseless and all such objections stands rejected.
[11] It is a specific case of the Complainants that they made a request for booking 03 studio apartments vide an e-mail dated 12/10/2009 for a week’s stay anytime between the period 05/12/2009 to 09/12/2009. However, the Complainants received an e-mail from the Opponent to the effect that the resort was not available during the requested period and if the Complainants were interested, they could be accommodated in a hotel named ‘Goa Jasmine’, a new property acquired and developed by the Opponent. Complainants sent another e-mail to the Opponents on 12/10/2009 requesting the Opponents to confirm the dates on which ‘Varca Resort’ was available so as to enable them to alter the leave period and modify/revise the travel plan. It is stated by the Complainant that despite putting a specific query to the Opponents seeking confirmation about the dates on which the resort was available, the Complainant received another e-mail from the Opponents stating that they would have loved to confirm the reservation. However, since the resort was not available during the period requested, they were willing to offer to the Complainants, accommodation at Hotel Goa Jasmine was an alternate arrangement. The Complainants further stated that to validate the Opponent’s bonafide or otherwise, the Complainants put in a request through interest, not as a member of the Opponent but, as an outsider who wanted to book the Varca Resort against payment. It is stated by the Complainants that they received an e-mail stating availability and money tariff which shows that resort was available against the payment for the non-members. In other words, resort was available when the request was made by the Complainants posing as an outsider. With regard to these specific contentions, in the written version filed by the Opponent a contention is raised to the effect that as per their practice and policy they never deny accommodations to any of their members except if the resort location of which the accommodation is sought for is already booked. It is further contended that in the instant case, it is quite possible that the Complainants may not have confirmed their accommodation as the same would have been already booked by another member. Thus, what the Opponent has filed is an evasive reply. It is settled position of law that where an Opponent denies an allegation of fact in the complaint, he must not do so evasively, but answer the point of substance. Thus, if at all according to the Opponent, the Varca Resort was not available to provide accommodation to the Complainants, as the members, during the period 05/12/2009 to 09/12/2009 as some other members had booked the same, it was obligatory on the part of the Opponent to furnish the list of the members who had already confirmed their reservations for accommodation at Varca Resort even prior to the Complainant. Thus, the specific allegation of fact in the complaint having being not denied specifically or by necessary implication by the Opponent in their written version shall have to be taken as admitted against the Opponent. Information regarding other members who had already booked the resort even prior to the Complainants was within the knowledge and, therefore, as per Section-106 of the Indian Evidence Act, 1872 the burden of proof was upon the Opponent. Opponent has miserably failed to discharge this burden of proof. Thus, the Opponent having failed to provide accommodation to the Complainants during the relevant period and offering the resort to the outsiders instead of giving preference to the members, there is material breach on the part of the Opponent that goes to the heart of contract and thus, the Opponent is guilty of deficiency in service entitling the Complainants to nullify the contract. Thus, the District Forum arrived at a perverse conclusion that there was no deficiency in service on the part of the Opponent.
[12] As per Section-73 of the Indian Contract Act, 1872 when a contract has been broken, the party who suffers by such breach is entitled to receive, from the party, who has broken the contract, compensation for any loss or damage caused to him. In the present case, since there was breach of contract on the part of the Opponents, the Complainants are entitled to claim compensation from the Opponent. Further, as the Complainants were deprived by the Opponent from enjoying the benefits of the membership, an legal injury was caused to the Complainants since the Opponents invaded legally protected interest of the Complainants and thus, provisions of Section-14(1)(d) of the Consumer Protection Act, 1986 are attracted in the present case. Our observations are fortified by the decision of the Hon’ble Supreme Court in Consumer Unity & Trust Society, Jaipur Vs. The Chairman & Managing Director, Bank of Baroda, Calcutta ~ 1995-SCC-(2)-150-JT-1995-(2)-51. Moreover, amounts paid by the Complainants to the Opponents from time to time were not paid gratuitously and the Opponent was enjoying the benefits thereof and as such, as per Section-70 of the Indian Contract Act, 1872 now the Opponent is under a statutory obligation to pay compensation to the Complainants. As observed earlier, the Opponent vide an e-mail dated 28/10/2009 [page (109) of the appeal compilation, offered an amount of Rs.52,601/- to the Complainants towards cancellation and refund. Thus, there is admission of liability on the part of the Opponent to the extent of Rs.52,601/-. Opponent offered this amount, since the Complainants missed the time period in which rescission was allowed. However, at the cost of repetition we would like to reiterate that since there was material breach of contract on the part of the Opponent, the Complainants were compelled to nullify the contract.
[13] Receipts and documents undoubtedly prove that the Complainants during the period from 04/06/2006 till 12/10/2009, the Complainants paid to the Opponent, a total amount of Rs.2,21,721/-. In the facts and circumstances of the case, we feel that it would be just and reasonable to direct the Opponent to refund this amount to the Complainants together with interest thereon @ 12% p.a., as from the date of last payment viz. 12/10/2009 till realization of the entire amount by the Complainants.
[14] Complainants have also sought for a direction as against the Opponent to pay them an amount of Rs.1,50,000/- by way of damages towards arranging an alternate accommodation in absence of availability of the resort. However, said claim being too remote the cause of action, we are not inclined to allow the same.
[15] Further, the Complainants have claimed an amount of Rs.50,000/- by way of compensation towards mental agony and harassment. However, it is settled principle of law that when interest is allowed, no separate compensation needs to be awarded. [See the decisions in Skipper Bhawan V/s. Skipper Scales (Pvt) Ltd. ~ I-(1995)-CPJ-210-(NC); M/s. Ketan Consultants Pvt. Ltd. V/s. Sanjiv Bansod & Anr. ~ I-(2000)-CPJ-24-(NC); Mumbai Grahak Panchayat V/s. M/s. Lohia Machine Tools ~ 1986-94-(Consumer)-240-(NS)]. However, the Complainants shall be entitled for reasonable costs quantified at Rs.30,000/-.
[15-A] To develop the resorts and holiday homes by offering the members a ‘time share’ in the developed properties by accepting the heavy amount is a modern concept. At the time of offering membership a rosy picture of the amenities is shown to the prospective members. However, when the properties are developed, the assurances given are forgotten. On going through the correspondence between the Appellants and the officers of the Respondents, we find that there is deficiency in service and unfair trade practice on the part of the Respondents.
[16] Thus, for the foregoing discussions, we hold that order passed by the District Forum is unreasonable and it cannot be legally supported as the same is based on erroneous, absurd and perverse findings. Thus, the order passed by the District Forum deserves to be set aside. We hold accordingly and pass the following order:-
ORDER
Appeal is partly allowed.
Order dated 14th March, 2013 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum dismissing Consumer Complaint No.230 of 2010 is hereby set aside. Consequently, consumer complaint is partly allowed.
Respondent/original Opponent – M/s. Mahindra Holidays & Resorts India Ltd., is hereby directed to pay to the Appellants/original Complainants, an amount of Rs.2,21,721/- together with interest thereon @ 12% p.a., with effect from 12th October, 2009 till realization of the entire amount by the Complainants, within a period of three months from the date of this order. If the amount is not paid within a period of three months, the amount will carry a penal interest of additional 3% p.a. till realization of amount.
Respondent shall bear its own costs and shall pay to the Complainants, an amount of Rs.30,000/- towards costs of litigation.
Pronounced on 30th July, 2014
