Order-21.
Date-11/08/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case, in short, is that he is a bona fide consumer of Mahindra Holidays and Resort Area Ltd. vide Membership No.2439320 Season White – Studio Application No.4881. The complainant purchased the said membership along with her husband with an intention to spend vacation time with their daughter. The complainant as per terms and conditions has to pay Rs.22,425/- as down payment and for remaining amount by way of 48 numbers of EMIs amount of Rs.7,626/-. The complainant handed over 13 nos. post dated cheques to the agent of the OP out of 13 cheques the OPs have adjusted two cheques totalling Rs.30,051/- by encashing in due course of time and for remaining cheques they remained silent. It is alleged that the OPs are not doing anything to discharge their liabilities and the complainant cannot enjoy the vacation as such. On 29-01-2013 the complainant wrote a letter to the OPs but to no good. Hence, this case.
OPs have contested the case in filing written version contending, inter alia, that the case is not maintainable in fact or in law. It is submitted that all disputes and differences shall be settled by Arbitration by a sole Arbitrator to be appointed by the OP Company as per contract.
It is submitted that the complainant was allotted membership no.2439320 with total membership fees of Rs.3,88,473/- to be paid in the form of down payment of Rs.22,425/- and the remaining amount was payable in 48 EMIs at the rate ofRs.7,626/- each. It is stated that the complainant had paid only one instalment along with down payment of Rs.22,425/-. The complainant had deposited 12 cheques but most of the cheques were not honoured by the Bank. It is stated that the complainant failed to honour the contractual obligations as per contract executed by her and defaulted in the payment of remaining 47 EMIs. The OPs have prayed for dismissal of the case.
Point for Decision
- Whether the OPs are deficient in rendering service to the complainant?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reason
The OPs have alleged that the instant proceeding is not maintainable in view of existence of Arbitration Clause.
It is a truism of law that mere use of the word ‘arbitration’ or ‘arbitrator’ in a Clause will not make it Arbitration Agreement, if it requires or contemplates a further fresh consent of the parties for reference to arbitration. The main attribute of an arbitration agreement namely consensus ad idem to refer the dispute to arbitration as we find is missing. [(2007) 5 Supreme Court Cases 719 referred to]. Moreover, mere existence of Arbitration Clause in contract will not be a bar to the entertainment of a complaint by a consumer relating to deficiency of service[(2000) CTJ 321 Supreme Court referred to]. Moreover, this Forum has jurisdiction u/s.3 of C.P. Act and it is not derogation of the Arbitration Act [(1994) CPR 48 relied upon].
We have travelled through the documents filed from the side of the respective parties. Admittedly, the complainant was allotted membership no.2439230. It appears that the complainant has paid Rs.22,425/- as down payment. It is alleged by the OPs that the total Membership Fee was of Rs.3,88,473/- and the complainant deposited 12 cheques but most of the cheques were not honoured by the Bank. Admittedly, cheque no.75726 for Rs.22,425/- towards down payment and Cheque No.75727 for Rs.7,626/- towards the EMIs were honoured by the Bank. So, from the own version of the OPs it appears that an amount of Rs.30,051/- was encashed by the OPs. We find that OPs have not arranged for any resort or hotel or staying place as against the said amount. On the contrary, it appears that the OPs have used the said amount for their own gain without investing it for the benefit of the complainant. We find that the OPs have been silent in taking out the complainant to any resort or hotel for spending the vacation. We think that it is a deficiency of service. The complainant, as such, is entitled to get back her deposited amount. The OPs have collected the money but have not shown any gesture to take the complainant to any resort or hotel or guesthouse for spending the vacation.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OPs.
OPs are directed to refund the collected amount of Rs.30,051/- with interest at the rate of7 percent p.a. from the date of deposit till compliance apart from litigation cost of Rs.10,000/- to the complainant within one month henceforth.
In the facts and circumstances of the case, we make no order as to compensation.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
