CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.320/2006
SMT. MEENU GUPTA
W/O SH. SUBODH GUPTA
B-403, PUJA APARTMENTS,
77, I.P. EXTENSION, DELHI-110092
…………. COMPLAINANT
Vs.
MAHINDRA HOLIDAYS & RESORTS (I) LTD.
M-46, 1ST FLOOR, MAIN MARKET,
GRATER KAILASH-II, NEW DELHI-110048
…………..RESPONDENT
Date of Order: 23.05.2016
O R D E R
A.S. Yadav – President
The case of the complainant is that on 15.08.2005 complainant took up the membership of OP company for a total membership fee of Rs.1,87,000/- and paid the initial deposit of Rs.18,700/- from her HSBC card. The balance membership fee was to be paid in 24 monthly instalments of Rs.7,853/- each.
Complainant was allotted membership No.47950. At that time, complainant also executed/signed an ECS Form authorizing the company to charge the instalment from complainant’s HSBC Credit card.
It is further stated that OP promised to gift a Soni Handycam worth Rs.40,000/- and free seven days holiday package, however, OP refused to give the aforesaid gift. Hence aggrieved by the behaviour of OP company, complainant invoked clause 6 of the agreement and sought cancellation of the membership and claimed refund of the amount vide letter dated 25.08.2005. The amount was to be paid within 30 days from the date of application. Instead of refunding the initial deposit within the stipulated period, OP company deducted the instalment of Rs.7,853/- for the month of September, 2005 from the HSBC credit card of complainant.
It is further stated that after delay of more than 60 days, complainant got the refund on 24.11.2005 and that too without any interest. Thereafter again on 12.12.2005, OP charged HSBC credit card of complainant for Rs.7,853/-. OP company refunded the Hsame on 05.01.2006 again without any interest. Complainant’s HSBC card was again charged with the amount of 7853/- on 07.04.2006. It is prayed that OP be directed to refund Rs.7,853/- alongwith interest @ 36% p.a. plus interest @ 36% on the delayed payment of initial deposit of Rs.26,553/- by 2 months and delayed payment of EMI for Rs.7,853/- by 23 days plus Rs.2500/- as compensation for telephone calls and conveyance and Rs.50,000/- towards compensation for mental agony.
OP in the reply took the plea that as per the agreement, only the courts in Chennai have got the jurisdiction and also there is arbitration clause between the parties hence the present complaint is not maintainable. It is further stated that refund was claimed beyond ten days hence complainant would, under the Rules not be entitled to any refund at all. However, taking a lenient view of the matter OP has refunded the principal amount paid. It is prayed that the complaint be dismissed.
We have gone the written submissions of the parties and carefully perused the record.
So far as the jurisdiction of this Forum is concerned, it is significant to note that all the transactions have taken place at the office of OP at Greater Kailash which is within the territorial jurisdiction of this Forum. It is settled law that even if there is arbitration agreement between the parties, even then the consumer can have recourse to the remedy under Consumer Protection Act.
Now point for consideration is that whether there was any deficiency in service on the part of OP. Clause 6 clearly provides that member is entitled to withdraw his/her application for membership within 10 days from the date of submission of application and the amount was to be refunded within 30 days. Admittedly in this case membership was taken on 15.08.2005. The application for cancellation was submitted on 25.08.2005. The same was to be submitted upto 24.08.2005. Nevertheless initial amount of Rs.18,700/- and Rs.7,853/- deposited towards first instalment was refunded on 24.11.2005. There was delay of less than one month for return of that amount. OP company unjustly encashed the second instalment on 12.12.2005 although the membership was already cancelled. That amount was also refunded on 05.01.2006. There was no occasion for OP company to withdraw further instalment of Rs.7,853/- however that amount was also refunded on 18.07.2006. During the pendency of proceedings a letter dated 13.07.2009 regarding some discussions taking place for settlement of the matter and relevant portion of that letter is reproduced as under:-
“Dear Mrs. Gupta
This is with reference to the discussions had between our lawyers and yours inter alia, for a possible settlement of the matter. Since no conclusion was arrived at in those discussions, we are writing to you so that, if it is possible, a continuing litigation could be avoided.
The Down Payment made was Rs.18700/-. One EMI of Rs.7853/- was realized in the month of September, 05. Total amount of Rs.26553/- was admittedly refunded to you on 24.11.05. The total interest claimed by you on this account is Rs.1593/- for the above said amount.
The Second EMI was charged on 07.4.06 and refunded to you on 18.7.06. The interest thereon has been claimed @ 36%. Even as per your claim the amount claimed would come to Rs.790/- approximately.
Hence the total amount claimed towards interest even as per your claim @ 36% comes to a total of Rs.2561/-.
Without prejudice to any of our rights and contentions in the matter and with a view only to putting an end to the litigation we would be willing to pay the aforesaid amount of Rs.2561/- immediately.”
So in all fairness, OP has agreed to pay Rs.2561/- as interest @ 36%.
We find that the only deficiency in service on the part of OP is regarding withdrawal of instalment even after cancellation of the membership and for that interest of justice will suffice, if till date a sum of Rs.7,000/- is paid towards interest and Rs.5,000/- is paid towards compensation.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
