ORAL ORDER
Per – Hon’ble Mr. Justice R. C. Chavan, President
We have heard Adv. Smt. Dipika Batheja on behalf of the Appellant/original Complainant on the point of admission of appeal.
[2] This appeal is directed against an order dated 27/08/2013 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum in Consumer Complaint No.868 of 2009, Smt. Rajkumari Manohar Batheja Vs. Managing Director, The Country Club (India) Limited, whereby the Forum dismissed the complaint.
[3] Appellant/Complainant had applied for membership of the Respondent/Opponent Club. It is the grievance of the Appellant/Complainant that concerned executives of the Respondent/Opponent Club had assured her that the Club would secure a credit card for her. Accordingly, representatives of the HDFC Bank first visited the Appellant/Complainant and obtained some documents from her but did not provide a credit card. Thereafter, representatives of the State Bank of India also came and again took some documents from her but did not provide the credit card. The Appellant/Complainant had deposited an amount of `25,000/- with the Respondent/Opponent Club. Further five cheques for an amount of `1,20,000/- were also issued which have not yet been encashed by the Respondent/Opponent Club. Deficiency in service which is alleged is that of not providing credit card to the Appellant/Complainant as assured by the executive of the Respondent/Opponent Club at the time of filing application for membership. Therefore, the Complainant sought refund of `25,000/- with compensation.
[4] After considering the Respondent’s case that the sum of `25,000/- paid could not be refunded in view of Clause-(08) of the terms & conditions of the application, the District Forum came to a conclusion that there was no question of refunding the amount deposited particularly since there was no deficiency in service on the part of the Respondent/Opponent in not providing a credit card since the Companies/Banks which were to provide the credit card were different and the Respondent/Opponent Club could not be held responsible for non-issuance of a credit card to the Appellant/Complainant. Aggrieved thereby, the Complainant is before us in this appeal.
[5] Learned Advocate for the Appellant submitted that the Appellant/Complainant had made an application to the Respondent/Opponent for the membership of the Club which was in the nature of an offer which was not accepted by the Respondent/Opponent Club by giving a membership to the Appellant/Complainant and, therefore, there was no concluded contract and, therefore, Clause-(08) of the application was not a part of the concluded contract on which the District Forum placed its reliance. Secondly, it is contended that the Appellant/Complainant was entitled to get refund of the amount deposited since the membership was not granted. Learned Advocate for the Appellant also submits that the executive of the Respondent/Opponent Club promised that a credit card would be provided to the Appellant/Complainant and, therefore, the Appellant/Complainant sought membership of the Respondent/Opponent Club. Learned Advocate for the Appellant submits that it was an obligation cast on the Respondent/Opponent Club to provide the Appellant/Complainant with a credit card. We cannot agree with the contentions raised by the Learned Advocate for the Appellant as it would be the discretion of the Company/Bank which issues the credit card whether or not to issue a credit card to the Appellant/Complainant. Secondly, there is nothing on the record to prove that the Respondent/Opponent Club had promised to its prospective members that they would be issued a credit card. Learned Advocate for the Appellant submits that if this was so, the Respondent/Opponent Club should have refunded the amount deposited by the Appellant/Complainant.
[6] As far as the contention that there was no concluded contract and, therefore, Clause-(08) of the terms & conditions in the application form could not be enforced against the Appellant/Complainant, the Appellant/Complainant having signed the terms and conditions, this was what that was offered by the Appellant/Complainant and though may not have been accepted, the Appellant/Complainant cannot wriggle out of it. Since it is not disputed that the entire amount which was to be paid for the membership was in fact, not received by the Respondent/Opponent Club, therefore, as far as payment of `25,000/- is concerned, in view of clear recitals in Clause-(08) of the terms & conditions in the application, which have been signed by the Appellant/Complainant providing for forfeiture of amount deposited, it cannot be said that the Forum erred in dismissing the complaint. We see no merit in the appeal. We hold accordingly and pass the following order:-
ORDER
Appeal is not admitted and stands summarily dismissed.
No order as to costs.
Pronounced and dictated on 30th October, 2013
