IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 21st day of October, 2021.
Filed on 08-12-2016
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy.R.R B.A.L,LLB (Member)
In
CC/No.398/2016
between
Complainant:- Opposite parties:-
Sri. M.K.Sasikumar Managing Director
S/o Krishnapillai Sterling Resorts(India)Ltd
Mudiyil Bunglow Thomas Cook Building
Pela, Thattarambalam.P.o Dr.D.N.Road, Fort
Mavelikkara, Alappuzha Mumbai - 400001
(Adv. Sri. C.Parameswaran) (Adv. Sri. Sahasranaman)
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986
Complainant’s case briefly stated is as follows:-
The complainant had taken a time share from the opposite party at their Holiday Resort at Kodaikanal Vilpatti on 4/1/1994. He had paid the entire consideration stipulated by the opposite party. The agreement was entered into at the residence of the complainant. The time share period is for 99 years starting from 1995 to 2093. Complainant had chosen week No.31 beginning at 5.00 hrs on 5th August and ending at 20.00 hrs on 11th of each year. The facilities provided by the opposite party for the consideration paid is including the amenities also. The membership number of the complainant is 18512.
2. From 1997 to 2010 complainant had not availed the facilities due to his personal reasons. Later whenever the complainant contacted the opposite party for occupying the room as provided in the agreement the opposite party declined his legal right by raising unfounded reasons, on various occasions including on 4/6/2016. Finally when the complainant contacted the opposite party for allotting the rooms, he was informed that he has to pay a huge sum as amenity charges from 1998 onwards. Unless the complainant pays the same he will not be allowed to enjoy the resort as provided in the agreement.
3. The complainant had paid the entire sum of Rs 31,904/- towards the total cost for enjoying the time share for a period of 99 years. At the time of taking the time share it was promised by the opposite party that the complainant need not pay any further amount for enjoying the time share. From 1997 onwards complainant had not availed any facility as per the agreement with the opposite party and further more when he enquired about the matter in 2010 by repeated messages, opposite party informed about the amenity charges and they demanded to pay huge sum of money. It was informed that only after payment of money complainant will be allowed the time share. As per the agreement charges are to be levied for usage of such amenities. Complainant had not availed any time share from 1997 to 2010 and the demand of the opposite party is illegal.
4. The illegal demand for money under the guise of amenity charges and also the will full denial of the right to occupy the resort have resulted in deficiency of service on the part of opposite party. The opposite party has no manner of right to demand further amount or to deny his legal right as a time share holder. As a result complainant sustained huge pecuniary loss besides mental agony. Complainant is demanding an amount of Rs.1,00,000/- as compensation and hence the complaint.
5. Opposite party filed a version mainly contenting as follows:-
Complainant is not a consumer as defined u/s 2 (1) (d) of the Consumer Protection Act, 1986. The complaint is false, frivolous, vexatious and unsustainable. The compensation claimed by the complainant is whimsical and not substantiated by documentary evidence.
6. Opposite party is engaged in the business of providing holiday resorts in various parts in India to its members. The membership is offered by the opposite party to stay in these resorts for a particular number of years and for specific season during the year. Every one of them, whether it is fun dining or holiday activities or member meets, is focused on adding further value to Membership. Complainant had purchased a timeshare of compact apartment at Kodai – By the Valley, for week No.31, classic season from the opposite party on 4/1/1994 for Rs. 31,904/-. The contention that the complainant had not availed holidays from the year 1997 till 2010 is false. Complainant had availed holidays in the same destination and other destination until the year 2000. He has not availed holiday after 2000 nor has contacted the customer service centre for booking of holidays. There was no refusal of holiday.
7. The annual amenity charges are collected by the opposite party for maintaining the resorts for which the complainant is entitled to pay and as per the Clause 13(C) of the terms and conditions which is clearly indicates the below mentioned clauses.
“Clause .13(C) The Time share Holder shall pay the requisite charges/fees/ prices decided by the company from time to time for use and enjoyment of the Amenities. The timeshare holder shall also liable to pay charges may be fixed from time to time by the Company in respect of electricity, air-conditioning or Heater (wherever applicable) water, and other utilities etc., that may be utilized by the Timeshare holder while enjoying his timeshare iii. (f) The timeshare holder shall accept, comply with and follow all rules and regulations that may be formulated from time to time by the company for the purpose of enjoyment of timeshare by various Timeshare Holders.
As per Clause 13(d) the Timeshare holder shall accept, comply with and follow all rules and regulations that may be formulated from time to time by the company for the purpose of enjoyment of time shares various time share holders.”
8. The schedule D of the agreement lists the amenities of the timeshare membership which is as below:-
Schedule –D
1. Restaurant facility
2. Housekeeping service
3. Resort security service
4. Common facilities for recreating and entertainment
5. Resort Up keep and maintenance.
9. Hence it is clear from the timeshare agreement signed by the parties that the opposite party is at liberty to charge required amount with regard to up keep of the resorts from time to time as per Clause 13(C) of the time share agreement dated.4/1/1994. The opposite parties obligation under the Timeshare agreement is that they have to provide the accommodation to the complainant and other similar time share members, a particular guaranteed week every year for their enjoyment as per the terms of the agreement for a period of 99 years. However the opposite party has got absolute right to use or permit to be used the Holiday Resort as whole or part including the apartment therein and the amenities in any manner as deem fit. The opposite party have to maintain and upkeep the resorts neatly whenever the time share customers come for occupation of the resorts and at that point of time they cannot search for persons to maintain the resorts and they have to employee person to maintain their permanent employees and pay them their salary. Since the complainant will be utilizing the resorts till the year 2094 is liable to pay the AAC which has been already informed and explained to him. Though the opposite party is entitled to collect the annual amenity charges as a gesture of goodwill they had opted not to collect it until the year 1998. There was no deficiency of service by the opposite party. Complainant has not approached the opposite party for allotment of holiday from the year 2010 till 2016. The demand notice of amenity charges is legal. Complainant has no cause of action and the compliant is devoid of merits and hence it may be dismissed with cost.
10. On the above pleadings following points were raised for consideration:-
1. Whether there was deficiency in service from the part of opposite party?
2. Whether the complainant is entitled to get an order directing the opposite parties not to collect amount as amenity charges.?
3. Whether the complainant is entitled to get a direction against the opposite party to allot the apartment as provided in the agreement.?
4. Whether the complainant is entitled to realize an amount of Rs.1,00,000/- as compensation?
5. Reliefs and costs?
11. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 from the side of the complainant. Opposite party has not adduced any evidence either oral or documentary.
12. Points No. 1 to 4:-
PW1, the complainant entered into Ext.A1 agreement with the opposite party on 4/1/1994 by which opposite party agreed to share holday home for 99 years ie, from 1995 to 2093 in the 31st week. As per terms and conditions of the agreement PW1 was allotted week No.31 and the total consideration paid was Rs.31,904/-. PW1 did not avail the facilities from 1997 to 2010. Thereafter when he contacted to avail the facility opposite party demanded money for amenity charges and his right to occupy was denied which resulted in deficiency of service. Hence the complaint is filed for a direction to allot the apartment as provided in the agreement and not to collect any further amount. Complainant is also seeking a compensation of Rs.1,00,000/- for deficiency of service. Opposite party filed a version admitting Ext.A1 agreement and collection of the amount. However according to them as per clause 13(c) the timeshare holder was required to pay charges/fees/prices decided by the company from time to time for use and enjoyment of the Amenities. It was also contended that complainant has not availed holidays from the year 1997 till 2010. The obligation of opposite party is to provide accommodation and they had to employee persons for maintenance for which annual amenity charges are required. They denied the contention of the complainant that his right of enjoyment was denied. Hence according to them the complaint is filed without any bonafides and there is no merit hence it is only to be dismissed. Complainant got examined as PW1 and Ext.A1 to A3 were marked. Opposite party has not adduced any evidence either oral or documentary.
13. The fact that PW1 along with opposite party entered into Ext.A1 agreement on 4/1/1994 by which opposite party agreed to share accommodation in the resort at Kodaikanal for the period of 99 years is not in dispute. The case of the complainant is that he has not availed the facilities from 1997 to 2010 and thereafter whenever the complainant contacted opposite party for occupying the room as per the terms and conditions of the agreement, opposite party declined his right and demanded huge sum as amenity charges. Per contra the learned counsel appearing for the opposite party contented that the dispute is only with regard to the interpretation of clause 13 (c) and (d) of Ext.A1 agreement. For ready reference clause 13(c) and (d) are reproduced hereunder.
Clause. 13(c) The TIMESHARE HOLDER shall pay the requisite charges/fees/prices decided by the COMPANY from time to time for use and enjoyment of the Amenities. The TIMESHARE HOLDER shall also be liable to pay such charges/fees/prices as may be fixed from time to time by the COMPANY in respect of electricity, telephone, gas , oil, water etc., that may be utilized by the TIMESHARE HOLDER while enjoying his TIMESHARE.
Clause (d) reads as follows:- The TIMESHARE HOLDER shall accept, comply and follow all rules and regulations that may be formulated from time to time by the COMPANY for the purpose of enjoyment of TIMESHARES by various TIMESHARE HOLDERS.”
List of amenities are shown as schedule D in Ext.A1 agreement.
1. Restaurant Service
2. Housekeeping Service
3. Resort Security Service
4. Common facilities for recreation and entertainment
5. Resort property up-keep and maintenance.
14. The learned counsel appearing for the complainant contented that since opposite party had collected an amount of Rs.31,904/- which was the total cost for enjoying the timeshare for a period of 99 years, they have no authority to demand more. On a reading of the complaint it is seen that it is vague. In para.6 it is stated that the illegal demand for money under the guise of amenity charges and also the willful denial of the right to occupy the resort have resulted in deficiency of service on the part of the opposite party. It is not mentioned as to what was the amount demanded as amenity charges. Without knowing the exact amount we are unable to enter into a conclusion whether it was exorbitant or reasonable. On a reading of 13 (c) of the Ext.A1 agreement it can be seen that the timeshare holder had to pay the requisite charges/fees/prices decided by the company from time to time for use and enjoyment of the amenities. So it is crystal clear that the above payment is in addition to the amount collected by the opposite party at the time of execution of Ext.A1 agreement on 4/1/1994. As discussed earlier Rs.31,904/- was collected from the complainant at the time of execution of Ext.A1 agreement. It was contented by the learned counsel appearing for the opposite party that opposite party had to employ staff for cleaning and for upkeep of the premises for which amount is required. As a gesture of goodwill no amount was collected from the complainant when he occupied the apartment earlier. However thereafter they are entitled to collect the amount as per the terms and conditions of Ext.A1 agreement and PW1 has no right to object the same.
15. Per contra the learned counsel appearing for the complainant pointed out that opposite party has no authority to collect any other amount other than the amount collected while executing Ext.A1 agreement. To buttress his argument, the learned counsel relied upon a ruling of Hon’ble Supreme Court reported in AIR 1987 Supreme Court 590 (Pournami Oil Mills etc. Appellants Vs. State of Kerala and another, Respondents). It was a case in which as per a notification/order issued by the State Government on 11/4/1979 certain small scale industries were exempted from payment of sales tax for certain period. However as per a subsequent order dated 29/9/1980 the concessions were withdrawn. The Hon’ble Supreme Court held that small scale unit set up in response to first order and before passing of subsequent order are entitled to plead estoppel and they are entitled to get all concessions granted by 1st order. On a careful reading of the decision of the Hon’ble Supreme Court it can be seen that the facts in this case are different. Here in this case there is only one agreement (Ext.A1) executed on 4/1/1994. Conditions of enjoyment of timeshare [13 (c) and (d)] are incorporated in the original agreement itself. During cross examination PW1 admitted that he had read Clause 13(c) and (d) of Ext.A1 agreement. So it can be seen that in the case considered by the Hon’ble Supreme Court there were two notifications and it was held that the State Government cannot unilaterally withdraw the concessions granted as per the first notification. As held by the Hon’ble Supreme Court in 2007(4) KLT SN 33(C.No.34)SC [Sumathibai Vs. Paras Finance Co].
“Precedents – A decision is only an authority for what it actually decides – A little difference in facts or additional facts may make a lot of difference in precedential value of a decision.”
16. Hence going through the decision relied upon the learned counsel appearing for the complainant and the facts of the case we respectfully disagree with the learned counsel appearing for the complainant and find that it is not applicable to the facts and circumstances of the case. As stated earlier the complaint itself is vauge. Though complainant contented that opposite party demanded money under the guise of amenity charges no document is produced to prove the same. Even the complaint is silent about the amount demanded by the opposite party for amenities. Without knowing the amount it cannot be considered whether it was exorbitant or reasonable. Further as stated earlier as per Ext.A1 agreement Clause 13(c) the share holder is required to pay charges/fees/prices decided by the company from time to time for use and enjoyment of the amenities. The amenities include common facilities for recreation and entertainment and resort property upkeep and maintenance. In said circumstances it can be safely concluded that the demand of amount if any was on the basis of Clause 13(c) of Ext.A1 agreement. So it can be seen that complainant could not prove that there was any deficiency of service from the part of opposite part and so he is not entitled to get a favourable order. These points are found against the complainant.
17. Point No.5:-
In the result complaint is dismissed with cost of Rs.2000/-.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 21st day of October, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - M.K.Sasikumar(Complainant)
Ext.A1 - Timeshare Agreement
Ext.A2 - Allotment Advice
Ext.A3 - Letter dtd. 16/2/1994
Evidence of the opposite parties:- Nil
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
