DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.250/2018
Brijesh Bhatnagar and Kumkum Bhatnagar,
R/o B-23, 2nd Floor, Shivalik, Near Malviya Nagar,
New Delhi-110017
….Complainant
Versus
Mountain Club Resorts Pvt Ltd.
Unit No.506, 5th Floor,
Vishwadeep Tower,
District Centre, Janakpuri,
New Delhi-110058
….Opposite Party
Date of Institution : 29.08.2018
Date of Order : 10.04.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. Succinctly put complainant purchased Time Share from Mountain Club Resorts Pvt. Ltd. (hereinafter referred to as OP) on 28.12.2017 and paid Rs. 2,08,000/- through Credit Card towards membership fee.
2. It is stated by the Complainant that false promises and assurances were made orally by representatives of OP and based receiving and on those assurances, Complainant signed the agreement. However, after upon reading the fine print at home, Complainants were not in agreement with many clauses of the Agreement form. Therefore, they decided to exercise the Exit option and cancelled the agreement within a period of seven days from the date of the agreement.
3. Complainant wrote the first mail of cancellation to OP on 30.12.2017, thereafter wrote various mails and also visited OP’s office many times seeking refund of fee paid by the Complainant. On 11.5.2018 Complainant met an official of OP who assured that the refund would be made to the Complainant and insisted that amount of Rs. 60,000/- would be deducted towards administrative charges, gateway charges and GST.
4. Alleging unfair trade practice on behalf of OP, Complainants approached this Commission for direction to OP to refund Rs. 2,08,000/-with interest @ 18% p.a. Additionally Complainants seek compensation of Rs. 1,55,000/- towards mental agony, harassment and Rs. 60,000/- towards legal expenses.
5. OP filed its written statement stating interalia that the Complainant had signed the agreement after reading it and without any duress or coercion therefore the Complainant is bound by terms of agreement.
6. It is next stated by OP that as per the Membership Agreement Clause 20-
“In case of dispute/differences of opinion between the parties; the matter shall be referred to the Arbitrator in terms of the Arbitration and Conciliation Act, 1996. Any dispute subsisting thereafter shall be subject to the exclusive jurisdiction of the court of Nainital, Uttrakhand”.
7. It is further stated that as per the membership agreement, the jurisdiction in case of dispute between the buyer(s) and seller of the membership agreement shall be under the jurisdiction of Courts of Nainital, Uttrakhand and no other court shall entertain the dispute between the parties.
8. It is next stated that the Complainant has till date not availed any services offered by OP which shows malicious intention of Complainants to blackmail OP. It is also stated that the Complainant did not mention any reason for preferring the exit option and the same was based on cyber world comments made by some unknown users to tarnish the image of OP.
9. Rejoinder is filed on behalf of the Complainant, reiterating the averments made in the complaint. Evidence by way of affidavit has been filed on behalf of parties. Submissions made on behalf of parties are heard and considered.
10. OPs contention that the agreement between the parties is barred by the Arbitration Clause is rejected. Section 100 of the Consumer Protection Act, 2019 states as under :
Act not in derogation of any other law- 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.
11. Before we proceed further it is pertinent to look at Clause 14- Exit option and Clause 15- Refund ,of the Agreement between the parties. Same are reproduced as under -
14. Exit Option :
“It is understood that this Agreement upon receipt of written notice (without any personal reason) is cancellable at the option of either of the parties to this agreement within a period of 7 days from the date of this Agreement. Upon the non-receipt of any such notice within stipulated period, the parties agree to be bound by the terms and conditions of this agreement thereafter and neither the Marketer nor the Developer shall not be entitled to refund any money held by it. The H.O. is not going to cancel the membership on personal or financial reason.”
15. REFUND :
“It is understood that if the Agreement is cancelled as per clause 14 above by the Applicant(s) the Marketing Company shall refund to the Applicant (s), the payments then held by the Marketing company after deducting the administration fee of Rs. 15,000/- paid by the purchaser without any interest within 90 days from the date of cancellation request.”
12. Annexure F with the complaint is a mail written to OP on 30.12.2017 i.e within two days for cancellation of the agreement and same is not categorically denied by OP. The said mail states that as the Complainants were misled on many accounts by OPs representative, therefore they wished to exercise the Exit option as per Clause 14 of the agreement and requested that the amount paid by the Complainants be refunded immediately.
13. It is seen that OP in its reply to the complaint has been insisting that the Complainant is bound by the terms and conditions of the agreement, we fail to understand as to why OP is not bound by the said terms and conditions. OP cannot be allowed to blow hot and cold . It is quite clear from the exit option at Clause 14 of the membership agreement that complainant had an option to exit within 7 days . Same was exercised by the Complainants and vide an email, OP was requested to cancel the agreement and refund the amount paid .
14. It is also seen from Clause 15 that OP as per the agreement was to refund the amount paid after deducting the administration fee of Rs. 15,000/- within 90 days from the cancellation request. As refund of the membership fee has not been provided to the Complainant till date, we find OP to have indulged in unfair trade practice by not honouring the agreement made between the parties.
15. In view of the aforesaid discussion we direct OP to refund Rs. 1,93,000/-( after deducting Rs15,000/ towards administrative charges from Rs 2,08,000/-) with interest @ 6% p.a. from the date of cancellation i.e. 30.12.2017 within three months from the date of order failing which OP shall pay Rs. 1,93,000/- @ 9 % p.a. Additionally, OP is directed to pay Rs. 30,000/- as compensation for mental agony and harassment to the Complainants.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
