DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

1.       Suresh Bansal son of Sh.Sohan Lal Bansal;

2.       Mukesh Bansal son of Sh.Sohan Lal Bansal;

Both Directors of M/s Ruhani Industries Pvt. Ltd., 201/17, Sector 17, Panchkula.

…..Complainants

                                      V E R S U S

1.       M/s Club Mahindra Holidays, having its Branch Office at SCO No.68-69, 2^nd floor, Sector 8-C, Madhya Marg, Chandigarh.

2.       Sh.Vijan Harit, Sales Manager, M/s Club Mahindra Holidays, SCO No.68-69, 2^nd floor, Sector 8-C, Madhya Marg, Chandigarh.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

ARGUED BY : Sh.S.C.Thatai, Counsel for complainants.

                       Sh.Nitesh Singhi, Counsel for OPs.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Suresh Bansal and Sh.Mukesh Bansal, complainants, who are the Directors of M/s Ruhani Industries Pvt. Ltd., Panchkula have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Club Mahindra Holidays & Anr. - Opposite Parties (hereinafter called the OPs), alleging that on 25.9.2010 Sh.Vijan Harit, OP No.2, who was Sales Manager of OP No.1 visited their office and induced them about Club Mahindra Purple Studio Membership. He told that on becoming a member of club, 3 nights CMH holidays absolutely free would be given to the complainants, apart from one LCD, Rs.4,000/- RCV food vouchers and one week RCI (International) discount. They were also told that the basic unique feature of the said scheme was that the accommodation would be provided to its members on the spot on priority basis subject to the availability of the accommodation. The complainants purchased the membership No.2055962 i.e. Club Mahindra Purple Studio Membership on 25.9.2010 of OP No.1 for them as well as for their dependents. Copy of the membership enrollment form dated 25.9.2010 is Annexure C-1. The total price of the said membership was Rs.5,43,952/-. The complainants paid down payment of Rs.81,593/- and the balance amount was to be paid in 12 equal installments per month of Rs.38,530/-. The complainants also paid another sum of Rs.38,530/- against the one installment and in this way, a total sum of Rs.1,20,123/- has been paid by them to the OPs towards the membership fees. It has been contended that balance installments were not paid by the complainants to the OPs because they neither got good feedback about the OPs from any corner nor they were provided accommodation in Manali in the month of November, 2010 inspite of the assurance of OPs No.1 and 2 at the time of filling the application form.  It has been contended that the complainants visited Manali in the month of November, 2010 and met the Manager/Attendant of OP No.1 and requested for providing accommodation as he was having purple studio membership but the Manager/Attendant refused to allot the accommodation on the ground that a member has to apply at least 15 days in advance. Inspite of so many requests accommodation was not provided to the complainants though the same was available and most of the rooms were lying vacant.  The complainants asked the OP No.1 to cancel their membership and refund the membership fee vide email dated 1.12.2010 – Annexure C-2. The complainants received email dated 2.12.2010 – Annexure  C-3 from OPs informing that their case had been marked to Chandigarh Branch.  Another email was sent by the OPs on 6.12.2010. On the one hand they requested the complainants to provide convenient time to enable the OP No.1 to contact them regarding retaining them back as member and on the other hand refused to refund the money on the ground that refund was not applicable after the warming period of 10 days (recession) from applying the membership as per Clause 6.1 of the membership enrollment form.  Copies of emails dated 6.12.2010 are annexed Annexure C-4 and C-5.  It has been contended that the said Clause 6.1 of the membership form is totally illegal, arbitrary, unilateral clause and malafide. It has been contended that the complainants again approached the OPs to refund the money and the OPs showed their willingness to meet the complainants personally to understand the reasons for such decision and to clear doubts if any about the membership but till date no personal meeting was held. Instead of refunding the money, the OPs asked the complainants vide email dated 30.9.2011 – Annexure C-6 to downgrade the membership to white studio from purple studio. It has been alleged that the complainants ultimately informed OP No.1 that they were not interested to get their membership downgraded because they had not received good feedback about the performance of the company from any of the members of the company or from their friends circle. The complainants have alleged unfair trade practice and deficiency in service on the part of OPs. The complainants have made a prayer for a direction to the OPs to refund the amount of Rs.1,20,123/- along with interest @18% p.a., apart from making payment of compensation of Rs.50,000/- and litigation expenses of Rs.20,000/-.

2.                Since the OPs did not file their written reply and evidence within 45 days of their appearance, therefore, vide order dated 10.12.2012 we proceeded to settle the consumer dispute on the basis of evidence already on record.

3.                The OPs went in revision before the Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh and the Hon’ble State Consumer Disputes Redressal Commission accepted the revision petition subject to payment of costs of Rs.4,000/- and directed that District Forum shall grant only one date to the OPs for filing written reply along with evidence by way of affidavit and, thereafter, decide the complaint in accordance with law. Thereafter, the OPs made the payment of costs and filed their reply and evidence.

4.                In their written reply filed by Mr.Jaiminikumar Shah, Manager – Legal  of the OPs, it has been averred that the present complaint is false, frivolous, without material particulars and the complainants have approached the Forum with unclean hands. It has been averred that the complainants are themselves defaulters and they have defaulted in paying the subsequent EMIs. It has been stated that the complainants are bound by the membership rules, which were expressly made known and agreed to by them at the time of subscription of membership. OPs were explained the membership plans together with the amounts payable. The complainants in the Member’s Review for Confirmation of Understanding confirmed having read the Membership Rules governing allotment of Club Mahindra Holiday Membership and the RCI terms and conditions and they understood that the amount paid towards admission fee was non-refundable.  It has been further stated that as per contract between the parties only the courts in Chennai have exclusive jurisdiction over all disputes arising there from. There is an arbitration clause in the membership rules and the complainants can seek redressal of their grievances from arbitrator. It has been denied that Mr.Vijan Harit, Sales Manager of OP No.1 visited the office of the complainants. On the other hand, it has been submitted that the complainants visited the office/branch of OPs on 25.9.2010 for subscription of membership of the OPs. After going through the terms and conditions of membership and payment schedule in relation thereto the complainants opted for subscribing the Purple Studio Membership. It has been averred that the OPs had offered the following enrollment benefits to the complainants :-

i)                 3 nights complimentary stay at Club Mahindra                         Holiday Resort.

ii)                Panasonic 32” LCD TV.

iii)                Rs.4000/- Resort Credit Vouchers/Food Vouchers.

iv)               One week complimentary stay at an RCI                                   affiliated resort.  

Out of the above four enrollment benefits, the benefit No. (i) & (iv) were credited to the account of the complainants, benefit No. (iii) was provided to the complainants along with the welcome kit. Benefit No. (ii) could have been given to the complainants subject to realization of 3 EMIs. It has been averred that the complainants themselves defaulted and thus breached the terms of the contract. It has been contended that the allegation made by the complainants that the accommodation was to be provided to its members on the spot on priority basis, is apparently baseless. It has been contended that no member can get accommodation on the spot without any prior booking as the booking of accommodation is always subject to availability. Rule 3.7 of Membership clearly stipulates that all holiday reservations shall be done on a first come first served basis and are consequently subject to eligibility and availability. In the instant case, the complainants apparently made no request of booking by just walking on the spot.  It has been admitted that the total amount, which has been deposited till date by the complainants with OPs is Rs.1,20,123/-.  It has been averred that the complainants never requested the OPs for any accommodation at Manali Resort nor they had ever been to the Manali Resort. The OPs have admitted the receipt of letter dated 1.12.2010 for canceling the membership on the basis of adverse feedback about the services of OP No.1. It has been averred that the story of adverse feedback qua poor quality of services seems to have been purportedly designed by the complainants with an aim to wriggle out of the contractual obligations by deciding to cancel the contract unilaterally. It has been stated that the membership was bought on 25.9.2010 and the date of request for cancellation was 1.12.2010 which is beyond the stipulated period of 10 days provided in the membership rules to be eligible for a refund of entire money. It has been averred that the OPs at no point of time stopped the complainants from utilizing the benefits of the membership and the benefits can be enjoyed by them subject to the fulfillment of membership fee outstanding in their account and clearance of dues.

5.                In their replication, the complainants have pleaded that membership rules were never correctly revealed or informed to the complainants at the time of filling the form, therefore, they are not bound by them because they were got signed from them under misrepresentation. Original paper where the OP No.2 with his own handwriting written the facilities and benefits, which would be available to the complainants, if they apply for the Purple Studio Membership Scheme is annexed as Annexure C-7.

6.                 The parties led evidence in support of their contentions.

7.                We have gone through the entire evidence, written submissions of OPs No.1 and 2 and heard the arguments addressed by the learned Counsel for the parties.

8.                As far as the allegation of the complainants against Mr.Vijan Harit, Sales Manager – OP No.2 are concerned, it is pertinent to note that Mr.Vijan Harit, Sales Manager has not filed any affidavit denying the allegations in the complaint. The allegations of the complainants in the complaint and replication which are supported by the affidavit of Mr.Suresh Bansal, complainant No.1 and the handwritten paper – Annexure P-7 of OP No.2 prove that OP No.2 induced the complainants that by becoming a member of Club Mahindra Purple Studio Membership, 3 nights CMH holidays absolutely free would be given to them, apart from one LCD, Rs.4,000/- RCV food vouchers and 1 week RCI (International) discount. It is also proved that OP No.2 assured the complainants that they would be provided accommodation on the spot on priority basis subject to the availability of the accommodation.

9.                Secondly, it is important to note that written statement in this case on behalf of OPs has been filed by one Mr.Jaiminikumar Shah, Corporate Manager – Legal. However, there is no such resolution of OP No.1 company on record that they authorized Sh.Jaiminikumar Shah to defend the case on their behalf. Thus, it cannot be said that the written reply on behalf of OPs has been filed by a duly authorized person. However, despite the above infirmities in the defence of the OPs we still feel that the complainants have failed to make a case of unfair trade practice and deficiency in service on the part of OPs.

10.              As far as the question of refund of the amount of Rs.1,20,123/- is concerned, it is significant to note that the complainants purchased the membership on 25.9.2010 and the request for cancellation was made vide email dated 1.12.2010, copy of which is Annexure C-2. Rule 6.1 of the Membership Rules – Exhibit R-2 reads as under :-

“6.1 In the event of termination/cancellation of CMHM, the following shall apply.

Rescission Period Termination/Cancellation :

Withdrawal of application for CMHM shall be permitted within the Rescission Period which is 10 days from the date of realization of the down payment, provided such request for withdrawal is made in writing and signed (by both the Applicants/Members in case of Joint Membership) and reaches MHRIL within 10 days from the date of realization. In the event of such withdrawal, MHRIL shall refund the entire amount received from the Member towards Membership Fee within 30 days from the date of receipt of request for withdrawal. In the case of joint applications, refund shall be made to the first applicant only. Post Rescission period termination / cancellation (by Applicant / Member / MHRIL) :

a)      In the event of withdrawal of the application by an Applicant beyond 10 days from the date of realization of the down payment, the Applicant shall not be eligible for any refund of the amounts of the AF paid by him. “             

Since in this case the request for cancellation was made beyond the stipulated period of 10 days provided in the membership rules, therefore, the complainants are not entitled for the refund of the money.

11.              So far as the question of refusal by the Manager/Attendant of OP No.1 in Manali to allot any accommodation to the complainants in the month of November, 2010 is concerned, it is important to note that the complainants have not indicated any date of their visit to Manali in November, 2010. Further Rules 3.6, 3.7 and 3.11 of Exhibit R-2 show the manner of reservation bookings. Rule 3(3.7) and 3(3.11) read as under :-

“3(3.7) :-    All the holidays reservations shall be done on the first come first serve basis and are consequently subject to eligibility and availability. Request for the reservation can be done from upto 6 months to 1 day prior to the commencement of the holiday.

3(3.11):-     On conformation of the availability of the holiday period requested for by the member, MHRIL shall issue a confirmation voucher specifying the reservation details including check-in and check-out time to a member for enjoyment of the holiday. The member shall abide by the terms and conditions mentioned in the conformation voucher.”

In the instant case, the complainants have not produced any document on record, which could show that they made any request to the OPs that they wanted to visit and stay at Manali, therefore, evidently OP No.1 also did not issue any confirmation voucher specifying the reservation details.

12.              Even if OP No.2 did not show any membership rules to the complainants at the time of filling up the form, nevertheless it is not asserted by the complainant No.1 that membership application form along with rules Exhibit R-1 do not bear his signature. It is pertinent that all pages of the membership rules and terms and conditions on record bear the signature of Mr.Suresh Bansal. The Member’s Review for Confirmation of Understanding at page No.29 of OPs document shows that the members were asked to read each point and acknowledge that they have understood the terms and conditions of the special enrollment offer and they had confirmed that they had read the Membership Rules governing allotment of Club Mahindra Holiday Membership and the terms and regard to Resort Condominium International and agreed to abide by the same. The member declaration duly signed by Mr.Suresh Bansal, complainant No.1 on 25.9.2010 shows that he certified that the details furnished were accurate and he had gone through the above listed Club Mahindra Holidays and Resort Condominium International terms of membership and agreed to abide by the same. Complainant No.1 is an educated person and since he has not denied his signatures on this document, the terms and conditions of the rules are binding upon him. Though the complainants have mentioned in the replication that the forms were got signed from them under misrepresentation, yet they did not make any complaint about such misrepresentation before filing of the consumer complaint. We are of the view that the complainants have failed to discharge the burden of providing unfair trade practice and deficiency in service on the part of OPs. They cannot wriggle out from the terms and conditions and membership rules, which were duly signed by complainant No.1.

13.              For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed, leaving the parties to bear their own costs.

14.              The certified copies of this order be sent to the parties free of charge. The file be consigned.