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.

 ……Appellants/Complainants.

Versus

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.

              ....Respondents/Opposite Parties.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

              SH. DEV RAJ, MEMBER.

Argued by: Sh. S. C. Thatai, Advocate for the appellants.

                Sh. Nitesh Singhi, Advocate for the respondents.

PER DEV RAJ, MEMBER

              This appeal is directed against the order dated 23.05.2013, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, the District Forum dismissed the complaint filed by the complainants (now appellants).

2.           The facts, in brief, are that, on 25.09.2010, Opposite Party No.2 i.e. Vijan Harit, Sales Manager of Opposite Party No.1, visited the office of the complainants, and told that Opposite Party No.1, being India`s No.1 holiday brand, from Mahindra Holidays and Resorts India Limited, provided different schemes, for becoming members of the Club. Opposite Party No.2 also allured the complainants, that Opposite Party No.1, was having high reputation, in the field of holiday Clubs and won many awards. Opposite Party No.2 also induced the complainants that, in those days, a very good scheme i.e. ‘Club Mahindra Purple Studio Membership’, was continuing, and they could become members of the same. The complainants were also told that, on becoming members of the Club, 3 nights CMH Holidays, absolutely free, would be given to them. It was also told that they would get LCD (32 inches of Panasonic Company), RCV Food Vouchers, worth Rs.4000/-, and one week RCI (international) discount. The complainants purchased membership no.2055962 i.e. ‘Club Mahindra Purple Studio’, on 25.09.2010 of Opposite Party No.1, for them, as well as, for their dependents. The total price of the said membership was Rs.5,43,952/-. Down payment, in the sum of Rs.81,593/-, was made by the complainants, to Opposite Party No.1. The balance amount was to be paid, by the complainants, in 12 equal monthly installments of a sum of Rs.38,530/- each. Another sum of Rs.38,530/-, against an installment was paid by the complainants. In this way, the total amount of Rs.1,20,123/-, was paid by the complainants, to Opposite Party No.1. After becoming members of Opposite Party No.1, the complainants visited Manali, in the month of November 2010, and met its Manager/attendant there. They also requested him, for providing accommodation, as they were having Club Mahindra Purple Studio membership, but he (Manager/attendant) refused to allot the accommodation, on the ground, that a member had to apply for the same, 15 days, in advance. It was further stated that inspite of so many requests, accommodation was not provided to the complainants, even though, the same was available. Since, the complainants were not satisfied with the services of the Opposite Parties, they asked them, to cancel the membership aforesaid, and refund the fees, but to no avail.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund Rs.1,20,123/- alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation, in the sum of Rs.50,000/- for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.

3.           The Opposite Parties, in their written version, took up some preliminary objections, to the effect, that as per contract, between the parties, only the Courts at Chennai were having the exclusive territorial jurisdiction over all disputes arising there from and that as per the arbitration clause in the membership Rules, the complainants could seek redressal of their grievances from the arbitrator. On merits, it was stated that the complainants were themselves defaulters as they defaulted in making payment of the subsequent EMIs. It was further stated that the complainants were bound by the membership Rules, which were expressly made known and agreed to by them, at the time of subscription of membership. It was further stated that the complainants, in the Member’s Review for Confirmation of Understanding confirmed that they read the Membership Rules governing allotment of Club Mahindra Holiday Membership and the RCI terms and conditions. It was further stated that it was also in the knowledge of the complainants, that the amount paid towards admission fee, was non-refundable. It was denied that Mr. Vijan Harit, Sales Manager of Opposite Party No.1 visited the office of the complainants. It was stated that the complainants visited the office/Branch of the Opposite Parties on 25.9.2010 for subscription to membership and after going through the terms and conditions of membership & payment schedule in relation thereto, they opted for subscribing to the Purple Studio Membership. It was further stated that the Opposite Parties offered the following enrollment benefits to the complainants viz.3 nights complimentary stay at Club Mahindra Holiday Resort, Panasonic 32” LCD TV., Resort Credit Vouchers/Food Vouchers worth Rs.4,000/-and One week complimentary stay at an RCI affiliated resort.  It was further stated that out of the above four enrollment benefits, benefit No.(i) & (iv) were credited to the account of the complainants, benefit No.(iii) was provided to the complainants alongwith the welcome kit. Benefit No. (ii) could have been given to the complainants subject to realization of 3 EMIs. It was further stated that the complainants themselves defaulted and thus breached the terms of the contract. It was further stated that the allegation made by the complainants, that the accommodation was to be provided to the members, on the spot on priority basis, was apparently baseless. It was further stated that no member could get accommodation, on the spot, without any prior booking as the booking of accommodation was always subject to availability. It was further stated that Rule 3.7 of Membership clearly stipulated that all holiday reservations, were to be done on first come first served basis, and were consequently subject to eligibility and availability. It was further stated that the complainants apparently could not make any request for booking by just walking to the spot. It was admitted that the total amount, which was deposited by the complainants, with the Opposite Parties was Rs.1,20,123/-. It was further stated that the complainants never requested for any accommodation at Manali Resort. The receipt of letter dated 1.12.2010 for canceling the membership, on the basis of adverse feedback about the services of Opposite Party No.1 was admitted. It was further stated that the story of adverse feedback qua poor quality of services was purportedly designed by the complainants, with an aim to wriggle out of the contractual obligations by deciding to cancel the contract unilaterally. It was further stated that the membership was bought on 25.9.2010, and the date of request for cancellation was 1.12.2010 which was beyond the stipulated period of 10 days, provided in the membership Rules, to be eligible, for refund of the entire money. It was further stated that the Opposite Parties, at no point of time, stopped the complainants from utilizing the benefits of the membership, and the benefits could be enjoyed by them, subject to the payment of membership fee, outstanding in their account, and clearance of dues. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.

4.           The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version. 

5.           The parties led evidence, in support of their case.

6.           After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order. 

7.           Feeling aggrieved, the instant appeal, has been filed by the appellants/complainants.

8.           We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 

9.           The Counsel for the appellants/complainants submitted that respondent No.2, who was a Senior Officer of Opposite Party No.1, induced the appellants/complainants for becoming a member of ‘Club Mahindra Purple Studio Membership’ and such a contract under section 19 of Indian Contract Act was voidable at the option of the party whose consent was so obtained. It was further submitted that the District Forum in Paras No.8 and 9 of its order, held that handwritten paper (Annexure P-7) of Opposite Party No.2 proved that Opposite Party No.2, induced the appellants/complainants for becoming a member of ‘Club Mahindra Purple Studio Membership’. It was further submitted that when the appellants/complainants went to Manali, they were not provided accommodation. It was further submitted that the person, who filed the written statement, on behalf of the Opposite parties, was not authorized.

10.         The Counsel for the respondents/Opposite Parties submitted that as per the terms and conditions, booking was required to be got made, ten days in advance. It was further submitted that as per Rule 6.1 of Membership Rules (Annexure R-2), the accommodation was to be made available on first come first served basis and no request was ever made by the appellants/complainants for the accommodation. It was further submitted that the appellants/complainants, in Para No.3 of the complaint, themselves stated that the accommodation was to be provided to the members on the spot, on priority basis subject to availability of the same (accommodation). It was further submitted that it was admitted by the appellants/complainants that they paid a total sum of Rs.1,20,123/- towards membership fee and the balance installments were not paid.

11.         Admittedly, the appellants/complainants deposited an amount of Rs.1,20,123/- towards part payment on account of admission fee. It is also evident that all holiday reservations were to be done on first come first service basis and were subject to eligibility and availability of accommodation. It is also apparent, on record, that the appellants/complainants did not request, in advance, for accommodation at Manali Resort and proceeded to Manali assuming that the accommodation shall be provided to them on the spot. As per terms of the membership, booking of accommodation was always subject to availability and without prior booking, no member could get the accommodation. Clauses 3.7 of the Membership Rules, being relevant, forming part of Annexure C-1, is extracted below:-

“3.7.       All holiday reservations shall be done on a first-cum-first-serve basis and are consequently subject to eligibility and availability. Request for reservation can be done from upto 6 months to 1 day prior to the commencement of the holiday.”

12.         The next question, that arises for consideration, is, as to whether, the complaint under Section 12 of the Consumer Protection Act, was maintainable or not before the District Forum, on account of the reason, that an arbitration clause 31 existed in the Membership Rules. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3.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.”

13.         Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (1996)6  SCC385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC233. In this view of the matter, the submission of the Counsel for the respondents/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

14.         The next question, which arises for determination, is, as to whether, the appellants/complainants were induced by the respondents/Opposite Parties and any contract, came into existence by the alleged inducement, was voidable at the option of appellants/complainants. In the absence of any cogent evidence, that the appellants/complainants were induced and the fact that RCI terms and conditions were duly signed by Sh. Suresh Bansal, as is evident from Annexure R-1, the argument to this effect is devoid of merit. Once the appellants/complainants signed the terms and conditions, they were bound by the same. Rule 6.1 of the Membership Rules (Annexure R-2), being relevant, is extracted below:-

“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………..”               

Thus, the respondents/Opposite Parties, rightly refused to refund the money to the appellants/complainants, as the request for cancellation was made beyond the period of 10 days from the date of realization of down payment, as provided in Clause 6.1 reproduced above.

15.         As regards the contention of the appellants/complainants that written statement, on behalf of the respondents/Opposite Parties, was not filed by the duly authorized person, it is evident that written statement was filed by Mr. Jaiminikumar Shah, Corporate Manager – Legal, who has affirmed in his affidavit that he was authorized representative of the Opposite Parties and duly authorized to file the reply. Since this averment, is part of the affidavit, this technical objection of the appellants/complainants does not hold water. 

16.         No other point, was urged, by the Counsel for the parties.

17.         In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

18.         For the reasons recorded above, the appeal filed by the appellants/complainants, is dismissed with no orders as to costs. The impugned order, passed by the District Forum, is upheld.

19.         Certified Copies of this order be sent to the parties, free of charge.

20.         The file be consigned to Record Room, after completion.

Pronounced.

4^th October, 2013.

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

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STATE COMMISSION

(First Appeal No.269 of 2013)

Argued by:Sh. S. C. Thatai, Advocate for the appellants.

                Sh. Nitesh Singhi, Advocate for the respondents.

Dated the 4^th day of October, 2013

ORDER

                Vide our detailed order of the even date, recorded separately, this appeal filed by the appellants/complainants has been dismissed, with no order as to costs.

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