BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 01^ST DAY OF SEPTEMBER 2022

ORDER

KUM. RENUKADEVE DESHPANDE, MEMBER

1. This complaint has been filed under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1. Direct the OP to refund total sum of Rs.58,650/- with interest at 12% p.a., till realization with costs and expenses of this proceedings
2. Direct the OP to pay Rs.25,000/- to the complainant for mental agony and torture suffered by the complainant on account of the deficiency on the part of the OP and exemplary cost.
3. Pass such other order or orders as may be just and necessary to the facts and circumstances of the case including damages.

2. The brief facts of the complaint is as follows:

The complainant submits that the OPs are the company registered under the companies act 1956 engaged in Hospitality business operating clubs, fitness centre, hotels, travel planning services and resorts.  The complainant is a resident of Bangalore city and working in the private organization.  On 04.01.2020 one of the representatives of the OPs by name Mr.Girish claimed to be the sales man of OP, contacted the complainant through phone and informed the complainant that he has own gift voucher and persuaded him to come and collect all three gifts from the office situated at No.881/a, Yashodara Complex, 3^rd Floor, Modi Hospital Main Road, Near Shankar Mutt Stop, Opp: Punjab National Bank, Basaveshwaranagar, Bangalore 86.

The complainant became curious about the gift offered by the OPs visited.  On 04.01.2020 Mr.Roshan claimed to be the Manager of OP and both of Sri.Girish and Roshan explained about the business of company and profile and thus persuaded him to became life time member of OPs by paying Rs.58,650/- though the complainant was not interested, the sales man Mr.Girish and Mr.Roshan forced the complainant without giving a single minute to think over it and thereby taken complainant’s HDFC credit card bearing No.4639170013631041 and swiped the card and withdraw an amount of Rs.58,650/- pursuant to which Mr.Rohan executed millionaire club classic package sale agreement on 04.01.2020 bearing application No.19(310) and accordingly the complainant signed the said agreement as second party.

The complainant subsequently enquired about the transaction and reputation of OPs with his friends and others.  After enquiry the complainant came to know about the fraud committed by the OP to hundreds of people.  Immediately, the complainant sent a mail to OPs on 05.01.2020 expressing his unwillingness to continue membership and requested cancellation of country club membership as per clause 27 of the agreement dated 04.01.2020 and requested them to refund the total amount of Rs.58,650/- paid on the date of agreement. But complainant has not received any response from OP.  Despite repeated emails, phone calls and personal visits, the OP did not bother to refund the amount as per clause 27 of the agreement.  It is stated that “there shall be a cool off period of 10 days from the date of signing this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/-.”   Therefore, the complainant has cancelled the agreement on 05.01.2020 within a day from the agreement dated 04.01.2020.  Therefore, OP is liable to refund the amount of Rs.58,650/-.  After deducting Rs.3,800/- towards administrations charges, but OP is not ready to refund the amount and thereby caused mental and physical harassment to the complainant.  

The complainant having no other alternative, issued a legal notice dated 27.01.2020 to the OPs, but OPs neither replied the notice nor refunded the amount.  OPs have committed breach of the terms and conditions of the agreement and has illegally retained the money.  There is deficiency of service and unfair trade practice on the part of the OPs.  Hence this complaint.

3. After issuance of the notice, OP1 and 2 appeared and filed version denying all the allegations made against the OPs.  The complaint filed by the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine as the complainant has not approached this Hon’ble commission in clean hands.  The complaint is also not maintainable, since there is no cause of action, the complaint is vague, bald and devoid of merits.  The complaint is liable to be dismissed in this ground alone.

The entire averments made in the complaint categorically and specifically denied as totally false and incorrect, except which are not specifically admitted by this OPs.  The complainant came back to the office of the OPs and told that they thoroughly heard and understand the terms and conditions of the purchase agreement explained to the complainant regarding the different packages offered by OPs.  The OPs always ready and willing to offer the holidays facilities to the complainant when his requirements subject to booking of 30 days in advance.  But there is no provision for refund of amount or cancel of the club membership.  Further the complainant is at liberty to sell or transfer or gift the membership to any third party.  In providing the facilities as agreed, this offer is free of cost for which there is no amount is charged.  Hence refunding of amount and maintenance charges and compensation as claimed when there is no contract in this aspect and also to pay compensation does not arise.  There is no cause of action, then Ops not rendered any deficiency in service, the court may please to dismiss the complaint with exemplary cost and the circumstances in the interest and justice and equity.

4. The complainant to substantiate the case filed affidavit evidence and produced documents and marked Ex.P1 to P6 and filed written arguments.  But OPs affidavit evidence and written arguments taken as nil and OPs did not produce any documents for proving the case.  We have gone through the available materials and records.
5. The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs, if so, entitled for the relief sought for?
2.  What  relief or order?

6. Our answer to the above points are as under:

       Point No.1:- Partly in the affirmative

      Point No.2:-As per the final order.

REASONS

7. Point No.1:   It is proved from the contents of the complaint as well as version filed by the OPs.  The undisputed facts which reveals from pleadings of the parties go to show that, the complainant has availed the membership of the OPs on 04.01.2020.  After availing the same within a day, he decided to withdraw his membership, after enquired about the transactions and reputation of OPs, with his friends and others.  After enquiry the complainant came to know about the fraud committed by OPs to hundreds of people.  Immediately the complainant sent an email to OPs on 05.01.2020 expressing his unwillingness to continue membership and requested cancellation of country club membership as per clause 27, Ex.P1 reads as under;

“There shall be a cool off period of 10 days from the date of signing this agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3,800/- to the company.  After deduction of the aforesaid amount remaining amount would be refunded to the member within 120 working days from the date of invoking of cool off period.  For invoking the cooling off period the member shall send a written communication to the country club.  Central customer Care, 4^th Floor, Asian building, Begumpet, Hyderabad 500 016, through registered speed post or an email to

8. Accordingly, the complainant sent an email.  Ex.P4 dated 05.01.2020 to OPs, to which there was no proper response from the OPs.  We placed reliance as the said.  Email Ex.P4 sent by the complainant to the OPs, which primafacie evident that, he has put extra efforts in respect of terminating his membership/withdrawal of his membership as per the said clause 27.
9. In similar type of cases, this forum already decided the matter holding that if the OPs found to be deficient, in providing the service to their customers.  Under such circumstances, they cannot with hold the membership and to refund by deducting the applicable charges if any i.e., due of annual maintenance charges and any of the bills pending towards taking the services of the club.  In the instant case, neither the complainant nor his family members have not taken any kind of service from the OPs.  In this context, we are of the opinion that the membership amount paid by the complainant to the extent of Rs.58,650/-.  Ex.P3 is to be refundable in the light of the latest decision of Hon’ble National Commission reported in 2019(1)CPR 647 (NC) in the case of M/s Country Vacations and another –vs- Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service”.
10. Further as per another decision of Hon’ble National commission, wherein it is held that “self made rules for own firm have no legal significance if proved contrary to law” we cited the said decision for the simple reasons that, the rules and regulations made by the OPs are subjected to the judicial scrutiny as to know whether they are fare or contrary to the law.
11. In the instant case, the sole defense taken by the OP1 is that, since the complainant has agreed the terms and conditions of the sale agreement and subscribed his signature on it, knowing the contents mentioned therein, hence he is to be bound by the terms and conditions.  The contention taken by the OPs has no legs to stand in the light of the decisions cited supra.

Hence we came to the conclusion that, complaint filed by the complainant is deserves to be allowed holding that there is deficiency of service on the part of the OPs is not refunding the said amount though he applied for cancellation of the membership within cool off period.  Hence, the complainant is entitled for refund  of the paid amount of Rs.58,650/- with interest at 6% p.a., from the date of this complaint till the date of realization with cost of Rs.5,000/-. Accordingly we answer point No.1 in the Affirmative. 

12. Point No.2: In view of discussion made above finding given on Point No.1, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OPs are directed to refund an amount of Rs.58,650/- along with interest at 6% p.a., from the date of payment till realization to the complainant and to pay Rs.5,000/- towards cost of litigation.
3. The OPs shall comply this order within 60 days from the date of this order failing which the OPs shall pay interest @ 12% p.a., on Rs.58,650/- after expiry of 60 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 01^ST day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows: NIL

1. Ex.P1:      Agreement dated 04.01.2020
2. Ex.P2:      Membership package details
3. Ex.P3:      Online receipt dated 04.01.2020
4. Ex.P4:        Email Communication dated 05.01.2020 to 25.07.2020
5. Ex.P5:      Legal notice dated 27.01.2021
6. Ex.P6:      Postal acknowledgement

Documents produced by the representative of opposite party – R.W.1 : Nil

HAV*