DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR

Complaint No.198 of 2019

Date of Instt.04.06.2019

Date of Decision: 28.09.2021

Mrs. Manju Verma age 45 W/o Balram Krishan, 333, Green Avenue, Kala Singha & Basti Sheikh Road, Jalandhar – 144002 (Punjab).

….. Complainant

Versus

1. M/s Country Club Hospitality & Holidays Limited, (Head Office), 6-3-1219, fifth Floor, Beg, Hyderabad Pin Code 50016.

2. M/s Country Club Hospitality & Holidays Limited, 3^rd Floor, Office No.11, CS Ansal Plaza, Vaoshali, Gaziabad – 201010, through its Manager/ Managing Director.

3. Mr. Puneet Chuhan Branch Manager (Marketing) M/s Country Club Hospitality & Holidays Limited, 3^rd Floor, Office No.11, CS Ansal Plaza, Vaoshali, Gaziabad – 201010

..…Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Kuljit Singh (President)

Smt. Jyotsna (Member)

Sh. Jaswant Singh Dhillon (Member)

Present: Sh. Ashok Kumar, Adv. Counsel for the Complainant.

Sh. A. K. Gandhi, Adv. Counsel for OPs No.1 to 3.

Order

Kuljit Singh(President)

1. The present complaint has been filed by complainant against the OPs on the averments that complainant working in M/s Punjab & Kashmir Finance Company Ltd; the OPs are running the business under the name and style of M/s Country Club Hospitality & Holiday Limited; said company involved in the business of tourism and company provide the hospitality and holiday package to the tourist.On 11.03.2029, representative of Ops had installed advertisement booth/canopy in the premises of M/s Home Furniture, Nakodar Road, Bootan Mandi Jalandhar on behalf of OP No.1&2. Complainant and her husband had visited in the said building, representative of OPs No.1 & 2 namely Mr. Kunal and Mr. Puneet Chuhan had approached to them and told them about the affairs and offers of OP No.1 & 2. On 11.03.2019, OPs made offer to complainant that OPs will provide five year holidays tour plan. Vide this plan OPs were supposed to provide the service of accommodation in all national and international five star hotels (once in year) for consecutive 5 years. It was offered that complainant would make the payment of Rs.65,200/- (as full and final onetime payment) to the OPs for availing the said services. They further told the complainant that within a week of receiving the payment by OPs all papers will be sent to complainant. On 12.03.2019 husband of complainant had sent email to OP-3 and requested the OPs to send him the list of hotel properties, so that complainant can chose the hotel for celebration of his marriage anniversary on 18.04.2019 and also requested to plan full family accommodation from 16^th to 19^th April 2019 in Indian Hotels/Resort. OP-3 replied and acknowledged the membership of complainant and further told the complainant that they are looking for the venue/ hotel for soonest request related with holiday. It was astonishing for the complainant that after 12.03.2019 no mail was sent by OP to complainant. Even no phone call received by her from OPs. Complainant had made number of phone calls to OPs, but OPs did not respond to the same. Ultimately, on 06.04.2019 complainant sent email regarding cancellation of membership to email ID

2. Upon notice OPs appeared through counsel and file written on behalf of OPsand contested the complaint of the complainant by submitting that complainant entered into vacations agreement dated 11.03.2019; as per vacation agreement, complainant was provided vacation membership for a period of 5 years under “Blue Studio” season at a one-time cash out price of Rs.65,000/-, which was agreed to be onetime vacation charges as non-refundable under any circumstances and that the said vacation fee is not a refundable deposit post 10 days from date of agreement one the Cool Off period is completed. The express clause No.26 states as “There shall be a Cool Off period of 10 days from the date of signing of this agreement where in member can discontinue the agreement by paying a nominal administration charges of Rs.3800/- to the company. After deduction of said amount (Rs.3800/-) remaining amount would be refunded to member, post which the membership fee is non- refundable. Complainant has not invoked the cool off period of 10 days in the present case which shows that complainant was satisfied with terms and conditions of the agreement and had no previous whatsoever to the due execution of the agreement. A bare perusal of the Vacation Agreement shows that as per vacation benefits mentioned in the said agreement, it is clearly mentioned that complainant is entitled for stay for a period of every year up to 6 nights and 7 days each year at the properties of OP within India for next 5 years from the date of agreement and all short-term accommodations day include studio room only (without Kitchen) for the selected time for 2^nd party (complainant), spouse and 2 children below 12 years of age. List of properties is mentioned in the vacation agreement under Clause No.7 of vacation agreement as well as on the website ^st request of complainant, the complainant was not entitled to ask for refund of entire membership fee which was paid for a period of 5 years.The complainant was being assisted as a goodwill gesture though his request was not as per terms and conditions of the agreement as she was required to book the vacation at least 60 to 45 days in advance whereas in the present case her request was for booking of accommodation within 34 days and that too of a single destination whereas had complainant opted for any other destination there might have been chances that they were free on that day and complainant was free to opt for the same.Other averments of the complaint are denied and prayed for dismissal of complaint.

3. In order to prove their respective versions, both the parties produced on the file their respective evidence.

4. Rejoinder not filed.

5. We have heard the learned counsel for the parties and have also gone through case file and written arguments of the parties very carefully.

6. At the very outset, we would like to mention some of the facts about which is no dispute between the parties. The complainant purchased the membership in dispute. There is also no dispute about the payment of membership. Ld. Counsel for complainant argued that Vide this plan OPs were supposed to provide the service of accommodation in all national and international five star hotels (once in year) for consecutive 5 years. It was offered that complainant would make the payment of Rs.65,200/- (as full and final onetime payment) to the Ops for availing the said services. They further told the complainant that within a week of receiving the payment by Ops all papers will be sent to complainant. On 12.03.2019 husband of complainant had sent email to OP-3 and requested the OPs to send him the list of hotel properties, so that complainant can chose the hotel for celebration of his marriage anniversary on 18.04.2019 and also requested to plan full family accommodation from 16^th to 19^th April 2019 in Indian Hotels/resort.

7. On the other hand, Ld. Counsel for OPs argued that complainant entered into vacations agreement dated 11.03.2019; as per vacation agreement, complainant was provided vacation membership for a period of 5 years under “Blue Studio” season at a one-time cash out price of Rs.65,000/-, which was agreed to be onetime vacation charges as non-refundable under any circumstances and that the said vacation fee is not a refundable deposit post 10 days from date of agreement one the Cool Off period is completed. The express clause No.26 states as “There shall be a Cool Off period of 10 days from the date of signing of this agreement where in member can discontinue the agreement by paying a nominal administration charges of Rs.3800/- to the company. After deduction of said amount (Rs.3800/-) remaining amount would be refunded to member, post which the membership fee is non- refundable. Complainant has not invoked the cool off period of 10 days in the present case which shows that complainant was satisfied with terms and conditions of the agreement and had no previous whatsoever to the due execution of the agreement. A bare perusal of the Vacation Agreement shows that as per vacation benefits mentioned in the said agreement, it is clearly mentioned that complainant is entitled for stay for a period of every year up to 6 nights and 7 days each year at the properties of OP within India for next 5 years from the date of agreement and all short-term accommodations day include studio room only (without Kitchen) for the selected time for 2^nd party (complainant), spouse and 2 children below 12 years of age. List of properties is mentioned in the vacation agreement under Clause No.7 of vacation agreement as well as on the website

8. The Ld. Counsel for the OPs also submitted that the complainant has no right to ask for the refund of membership fee as the said membership agreement was duly signed by the complainant after going through the terms & conditions of the same.  Submitted further that the complainant himself visited the Office of OPs where the representatives of the OPs explained various plans as were available to the perspective members as per need/wish and requirement of the complainant.  After thorough verification, the complainant with his free consent entered into an agreement with OPs for becoming member of the OPs Club. 

9. The counsel for the OPs referred Clause No.23 & 24 of the said agreement with further reference to the express clause in the said membership agreement:-

“AND WHEREAS the Second Party hereby unconditionally gives his/her/their irrevocable consent to this vacation of CCIL.  The Second Party understands that THE VACATION CHARGES IS NON-REFUNDABLE UNDER ANY CIRCUMSTANCES and that THE VACATION FEE IS NOT A DEPOSIT.

Clause 23:           SECOND PARTY has understands the benefits available under the vacations scheme which are more particularly listed out in this Agreement. SECOND PARTY further understands that no benefits other than those listed in this Agreement will be available to SECOND PARTY.

Clause 24.    SECOND PARTY understands that this agreement (in the printed form ONLY) SUPERCEDES any communication whether written or oral or any variation or hand written remarks rewriting the printed Agreement made by the Agents and/or representatives of CCIL or SECOND PARTY to this Agreement and/or any other written communication issued by CCIL representatives (including on Company Letter Head or STAMP PAPER). Further, SECOND PARTY understands that the benefits and terms of the vacations as set out in this Agreement are final and binding on CCIL, and SECOND PARTY.”    

10.         There is no denial of the fact that the Vacations Purchase Agreement – OP-2 was signed by the complainant as second party to the contract and the same was signed by the Competent Authority of the OPs, meaning thereby that the contract between the parties completed when the same was signed by the OPs being the first party to the contract. 

11. It is further clear as argued by the complainant that she received the said agreement disputed the terms & conditions mentioned in the agreement being contrary to the assurances, promises made by the representative of at the time of signing the said agreement. The complainant videemails followed and respectively called upon the OPs to provide benefits of the said agreement and also claimed for the refund of the money paid. To corroborate, it is right to mention the relevant extract/contents of the said letter written by the complainant to the OPs.

12.          Email, dated 06.04.2019 (Ex.C-5)

    That I have taken holiday tour plan/Membership for five years from your company and for the same I had paid Rs.65200/- from her card…..But till date no updation has been received from your side for any holiday tour. I am not satisfied with your services and then decided not to continuous the Membership with the company. You are requested to please discontinue my membership & return the money as soon as possible.  

13. The record reveals that the OPs despite receipt of the emails failed to respond and come forward to answer only when the complainant filed the present complaint claiming deficiency in service and unfair trade practice on the part of the OPs.  The OPs in their defence pleaded that the complainant out of his free will signed the Membership Agreement after understanding all the terms & conditions of the same and once the said offer was accepted, it becomes a complete contract and the complainant cannot go out of the same. 

14. We do not agree with the contentions made by the Opposite Parties as one of the vital conditions of the contract is that there must be free will of the parties and there must be meeting of minds on the terms & conditions of the contract in the similar way. Even in the Indian Contract Act, some of the contracts are voidable when the same are based on or created by mis-representation.  In the present complaint too, the complainant claimed that he was allured and explained about the different terms, benefits and facilities, which were not part and parcel of the copy of the agreement received by him.  It seems that the complainant never get an opportunity to go through the terms & conditions of the said agreement while signing the same, being influenced by the allurements made by the representative of the OPs and only get an opportunity to read the same when the copy of the said agreement landed in the hands of the complainant.

15. We are of the opinion that the complainant without any delay apprised OPs that the terms & conditions of the present agreement were not inconsonance with the initial proposal or invitations to offer made by the representative of the company. By not honouring the request of the complainant to cancel the contract and by not refunding the amount, the OPs are found to be deficient in rendering service and indulging into unfair trade practice. 

16. In view of the above discussion, we are of the opinion that the complaint deserves to be allowed.  Accordingly, the complaint is allowed and the Opposite Parties are jointly & severally directed to refund the amount received from complainant along with interest @ 5% per annum from the date of payment/agreement till realization and further OPs are directed to pay Rs.5,000/- as compensation for causing mental agony and physical harassment to the complainant and Rs.2,000/- towards litigation expenses. The compliance of the order be made within 45 days from receipt of copy of this order.

17. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work. File be indexed and consigned to the record room after due compliance.

Announced in open Commission

28^th of September 2021

Kuljit Singh

(President)

Jyotsna

(Member)

Jaswant Singh Dhillon

(Member)