DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.442/2013

Sh. Deepak Kumar

R/o Flat No.1603, Heights-2,

Uniworld City, Newtown,

Action Area-III, Kolkata-700156                                 ….Complainant

Versus

Country Club (India) Ltd. Admin.

Office address: 2, Community Centre,

1^st Floor, East of Kailash, Opp. Sapna Cinema,

New Delhi-110065

Also:

Administrative Office Address:

Amrutha Castel, 5-6-16, Saifabad,

Opp- Secretariat, Hyderabad 500063

Also at:

Corporate Office address :

8-2-703, Silver Oak, Amrutha Valley Road No.12,

Banjara Hills, Hyderabad  -500063

Also:

Gurgaon Office address:

Shiv Kant (Manager), Office  No.57 & 61,

Ground Floor, Sahara Mall,

Gurgaon, Haryana                                                      ….Opposite Party

                                                  Date of Institution      : 17.08.11       Date of Order                 : 05.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

Naina Bakshi, Member

ORDER

The case of the complainant, in nutshell, is that the OP approached the complainant in February, 2010 that they are providing world class time share holiday scheme with the other holidays privileges and the complainant will be given a gift coupon for 6 nights and 7 days and could be availed by the complainant in different Country Club properties within a period of one year. Gift coupon will be given in addition to the entitled 6 nights and 7 days as per the year for the next 10 years.  In the event  the complainant  did not avail a holiday with OP in any particular year then the holidays will be carried forward to the next year and henceforth till the number of holidays will get accumulated upto 21 days. The holidays can be split, transfer and accumulated.  The complainant was thus enticed into taking up with the membership on 31.01.10 for a payment of Rs.70,000/- which was paid by the complainant  through this credit card.  The OP on 27.02.10 confirmed the membership and also gift voucher. The complainant made several attempts to have the booking for holidays but to the utter shock and surprise whenever the complainant made an effort to conduct and obtain a firm holiday booking with the OP, the OP on one pretext or other did not confirm the holiday, inspite of continuous attempt by the complainant.  The complainant sent various emails to avail the gift voucher but there was no response nor any reply from the OP.  On 26.06.10 the OP informed the complainant that the holiday privileges had been extended for the next year i.e.  June, 2011. The complainant in 2011 well in advance sent an email for availing a holiday at Manali. On 12^th April, 2011 the OP stated that they did not have own property in Manali and Manali is not possible. It is apparent that the OP was misleading to the complainant since Manali was given as option in the gift voucher handed over to the complainant at the time of offering the membership. The complainant sent various emails to the OP but no response was received. The OP was demanding additional amount insptie of receiving of Rs.70,000/- from the complainant. When he checked the site of the OP regarding the status of the last year holidays, it revealed that the said holiday in the account of the complainant had already “expired” which was contrary to the assurance made to the complainant by the OP’s representative as well as by email communication. The complainant made numerous attempts to obtain a holiday booking but all in vain. The complainant  sent a legal notice on 14.09.11 but the same was never replied by the OP. Hence, pleading deficiency in service & unfair trade practice on the part of the OP, the complainant has filed the present complaint for the following reliefs:-

1. Direct the OP to refund the amount of Rs.70,000/- to the complainant being the  consideration amount.
2. Direct the OP to pay interest @ 18% per annum on the sum of Rs.70,000/- till date of realization.
3. Direct the OP to pay to the complainant  charges/cost for litigation.
4. Direct the OP pay a sum of Rs.2.5 lakhs as compensation for the deficient service on the part of the OP.
5. Direct the OP to pay Rs.2.5 lakhs for harassment, stress, strain, trauma and agony created and perpetuated by the OP on the complainant.

OP in the written statement has inter-alia stated that after verifying all the terms and conditions of membership, the complainant had signed the membership agreement as the complainantwas well aware of the said terms and conditions and after executing the membership application, the complainanthas no right for cancellation of membership or asking for refund of the membership. The complainant does not reserve any right to terminate the membership unilaterally as per his whims and fancies and in deviation of the express terms to which he is a signatory. Therefore the cancellation of the membership is untenable in the eyes of law. It is submitted that the registered address of the OP is at Hyderabad which does not fall within the territorial jurisdiction of this Forum.It is denied that that the holiday can be accumulated upto 21 days. It is submitted that the holiday cannot be accumulated but can be used next year after paying AMC.The member cannot use its holiday continuous for 21 days but can go to number of time in a year if his previous holidays are their. If three years holiday which the member have to avail to book three times to avail the holidays for example for 21 days (it can be 1 to 7 days then 7 to 14 and then 14 to 21 and has to check out the hotel on 22^nd ), it is admitted to the extent that holidays can be split and accumulated but it is denied that the holidays can be transferred. It is submitted that the complainant himself is making contrary statement that OP approached in February, 2010 whereas he has made the paymentfor the said membership in January, 2010. It is submitted that vacation/booking is subject to availability. The complainant first asked for booing of Jaipur and then he shifted the place to Manali. The Manali is a tied up property and tied up property member has to pay the charges. It is submitted that the complainant was replied whenever he raised any question of any enquiry. The complainanthimself did not get time to go for vacation in 2010 and 2011 and he himself shifted his destination to visit to Jaipur to Manali.It is submitted that the complainant himself was not interested in availing the facilities provided by the OP. The OP is not liable to refund of Rs.70,000/- alongwith interest, litigation and compensation for harassment. OP has prayed for dismissal of the complaint.

Complainant has not filed replication/rejoinder to the written statement of the OP.

Complainant has filed her own affidavit in evidence.  On the other hand, affidavit of Sh.  Bharat Reddy, Legal Officer has been filed in evidence  on behalf of the OP.

Written arguments have been filed on behalf of the parties.

We have heard the arguments on behalf of the OP. No one has appeared on behalf of the complainant to advance oral arguments despite opportunity given in this behalf. We have also gone through the file very carefully.

The complainant filed the receipt of Rs.70,000/- as Annexure C-1. The copies of various email exchanged between the parties have been filed as Annexure C-3 (Colly).  The complainant  sent a legal notice to the OP as Annexure C-4 wherein the complainant requested the OP to refund an amount of Rs.70,000/-. The OP has filed copy of the Purchase Agreements signed by parties which we mark as Annexure-A for the purposes of identification. The OP filed the copy of  membership form which we mark as Annexure-B for the purposes of identification.

Undeniably the registered of the OP is situated in East of Kailash, New Delhi and hence this Forum has  territorial jurisdiction to entertain the complaint.

It may be correct that some negotiation had taken place between the complainant and the OP’s representative before executing the Vacation Agreement but, however, the Agreement had been signed by the complainant and it is his case that the same was got signed from him under false pretext out of his free consent and the it is also admitted fact that Agreement was not signed by the authorized signatory of the OP. If it is so, the written Agreement between the parties will not be binding upon them. Despite there being enforceable contract between the parties, the OP was also supposed to comply with the terms and conditions thereof in letter and spirit. Email messages exchanged between the parties have been filed on the record, a perusal of which goes a long way to prove that the complainant was not satisfied with the services to be provided to him by OP and he had started making correspondence in this regard. The contract did not give any opportunity to the complainant to get rid thereof under any circumstances and it was one sided agreement.

          There must have been included at least one clause in the agreement whereby the purchaser must have been given a right to cancel the membership within a particular period (freelook period) though subject to some conditions and deductions but, however, no such liberty has been afforded to the customer/ consumer in this case. Agreement is thus not conscious and justified to that extent.

          The complainant had not availed any services of the OP as he requested to refund the amount when he did not get booking for Manali. Therefore, the OP must have considered the request of the complainant to refund the entire amount paid by him. However, as stated hereinabove, no such freedom had been given to the complainant in the one sided agreement which contained total beneficial stipulations in favour of the OP.

          The material on record shows that the complainant had enquired from representatives of OP about different services available and thereafter had signed the Agreement. Brochure/Terms and Conditions were supplied by the OP to the complainant before joining the OP Club. The Purchase Agreement was signed after being satisfied with the terms and conditions of the same. The rational of charging administrative charges was also mentioned in the Agreement.

          Therefore we hold the OP guilty of deficiency in service and unfair trade practice so far as providing no option to the member to cancel the membership within a reasonable time subject to some deduction is concerned. OP must have incurred some amount of money towards administrative charges. Keeping in view the above facts discussed hereinabove, we allow this complaint and direct the OP to pay sum of Rs.70,000/-  to the complainant within 30 days of receipt of copy this order and Rs.5,000/- as compensation including cost of litigation failing which the OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.70,000/- from the date of filing of complaint till realization.

          Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 05.01.19.