AT HYDERABAD.

F.A.  155/2010  against C.C. 161/2009, Dist. Forum-II, Hyderabad.      

Between:

K. Srinivasa Rao

D.No. 3-5703, Maya

Hyderguda, Hyderabad-29.                        ***                         Appellant/

                                                                                                Complainant.

                                                                   And

M/s. Country Vacations-

Customers-Care Executive

(A Division of  Country Club  (I) Ltd)

 Alsamad, Liberty Cross Road

Opp. TTD Kalyana Mandapam

Himayatnagar, Hyderabad-29.                    ***                         Respondent/

                                                                                                Op.

Counsel for the Appellant:                         P.I.P.

Counsel for the Resp:                                 Mr. Rajesh Jaiswal.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

                 SMT. M. SHREESHA, MEMBER

TUESDAY, THIS THE SIXTH DAY OF APRIL TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                 Appellant is unsuccessful complainant.    

2)                The case of the complainant in brief is that  he became a member on persuasion made by the respondent for purchase of points  covered by he was  entitled to get  right of occupation at  Country  Vacations International  Holiday Club  for ten consecutive years  by paying Rs. 60,000/- through credit card.    He executed an agreement  for Rs. 1,36,000/- and remaining amount to be paid by him at a later date.    When he found that there was discrepancy in the agreement wherein it was mentioned  that he had paid Rs. 1,36,000/-  whereas he  paid Rs. 60,000/-, he went to the office, and found out  that they concocted  the agreement wherein  they made a mention that he had to pay Rs. 76,000/-.    The agreement was obtained under duress to enrich themselves by playing fraud against him.  Sensing  fraud, he cancelled his membership, and requested them to refund the amount.  Finally they refunded Rs. 45,000/- which he had received as there was no other go for him.    He was forced to give letter of acceptance as though it was full  and final settlement.    Since it was taken under duress by playing fraud, he filed the complaint for refund of balance of  Rs. 15,000/-  with interest  @ 18% p.a., from 1.5.2008  till the date of payment together with compensation of  Rs. 1 lakh and costs.

3)                 The respondent resisted the case.    While denying each and every allegation made by the complainant  it alleged that  the complainant became a member of the Country  Vacations International  Holiday Club   on 30.4.2008.    He entered into an agreement  to purchase time share for a period of five years in respect of apartment type studio for blue season wherein he was entitled to accommodation  once in a year for a period of one week for five consecutive years at any one of the resorts mentioned at clause-9 of the agreement.    The complainant had voluntarily  paid Rs. 60,000/- and agreed to pay balance in time.   When he intended to withdraw the membership  an amount of Rs. 45,000/- was paid by way of demand draft  which he had received  as full and final settlement evidenced under his own letter Ex. B3.    There was no deficiency in service on its part.  He was not entitled to Rs. 15,000/-.  Therefore it prayed for  dismissal of the complaint with costs.

4)                The complainant in proof of his   case  filed his   affidavit evidence and got Exs. A1 to A4  marked while the respondent filed Exs. B1 to B3.

5)                The Dist. Forum after considering the evidence placed on record opined that  an amount of Rs. 15,000/- was deducted by virtue of  Clause-7 under Ex. A1 wherein  the respondent was entitled to forfeit 80% of the amount.  Though the respondent was entitled to forfeit 80% of the amount  it was settled for Rs. 45,000/- for which the complainant issued letter that   it was towards full and final settlement.    The allegation of duress and misrepresentation are all made for the purpose of this case, and accordingly dismissed the complaint. 

6)                Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate  the facts  in correct perspective.   It ought to have seen that he entered into an agreement on persuasion  without knowing the full implications.   Later when he came to know  that the agreement was unfair he sought for  refund of the amount.  On that an amount of Rs. 45,000/-  was  refunded.    Clause-9 of the agreement relied by the Dist. Forum is unenforceable.   There is no equality in bargaining power.    Therefore it is unenforceable   and hit by Section 23 of the Contract Act.   Therefore he prayed that an amount of Rs. 15,000/- be refunded to him together with compensation and costs.

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated  by mis-appreciation  of fact  or law?

8)                It is an undisputed fact that the complainant,  an educated person, executed an agreement Ex. A1  wherein he purchased points in order to enable him to have a right of occupation at Country  Vacations International  Holiday Club  for ten consecutive years  on payment of Rs. 1,36,000/-.  Admittedly he paid Rs. 60,000/-vide receipts Exs. A2 to A4  on 30.4.2008.    The complainant alleges that in the agreement there was a mistake  in mentioning that  he had paid  the amount of Rs. 1,36,000/- though he had paid Rs. 60,000/-.  He alleges that when he went to the office of respondent they had showed an agreement wherein  it was mentioned that he owed Rs. 76,000/-.    In Ex. A1 itself  there was a mention that he had paid Rs. 1,36,000/- towards initial payment.  It did not say anywhere  that he had paid Rs. 60,000/- and had to pay remaining balance.    Ex. A1 filed by him  itself is contrary to his own plea.    Obviously when he intended to get the membership cancelled an amount of Rs. 45,000/- was refunded by way of demand draft,  which had been received  and encashed.   He himself sent and signed ‘No Objection’ endorsement  for cancellation of membership  on receipt  of cheque  for Rs. 45,000/- towards full and final settlement  vide Ex. B3.   This letter is Dt.  25.8.2008.    Without even issuing any notice he filed the complaint  on 27.1.2009  after five months alleging that the respondent had played fraud, took Ex. B3 letter under duress and coercion  and therefore the agreement is void.    If really the respondent had taken his signature  on  Ex. B3  under duress or coercion  he could  have given a report to the police or  sent a complaint  to the very respondent alleging all these facts.    Except his self-serving  statement no evidence  whatsoever is forthcoming  to state that  he executed  Ex. B3  under duress or coercion. 

9)                 Clause-9 of Ex. A1 agreement stipulates that  “In the event of the purchaser  failing to make any payment installment on the due date specified then  Country  Vacations  shall have the right to cancel the agreement and forfeit 80% of the amount paid so far.”    By invoking this clause the respondent had  forfeited  Rs. 15,000/-  and paid Rs. 45,000/- which he acknowledged and equally  endorsed  under Ex. B3.    He encashed the said amount.  The Dist. Forum has rightly  opined that  having taken the amount towards full and final settlement, he cannot  turn round  and say  that it was taken under duress or coercion, more so without any evidence.    There is neither circumstance nor  evidence to prove that it was taken under coercion.    We do not see any merits in the appeal.

10)               In the result the appeal is dismissed.    No costs.

1)       _______________________________

      PRESIDENT           

2)      ________________________________

          MEMBER           

                                                                   Dt.   06. 04. 2010.

*pnr

“UP LOAD – O.K.”