BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 30^th day of November 2016

Filed on : 06-03-2015

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.166/2015

Between

Suresh Kumar K.K., : Complainant

Thusharam, Eruveli, (By Adv. P.A. Augustine, 91,

Chottanikkara P.O., D.D. Tex World, Market road,

Ernakulam-682 312. Kochi-11)

And

1. M/s. Mahindra Holidays & : Opposite parties

Resorts India Ltd., (By Adv. P.J. Philip, High Court of

Door No. 112, 2^nd floor, Kerala, 57/1, Chilavannor road,

DD Mile Stone, S.A. Road, Kochi-682 020.

Kadavanthra Junction,

Ernakulam-682 020.,

rep. by its Principal Officer.

2. M/s. Mahindra Holidays &

Resorts India Ltd., Mahindra towers,

2^nd floor, 17/18, Pttullous Road,

Chennai-600 002.

rep. by its Principal Officer.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant's case

1. 2. Shri. Suresh Kumar, the complainant, at the instance of Mr. Midhun Xavier, the collection executive was inducted as a member in the scheme of the opposite parties M/s. Mahindra Holidays and Resorts India Ltd., without disclosing the terms and conditions governing the membership. At the time of receiving the advance from the complainant the membership certificate/booklet containing the terms and conditions was not shown to the complainant and he was informed that the membership certificate will be sent to him within 30 days after receiving the advance payment. Without knowing the hidden conditions in the membership certificate the complainant allowed the opposite parties to realize an amount of Rs. 49,800/- towards down payment and monthly instalments of Rs. 5,731/- for the period from 07-12-2013 to 27-03-2014 making a total of an amount Rs. 1,30,034/- . The opposite party had also demanded Rs. 12,569/- towards annual subscription fees. The terms and conditions incorporation in the membership certificate are illegal and against public policy and amounts to unfair trade practice. The terms and conditions were printed in such a way that is not readable. The complainant had never agreed to abide by the terms and conditions in the membership certificate and they are not binding on the complainant. The complainant had never availed any facility of the resort of the opposite parties. He is entitled to get back all the amount paid by him with interest as he does not wish to continue as a member of the resort any more. On 16-10-2014 the complainant caused to issue a lawyer notice intimating the opposite parties that the complainant is discontinuing the membership forthwith and demanding the repayment of the amount paid with interest. The said notice issued to the 1^st opposite party returned unclaimed and the notice issued to the 2^nd opposite party was accepted and reply notice dated 05-01-2015 was sent to the complainant denying the allegations. The complainant has therefore filed this complaint seeking for a direction to the opposite parties to refund the amount paid by him with interest, cost and compensation,

   3. Notice was issued to the opposite parties they appeared and filed a version resisting the complaint contending inter-alia as follows:

   4. Version of opposite parties 1 and 2.

   5. The complaint is frivolous and vexatious and is liable to be dismissed under Section 26 of the Consumer Protection Act. The complainant has failed to set out a case for deficiency in service. The complainant has approached this forum with unclean hands. The allegation in the complaint do not make of any consumer disputes. Therefore, this Forum has no jurisdiction to entertain this complaint. As per clause 13.3 of the contract, in respect of all matters pertaining to the transactions, on the Civil Court in Chennai shall have jurisdiction to the exclusion of all other courts. Pursuant clause 13 (2) only courts in Chennai have jurisdiction to entertain any complaint regarding all matters pertaining to this transaction. The opposite party had fully disclosed the terms and conditions governing the membership. The complainant became a member with membership ID 91010089 and the complainant had signed the terms and conditions on 08-01-2011. Thereafter he upgraded his membership after being satisfied with the salient features of an upgrading option agreed to become a member under the 'season white' scheme were he opted for studio apartment and had signed the membership application along with membership rules dated 29-10-2013 the complainant was fully aware of the contents of the contract. On 29-10-2013 the complainant had also signed the flyer which contained the salient features of the contract. After having signed the contract and the flyer which provides the details of the membership, the complainant cannot now feign ignorance of the same. The contractual terms are very legible and in readable format. The terms were promptly and properly explained to the complainant by the representative of the opposite party and the membership was taken by him with clear and open mind. There was no hidden charges as alleged in the complaint. No prudent man will pay Rs. 1,30,034/- without understanding the terms and conditions. On 11-11-2013 the opposite party had provided the complainant a welcome letter wherein the entire details of the membership were provided. The complainant was well aware about the contractual obligations and had honoured the equated monthly instalments to be paid from 07-12-2013 till 23-07-2014. It was thereafter the complainant had an after thought and had sent a notice to the opposite party. The payment of annual subscription fees is based on the contractual terms executed by the complainant. The parties are bound by the membership rules and the complainant will not entitled to any refund, contrary to the terms and conditions. The complaint is therefore sought to be dismissed.

   6. On the above pleading the following issues were settled for consideration.

   7. Issues

i. Whether this forum has jurisdiction to entertain this complaint?

ii. Whether the complainant has made out a case of deficiency in service on the part of the opposite parties?

iii. Reliefs and costs.

1. 2. The evidence in this case consisted of Exbts. A1 to A8 documents on the side of the complainant and Exbts. B1 to B6 documents on the side of the opposite parties. Heard both sides.

   3. Issue Nos i&ii. The complainant had made the application for membership on 29-10-2013. It is seen that he had made a membership declaration on the same day stating that he had gone through the 'Club Mahindra Holidays' terms of membership and agreed to abide by the same, on the same day. In the terms and conditions produced and marked as Exbt. B3 under clause 13 it is seen stated as follows:

“ARBITRATION AND JURISDICTION

13. 1. All or any disputes, differences or questions arising out of this transaction shall be settled by Arbitration by a sole arbitrator to be appointed by MHRIL. The arbitration proceedings shall be as per the provisions of the India Arbitration and Conciliation Act, 1996 including any amendments thereto. The venue of such arbitration shall be Chennai. The language used in the arbitration proceedings shall be English only.

    2. The award shall be final and binding on the parties. The award passed by the arbitrator shall be final and binding on the Applicants/Members and MHRIL.

    3. In respect of all matters pertaining to the transaction, only the Civil Courts in Chennai City shall have jurisdiction to the exclusion of all other Courts.

10. Since the complainant had agreed to the terms and conditions, especially regarding the jurisdiction clause, we find that this forum has no jurisdiction to entertain this complaint.

11. Further the allegation of the complainant that he did not get the terms and conditions immediately after filing the membership application form can not be believed since Exbt. B3 produced by the opposite party is seen dated 29-10-2013 and the complainant is seen to have affixed his signature both on the application form and also beneath the terms and conditions. Exbt. A1 is a letter dated December 4^th, 2013 welcoming the complainant as a new member of the opposite party. It is seen from para 2 of Exbt. A1 as follows:

“ you will also be getting a membership kit within a month of realization of your down payment. Your kit will contain your membership card, certificate, terms of usage, holiday guide and details of other benefits related to your membership.

12. The learned counsel for the complainant argued that in the light of Exbt. A1 that the terms of the membership was not provided to the complainant earlier and it is evident from Exbt. A1 that the terms and conditions were only promised to be supplied within a period of one month. We do not find any merit in this contention. What is stated in Exbt. A1 in with regard to the terms of usage of the holiday homes and not the terms and conditions of the membership. It is to be noted that the complainant had paid the monthly instalments promptly even after getting the membership card and terms of usage. It is seen from Exbt. A4 that on 25-08-2014 the complainant had opted for a change of the product from the original scheme and changed to 'white studio' scheme. We therefore find that the complainant had gone through the terms and conditions meticulously and had made his option to change the product in the meanwhile. Therefore the contentions of the complainant that the terms and conditions were not provided to him is found to be incorrect. We therefore find the issues are against the complainant.

13. Issue No. iii. In the result, the complaint stands dismissed, however in the circumstance, we make no order as to costs.

Pronounced in the open forum on this the 30^th day of November 2016.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent

APPENDIX

Complainants Exhibits

Exbt. A1 : Copy of letter dt. 04-12-2013

A2 : Copy of invoice dt. 01-08-2014

A3 : Copy of annual subscription fees

A4 : True copy of member payment

statement

A5 : True copy of Notice for legal action

dt. 16-10-12014

A6 : A.D. Card

A7 : unclaimed registered letter

A8 : letter dated 05-01-2015

Opposite party's Exhibits:

Exbt. B1 : Copy of application for Zest Membership

B2 : Copy of application

B3 : office copy of membership

application form

B4 : Copy of letter dt. 11-05-2014

B5 : Copy of membership account summary

B6 : copy of member payment statement

Copy of order despatched on :

By Post: By hand: