CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.74/2010
SH. AJIT CHAWLA
S/O SHRI T.L. CHAWLA
R/O A2/41 SAFDARJUNG ENCLAVE,
NEW DELHI-110029
…………. COMPLAINANT
VS.
M/S STERLING HOLIDAY RESORTS LTD.,
304 RAJA HOUSE, 3RD FLOOR,
30-31 NEHRU PLACE, NEW DELHI-110019
…………..RESPONDENT
Date of Order: 01.07.2016
O R D E R
A.S. Yadav – President
We have heard complainant and carefully perused the record.
It is not in dispute that complainant and OP entered into an agreement called “Vacation Time Share Agreement” on 14.12.1995 wherein complainant booked a regular apartment in a Holiday Resort in Bhimtal. As per the agreement, complainant was to get possession of apartment booked for one week for the period May 26th to June 1st in a calendar year. It is not in dispute that the complainant made full payment of Rs.78,500/- and he was allotted Customer Code VTS4 68922.
The contention of the complainant is that on failure to allot the above said Vacation Time Share Agreement to complainant, OP was liable to pay damage @ 18% on the amount paid by complainant. It is stated that OP failed to construct the said Holiday Resort and thereby breached the above mentioned Vacation Time Share Agreement.
OP in reply admitted that the Holiday Resort in Bhimtal was not constructed due to the non-clearance from the various departments for which OP cannot be faulted.
Complainant has specifically stated that the complaint asked OP to shift the Time Share Agreement to alternative location like Mussoorie and Goa but the same was not done. Complainant asked for 18% interest vide letter dated 11.05.1999 on the amount deposited by him. Though complainant has stated that in para 8 of the complaint he has sought for refund of amount vide letter dated 11.5.99, in fact he has not sought refund of the amount but only sought the damage on the amount deposited @ 18% as per the clause 23 (ii) of the Time Agreement. But OP vide letter dated 18.5.99 in response to the letter dated 11.5.99 of the complainant agreed to process the request of the complaint regarding 18% compensation.
OP in reply stated that this letter is forged one. There is no question of letter being forged one. The letter is on the letter head of OP and same is duly signed by the executive member(service) on behalf of OP. OP in the reply took the plea that the complaint is time barred. There is no question of complaint being barred by time as the Holiday Resort was never constructed at Bhimtal as agreed in the agreement and even the damage as agreed vide letter dated 18.05.1999 @ 18% were not paid.
The complainant was left with no alternative but to write letter dated 28.01.08 to OP which was received by OP on 31.01.2008. It is stated that 31.01.2010 was Sunday, accordingly the complaint was filed on 01.2.10 and the same is very much within limitation.
It is also stated in reply by OP that this Forum has no territorial jurisdiction to entertain the present complaint and only the Civil Court of Madras will have the jurisdiction to in case of dispute as there is an expressed Agreement between the parties. It is significant to note that OP was having its office at Nehru Place, transaction took place at Nehru Place branch office and the same is within territorial jurisdiction of this Forum hence this Forum has got the territorial jurisdiction to entertain the present complaint.
It is also stated in the reply that there is arbitration agreement between the parties and as such the present complaint it not maintainable. It is settled law that even if there is an arbitration agreement, that does not oust the right of the complainant to approach the Consumer Forum in respect of any deficiency in service. There is no question of entering into the agreement in respect of an apartment in Bhimtal if the appropriate approval regarding the construction of the same has not been received by the OP. It is a clear cut case of deficiency in service on the part of OP Even complainant has asked for shifting of his time share to Mussoorie or Goa even the same was not agreed.
OP is bound to refund Rs.78,500/- alongwith interest @ 9% p.a. from 01.01.1999. OP is also directed to pay Rs.5,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
