Date of Filing:18.02.2009<br /> Date of Order: 09.12.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 09TH DAY OF DECEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 427 OF 2009<br /> <br /> 1. Ravi Raman<br /> S/o. T. Krishnappa<br /> <br /> 2. Veena Raman<br /> W/o. Ravi Raman<br /> Both are residing at No. 194<br /> Ground Floor, Sankey Road<br /> Sadashivanagar<br /> Bangalore 560 080 Complainant<br /> V/S<br /> 1. M/s. Club Mahindra<br /> Corporate and Registered Office at<br /> Mahindra Holidays and Resorts<br /> India Ltd., Mahindra Towers<br /> 2nd Floor, 17/18, Pattullous Road<br /> Chennai 600002<br /> Rep. by its Chairman and MD<br /> <br /> 2. M/s. Club Mahindra<br /> Rep. by its Manager<br /> Pavan Reddy, No. 18/4<br /> 1st Floor, Saleh Centre Annexure<br /> Cunningham Road, Bangalore 560052<br /> <br /> 3. M/s. Om Marketing<br /> Rep. by its Manager Shekar & Jalan<br /> UG-27/28, Indralok Shopping Complex<br /> Piplod, Surat 395007, Gujrat Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that second complainant is the wife of first complainant. The complainants purchased club Mahindra Holiday Time share along with membership. Opposite parties have made offers to free trip to Malaysia. Opposite party No. 2 informed the complainant that opposite party No. 3 is their travel agent. Complainant approached opposite party No. 3 for organizing free trip to Malaysia. opposite party No. 3 sent a tour plant to the complainant with the costs he had to pay for the free trip a sum of Rs. 41,400/-. The terms and conditions of opposite party No. 3 were not in accordance with the terms and conditions of opposite party No. 2’s letter. Virtually it was not free trip at all. Opposite party No. 2 has coloured the offer of a free trip but it was not the free trip at all. Opposite parties virtually attempted to make unlawful gain by deceptive methods by falsely alleging trip as a free trip by misleading public. Opposite parties by deceitful method have collected money for the time share membership with offer of free trip. But, failed to provide a free trip in accordance with their terms of offer. Complainants being unhappy wrote a letter to cancel the membership. Opponents have committed breach of contract. Hence, they are liable to refund the amount paid by the complainants. Complainants have paid initial deposit towards membership Rs. 38,922/-. Thereafter, 10 monthly installments of each installment of Rs. 6,308/- was paid. Total amount paid by the complainants are Rs. 1,02,002/-. Opposite parties failed to comply the demand. The refusal of the opposite parties is unlawful and illegal. Opposite parties have caused physical and mental cruelty to the complainants. Legal notice was issued but opposite parties did not give any reply to the notice. Hence, the complaint against opposite parties for refund of amount with interest and compensation.<br /> 2. Opposite parties No. 1 & 2 appeared through counsel. Opposite party No. 3 has not appeared before this fora. No claim against opposite party No. 3. Therefore, the opposite party No. 3 has not appeared. Opposite parties No. 1 & 2 have filed defence version stating that complaint is not maintainable either in law or on facts. The disputes and differences arising out of transaction shall be settled as per Arbitration and Conciliation Act, 1996 and the venue of such Arbitration shall be Chennai City only. Civil Courts in Chennai City shall have jurisdiction to the exclusion of all the other courts. The complainants do not come under the definition of consumers. Present complaint is nothing more than a suit for recovery of money from the opposite parties. Consumer Protection Act cannot be used as a substitute for a suit for recovery of money. The opposite parties No. 1 & 2 admitted that complainants had paid the Down Payment (DP) of Rs. 38,922/- + 10 EMI totalling Rs. 63,080/- and granted membership No. 350627. The opposite parties have not offered this free trip as a gift to the complainant. Even if it is offered, it is not free totally as the taxes and other applicable charges are liable to be paid by the parties. The amount of interest claimed is exorbitant and hypothetical. Absolutely there is no physical or mental cruelty caused by this opposite parties to the complainants. In the reasons stated above prayed to dismiss the complaint with costs.<br /> 3. First complainant has filed his affidavit evidence. On behalf of opposite parties’ Sumathi Mohan, authorised signatory has filed affidavit evidence. Respective parties have filed documents. <br /> 4. I have gone through the pleadings of parties, Affidavit evidence and also documents.<br /> 5. In the light of the arguments advanced before us the following points arises for consideration:<br /> 1. Whether this forum has jurisdiction to entertain the complaint to decide the issues between the parties on account of Arbitration clause under the agreement?<br /> 2. Whether the complainants are proved deficiency of service on the part of opposite parties No. 1 & 2?<br /> 3. Whether complainants are entitled for refund of Rs. 1,02,002/- paid to the opposite parties No. 1 & 2?<br /> 4. Whether the complainants are entitled for interest?<br /> 5. Whether the complainants are entitled for compensation?<br /> 6. By the pleadings of the opposite parties it is admitted case that the complainants have paid Rs. 38,922/- as down payment and it is also admitted that complainants have paid Rs. 63,080/- by way of 10 EMI. These payments made by the complainants have been admitted by the opposite parties clearly in the defence version. It is the case of the complainants that the opposite parties offered them free trip to Malaysia as per the brochure and advertisement. Believing the offer of free trip to Malaysia the complainants have paid the amount and became members of the opposite parties. The complainants have produced certificate of membership. The complainants have also produced letter of opposite parties wherein it is stated that gift voucher for three night trip to Malaysia for a couple has been sent to the complainants as part of their entitlement upon successful enrollment with Club Mahindra. The complainants have also produced Malaysia Package sent by the opposite parties. It is the case of the complainants that when they approached the travel agent as per direction of opposite parties, travel agent demanded Rs. 41,400/- for the Malaysia trip. Therefore, the complainant submitted that opposite parties have attempted to make unlawful gain by deceptive methods by falsely alleging the trip as free trip to Malaysia and offer is misleading and deceitful method. Therefore, the complainants are unhappy and dissatisfied with the attitude of the opposite parties and cancelled the membership and demanded refund of the amount paid to the opposite parties. The main defence taken by the opposite parties are that there is Arbitration clause in the agreement. Therefore, any dispute between the members and club shall be settled as per the provisions of Arbitration and Conciliation Act. Therefore, the learned advocate for the opposite parties argued that the present complaint filed before this fora is not maintainable. The said argument of the learned counsel for the opposite parties cannot be accepted. No doubt there is Arbitration clause in the agreement entered into between the parties for settlement of disputes and differences. But the said Arbitration Clause will not take away the jurisdiction of the Consumer Forums. Consumer Protection Act is a social and benevolent legislation. It has been enacted by parliament of India to safe guard the interest of consumers. The Honb’le National Commission in a case between Cholamandalam DBS Finance Ltd. Vs. Kishore Jain I (2008) CPJ 214 (NC) it has been held as under:<br /> “Jurisdiction – Arbitration – Hire Purchase Agreement – Additional remedy provided under C.P. Act – Jurisdiction of Fora not ousted by arbitration clause in agreement. (R.P. disposed of)<br /> Held that, the first plea taken by the petitioner is that in view of the provision for ‘arbitration in the hire-purchase agreement’, this Consumer Fora has no jurisdiction. It is made clear that in view of the settled position of law, that Section 3 of the CPA, 1986 clearly stipulates that this is an ‘additional remedy’ hence this is consistently held by this Commission that it is for the party to decide as to which option to exercise?”<br /> 7. So in view of the above authority of law it can simply be held that because of Arbitration Clause the jurisdiction of the District Fora is not ousted to decide the issue. As regards the payment is concerned absolutely there is no dispute between the parties. The opposite parties have clearly admitted and accepted the payment made by the complainant. It is also admitted fact that complainants have not availed any service from the opposite parties. Therefore, the opposite parties cannot retain the amount without giving any service to the consumers. The complainants have cancelled the membership and they requested the opposite parties to refund the amount paid by them. The complainants have also got issued legal notice demanding refund of the amount. In spite of the notice opposite parties No. 1 & 2 have not refunded the amount. Therefore, the complainants are forced to file the complaint before this fora. Even under the terms and conditions of the membership rules the opposite parties are bound to refund the membership fee in the event of withdrawal of membership by the party. The opposite parties shall refund the entire amount received from the members towards membership fee within 30 days of receipt of request for withdrawal. Since, the opposite parties No. 1 & 2 having committed deficiency in service and complainants having not availed any service from the opposite parties, complainants are entitled for refund of amount paid towards club Mahindra Holiday. So taking any view of the matter and on the facts and circumstances of the case it is just, fair and reasonable to direct the opposite parties No. 1 & 2 to refund Rs. 1,02,002/- to the complainants. Complainants No. 1 & 2 are the husband and wife respectively. In the case of joint application refund shall be made to the first applicant i.e. complainant No. 1 Ravi Raman. The complainants have claimed damages. But there is no scope to grant any damages to the complainants in this case. The complainants have claimed 18% interest on the amount paid by them. However, on the facts of the case just, fair and reasonable rate of interest can be granted on refund amount. In the result I proceed to pass the following:<br /> ORDER<br /> 8. The complaint is allowed. The opposite parties No. 1 & 2 are directed to refund Rs. 1,02,002/- to the complainants within 30 days from the date of this order. The complainants are also entitled for interest at 9% p.a. on the above amount from the date of filing of complaint till payment / realisation.<br /> 9. The complainants are also entitled for costs of Rs. 2,000/- from the opposite parties No. 1& 2.<br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. Pronounced in the Open Forum on this 09TH DAY OF DECEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />