BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^rd DAY OF DECEMBER 2021

Complainant/s: -                           

Dr. Divyananda.K.,                      S/o K.Ekanthaiah, aged about 65 years, Residing at No.585, 2^nd Cross, 2^nd Phase, Rajajinagar Housing Co-operative Society, Neear Venkata Public School, Srigandhadakavalu, Bengaluru-560091.

By Adv.Vittala Shetty.P

V/s

Opposite party/s:-    

1. M/s Country Club (India Ltd., CCIL), Amrutha Castle, 5-9-16, Sarfab, Opp. Secretariat, Hyderabad-500063, Represented by its Managing Director.
2. The Country Club (India) Ltd., No.675, 9^th A Main, Indiranagar, 1^st Stage, Bangalore-560038, represented by its Secretary.

By Adv.Sri.D.Narasegowda

ORDER

SMT. P.K.SHANTHA, MEMBER

The Complainant has filed this complaint U/s.35 of Consumer Protection Act 2019, seeking direction against the Opposite Parties (herein after called as OPs) with a prayer to direct the OPs to refund Rs.50,000/- together with interest at 24% p.a. from 06.01.2015 to till its realization, direct the OPs to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) towards damages for caused deficiency in service, unfair trade practice and causing mental agony in the interest of justice and equity.

2. The brief facts of the complaint are as under:

OP No.1 had floated fabulous scheme by inviting public to gets membership in the OP by publishing colourful brochures.  OP No.1 stated in its brochures that the person who gets membership in the OP club would be provided with club membership together with access to entertainment, events and amusement facilities.  The OP had stated that the membership is valid for lifetime and same is renewable subject to payment of annual maintenance charges.  It was also assured that as on 2014 the OPs have over 40 own/leased country club’s and country club fitness in India  all over major cities in India along with the club fitness centers, swimming pools and other services, where these facilities and services are available for the member’s family from the date of agreement. Lured by the attractive brochures of OP No.1,the complainant thought it would be a wise choice to get a membership in the OP club and decided to get the membership in the OP No.1 club.

To get a membership in the OP No.1 club, allocation NO.103191 was provided to the complainant.  Along with the application, a sum of Rs.50,000/- (Rupees fifty thousand only) was paid by the complainant to the OP No.1 through cheque bearing No.595073 drawn on State Bank of India, C.V.Raman Nagar Branch, Bengaluru dated 31.12.2014.  Upon realization of the said sum, the OP had executed club membership purchase agreement dated 06.01.2015 and vacations agreement dated 06.01.2015 and one more club membership purchase agreement with the complainant.  After execution of the aforesaid documents and realization of the membership amount, the OP has issued only two membership card for complainant and his wife.  However, the OP has failed to issue membership card to his two daughters.  Several times the complainant reminded one Mr.Kumar of Marketing Division of OP No.2 to facilitate the membership card to his two daughters as promised.  On such requests and reminders to issue membership card to his two daughters, the OP No.2 has collected documents pertaining to his two daughters for more than four times but failed to issue the membership card till today. The complainant opted for the membership of the OP club on the fond hope that complainant along with his family members would utilize the recreation facilities as stated in the brochures of OP, since the complainant has been travelling most of the times to various destinations throughout the country.  Upon getting registered for membership, complainant and his family members have planned to visit different parts of India to spend spare time in leisure by utilize the recreation facilities as stated in the brochures of the OP.  For more than five years, complainant and his family members have missed such an opportunity that was on account of the deficiency in service of the OP.  Despite of bringing to the knowledge of OP, the OP has simply suggested the complainant to provide address proof, identify proof etc., belonging to his two daughters and on receipt of the same, the OP has failed to issue membership card along with relevant documents enabling to the complainant to utilize the facilities provided in the OP club.

After the realization of the said cheque amount of Rs.50,000/-, the OP has failed to provide membership card to the daughters of the complainant enabling them to utilize the club membership as provided in the OP brochures.  On several times, the complainant has been to the office of the OP No.2 and all his personal visits to the OP No.2 and getting further information regarding his two daughters membership as shown in club membership purchase agreement has not yielded any fruitful results.  After receiving the entire membership amount, the OPs have not done anything in favour of the complainant.  Based on the attractive publication and colourful versions of the OP, complainant has invested his hard earned money on the fond hope that the complainant would enjoy the recreation facility together with his family.  On the fond hope that he would enjoy the recreation facility together with his family members.  After waiting for considerable time, the complainant caused a legal notice to the OP dated 23.01.2020.  The said notice duly served on the OP No.1 on 27.01.2020 and the notice sent to OP No.2 has been returned with postal shara “left” as per the returned postal envelope dated 28.01.2020.  Hence, the complainant left with no other alternative approach this Commission seeking appropriate relief for his grievance.

3. After registration of the complaint, notices issued to OPs.  OP Nos.1 and 2 appeared through the counsel and filed the version.

The sum and substance of the version as follows:-

The OP in its version submits that the complaint filed by complainant is not maintainable either in law of facts, there is no cause of action, complaint is vague, bald and devoid of merits, hence, liable to be dismissed on this grounds.  Further OP submits that entire averments made by complainant are categorically and specifically denied as false and incorrect, except which are admitted by the OPs.  Further OP submits that complainant requested OP to do all the necessary documentation work required for admitting them as the members of the Country Club Hospitality and Holidays Limited.  Upon the said request, the OP explained to the complainant regarding the different holiday packages offered by OP and further gave the copy of purchase agreement for Country Club Hospitality and Holidays Limited (hereinafter referred to as the purchase agreement).  The next day i.e. 06.01.2015, the complainant came back to the office of OP and told that they have thoroughly read and understood all the terms and conditions of the purchase agreement and were interested to become the member of Country Club Hospitality and Holidays Limited through OP for which OP has received Rs.50,000/- (Rupees fifty thousand only) towards the holiday vacation membership. In terms of purchase agreement, the complainant is entitled for holiday vacation for 6 nights 7 days in a year for a period of 5 years and mandatory annual administrative charges (AMC)due Rs.21,000/- yearly, irrespective of usage of facilities, the membership is accepted subject to terms and conditions. That apart the complainant was provided to access the website through online by giving ID and password and also complimentary Spa coupons and one day privilege pass holiday gift voucher was given to complainant. 

Further OP submits that OP issued the temporary card.  The complainant has not bothered to furnish the photos of himself and the spouse so as to issue the laminated membership cards.  In fact in this regard, the OP issued a letter and phone calling upon the complainant herein to furnish the photos of himself and spouse and birth certificate if any.  The OP is always ready and willing to provide the laminated/permanent membership card subject to furnishing of the photos and birth certificate as stated above.  In spite of that the complainant without furnishing the photos and birth certificate has filed the false and frivolous complaint before this court with the ulterior for wrongful gain and nothing else.  The OP further submits that they are providing best services in their field without any blemish and even in the complaint there is no iota of evidence.  But the complainant suppressing the true facts and filed the above false and frivolous complaint against OP.  The complainant entered into purchase agreement dated 06.01.2015 with this OP, Clause No.10 and 17.  In terms of the agreement conditions clause, the membership fees is not refundable deposit and not an investment, the membership fee is not refundable under any circumstances.  In terms of the agreement herein no provision for cancellation of the club membership.  However, the complainant is at liberty to sell or transfer or gift the club membership to any third party.  In spite of that, the complaint for the reasons best known to him has filed the above false and frivolous complaint.

The complainant is not entitled for refund of amount and paying interest thereon does not arise and there is no cause of action.  In fact the complainant has not paid the annual maintenance charges for the ten years and in order to escape from the said payment, has filed this false and frivolous complaint and OP has not rendered any deficiency of service.  Hence, on these grounds and other grounds, OP pray for dismissal of the complaint with exemplary costs.  .

4. To substantiate the case, Complainant has filed his affidavit evidence and produced the documents which are marked as Ex.A.1 to Ex.A.8. OP has also filed affidavit evidence.  The complainant has filed written arguments. Heard the counsels for both sides.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?
2. What order?

        6. Our answers to the above points are as under:

Point No.1:- Partly in the affirmative

Point No.2:- As per final order        

REASONS

7. Point No.1: We have perused the facts of the complaint, the documents produced by the complainant and the version filed by the OPs.  OPs in their version submits that the complaint is not maintainable either in law or on facts.  The complaint is vague, bald and devoid of merits and also the entire averments made in the complaint are categorically and specifically denied as false and incorrect.  The briefly stated the contents of the complaint as well as the version filed by OPs.  OPs in their version submits that the complaint is not maintainable either in law or on facts.    The complainant has thoroughly read and understood all the terms and conditions of the purchase agreement and entered into purchase agreement dated 06.01.2015.  Further OPs are always ready to provide package to the complainant but there should be 30 days in advance booking to be made to make necessary arrangements, club membership is for life time and it is transferable to their family members.  Though the complainant deposited Rs.50,000/- to the OPs through cheque bearing No.595073 drawn on State Bank of India, C.V.Raman Nagar Branch, Bengaluru dated 31.12.2014 and get a membership in the OP No.1 club, allocation No.103191 was provided to him and upon realization of the said sum, the OP had executed club membership dated 06.01.2015.  The agreement dated 06.01.2015 and one more club membership purchase agreement. The complainant requested to facilitate the membership card to the two daughters of the complainant and the OP has issued only two membership card to the complainant and his wife.  The OP has intentionally and deliberately failed to issue membership card to the two daughters.  The membership application, receipt for Rs.50,000/- club membership, purchase agreement and vacation agreement produced and marked as Ex.A.1 to Ex.A.4.

8. Though the complainant approached OPs personally and requested OPs to facilitate the membership card to the two daughters of the complainant.  However, OPs have failed to issue membership card to his two daughters as promised.  Though the OP has collected documents pertaining to his two daughters more than four times failed to issue membership card till today.  Despite of bringing to the knowledge of OP, the OP has simply suggested the complainant to provide address proof, identity proof etc., belonging to his daughters and on receipt of the same, the OP has failed to issue membership card along with relevant documents enabling to the complainant to utilize the facilities provided in the OP club.

9.  After realization of the cheque amount of Rs.50,000/-, the OP has failed to provide membership card of the complainant enabling them to utilize the club membership as provided in the OP brochures. On several times, the complainant has been to the office of the OP No.2 and all his personal visits to the OP No.2 and getting further information regarding his two daughters membership as shown in club membership purchase agreement and not yielded any fruitful results.  After receiving the entire membership amount, the OPs have not done anything in favour of the complainant.  After waiting for considerable time, the complainant caused a legal notice to the OP dated 23.01.2020.  The said notice duly served on the OP No.1 on 27.01.2020 and the notice sent to OP No.2 has been returned with postal shara “left”.  As per the returned postal envelope dated 28.01.2020, the said legal notice dated 27.01.2020 and postal acknowledgement envelope produced and marked as Ex.A.5 to Ex.A.8. 

10. After receiving entire membership amount, the OPs have not done anything in favour of the complainant.  Based on the attractive publication and colourful versions of the OPs, complainant has invested his hard earned money on the fond hope that he would enjoy the recreation facility together with family members in his retirement age.  After realization of the membership amount from the complainant, the OPs have failed to keep up its promises.  The OPs have fraudulently induced the complainant that it would provide all kind of membership benefits to the complainant and his family members and dishonestly cheated the complainant without arranging anything after collecting Rs.50,000/- (Rupees fifty thousand only). Hence, OPs have not only caused unfair trade practice but also deficiency in service besides committing breach of promise, breach of agreement with the complainant.  In spite of service of legal notice, OPs have failed to settle the claim of the complainant.

11. In this context, we place the reliance on the decision of Hon'ble National Commission reported in 2019 (I) CPR 647 (NC) in the case of Chief in-charge of M/s Country Vacations and Ant. Vs. Jayanti Mukherjee, wherein it is held that “no amount can be retained by the service provider without offering any service”. In the light of the above decision, we come to the conclusion that the OP has not given proper service.  Hence, complainant is entitled for refund of amount of Rs.50,000/ which was paid by him.  OPs are liable to refund the same with interest and litigation cost.  The complainant has successfully proved the deficiency of service.  Hence, we are of the considered view that OPs are directed to refund Rs.50,000/- (Rupees fifty thousand only) to the complainant with interest at the rate of 8% p.a. from the date of periodical payment till realization with litigation cost of Rs.5,000/- (Rupees five thousand only). Accordingly we answered point No.1 partly in the affirmative.

  12. Point No.2: In the result, we passed the following:         

O R D E R

1. The complaint filed by the Complainant is allowed in part.

2. The OPs are jointly and severally directed to pay Rs.50,000/- (Rupees fifty thousand only) with interest at the rate of 8% p.a. from the date of periodical payment till realization to the Complainant along with litigation cost of Rs.5,000/- (Rupees five thousand only) within six weeks from the date of receipt of this order. 

3. Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 23^rd day of November, 2021).

Copies of Documents produced by the Complainant which are marked as Ex.A.1 to Ex.A.8: