Order dictated by:

Sh.S.S.Panesar,President.

1. Mrs.Anjali Sharma complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that opposite party No.2 being manager at Amritsar of opposite party No.1 approached the complainant on 16.11.2014  and allured her to become member of their company on payment of Rs. 95000/- (Rs. 15000/- through ATM card and Rs. 80000/- by cheque drawn on PNB, Putligarh, Amritsar) and also allured her with so many benefits on becoming member of opposite party company scheme. On receipt of Rs. 95000/-  opposite parties told the complainant that her application number of year 10 season Blue unit type Studio. Opposite party No.2 also took signatures of the complainant on vacations agreement, which was printed one . Opposite party No.2 also assured the complainant that after getting the agreement  from opposite party No.1, he will return the same to the complainant or company will send the same to the complainant directly at the address of the complainant. At the time of execution of  said agreement , opposite party No.2 told the complainant that she will get benefits of :-

1. Stay for a period of every year for up to 6 nights and 7 days each year at CCIL, properties within India for the next (a) 5(b) 10(c ) 30 years from the date of the agreement.
2. As a special offer 10 years’ renewable vacations.
3. Membership care will be issued to my client.
4. In addition to the benefits a special privilege , vacations can book rooms at Dubai Hotel at a special rate.
5. On full one time payment online-one way Air Ticket vouchers towards for a couple within India.
6. DAE card will also be issued for exchange it with third party
7. Club membership with following benefits
8. The package includes (i) club membership (ii) access to entertainment, events and amusement facilities
9. Membership is valid for ten years
10. Free usage of CC fitness centre, swimming pool and others.
11. Member will be called at meetings by sending prepaid air tickets etc.

2.       On the allurements given by opposite party No.2, complainant became member of scheme of opposite party No.2 on payment of membership fee of Rs. 95000/-, thus complainant is consumer under the provisions of Consumer Protection Act. Opposite party has failed to comply the terms of the said agreement. Till date opposite parties have not delivered the original agreement containing all the terms and conditions and benefits . Opposite parties  by telephonically calls demanding another Rs. 5000/- from the complainant for balance amount which is not payable by the complainant as per the agreement. On 31^st December 2014, opposite party company had organized NewYear party at Celebration Resort at Amritsar but the complainant was not called or given any intimation card in lieu of member of the company. The complainant had approached the opposite party at their Amritsar office for the release of benefits of member of opposite party No.1 to the complainant  and also requested them to hand over the original agreement. But the opposite parties did not pay any heed to the legitimate requests of the complainant. Complainant also served a legal notice dated 4.3.2015 upon the opposite parties with the request to refund back membership fee of Rs. 95000/- alongwith interest, but opposite party have not bothered to refund the amount . The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite parties be directed to refund Rs. 95000/- alongwith interest @ 18% p.a. from the date of deposit till payment.
2. Compensation to the tune of Rs. 50000/- may also be awarded alongwith adequate litigation expenses be awarded to the complainant.

Hence, this complaint.

3.       Upon notice, opposite parties No.1 & 2 appeared and contested the complaint  by filing collective written version  taking certain preliminary objections therein inter alia that  present complaint is not maintainable as complainant has not come to the Forum with clean hands. The complainant wants to avoid a written contract by filing the present proceedings. The Complainant has acquired  a membership from opposite parties which was worth Rs. 1,20,000/- . The complainant has availed a discount of Rs. 25000/- and accordingly, she was allotted membership number as “CVAMSICLUB10LB187949”. Under this membership, she is eligible for availing 6 nights 7 days vacation every year for 5 years in Blue season.  The parties to the contract are governed by specific terms and conditions of the agreement .  The complainant has entered into a binding agreement which cannot be terminated unilaterally. The same has been provided  on the face of the application form submitted by her for getting enrolled in the said membership and has been incorporated under the Membership Agreement itself. The amount paid by the complainant is non refundable and not a deposit ; that by virtue of terms and conditions of the membership agreement, complainant herself has agreed to the jurisdiction at Hyderabad, hence, filing of consumer complaint at Amritsar is not permissible ; that the present complaint ought to be dismissed also for the reason that the complainant is bound by the Arbitration clause in the agreement (clause 44 of the membership agreement) which is reproduced hereunder  for ready reference:-

“It is agreed between the parties that in the event of any dispute, claims or defences arising under the agreement….. the second party may adjudicate the dispute by way of sole arbitrator alone as per the provisions of Arbitration and Conciliation Act 1996 and amendments thereof by the Arbitrator to be appointed by the First party/authorized representative. The seat of arbitrator shall be at Hyderabad alone.”

4.           On merits , it is submitted that members is eligible for only those benefits which are mentioned in the membership agreement. The member has opted for  club plus vacation membership wherein she is eligible for club membership and access to entertainment, events and amusement facilities alongwith availing  six nights and seven days vacation every year for 10 years. However, the member is not eligible for DAE card or air ticket voucher, since it is clearly mentioned in clause 19 and 20 that only the members holding 30 years membership are eligible for these facilities. Further under clause 37 and 35, the member has acknowledged that the agreement supersedes communication, if any, made by the sales representative and that the member is eligible for only those benefits which are mentioned in the agreement. The original agreement was handed over at the time of payment of membership fee . However, the complainant has acquired a membership which is worth Rs. 1,20,000/-. The complainant has availed a discount of Rs. 25000/- and remaining amount of Rs. 95000/- was paid by her. Accordingly , she was allotted a membership No. CVAMSICLUB10LB187949. She is eligible for availing 6 nights and 7 days vacation every year for 10 years in blue season. The parties to the contract are governed by specific terms and conditions of the agreement. The amount paid by the complainant is non refundable and not a deposit. Remaining facts mentioned in the complaint have been specifically denied and a prayer for dismissal of complaint was prayed.

5.       In his bid to prove the case Sh.Sumit
Sharma,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, copy of purchase agreement for club and vacation membership Ex.C-1, Copy of letter dated 12.9.2014 Ex.C-2, copy of legal notice Ex.C-3, postal receipt Ex.C-4 and closed the evidence on behalf of the complainant.

6.       On the other hand Sh.Rajdeep Sood,Adv.counsel for the opposite parties tendered into evidence affidavit of sh.Bharat Reddy, Legal Officer Ex.OP1,2/1, copy of purchase agreement Ex.OP1,2/2, copy of receipt  Ex.OP1,2/3, copy of authorization letter Ex.OP1,2/4, copy of receipt Ex.OP1,2/5 and closed the evidence on behalf of opposite parties No.1 & 2.

7.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the complainant.

8.       On the basis of the evidence on record, ld.counsel for the opposite parties has vehemently contended that  complainant Anjali Sharma purchased  a membership from opposite parties worth Rs. 95000/-  after availing a discount of  Rs. 25000/-. The complainant was thus eligible for  availing 6 nights 7 days vacation every year for 10 years in Blue season alongwith club membership. Purchase agreement for club and vacation membership  Ex.OP1,2/2 has various terms and conditions which are binding on both the parties. The agreement has been duly signed by the complainant at her own freewill. As such the complainant cannot wriggle out from the terms and  conditions of the contract/agreement in dispute. Reliance in this connection has been placed upon “Grasim Industries Vs. M/s. Aggarwal Steel 2010(1) SCC 83 wherein it has been laid down by the Hon’ble Supreme Court that in our opinion when a person signed a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signatures on a document  can ever be accepted. The complainant was  made aware of the Vacations Agreement wherein in clause I under the heading “Vacation Benefits”, she was entitled to holidays in CCIL (Country Club India Limited) properties within India for 6 nights 7 days every year.

9.       Not only that contention of the complainant that on 31^st day of December, 2014, opposite party company had organized New year party at Celebration Resort at Amritsar but the complainant was not called or given any invitation card in lieu of member of the company. In this regard it is submitted that no separate invitation cards were to be sent to the members. The list of events and the cards can be collected from any of the nearest branch office or from the club.  Further contention of the complainant that  opposite party No.1 has not given the benefits of the scheme to the complainant and have voluntarily violated the terms of the agreement. In this regard it is submitted that  every member has been provided with the membership number and log in ID and password for booking the holidays, however, it is the complainant who has never taken any steps for availing the holidays. The original agreement was handed over the complainant .The complainant did not  bring to the attention of the court the express clause under the vacation agreement which states that “The vacation charges is non refundable under any circumstances and the vacation fee is not a refundable deposit”. In such a situation, the claim of the complainant that she is entitled to refund of vacation charges as well as fee , is not tenable.  The membership  fee is also non refundable  under any circumstances. Therefore, complainant can claim only compensation in case she proves unfair trade practice or deficiency in service but she cannot claim the refund of a non refundable amount as agreed to  by her. In  the case in hand, complainant has failed to prove that any deficiency in service or unfair trade practice has been practiced upon her and in such a situation,  she is not entitled to the relief prayed for .  All the allegations made by the complainant are merely oral and without any proof. Therefore, those cannot be relied upon  to prove the deficiency in service on the part of the opposite parties. Reliance has been placed upon Sanjib Kumar Dey Vs. Chabbi Dey 2015(4) CPR 584 (NC) wherein it has been held that it is difficult to fathom without written proof how reliance can be placed on the oral submission of the  complainant. The documentary evidence will always get preponderance over the oral evidence because it is well known axion of law that ‘ men may tell lies but  the documents cannot ‘- Further the case of the complainant must  stand on its own legs.

10.     On the basis of the aforesaid contentions , ld. Counsel for the opposite parties has vehemently contended that complainant has failed to make out a case for grant of reliefs claim  vide instant complaint. Therefore, complaint being false and frivolous is liable to be dismissed with cost.

11.     But, however, from the appreciation of the evidence on record, it becomes evident that the opposite parties are deficient in service. The contract agreement vide which the complainant obtained membership of the Country Club India Ltd, has been admitted by the opposite parties.  It is also an admitted fact that the complainant deposited a sum of Rs. 95000/- on 16.11.2014 for becoming the member of the club. It is also an admitted fact that complainant was entitled to  holidays in India as well as Abroad for 6 nights 7 days in a year for 10 years. The contention of the complainant that on 31^st day of December, 2014, opposite party company had organized New year party at Celebration Resort at Amritsar but the complainant was not called or given any invitation card in lieu of member of the company and also did not provide original agreement to the complainant. This shows that opposite parties are deficient in service. Facts of the case in hand attract to the ratio of law laid down in Harsharan Singh Versus Country Club India Limited & others  decided on 1.4.2015  by the Hon’ble State Commission, Chandigarh, wherein it has been held that complainant is entitled for the refund of Rs. 80000/-  which he paid to the opposite parties alongwith interest @ 9% per annum which would cater for compensation on account of harassment and mental agony, suffered by him because of deficiency in rendering service, on the part of the opposite parties.”. It was also held by the Hon’ble National Commission, New Delhi in case titled “Country Club Versus Nirmal Kumar Pandey”  vide order dated 22.4.2014 that  consumer can seek compensation when club and resort membership turned out to be illusory. At the time of execution of the agreement between opposite parties and the complainants, two copies of the agreement were prepared. Opposite party No.1 provided the photocopy of the agreement to the complainants and it was told to the complainants that the original agreement will be dispatched at their address through opposite party No.2. But no such original agreement  was ever supplied by opposite party No.2 to the complainant. At the time of execution of the agreement Ex.C-1, it was agreed between the parties that complainants  will be eligible for life time club and fitness benefits.  However, the opposite parties have not provided any club facilities to the complainants till date  . It is settled principle of law that in case, two plausible views were available, under given set of facts, the court shall be obliged to the view which was favourable to the consumer. Reference in this regard can be had to “Kulwinder Singh Versus LIC of India “ 2007(1) CLT 303 (Punjab) wherein it has been held that “where two views are possible, the one, which favour the consumer should be taken” .

12.     On account of unfair trade practice being carried out  by the opposite parties  for not providing  the facilities as agreed by opposite parties to the complainants, the complainants  have suffered  a great mental pain, agony,  harassment at the hands of the opposite parties. Act & conduct of the opposite parties amounts to gross  negligence, carelessness , deficiency in service and unfair trade practice and the complainants are required to be compensated in accordance with law. In our considered view the complainants are entitled to refund of the total fee amount of Rs. 95000/- alongwith interest @ 9% p.a. from the date of order until full and final recovery. Cost of the litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainants shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum                                  

Dated : 6.10.2016                                                         

/R/