Date of Filing: 11-01-2016

                                                                                 Date of Order:  09 -10-2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD

P r e s e n t­

   HON’BLE Sri P.VIJENDER, B.Sc. L.L.B.  PRESIDENT

HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER

Wednesday, the  9^th day of October, 2019

C.C.No.43 /2016

Between

1. Smt.Saheen Sultan

W/o.Mazhar Khan, age: 55 years,

Occ: Housewife

2. Mazhar Khan S/o.Age : 60  years, Occ: Doctor,

Both R/o.102, Yashwardhan Heritage,

Yogendranagar Nagpur                                       ……Complainants

And        

M/s. Country Vacation

Division of Country club India Limited,

Rep. by its Managing Director,

Having its office at 5-9-16

Amruta Castle, Saifabad,

Opp: Secretariat, Hyderabad – 500 061                                ….Opposite Party

Counsel for the complainants        :  Mr.K.Mohan

Counsel for the opposite Party      :  Mr.V.Sreenivasa Rao

O R D E R

(By Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)

            This complaint has  been preferred under Section 12 of C.P. Act  1986 alleging  that  refusal  to refund the amount collected towards membership fee from the complainant  by the  opposite party amounts to unfair trade practice hence a direction to opposite party to refund the same with interest at  24% P.A from  25-12-2011 and to award a compensation of Rs.50,000/- for causing mental agony  and anxiety to the complainant  by refusing to refund the said amount.

1. The complaint averments in brief are that  the executives of  the opposite party approached the  complainant  and offered  vacation homes  promising  that the opposite party  will provide boarding and lodging  facility at any place  in India and abroad  at any time.  Due to said  inducement by the said  representations  the complainant  agreed to became a member and  paid Rs.62,000/- on 25-12-2011 and on the same day  entered into an agreement  with the opposite party.  Thereafter the complainant visited  Ajmer and Saudi Arabia  after due   intimation  to the opposite party to provide accommodation and other facilities.  But opposite party intimated that they have no facilities in the  said locations and having  heard it the complainant went to shock.  Thereafter the complainant  after enquiries learnt that  the promises made by the  executives of the opposite party  for admitting  him into the membership are all false  and opposite party got its facilities at limited locations only.   In the meanwhile the opposite party demanded  him to pay a sum of Rs.9,000/- per annum towards service charges   which was not told to him  when the executives have introduced the  scheme to him.  Hence the complainant  asked the opposite party to cancel the membership and refund the amount of Rs.62,000/- with interest and addressed a letter to that effect on 13-12-2015  but there was no response for it. Hence he got issued a legal notice on 25-11-2015 and having received  it  the opposite party neither  gave a reply nor complied the demand.   The opposite party having collected Rs.62,000/- with false promises failed  to provide facilities the same and illegally demanded Rs.9,000/- per annum  towards annual maintenance charges which is unfair trade practice.  Hence the present complaint. 
2.  The opposite party filed a detailed written version admitting collecting of Rs.62,000/- from the complainant towards membership fee but denied the rest of the complainant’s version. The stand of the opposite party is that it is a leading club and providing  hospitality and Holidays  to its  members  having  facilities  in  four countries  and it owned  53 properties , 25 fitness centres  and 42 associated resorts  and also involved in CSR activities  such as  blood donation camps  in association  with Red Cross,  supporting child rights by sponsoring books  and school uniforms, food and other  requirements. It is in the  market  for the past 25 years and it has   given man power  and training  the customer  care and reservations staff etc. 

           The complainant became member by  executing a purchase agreement  on 25-12-2011 in respect of   time share for a period  of five years   for  Apartment  type  studio  for Blue Season  domestic.  The said agreement  was entered at Nagpur  in the State of Maharastra under the agreement .  The complainants are entitled for accommodation  once in a year for period of one week i.,e six (6) nights and seven(7) days of  four consecutive years at its properties and Srilanka.  The complainant paid Rs.62,000/- towards membership fee and liable to pay Rs.6,000/- as  annual maintenance charges to the club and for Studio. As per the  terms and agreement  of the membership the fee  paid is non-refundable under  any circumstances as it is not a deposit. 

            The complainant  having become a member of the club  it for him to utilize  the facilities.   No one on behalf of the  club informed the complainant to provide him an accommodation either at Ajmir or Saudi Arabia.  Complainant was also not asked to pay Rs.9,000/- towards annual maintenance charges. Since the complainant  did not request  to provide accommodation and other facilities  the question of deficiency of service does not arise.  Since the membership fee is non refundable the complainant is not entitled to seek  refund of the same.  The reliefs  sought by the complainants are  of civil nature hence he  should approach  the Civil Court  by way of  a suit.  The agreement was entered at Nagpur in the  State of  Maharastra as such   cause of action arose at Nagpur and the complainants cannot seek jurisdiction  of this Forum  on the  Territorial aspect. Hence the complainant is not entitled for the  reliefs prayed for. 

                In the enquiry  the first complainant has got  filed her evidence affidavit reiterating the substance of the complaint and  to support the same  she  got exhibited copies of agreement with the opposite party, letter addressed to  opposite party on 6-7-2015 and copy of legal notice as A1 to A3.      Similarly for the  Opposite Party  evidence affidavit  of  Sri C. M.Sridhar  stated to be Asst. Manager of Country Club Hospitality  & Holidays  is got filed  and the substance of the  same is in line with  defense taken  in the written version.  Through  him the same purchase agreement  is exhibited as B1.   Both sides have filed written arguments. 

            On a consideration of material available on the record the following points have emerged for consideration .        

1. Whether the opposite party is justified  in refusing to refund the amount collected from the complainant  towards membership fee ?
2. Whether the complainants are entitled for the refund of  amount  and also compensation  prayed for ?
3. To what relief?

Point No.1:  Payment of Rs.62,000/- by the complainant  to the opposite party and execution of  agreement under Ex.A1/B1  are not in dispute.  The case of the complainant is  that they were  induced by the  opposite party to become members  as opposite party club provide accommodation and other  hospitality facilities  not only in India but also Abroad once in a year and  believing the same they paid an amount of Rs.62,000/- and signed it Ex.A1/B1 agreements. Whereas the stand of opposite party is no one induced the  complainant to become a member by paying a sum of Rs.62,000/- and infact the complainants  having impressed  with the facilities  and hospitalities  being offered by the opposite party club came forward  to become members and singed on Ex.A1/B1 agreement. It is also  the stand of the opposite party club  that the amount of Rs.62,000/- paid by the complainant is towards membership fee and not a deposit hence the question of refunding  the amount does not arise.  

            Another stand  of the opposite party is complainant never sought for the facilities  hence the question of not responding to his request  did not arise and there is no deficiency of service. 

            A cursory look into Ex.A1/B1 agreement shows that it is conclude contract between the parties and as rightly pleaded by the opposite party  the amount collected towards membership fee is non-refundable  under any circumstances.  At page No.3 of Ex.B1 agreement   there is a declaration to the effect that the parties  have confirmed and gone through the terms and conditions the    aforesaid mentioned  and  membership  benefits / obligations understood the same and signed in token of accepting.  Though  the signature of the  1^st complainant  and authorized person of opposite party are available  the  column relating to name and father’s  name of the signed are not filled up  hence  it cannot be said that the complainant  understood  the contents and agreed for the  terms and conditions  corporated  in this agreement Ex.A1/B1.   When the complainant  specifically pleaded that they were induced by the  executives of opposite party with false promises a mere  denial of the said aspect itself is not sufficient  for the opposite party.  The opposite party nowhere stated that  it has no executives to enroll the persons as members in the club.  The affidavit of the authorized person who signed Ex.A1/B1 agreement on the date of  execution is not filed. The person who signed the written version and evidence affidavit  is not the person who signed Ex.A1/B1 agreement on behalf of opposite party. It is  incumbent upon the  executive or signatory  of Ex.B1 on behalf of opposite party  to speak as to what actually transpired  on the date of collecting of Rs.62,000/-  from the complainant  and obtaining  of their signatures  on this agreement.  On behalf of the opposite party Mr. Waseem  signed   Ex.A1 agreement  but the column relating to his designation, father’s name and other particulars are left blank at page No.2.  In the light  of these discrepancies   the so called membership agreement  it cannot be said it is a conclude contract.  The very fact that the opposite party failed to file the affidavit of its executive through whom the  complainants were admitted as  members and collected Rs.62,000/- from them speaks volumes  of the  falsity   in the opposite  claim that the complainants voluntarily  agreed to become members and they understood the terms and conditions  mentioned therein. It is apparent that the opposite party having induced  innocent  people like complainant  through executives  collected  the amount  with false promises  providing facilities and  hospitality  at different locations  failed to keep up the promises  and it amounts to unfair trade practice and deficiency of service.  Hence  the opposite party cannot refuse  to refund the amount collected  from the complainant.  Accordingly point is answered in favour of the complainant

Point No.2:  The findings of this Forum that the opposite party has indulged unfair trade practice  and  caused deficiency of service  by  refusing to refund the amount   collected from the complainant. Hence complainant is liable to refund the same  with interest at 18% P.A.  The opposite party by refusing  to refund the amount caused  mental agony  and inconvenience  to the complainants hence liable to pay a compensation of Rs.25,000/-  and to pay costs of this complaint at Rs.5,000/- .  Accordingly point is answered. 

Point No.3: In the result, the complaint is allowed in part  directing  the opposite party

1. To refund an amount of Rs.62,000/- with interest  @ 18% P.A from 25-12-2011 to the date of payment  to the complainant
2. To pay a sum of Rs.25,000/- towards compensation for mental agony  and inconvenience to the complainant
3. To pay a sum of Rs.5,000/- towards cost of this complaint

Time for compliance : 30 days from the date of service of this order

                        Dictated to steno, transcribed and typed by her, pronounced  by us on this the   9^th  day of  October , 2019

MEMBER                                                                                            PRESIDENT

APPENDIX OF EVIDENCE

Exs. filed on behalf of the Complainant:

Ex.A1- membership agreement with opposite  party

Ex.A2- letter addressed to opposite party dt.06-7-2015

Ex.A3- copy of legal notice dt.25-11-2015

Exs. filed on behalf of the Opposite party:

Ex.B1- Membership agreement

MEMBER                                                                                            PRESIDENT