Date of Filing: 23-01-2016
Date of Order:11-02-2019
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
Monday, the 11th day of February, 2019
C.C.No.48 /2016
Between
Yusuf Ahmed,
Father’s name : Ejaz Ahmed,
Age 26 years, 12-5-21 flat No..302,
Vijayapuri colony, Tarnaka, Pin No.500 017
Ph No.88886504441
Cell No.(8886504441) ……Complainant
And
Country Vacations, Country Club,
6-3-1219, Begumpet, Hyderabad, Pin No.500 016
Phone No.04066135069,
040-40077886, 040-40271282 ….Opposite Party
Counsel for the complainant : Party in person
Counsel for the Opposite Party : Mr.V.V.G..Krishna
.
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 of 1986 alleging unfair trade practice on the part of the opposite parties and seeking refund of Rs.40,000/- stated to have been collected by the opposite party with false promises and misrepresentation.
- Complainants case in brief is that when he went for a shopping a person by name Archana called him informed that a draw will be conducted in respect of vacation plan for 10 years. When he informed that he is not in a position to afford the same the Manager of the opposite party by name Aamir came and said that they will arrange credit card of HDFC for paying the amount by easy EMI’s. Later they have collected a sum of Rs.40,000/- as an advance and will arrange the refund of the same after securing credit card from HDFC for payment of amount by 36 EMIs which will be in the range of Rs.600 to 700 per month. It was also informed that he can enjoy club facilities and vacations from next week itself. They have collected a sum of Rs.10,000/- which amount was paid by the him by using his Kotak Credit Card. He paid a further sum of Rs.30,000/- which was promised to give back after sanction of the credit card from HDFC. Later when he received credit card from HDFC he tried to contact the manager of the opposite party but he was not available. Subsequent efforts made by him by personal visit to Amrutha Castle the office off opposite party to meet the manager no one helped him and he sat there for 6 hours and came back with frustration. Later when he saw HDFC credit card statement he realized that an amount of Rs.2,700 with interest of Rs.600 is payable per month. The complainant has lot of burden hence tried to contact the person in charge of the opposite party for refund of the amount. When he went to Himayat Nagar branch of opposite party he learnt that it was shifted to Begumpet. On some occasions he waited for 3 to 4 house at the office of the opposite party at Begumpet to meet the Manager but could not meet him.
In the beginning he was informed by the executives of the opposite party that he can utilize the swimming pool, Gym facilities in Amrutha Castle . On one occasion he and his family members went to enjoy the weekend of but the GYM instructor of opposite party told that he cannot use to GYM or the swimming pool in Amrutha Castle and it shows that false promises were made by the opposite party in order to take membership in the opposite party club and he was not able to use facilities in the Amrutha Castle. On another occasion he went to use the club facilities of the opposite party at Begumpet to play Billiards etcetera was made to wait for 2 hours and even then he could not use it. Whenever he want to use the facilities of the opposite party he was not permitted. So till date he had not used the any of the club facility of opposite party or vacations offered by it. Later in the month of January 2015 he was called to pay a sum of Rs.7,500/- as annual maintenance charges which fact was not informed to him earlier. It was also informed that if he fails to pay annual maintenance charges his membership will be cancelled. Hence he asked to cancel the membership refund of the amount and his efforts to get this amount was not succeeded as the persons responsible in the opposite party informed that the amount cannot be refunded. Hence the present complaint.
- Opposite party filed a detailed written version explaining its status and various facilities offered to the members and holiday trips using the facilities provided by it and its sister concern. It is further stated in the written version that on 12-09-2013 complainant became a member of the club by entering into purchase agreement and club membership purchase agreement agreeing to pay a sum of Rs.1,10,000/- towards life membership for himself, his spouse and children under the age of 25 years. As per the terms and conditions of membership agreement the complainant can book accommodation in respect of studio blue season for a period of 6 nights and 7 days in a calendar year for 10 years. The complainant paid a sum of Rs.40,000/- and promised to pay the balance amount of Rs.70,000/- but it was not paid and there by committed breach of contract. The amount of Rs.40,000/- paid towards part of membership fee is non-refundable as per the terms and conditions of agreement signed by the complainant. The complainant was supposed to pay balance amount of membership fee within a period of 45 days after becoming member otherwise the amount already paid will be forfeited. Since the complainant has not paid balance amount in terms of purchase agreement the amount already paid by him was forfeited.
At the time of joining as member the complainant was explained by the executives of opposite party about the packages for utilizing the package for 10 years. The complainant voluntarily joined as member and paid an amount of Rs.36,000/- through DD and agreed to pay balance amount in 45 days but failed. The complainant having failed to pay the balance amount became a defaulter and cannot alleged the deficiency of service on the part of the opposite party. As per the terms and conditions of purchase agreement the complainant has to pay Rs.7,500/- towards annual membership fee every year. But same was also not paid by the complainant. No promise was made to the complainant to provide 36 EMIs on HDFC card. The allegation of the complainant that he and his family members were not permitted to use available facilities of opposite party at Begumpet is false.
Opposite party is a company registered under the Companies Act 1956 and is one of the fastest growing entertainment and leisure conglomerates in India. Complainant was aware of the terms and conditions of the membership agreement before signing it. Having agreed to the said terms and conditions, the complainant is not entitled for refund of membership fee paid. Complainant after signing the agreement changed his mind in order to wringlet out of the agreement, addressed letter to the opposite party stating that terms and conditions of the purchase agreement were not explained to him. There was no deficiency of service on the part of the opposite party and it is the complainant who failed to utilize the facilities provided by it. Hence the compliant is devoid of merits and liable to be dismissed.
In the enquiry the complainant has filed his evidence affidavit reiterating the material allegations of the complaint and in support of the same he got exhibited 4 documents. Similarly for the Opposite Party evidence affidavits of Sri C.M.Sridhar stated to be Assistant Manager of it is filed and through him got exhibited 2 documents. Both sides have filed written arguments and supplemented the same with oral submissions.
Now point for consideration is :
- Whether the complainant is entitled for refund of the amount paid towards part of membership fee with opposite party ?
- To what relief?
Point No.1: The complainant’s case is with false promises he was made to sign the so called purchase agreement by the executives of the opposite party at its Begumpet office by calling him there. The amount of Rs.10,000/- was collected by using Kotak credit card and gave a cash payment of Rs.30,000/- as membership fee and before signing the membership agreement he convinced that the opposite party will arrange a credit card from HDFC by which he can pay the amount of installments and after paying of Rs.40,000/- he was also informed that after issuance of credit card by HDFC the amount will be reimbursed to him but it has not happened. It is also his allegation that he was informed by the executives of opposite party that he can utilize the facilities of like Gym, Swimming pool and other indoor games but when he went there on weekends with family and children they were informed that the GYM and swimming pool cannot used. Then he realized that he was cheated by the executives of opposite party with false promises hence he decided to cancel the membership by asking the opposite party to refund an amount of Rs.40,000/- collected from him. It is also the complainant’s version that at the beginning he was not informed that he will be liable to pay Rs.7,500/- as annual membership fee of the club irrespective of the fact whether he utilized the facilities of club or holiday packages. On the other hand the stand of the opposite party is the complainant having shown interest in its activities voluntarily came forward to join as member and paid Rs.40,000/- and singed on Ex.B2 membership purchase agreement promising to pay the balance membership fee of Rs.70,000/- within 45 days in terms of the said agreement but not paid it. Hence in terms of Ex.B2 purchase agreement Rs.40,000/- amount paid initially was forfeited. The opposite party also denied the complainant’s version of offering him to use the facilities at Begumpet location and that he was not informed liable to pay annual membership fee of Rs.7,500/-. The document placed on record by both sides are not in dispute
The defense of the opposite party is the amount of Rs.40,000/- paid by the complainant towards part of membership fee cannot be refunded as per terms and conditions of agreement because it is a concluded contract between the parties. The complainant bound by the terms and conditions and cannot seek refund of the said amount. If the stand of the opposite party is to be taken into consideration the opposite party also entitled to recover the balance of amount of Rs.70,000/- from the complainant by instituting a Civil suit because as terms of Ex.B2 agreement the complainant is liable to pay Rs.70,000/- irrespective of the fact whether he utilized the facilities and packages offered by the opposite party. A reading of Ex.B2 the so called purchase agreement does not discloses it is a concluded contract between the parties because the terms and conditions incorporated in it are one side infavour of the company. The opposite party having pleaded that it has got facilities in number of countries and franchises and agreement with other clubs to use the facilities at different places has not placed any record to that affect. In the absence of proof of the same by way of documentary evidence the self service statement of the opposite party cannot be taken into consideration.
It is not in dispute so far the complainant has not utilized any of the facilities available with opposite party either at Begumpet office and any of the holiday package tour. The complainant also categorically stated that having regard to his income he cannot offer for a 10 days package of vacation at different locations. In the light of it the opposite party cannot be allowed to enrich itself with the hard earned money of common people like the complainant. Ex.B2 is not a conclude contract between the parties in spite of the complainant subscribing the signature the opposite party cannot shelter under it in order to refuse to refund the amount to the complainant. So far the opposite party has not offered any of the service to the complainant hence it is liable to refund the entire amount with interest because the said amount has been utilized by the opposite party for its business activities in its day to day activities. Hence the opposite party shall refund the amount of Rs.40,000/- with interest at 12% P.A from 3-3-2014 to the date of payment. The opposite party by not refunding the amount at earliest when demanded by the complainant has caused mental agony hence liable to pay a sum of Rs.15,000/- as compensation Accordingly the point is answered infavour of the complainant.
Point No.2: In the result, the complaint is allowed in part directing the opposite party
- To refund the amount of Rs.40,000/- with interest at 12% P.A from 3-3-2014 to the date of payment
- The opposite party is further directed to pay a sum of Rs.15,000/- as compensation and a sum of Rs.5,000/- towards costs of this complaint.
Time for compliance is 30 days from the date of service of this order
Dictated to steno transcribed and typed by her pronounced by us on this the 11th day of February , 2019
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
PW1 DW1
Yusuf Ahmed Sri C.M.Sridhar
Exs. filed on behalf of the Complainant:
Ex.A1ispurchase agreement for club and Vacation membership
Ex.A2 is payment receipt
Ex.A3 is postal receipt
Ex.A4 is spa coupons
Exs. filed on behalf of the Opposite party
Ex.B1 is button up confirmation form
Ex.B2 is a few facts of the concept
MEMBER PRESIDENT
