BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 7th day of March 2018
Filed on : 23-03-2017
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.128/2017
Between
K.L. George, : Complainant
N-16, Frankling Gardens, (By Adv. Saji Varghese, M/s.Sukumar
Kuttikkattukara P.O., Associates, Lake View Apartments,
Eloor, Kochi-683 504. Ground Floor, Church Landing Road,
Kochi-16)
And
1. M/s. Sterling Holiday Resorts : Opposite parties
Ltd., (Rep. by its Managing (1st O.P. By Adv. P.V. Sahasranaman,
Director), Corporate Office, Narayaneeyam,Chittoor road,Kochi-11
Citi Tower, No. 7,
3rd Cross Street, Kasturba Nagar,
Aadayar, Chennai-600 020.
2. Silambarsan S,
Team Customer Engagement,
M/s. Sterling Holiday Resorts Ltd.,
Corporate Office, Citi Tower,
No. 7, 3rd Cross Street,
Kasturba Nagar, Aadayar
Chennai-600 020.
3. Vijesh Bhargavan,
Branch Manager,
M/s. Sterling Holiday Resorts Ltd.,
Ernakulam Branch,
Kalathiparambil road, Ernakulam.
O R D E R
Cherian K. Kuriakose, President.
1.Complainant’s case
2. The complainant , a Chartered accountant, on the advice of a business executive of a opposite party agreed to join the time share scheme titled Sterling Holidays’ Vacation ownership introduced by the opposite parties . The complainant was informed to pay an initial payment of Rs. 60,000/- and the balance amount 12 equated monthly instalments of Rs. 20,157/- each . The complainant was offered a discount and he was required to pay Rs. 56,600/- as down payment and the EMI’s were discounted to Rs. 18,500/- each . The complainant agreed to the said terms and conditions ‘and credited a cheque to the opposite parties account on 18-08-2016 and thereafter the complainant was informed that he was required to pay the various administration cost and the down payment was increased to Rs. 6,000/- more and asked the complainant to pay Rs. 6,000/- accordingly. After making the above said payment the complainant received a welcome kit under a communication dated 12-09-2016 wherein the terms and conditions were entirely different. The down payment was mentioned as Rs. 65,933/- and the number of EMIs5 were increased to 24. Therefore the complainant demanded to the opposite parties refund the amount which he had already paid. However, the complainant received only an automated reply stating that the opposite parties would get in touch with the complainant within a couple of days. Though the complainant had issued a letter to refund Rs. 81,110/-, but there was no reply or response from the opposite parties. The complainant therefore seeks for an order directing the opposite parties to refund the amount paid by him with interest and costs.
3. The opposite parties who appeared pursuant to the notice and filed a version resisting the contentions in the complaint contending inter-alia as follows:
4. The complaint is not maintainable. The complainant had paid a sum of Rs. 1,22,474/- as down payment towards membership cost and had opted EMI facility for 12 months for the balance of membership cost towards the purchase of 1155 time share points costing Rs. 4,53,550/- The terms and conditions of the purchased by the complainant was clearly motioned in the application form singed by the complainant. The opposite parties should have been approached by the complainant for appointment of an arbitrator under clause 14 (t) and (u) of the terms and conditions of the contract . This Forum has no jurisdiction to hear the case. The terms and conditions in the application forms which was printed was seen by the complainant and he signed it thereafter. Having read the terms and conditions and agreed for the same the complainant had approached the Forum without any bonafides. The complainant therefore liable to be dismissed.
5. On the above pleadings following issues were settled for consideration.
i. . Whether the complainant had proved that there was any deficiency in service on the part of the opposite parties as alleged in the complaint?
ii. Reliefs and costs.
6. The evidence in this case consists of the oral of PW1, the complainant and Exbts. A1 to A10 documents. The opposite party did not adduce any evidence.
7. Heard both sides.
8. Issue No. i. The complainant was examined as PW1. He admitted that he had gone through the terms and conditions of the agreement and even though, there was some blank spaces in the terms and conditions in the contract. He had signed the contract in order to purchase time share of the 1st opposite party. When the opposite parties had pointed out the terms in the agreement the complainant submitted that he had filed this case not because of any specific deficiency in the service provided by the complainant as per the agreement, but had filed this complaint in order to get the refund of the money paid by him, on the ground that he was not provided with the special offer offered by the opposite parties and the opposite parties having violated the terms and conditions of the agreement. The learned counsel for the opposite parties had pointed out a decision reported in 2018 (1) KHC 371 Joy Vs. CDRF, Kannoor and Others, wherein it was held that when violation alleged would only amount to breach of covenants of the agreement relating to the quality of the product that would not amounted to unfair trade practice and deficiency in service and therefore the Consumer Forum has no jurisdiction to entertain this complaint. We were also taken to the decision rendered by the Hon'ble National Consumer Disputes Redressal Commission in Dalmia Resorts Vs. Renjana Gupta 1917 (1) CPC 649, wherein it was held that the Consumer Protection Act cannot grant any relief in a transaction between the parties for the purchase of time share in immovable property and any dispute between the parties arising out of the said transaction cannot be regarded as a consumer dispute. Such matters are to be decided by Civil Courts. In the instant case, we could not find any deficiency in service OR unfair trade practice on the part of the opposite parties as the complainant was only seeking the refund of the amount paid by him. The remedy available to him is to be claimed through a Civil Court and we find that this Forum has no jurisdiction to entertain this complaint.
8. The complainant had produced and marked 3 documents. Exbt. A1 dated 07-11-2016 is a letter addressed to the opposite parties by the complainant demanding return of the amount paid by him and Exbt. A2 is the postal acknowledgment and Exbt. A3 is the postal receipt issued while accepting Exbt. A1 letter by the postal authorities. These documents are in no way helpful to bring in evidence regarding the understanding between the parties, regarding the payment and refund sought for. Issue is found against the complainant.
9. Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 7th day of March 2018.
Cherian K. Kuriakose, President.
Sheen Jose, Member.
Beena Kumari V.K., Member.
Appendix
Complainant's Exhibits :
Exbt. A1 : True copy of letter dt..07-11-2016
A2 : True copy of A.D. Card
A3 : True copy of Postal receipt
Opposite party's exhibits: : Nil
Depositions
PW1 : K.L. George
