Tamil Nadu

South Chennai

226/2009

N.Swaminathan - Complainant(s)

Versus

m/S.Sterling Holiday Resorts (India)Ltd., - Opp.Party(s)

M/s.G.Damodaran

25 Jul 2016

ORDER

   Date of Filing :   25.02.2009

                                                                      Date of Order :   25.07.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                

C.C.NO.226/2009

MONDAY THIS  25^TH   DAY OF JULY 2016

 

1. N. Swaminathan,

S/o. Natesan,

2. S. Parthiban,

S/o. Swaminathan,

3. S. Harishankar,

S/o. Swaminathan,

All are residing at

9A-2, 48^th Street,

Ashok Nagar,

Chennai – 83.                                                     .. Complainants

 

                                         ..Vs..

 

M/s. Sterling Holiday Resorts (India) Ltd.,

Rep. by its Chairman and Managing Director,

R.Subramanian,

Tarus Tower, No.25, First Main Road,

United India Colony,

Kodambakkam,

Chennai – 600 024.                                           .. Opposite party  

 

 

For the Complainant               :   M/s. G.Dhamodaran & another        

For the opposite party             :   M/s. Shivakumar & Suresh.

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party to refund a sum of Rs.82,000/- with interest  and also to pay a sum of Rs.25,000/- towards mental agony and hardship  and Rs.2,500/- as cost of the complaint to the complainant.

ORDER

 

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

 The complainants submit that  they have  purchased time share in the holiday resort in Munnar developed by the opposite party  company under vacation time share agreement, dated 10.03.1995.  Accordingly as mentioned in the agreement the complainants have paid a sum of Rs.36900/- towards the cost of time share and Rs.45,100/- as advance subscription  towards customer facilities.   The time share period is for 99 years starting from 1996 and ending with 2094.  The time share is for stay of the complainant in the resort one week consisting of seven days in every year for the period of 99 years.  The No Due Certificate dated 15.05.1996, was issued by the opposite party to the complainant.  Further the complainant enjoyed the facilities  of staying in the resort as per the agreement till 1997.

2.     In contradiction to the terms and conditions of the agreement the opposite party had raised debit note dated 18.06.2008 in which the amenity charges due for the year has been mentioned as Rs.1850/- and annual amenity charges due for the previous years has been shown as Rs.18,600/- without mentioning the period which has been objected and protested by the complainants to the opposite party who assured that no annual amenity charges shall be raised in future and asked the complainants to ignore the debit note dated 18.06.2008.  But, on the contrary to the oral assurance another debit note dated 09.12.2008 has been sent by the opposite party claiming Rs.2,200/- for annual amenity charges for the year 2009 and for the previous years as Rs.20,450/- as though it is due from the complainants.   The said acts of the opposite party are amounts to deficiency of service which caused mental agony and hardship to the complainants.  As such complainants sought for refund of the amount paid by the complainants to the opposite party towards purchase of time share i.e Rs.82,000/- with interest at the rate of 24% and compensation of Rs.25,000/- and cost of the complaint.   

Written Version of opposite parties  is  in briefly as follows:

3.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.  The opposite party submits that as per the time share purchase agreement Ex.A1 mentioned clause 13 ( c), the time share holder / the complainants have to pay annual maintenance charges  towards the maintenance of resorts as prescribed / fixed by the company / opposite party then and there, accordingly the complainants being the time share holders have to pay the annual amenity charges for every year as fixed by the company, since the said charges have not been paid by the complainants, the said amount for the current year 2008 Rs.1850/- and balance due from 1998 to 2007 is Rs.18,600/- as mentioned in the debit note 18.06.2008 is due by the complainants and the complainants are liable to pay the same.   Further since the complainants have not paid the said dues the another debit note dated 09.12.2008 for a sum of Rs.22,650/- was due by the complainants towards the annual maintenance charges, as such, the debit notes were issued cannot said to be improper and complainants are liable to pay the same as per the agreement.   The opposite party further submit that in fact the letter dated 10.5.1996 and the no due certificate issued for the amount paid by the customer for their time share resort are nothing to do with annual amenity charges and further states that the letter dated 18.6.2008 and 9.12.2008 sent by the opposite party is only debit note with respect to the amenity charges payable to the company and does not amount of deficiency in service and complaint is liable to be dismissed.   

4.   Complainants have filed their Proof affidavit and Ex.A1 to Ex.A6 were marked on the side of the complainant.   Proof affidavit of Opposite party filed and Ex.B1 & Ex.B2 were  marked on the side of the  opposite party. 

5.      The points that arise for consideration are as follows:-

 

1.   Whether the opposite party has committed  deficiency of

 service  as alleged in the complaint?

 

2.   Whether the complainants are  entitled for the relief sought for

in the complaint?   If so to what extent ?

 

 

 

 

6.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party, proof affidavits  filed by the both parties  and the documents Ex.A1 to Ex.A6  filed on the side of complainant and Ex.B1 and Ex.B2  filed on the side of the opposite party and also considered the arguments of both sides.

7.     There is no dispute that the complainants had purchased time share in the holiday resort in Munnar developed by the opposite party  company under vacation time share agreement Ex.A1 dated 10.03.1995.  Accordingly as mentioned in the agreement the complainants has paid a sum of Rs.36900/- towards the cost of time share and Rs.45,100/- as advance subscription  towards customer facilities.  The time share period is for 99 years starting from 1996 and ending with 2094.  The time share is for stay of the complainants in the resort one  week consisting of seven days in every year for the period of 99 years.  The No Due Certificate dated 15.05.1996, was issued by the opposite party to the complainants which is filed as Ex.A2.  Further there is no dispute that the complainants enjoyed the facilities  of staying in the resort as per the agreement till 1997.

8.     Whereas the complainant has raised grievance in the complaint against the opposite party that the opposite party contrary to the terms and conditions of the agreement had raised debit note dated 18.06.2008 in which the amenity charges due for the year has been mentioned as Rs.1850/- and annual amenities due for the previous year has been shown as Rs.18,600/- without mentioning the period which has been objected and protested by the complainants to the opposite party who assured that no annual amenity charges shall be raised in future and asked the complainants to ignore the debit note dated 18.06.2008.  But,  on contrary to the oral assurance another debit note dated 09.12.2008 has been sent by the opposite party claiming Rs.2,200/- for annual amenities charges for the year 2009 and for the previous years as Rs.20,450/- as though it is due from the complainants.   The said acts of the opposite party is amounts to  deficiency of service as such complainants filed this claiming the refund of the amount paid by the complainants to the opposite party towards purchase of time share i.e Rs. 82,000/- with interest at the rate of 24% and compensation of Rs.25,000/- and with cost.

9.     Whereas the opposite party has raised objection that as per the time share purchase agreement Ex.A1 mentioned clause 13 (c), the time share holder / the complainants have to pay annual maintenance charges  towards the maintenance of resorts as prescribed / fixed by the company / opposite party then and there, accordingly the complainants being the time share holders have to pay the annual amenity charges for every year as fixed by the company, since the said charges have not been paid by the complainants, the said amount for the current year 2008 Rs.1850/- and balance due from 1998 to 2007 is Rs.18,600/- as mentioned in the debit note 18.06.2008 is due by the complainants and the complainants are liable to pay the same.  Further since the complainants have not paid the said dues the another debit note dated 09.12.2008 for a sum of Rs.22,650/- was due by the complainants towards the annual maintenance charges, as such, the debit notes Ex.A3 and Ex.A4 were issued cannot said to be improper and complainants are liable to pay the same as per the agreement, as such the  opposite party are not have said to be committed deficiency of service and claim made by the complainants in the complaint for refund of time share purchase amount with interest and compensation are all not sustainable and complaint is liable to be dismissed. 

10.    As per the both side contention the main dispute raised by the complainant is that the claim made by the opposite party by issuance of debit note Ex.A3 and Ex.A4 for Rs.22650/- as annual amenities  charges due from the period for the year 1997 to 2008 is contrary to the terms and conditions of the agreement and  accordingly the complainants are not liable to pay the said charges, whereas the opposite party has contended that as per clause 13 (c ) of the time share purchase agreement Ex.A1 the complainants are liable to pay annual amenity  charges, accordingly the debit note raised by the opposite party under Ex.A3 and Ex.A4 for Rs.22650/- is due by the complainants, as such,  the claim of the said amount from the complainants by way of raising debit note is not said to be a deficiency of service, on the contrary the complainants are liable to pay the said amount to the opposite party. 

11.    Whereas on perusal of the time share agreement Ex.A1, and the terms and conditions thereon there is no specific terms found in the agreement that the time share holder (complainants) have to pay annual amenity charges as claimed by the opposite party under the debit notes Ex.A3 and Ex.A4.  Further it is also pertinent to mention that as per the content of Ex.A1 agreement the opposite party company have collected a sum of Rs.36,900/- as cost of the time share and a sum of Rs.45,100/- as advance subscription towards customer’s facility.  The said Rs.45,100/- the advance subscription towards customer facility is appears to be calculated on the basis of  estimate cost of Rs.455.56  per year during the time share period payable in advance.  Therefore, as contended by the complainant, since the charges for the facility for 99 years was calculated and collected in advance as mentioned above at the time of executing the  agreement Ex.A1 itself,  no further payment of annual  amenities will arise as per the agreement is acceptable.  Further, even the clause 13 (C) of the agreement mentioned in the terms and conditions relied by the opposite party is reads as follows:

“The TIME SHARE HOLDER shall pay the requisite charges/fees / prices decided by the COMPANY from time to time for use and enjoyment  of the amenities.  The TIME SHARE HOLDER  shall also be liable to pay such charges / fees/ prices as may be fixed from time to time by the COMPANY in respect of electricity, telephone, gas, oil, water etc., that may be utilized by the TIME SHARE HOLDER while enjoying the TIME SHARE” .

12.    According to the said terms and conditions the time share holder is to pay the amenities charges whenever they use and enjoy by staying in the resort.  Therefore as contended by the complainants the said terms and conditions will apply only for the complainants to pay amenity charges fixed by the company for the period of their stay of one week.  According to the complainants, they have paid  the amenity charges such as electricity, telephone, gas, oil, water etc., for the use and enjoyment  whenever they stayed in the resort and the same is not disputed by the opposite party.  Therefore contrary to the above contention the claim of the opposite party that the complainants has to pay annual amenity charges for every year as fixed by the opposite party is not acceptable and not sustainable even as per the terms and conditions of the clause 13 ( c) of the  Ex.A1 agreement.  Therefore we are of the considered view that the debit  note raised by the opposite party against complainants as per Ex.A3 and Ex.A4 for Rs.22,650/- as due for annual amenity charges is not as per the terms and conditions  of agreement Ex.A1 and not sustainable.   Therefore as contended by the complainants the complainants are not liable to pay annual amenity charges to the opposite party is acceptable.  Therefore we declare that the complaint mentioned debit notes Ex.A3 and Ex.A4  for Rs.22,650/- raised by the opposite party against the complainants is not sustainable and not enforceable.   Accordingly the complainants are not liable to pay the said amount to the opposite party.

 

13.    However, the claim of the complainants made  in the complaint that the refund of the agreement mentioned purchased amount  of Rs.82,000/- from the opposite party cannot be justifiable, since there is no provision found in the terms and conditions Ex.A1 agreement for such entitlement for the purchaser / complainant.  Further it also pertinent to mention that the complainants have themselves admitted that they have been using the said facility of staying  in resort for several years after the said purchase of the time share.  Considering the above facts, we are of the considered view, as contended by the opposite party that, the said  agreement of purchase of time share Ex.A1 is of the irrevocable agreement is acceptable,  as such, the complainants are not entitled to claim the cancellation of agreement  and refund of the said  purchase amount of Rs.82,000/-. 

14.    As discussed above, considering the facts and circumstances   of this case,  we are of the considered view that the complainants are entitled for a relief that  the complaint mentioned debit notes raised by the opposite party against the complainants for Rs.22650/- as due by the complainants towards annual amenity charges for the period from1997 to 2009  is ordered  to be declared as unlawful and not sustainable and the same is not liable to be paid by the complainants to the opposite party.  The complainants are not entitled for any other claim sought for in the complaint.  However, the opposite party is liable to pay a sum of Rs.5000/- as litigation charges.   Accordingly the points 1 & 2  are answered.

In the result,  this complaint is partly allowed.  The complaint mentioned  debit notes Ex.A3 and Ex.A4  raised by the opposite party against complainants for Rs.22,650/- as due towards annual amenity charges for the period from 1997 to 2009 is declared as unlawful and not sustainable, the complainants are not liable to pay the said amount to the opposite party.  The opposite party is directed to pay a sum of Rs.5000/- (Rupees five thousand only) as cost to the complainants  within six weeks from the date of this order. 

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  25^th   day  of  July   2016.

 

 

MEMBER-I                                                                                                       PRESIDENT.

Complainant’s Side documents :

Ex.A1- 10.3.1995      - Copy of vacation Time Share agreement.

Ex.A2- 15.5.1996      - Copy of No Due Certificate.

Ex.A3- 18.6.2008      - Copy of Debit voucher for Rs.20,450/-.

Ex.A4- 9.12.2008      - Copy of Debit voucher for Rs.22,650/-.

Ex.A5-                    -        - Copy of letter from SATWA to complainant.

Ex.A6-                    -         - Copy of letter from SATWA enclosing the extract of the

                                  Members register

 

Opposite party’s side documents: -       

 

Ex.B1-           -        - Copy of list of holidays utilized by the complainant.

Ex.B2-                    -        - Copy of booking status of the holidays utilized by the complainant.

 

 

 

MEMBER-I                                                                                                    PRESIDENT.