Tamil Nadu

South Chennai

CC/367/2014

M/s.Nathmal Pareek - Complainant(s)

Versus

M/s.The Take Over Manager(Mr.Azharuddin S.E) - Opp.Party(s)

Party in Person

27 Sep 2016

ORDER

   Date of Filing :   22.08.2014

                                                                      Date of Order :   27.09.2016

 

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

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

                                      C.C.NO.367/2014

TUESDAY THIS  27^TH  DAY OF SEPTEMBER 2016

 

Nathmal Pareek,

Flat No.12E2,

Amber Block,

Olympia Opaline,

33,Navalur, Chennai

Tamil Nadu 603 103.                                          ..Complainant

 

                                         ..Vs..

 

1. The Take Over Manager (Mr.Azharuddin S.E),

Country Vacations,

Phoenix Market City,

No.42, Velacherry Main Road,

Near Gurunanak College,

Velacheri,

Chennai 600 042.

 

2. The Managing Director,

Country Vacations,

Amritha Castle,

5-9-16, Saifabad,

Opp. to Secretariat,

Hyderabad 500 063.                                     ..Opposite parties.    

 

 

For the Complainant          :   Party in person.

For the opposite party-1    :   Exparte.

For the opposite party-2    :   M/s. V.T.Narendiran & another.           

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.85,000/- and also to pay a sum of Rs.40,000/- towards mental agony and Rs.1000/- as cost of the complaint to  the complainant.  

ORDER

THIRU. B. RAMALINGAM PRESIDENT

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

 

The complainant submit that he had become a member in blue category  to enjoy the membership facility for the period of five years with the opposite party’s holiday club on making payment  of Rs.85,000/- as product price  and had also signed  by the complainant along with his wife as party and the representative  of the opposite party.    At the time of taking membership the sales representative  of the opposite parties  had given several promises about various offers, that the complainant could also avail by becoming a member, but such offers were not mentioned  in the written contract entered into between the complainant and the opposite parties, and several contradictions are found from the promises made at the time of canvassing membership by the sales representatives and terms and conditions for the benefits for the membership mentioned in the written agreement, as such the complainant was cheated by their misleading practices in getting the written agreement signed by the complainant, therefore the complainant wants to rescind the contract and claim the refund of the membership paid by him, whereas the opposite party has not cancelled the membership and refund the amount as requested by the complainant by several communications in email as such the opposite party has committed unfair trade practice and deficiency of service.    As the complainant sought for  a sum of Rs.85,000/- and also to pay a sum of Rs.40,000/- towards mental agony and Rs.1000/- as cost of the complaint to  the complainant.       Hence the complaint.   

2.     Even after receipt of the notice from this forum in this proceeding, the 1^st opposite party did not appear before this Forum and did not file any written version.  Hence the 1^st opposite party was set exparte on 10.10.2014.

Written Version of 2^nd  opposite party  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 2^nd opposite party submit that the consumer complaint to rescind the contract between the complaint and the opposite parties is beyond the jurisdiction of the Consumer Forum and the relief is only before the Civil court.   The 2^nd opposite party states that the very complaint seeking refund of membership fee is not maintainable as clearly stated in the written agreement entered into and singed between the complainant and the opposite party wherein it is clearly stated and repeatedly mentioned in may pages that the membership fee is not a deposit and the fee paid is non refundable”.  Hence the complaint is not maintainable as it is against a singed written contract.    The opposite party further submit that the representations and facilities offered by the opposite party company was only described, explained and the same was reflected in the agreement signed by the complainant and the opposite party and there is absolutely no truth in the allegations that the opposite party had made representation that were over and above the agreement or different from the one singed by both parties and the said contention by the complainant is untenable and un acceptable and false.   It is true that the complainant is entitled to enjoy the opposite parties club facilities there is no truth that he was entitled to Inter National Holidays and the same was provided on usage and utility charges as applicable and further it is for the complainant to use the holidays or he may transfer his accommodation and rights under the agreement and it is not for the opposite party to rent it for  him.   They are willing to provide the facilities as the complainant is entitled as per the agreement and the amount paid by the complainant is not refundable, therefore the question of refund of amount or claim of interest is totally unacceptable and the fact that the membership fee is non refundable is clearly stated as a condition in the agreement itself, hence the complainant having signed the agreement cannot plead otherwise or claim any relief contrary to the written agreement.    Therefore there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of opposite parties filed and no documents was  marked on  the side of the  opposite parties.  

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

1.   Whether the opposite parties have committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

5.    POINTS 1 and 2 : 

   Perused the complaint filed by the complainant, written version filed by the 2^nd opposite party  and the proof affidavit filed by complainant and  opposite party the documents Ex.A1 to Ex.A7 filed on the side of the complainant and considered the arguments of the complainant and the  learned  counsel appearing for the  opposite parties.

6.     There is no dispute that the complainant had become a member in blue category  to enjoy the membership facility for the period of five years with the opposite party’s holiday club on making payment  of Rs.85,000/- as product price  and was also signed  by the complainant along with his wife as party  and the representative / authorized signatory of the opposite party,  the purchase agreement  Ex.A1, attached with vacation agreement and the club membership purchase agreement contains terms and conditions, dated 18.04.2014.  The receipt for the payment issued by the opposite party for Rs.85,000/- is filed as Ex.A2.

7.     Whereas the complainant has raised grievance that at the time of taking membership the sales representative   of the opposite party  had given several promises about various offers, that the complainant could also avail by becoming a member, but such offers were not mentioned  in the written contract entered into between the complainant and the opposite party, and several contradictions are found from the promises made at the time of canvassing membership by the sales representatives and terms and conditions for the benefits for the membership mentioned in the written agreement, as such the complainant was cheated by their misleading practice in getting the written agreement Ex.A1 signed by the complainant, therefore the complainant wants to rescind the contract and claim the refund of the membership paid by him, whereas the opposite party has not cancelled the membership and refund the amount as requested by the complainant  by several communications in email as such the opposite party has committed unfair trade practice and deficiency of service and complainant filed this complaint seeking refund of the amount and also with compensation against the opposite party.

8.     Whereas the opposite party resisted the complaint  by contending that  the  complainant having  entered into an written  agreement  signed between the complainant and the opposite party wherein it is clearly stated and repeatedly mentioned in many pages that “the membership fee is not a deposit and the fee paid is not refundable”, hence the complaint is not maintainable as it is against a signed written contract and further contended that the complainant has not raised any grievance of deficiency of service in providing  facilities agreed by the opposite party to provide to the complainant as mentioned in the written agreement, but raised several baseless grievance stating that the various offers promised were not mentioned in the written agreement, which are not sustainable as per the agreement mentioned terms and conditions in clause-23 which reads as follows.

“The second party understands that the agreement in the printed form only SUPERCEDES any communication  whether written or oral or any variation of had written remarks rewriting on the printed agreement made by the agents and or representatives of CCIL or second party, to this agreement  and  /or any other written communication issued by CCIL  representatives (including on Company Letter Head or STAMP PAPPER) further, Second party understands that the benefits and terms of membership as set out in this Agreement are final and binding on CCIL and Second Party”

Further as per the terms and conditions of the written agreement the complainant having  signed the said agreement with his wife as Second party  understanding that the vacation charge is not refundable  and the vacation fee is not a refundable deposit, claming the refund  of the amount on the ground of false allegations is not maintainable and the complaint filed by the complainant seeking such relief is liable to be dismissed.  

9.     On perusal of the terms and conditions attached with the written agreement i.e the purchase agreement for club and vacation agreement Ex.A1 it reveals that  the complainant along with his wife as second party has signed the said agreement after going through the entire terms and conditions and the content of the agreement, as contended by the opposite party. The said agreement and the terms and conditions attached there which are clearly mentioned about the entitlement of benefits enjoyable and the several conditions and liabilities followed by the complainant as a member of the club.  Contrary to the said content of the terms and conditions of the agreement, there is no proof or evidence on the side of complainant  for  the complaint mentioned allegations that the sales representatives of the opposite party, at the time  of discussion for entering into a membership  have given several other offers such as the membership holiday is for life time will be  renewed after five years without any fee or charges not more than Rs.1000/-, The annual maintenance  fee payable from 2^nd year onwards is applicable only if the complainant plans to have a vacation in the year.  Further the complainant has made other allegations such as the welcome kit email  sent by the opposite party have not mentioned some of the facilities available to the members as mentioned in the written agreement and appears to be contra to each other, and the same have not been clarified  by the opposite party on request made by the complainant are also appears to be not sustainable as contended by the opposite party that the terms and conditions attached with the written agreement Ex.A1 being the only detailed  and final conclusive document for the complainant to rely upon for the benefits available for the membership as agreed between the parties.

10.    Therefore as contended by the opposite party that the complainant in order to claim refund of the amount against the terms and conditions of the written agreement Ex.A1, has raised several unsustainable and baseless allegations against the opposite party in the complaint, which are all not considered to be the allegation of deficiency of service as defined in Consumer Protection Act is acceptable.  Further the refund of membership fee claimed by the complainant in the complaint is not refundable as per the said terms and conditions of the written agreement entered by the complainant with the opposite party are also acceptable.

11.    Further it is also pertinent to mention that the opposite party, as mentioned in their written version that  they have already issued  the membership card and  welcome kit to the complainant and he is ready as willing to provide  the services as agreed  and have been touch with the complainant but all along the complainant interest in getting money back and this complaint for  alleged deficiency  in service is only a modest operandi to extract money from the opposite party which is not entitled by the complainant  is acceptable.  Further the complainant has got any grievance, if any, in questioning the validity of written agreement Ex.A1 on the ground of misrepresentation or fraud, the complainant would have approached the civil court for appropriate relief.  Contrary to this, filing this complaint before this forum on the ground of baseless allegation of deficiency of service is not sustainable. 

12.    Therefore we are of the considered view that the deficiency of service and unfair trade practice  attributed by the complainant against the opposite party in the complaint are  neither proved nor sustainable,  as such the complainant is not entitled for any relief sought for in the complaint  and the complaint is liable to be dismissed.  Considering the facts and circumstances of the case the parties are ordered to bear their own costs.  Accordingly the points 1 and 2 are answered.

In the result, this complaint is dismissed. No costs.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  27^th    day  of  September   2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1-  18.4.2014     - Copy of Agreement.

Ex.A2- 19.4.2014      - Copy of Payment receipt.

Ex.A3- 19.4.2014      - Copy of letter from the opposite party to the complainant.

Ex.A4- 24.5.2014      - Copy of email from complainant to the opposite party.

Ex.A5- 26.7.2014      - Copy of reply notice from the opposite party.

Ex.A6- 7.8.2014        - Copy of letter from complainant to the opposite party.

Ex.A7-                    -        - Copy of Ack. Card.

 

Opposite parties’ side documents: -   .. Nill..

 

 

 

 

 MEMBER-I                        MEMBER-II                             PRESIDENT.