Tamil Nadu

StateCommission

A/139/2016

M/s. Sterling Holidays Resorts(India) Ltd., Rep by its chairman & M.D., - Complainant(s)

Versus

N.Swaminathan & 3 ors - Opp.Party(s)

Shivakumar & Suresh

12 Sep 2017

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION CHENNAI

BEFORE       Hon’ble Dr. Justice S.TAMILVANAN                      PRESIDENT

                   Thiru.K.BASKARAN                                   JUDICIAL   MEMBER

 

F.A.NO. 139/2016

(As against the order in CC.No.226/2009 dated 25.7.2016 on the file of DCDRFChennai(South))

TUESDAY THE 12^th  DAY OF  SEPTEMBER 2017

M/s Sterling Holidays Resorts (India) Ltd

Tarus Tower No.25 First Main Road

United India Colony Kodambakkam

Chennai 600 024

Rep.by its Chairman and Managing Director

R.Subramanian                                                  

 

Presently having office at No.7 Citi Tower

3^rd cross street

Adyar Chennai 600 020                                       ..Appellant/opposite party

 

                                                Vs

 

1.N.Swaminathan M/60 years

S/o Natesan

2. S.ParthibanM/30 years

S/o Swaminathan

3. S.Harishankar M/25 years

S/o Swaminathan

All residing at

9A-2 48^th street Ashok Nagar

Chennai -83                                                 ..Respondents/complainants

 

Counsel for Appellant/opposite party                    : M/s Shivakumar & Suresh

Counsel for Respondents 1 to 3/complainants       : M/s G.Damodharan

 

          This appeal coming before us for hearing finally on 30.8.2017 upon perusing the records of DCDRF Chennai(South) this commission made the following order.

By Honble Dr. Justice S.TAMILVANAN  PRESIDENT

    This appeal has been preferred by the appellant/opposite party challenging the order in CC.226/2009 dated 25.7.2016 passed by the District Forum Chennai(South).

 

 

1.   The brief facts of the case are as follows:-

               The Respondents herein filed the consumer complaint before the District Forum stating that they are vacation time share holders in the sterling resort run by the appellant/opposite party a public Ltd company incorporated under the provision of Indian Companies Act 1956 having its registered office at Chennai. It is an admitted fact that there is privity of contract between the appellant/opposite party and the Respondents/complainants. The appellant has holiday resorts at various places and they had introduced a scheme to enjoy the resorts developed and owned by the appellant company for 99 years commencing from 1996 to 2094.  The Respondents/complainants have membership with the appellant in customer I.D No. 50689 as per the time share agreement dated 10.3.1995 for which the Respondents/complainants have paid a sum of Rs.81500/-.

 

2.      According to the learned counsel for the Respondents/complainants as vacation time share holders the complainants have paid the entire sum payable and the opposite party also issued No Due certificate on 15.5.1996 out of which  advance subscription of Rs.45100/- was paid by the complainants as customers for the time share resort. The learned counsel for the appellant/opposite party submits that the said payment is nothing to do with annual amenity charges and further states that the letters dated 18.6.2008 and 9.12.2008 sent by the opposite party are  only debit notes with regard to the amenity charges payable to the appellant company and that does not amount of deficiency in service and argued that the complaint is liable to be dismissed.

3.           On the side of the Respondents/complainants Ex.A.1 to A.6 were marked and the appellant/opposite party marked Ex.B.1 and Ex.B.2 in support of the claim of the opposite party. The District Forum has framed two points for consideration as follows:-

1. Whether the opposite party had committed deficiency in service as stated  in the complaint?
2. What relief the complainants are entitled to?

 

4.           After considering the proof Affidavit supporting documents and submissions made by the both parties  the District  Forum held the aforesaid points in favour of the Respondents/complainants and partly allowed the claim  and the complaint mentioned debit notes marked under Ex.A.3 and A.4 raised by the appellant/opposite party against the Respondents/complainants for a sum of Rs.22650/- as amount due towards annual amenity charges for the period from 1997 to 2009 was declared as unlawful and not sustainable and the opposite party was also directed to pay a sum of Rs. 5000/- (Rupees Five Thousand ) as cost to the complainants  within six weeks from the date of the impugned order.  

    

5.        Learned counsel for the complainants submitted that in the consumer complaint the relief sought for by the complainants against the opposite party is to refund the time share amount of Rs.36900/- and advance subscription of Rs.45100/- paid by the complainants towards customer facilities with 25% interest p.a  and also Rs.25000/- as compensation for mental agony and hardship sustained by the complainants apart from cost of the complainant. As per the impugned order the District Forum has granted relief whereby declared that debit notes under Ex.A.3 and A.4 raised by the appellant/opposite party against the Respondents/complainants for Rs.22650/- as due and payable towards annual amenity charges for the period from 1997 to 2009  as unlawful and not sustainable and the opposite party was also directed to pay a sum of Rs.  5000/-. Learned counsel for Appellant/opposite party argued that the relief granted by the District Forum is different from the reliefs sought for in the complaint hence the same is not legally sustainable.

 

 6.     Relying on the averments made in Ex.A.1 copy of the vacation time agreement dated 10.3.1995 it was contended on behalf of the appellant that the respondents time share holders are not entitled to get back the amount of time share deposit Rs.82000/- made by then and they are entitled only to avail 7 days in a year in the resort run by the appellant. Since the agreement would clearly show that the respondent being time shared agreement holders cannot get refund of the amount paid by them and the said relief sought for could not be granted by the District Forum as prayed for. In this regard the decision rendered by the Honble National Commission New Delhi reported in

   Panchakula Haryana  Vs   M/s Dalmia Resorts International is cited.

     In the said decision rendered by the National Commission on 29^th August 2016 it was held that the complainant therein had agreed under clause 10(g) of the agreement but when them to pay appropriate charges/fees etc. from time to time towards amenities to the opposite party therein. The District Forum therein also concluded that an advance notice of 60 clear days was required to be given to the opposite party if the unit was not used during a particular year. Being aggrieved against the order of the District Forum the complainant therein challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed revision was preferred by the complainant.

 7.       However we are of the considered view that the aforesaid citation is not applicable to the facts and circumstances of this appeal before us since there is no such clause available in the agreement entered into between the parties herein to send any debit note to the respondents/complainants for claiming further dues. The National Consumer Dispute Redressal Commission New Delhi  in a decision reported  in I (2004) CPJ 52 (NC) related to  

The Manager BPL Mobile Cellular Ltd   Vs  Asif Shaukat Qureshi

      has categorically held that there was deficiency in service on the part of BPL Mobile company contended to their scheme For Attractive Plan as there was no prior notice for one month and also to another month and from one type to another for the option of subscribers with regard to what is being charged for the next coming months. Hence it was held that the District Forum therein had rightly held that BPL Cellular Company was deficient in service and it was directed to refund the amount paid for the period of dispute. We are of the view that the aforesaid decision is rightly applicable to the facts and circumstances of the case on head as the amounts claimed by the Appellant/opposite party by way of two debit notes in 2008  is not supported by Ex.A.1 vacation time share agreement dated 10.3.1995.  Learned counsel appearing for the appellant/opposite party drew the attention of the Commission  to clause 13 C of the agreement between the parties herein which reads as :       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 Timeshare 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 his Timeshare

   Quating the same it was argued on behalf of the appellant that the complainants have to pay annual maintenance charges towards the maintenance of resorts as prescribed /fixed by the company/opposite party then and there and further contended that 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.18600/- as mentioned in the debit note dated 18.6.2008 and that the complainants are liable to pay the same. According to the appellant/opposite party since the complainants have not paid the said dues another debit note dated 9.12.2008 for a sum of Rs.22650/- was sent to the complainants towards the annual maintenance charges. It is not disputed that for sending a debit note there was no consent obtained from the Respondents/complainants. The documents referred to us would show that the debit notes are only unilateral notices sent by the Appellant/opposite party without the acceptance of the complainant herein.

8.       It is not in dispute that the Time Share Holder shall pay the requisite charges/fees/prices decided by the company from time to time only for the use and enjoyment of the amenities. The Time Share Holders are 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 could be utilized by the Time Share Holders in order to enjoy the time share benefits.  However if there is anything done for improving the resort the time share holders need not pay anything as the same would be beneficial only to the directors and the time share holders of the Public Ltd Company and not the complainants being time share holders.

 9.       It is crystal clear that the Respondents/complainants have got only a limited right to stay for 7 days during vacation as per the terms and conditions of the vacation time agreement. When they are not beneficiaries on account of the development or improvement of the resorts they need not pay any amount under the head amenity charges. It is also an admitted fact that on the side of the appellant for about 10 years no such charge was collected by the appellant/opposite party by issuing any debit note. However suddenly the Appellant/opposite party has claimed the amount under debit notes without any acceptance or consent from the Respondents/complainants who are the otherside of the contract between the parties. Therefore we are of the considered view that the District Forum has rightly considered that there is deficiency of service since the Respondents/complainants are denied the rights of enjoying the resort for 7 days in the year by claiming certain amount over and above the terms agreed by the respondents herein. The Appellant/opposite party having received a sum of Rs.36900/- towards cost of time share and a sum of Rs.45100/- as advance subscription towards customer facilities they cannot claim anything against the time share holders.  The annual amenity charges for the period from 1997 to 2009 has been claimed by the appellant. The time share period is from 1996 and ending with 2094. The time share is for stay of the complainants in the resort for one week consisting of seven days in every year. The no dues certificate dated 15.5.1996 was also issued by the opposite party to that effect infavour of the complainant. Further the complainant enjoyed the facilities of staying in the resort as per the agreement for 7 days in a year till 1997 as per the Vacation time share agreement between the parties herein. Hence based on an unseasonable claim made by the

debit notes the rights of the Respondent/complainant to avail the service cannot be denied as  the complainants being the time share agreement holders cannot get their amount refunded and the denial of the right of the complainants would lead to unjust enrichment.

 10.        Hence the District Forum has legally molded the relief for which the party is entitled to as the Respondents/complainants are not entitled to get back the amount of Rs.82000/- paid by them from the Appellant/opposite party.

11.        It is unreasonable for the appellant/opposite party to claim any amount beyond the purview of the agreement Ex.A.1.

12.        Having gone through the impugned order passed by the District Forum the exhibits and evidence available on record and also the argument submitted by both sides we are of the considered view that there is no error and infirmity in the District Forum order.  

            In the result confirming the order of the District Forum the appeal is dismissed with cost of Rs.5000/-.

       Dictated to Steno-Typist transcribed and typed by her corrected and pronounced by us on this the 12^th day of September 2017.

 

 

K.BASKARAN                                                                        S.TAMILVANAN         

JUDL. MEMBER                                                                        PRESIDENT