Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P. Act, 1986 has been filed by the Appellants/OPs challenging the judgment and order dated 04.04.2017 passed by the Ld. District Forum in Complaint Case No. CC/441/2016 allowing the complaint on contest against the Appellants/OPs with the directions as under:-
“That the instant case be and the same is allowed on contest against the O.Ps.
OPs are jointly and severally directed to refund an amount of Rs. 90,462/- to the Complainant within one month from the date of this order apart from litigation cost of Rs. 5,000/-.
OPs are also directed to pay an amount of Rs. 10,000/- to this Forum for indulging unfair trade practice within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.”
The case of the Respondent/Complainant was that the Respondent/Complainant, being convinced by one Shri Dhruva Kumar, claiming himself to be salesman/representative of the Appellants/OPs, owned one Vacation Ownership Plan. In the process of owning such plan the Respondent/Complainant signed both the printed form and the Bank’s form, allegedly, on being persuaded to sign the said documents by the above mentioned salesman/representative of the Appellants/OPs. The Respondent/Complainant was assured of the ownership plan certificate with terms and conditions of the plan being dispatched on 09.11.2015. An amount of Rs. 81,922/- was debited from the Bank Account of the Respondent/Complainant with no terms and conditions being dispatched as per commitment.
The Respondent/Complainant, however, had received the kit on 24th December, 2015 but could not peruse the terms and conditions of the plan before 19.03.2016 because of his pre-occupation during the intervening period. Meanwhile, the Respondent/Complainant had to pay an annual subscription amounting to Rs. 8,540/- on receipt of a communication to that effect through email dated 05.01.2016 from the Appellants/OPs. The vacation kit, which the Respondent/Complainant managed to find time to peruse after a gap of almost three months since the date of receipt of the kit, was seen to have shown a down payment of Rs. 0-/ as against an amount of Rs. 81,922/- already paid. The anomaly as above in respect of the paid amount prompted the Respondent/Complainant to decide on cancellation of membership. The Respondent/Complainant demanded his membership to be cancelled on refund of Rs. 81,922/- and Rs. 8,540/- paid as down payment and annual maintenance contract charge respectively, total being Rs. 90,462/-, which the Appellants/OPs refused to accommodate.
The aggrieved Respondent/Complainant then filed the Complaint Case before the Ld. District Forum. The impugned judgment and order which was put under challenge in the instant Appeal, originated from the said Complaint Case.
Heard Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellants/OPs submitted that the Appellants/OPs had never committed to the Respondent/Complainant towards the dispatch of kit on 9th November, 2015. The kit was sent to the Respondent/Complainant after the least time required for processing the petition. Admittedly, the Respondent/Complainant received the kit on 24th December, 2015.
As he continued, it was peculiar that the Respondent/Complainant kept the papers relating to the ownership plan in his custody without perusing the same on an afterthought plea of his pre-occupation. Admittedly, he could manage to peruse the papers on 29.03.2015 but did not like the plan. No reason appeared to have been specified for his disliking.
As submitted, the Respondent/Complainant claimed refund of the entire amount of Rs. 90,462 which was against 12(a)(iv) of the terms and conditions, running page 35, wherein 100% admission fee was shown as the cancellation charge. The matter was well explained to the Respondent/Complainant before acceptance of the Vacation Plan which the Respondent/Complainant adopted paying the down payment and signing in all the pages of the documents himself. The policy terms and conditions, being nothing else than the contract between the parties, the parties are tied down by the same and there was no scope of afterward deviation. The claimed refund, as contended, was rightly repudiated in view of the given facts and circumstances.
The Ld. Advocate with the above submission prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent/Complainant, per contra, submitted that the terms and conditions of the plan was signed in all the papers by him in good faith. The kit relating to the Vacation Ownership Plan was received by him on 24.12.2015, that is, long after 47 days from the date on which the plan was adopted.
The papers containing the kit could not be gone through by the Respondent/Complainant for, as submitted, its pre-occupation. His disliking towards the plan, as contended, developed on going through the plan where, in the forwarding letter, the down payment amount was shown as ‘0’ as against Rs. 81,922/- already paid and the total discount was shown as ‘0’ as well in violation of their commitment at the time of taking the plan that a discount @ 3% would be provided to him.
The Ld. Advocate contended to submit that he was charged an amount of Rs. 8,540/- as the AMC as against their commitment of the AMC of Rs. 5,000/-. The Ld. Advocate submitted that grievances, in spite of being brought to the notices of the Appellants/OPs, were meted out with poor response from the Appellants/OPs.
The Complaint Case which the Respondent/Complainant filed out of his grievances due to the above mentioned deficiency was, as contended, allegedly adjudicated by the Ld. District Forum which should be upheld.
Perused the papers on record and considered submissions made by the Ld. Advocate before the Bench. The Respondent/Complainant was not a nonage or any fellow having lack of education. He himself filed all the papers and affirmed his signing of the papers on his own assent at the time of submission of argument. The papers, as submitted on his behalf, were all signed in good faith. It was not understood why the papers including forms for the Banks which involved clearance towards financial transactions were so casually signed by a person of Respondent/Complainant’s responsibility and position. It was not understood as well why the good faith reposed upon the Appellants/OPs evaporated so early as reason assigned for such loss of faith in the Complaint Petition did not corroborate the papers—uncontroverted so far by the Respondent/Complainant—available with the records.
Since the Respondent/Complainant accepted the plea of signing the agreement himself, we had no hesitation to hold that he was bound by the terms of the contract and had no viable excuse to withdraw himself from the agreement he had once entered.
In this context, we placed our reliance also on the decision of the Hon’ble Supreme Court in Bharathi Knitting Company—Vs—DHL World Wide Express Limited reported in [996] INSC 691 (9 May 1996) wherein the Hon’ble Apex Court was pleased to hold that a person who signed a document containing contract and terms was normally bound by them even though he had not read them and even though he was ignorant of their precise legal effect.
We have seen the papers meticulously. Running page 32, being the letter dated 25.11.2015, addressed to the Respondent/Complainant by the Appellants/OPs does not appear to be indicative of any adverse views as claimed in the plan. Running page 33, being the plan details, where the down payment of Rs. 81,922/- has been rightly recorded, appears to be figuring in an amount of Rs. 5793/- inclusively of service tax as annual subscription fee (ASF). The foot note after the head “your payment details” indicated the likelihood of revision of the ASF from time to time and the change of service of tax charges as per Government notification. This probably justifies the claim of higher charging of ASF from Rs. 5,793/- to Rs. 8540/-. We find the impugned judgment and order was delivered based on the plea taken by the Respondent/Complainant with a view to bring in his favour the buttered portion of the bread—the lost merit of the case—on the instant occasion. In this context, the basic principle to be followed is that no man should be allowed to take advantage of his own wrong. We smell material irregularity in the impugned judgment and order in view of the narrated facts and circumstances.
Above being our views, we are afraid we have hardly any reason to be at one with the observation with the impugned judgment and order and intend accordingly to allow the Appeal setting aside the impugned judgment and order.
Hence,
Ordered
that the Appeal be and same stands allowed. The impugned judgment and order stands set aside. Consequent thereof, the Complaint Case also stands dismissed. No order as to costs.
