DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 121/2019
Mr. Avijeet Kumar and Nancy Kumari
F-501, Aims Max Gardenia, golf city,
Plot No.8, Sector 75, Noida (UP)-201301
….Complainant
Versus
Signature Linkers Pvt Ltd.
K-28, 2nd FLoor, Lajpat Nagar-2, New Delhi-110024
….Opposite Party
Date of Institution : 01.05.2019
Date of Order : 20.01.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking the amount deposited with the OP i.e Rs.1,35,000/- and Rs.40,000/- for mental agony, loss of peace and cost of litigation.
- It is stated by the Complainant that they took the membership from OP on 19.03.2018 for Rs.1,65,000/- for a term of 10 years and paid Rs.1,35, 000/- on the same date and the rest of the amount i.e Rs.30,000/- had to be paid during Asia trip within 3 years.
- The membership was provided by the OP for “within Asia” as:
2 air ticket (within Asia) + food, breakfast and dinner for 6 night and 7 days + sightseeing.
- It is the case of the Complainant that he made a payment of Rs.1,35,000/- from his HDFC credit card and converted the transaction into easy EMI for 12 months and it was told to him by the OP that the interest amount of the EMI will be reimbursed to the Complainant in 4 instalments. OP provided the first instalment of reimbursement of Rs.2,800/- but after that did not give the rest 3 instalments to the Complainant. On 16.07.2018, Complainant sent an email to the OP requesting a trip to Dubai on 18.10.2018 as the Complainant wanted to avail the offer of 6 nights 7 days Asia trip with 2 air ticket, food, breakfast, dinner for 6 night 7days + sightseeing.
- The OPs replied on 25.07.2018 stating that they were ready for Dubai booking but offered 2 one way air tickets 4 nights 5 days + breakfast, sightseeing, half day city tour, desert safari tour, barbecue, dinner.
- The Complainant realised that the offer given to him on 25.07.2018 was not matching with the offer which was earlier given by the OPs on 19.03.2018 therefore, the Complainant communicated with the OP several times over phone as well as email but OP was not ready to match the trip plan as was mentioned in the membership application and approval form.
- On 19.10.2018 and on 18.01.2019, the Complainant sent an email to the OPs to refund the Complainant’s money which was paid by the Complainants on 19.03.2018. It is the grievance of the Complainant that even after contacting the OP several times, the OP has not returned the money therefore the complaint has been filed.
- On the other hand, the OP in the reply has stated that the complaint is misconceived, groundless, unsustainable in law and that the Complainant has suppressed material facts. It is stated that the complaint has been filed without any cause of action against the OP. It is also stated that the complaint involves intricate questions of law in facts and this Commission is not the right Commission to adjudicate upon the subject matter.
- It is stated by the OP that when the Complainant contacted them in July 2018, the prevalent package was for 4 nights and 5 days and therefore the barbeque dinner was added for compensating the reduced stay from 6 nights 7 days. It was informed to the Complainant that in case he wanted 6 nights 7 days then the said packages would be available only in August 2018.
- It is stated by the OP that at the time of booking the package it was made clear to the Complainant that the money would not be refunded under any circumstances after 2 months as the money would be transferred to the associate service providers of the OP.
- It is stated by the OP that they are still ready to provide the holiday packages as agreed under the membership agreement but the Complainant is only insisting on the refund. It is stated by the OP that they had in detail explained the terms and conditions of the agreement to the Complainant and the Complainant after fully understanding the terms and conditions voluntarily entered into the said agreement.
Both the Complainant and the OP have filed their respective evidence affidavits and written submissions. This Commission has gone through the entire material on record and it is seen that the OP has not filed any document along with their reply or evidence although they have placed reliance on judgments Ravneet Singh Bagga vs KLM Royal Dutch Airlines, Indigo Airlines vs Kalpana Rani Debramma, SGS India Ltd vs Dolphin International Ltd.
The OP is relying on the clause stating that the refund would not be done under any circumstances.
The clause referred to as exit option is as under
“within the period of 7 days from the checkout date of first holidays/vacation upon receipt of written notice this agreement is terminable at the option of the purchaser(s). if purchaser(s) opt for termination of membership purchase agreement the money paid by him/them as vacation ownership fee/administration fee is not refundable in any circumstances due to any reason”
This, in our view is not a happily worded clause which does not give any option to the Complainant to exit from the said agreement and is one sided contract. The Hon’ble Supreme Court, in Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors. AIR 2021 SC 437 has held that “developers cannot compel apartment buyers to be bound by one-sided contractual terms. Finding such one-sided agreements oppressive, the Court has held that the same would constitute an unfair trade practice under the consumer laws in India”
Therefore, we are of the opinion that such terms in a contract constitute unfair trade practice and the fact that the OP did not provide any service to the Complainant, we direct the OP to refund the amount paid by the Complainant i.e Rs.1,35,000/- with interest @5% p.a within two months from the date of receipt of this order to be paid from the date of refund being sought i.e 19.10.2018 till realization failing which the interest payable on the said amount would be @7% p.a till realization.
File be consigned to the record room and order be uploaded on the website.
