RESERVED

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Appeal No. 1053 OF  2016

      (Against the judgment/order dated 19-03-2016 in Complaint Case

                          No.651/2010 of the District Consumer Forum-I, Lucknow)

1. Mahindra Holidays & Resorts India Ltd

Mahindra Towers, 2^nd Floor, 17/18

Patulous Road, Chennai-600002

Through its Authorized Signatory

2. Branch Office: Mahindra Holidays & Resorts India Ltd

TDI Centre, Unit No. 34-45, 1^st Floor

TDI Centre, Plot No.7, Commercial Complex

Jasola, New Delhi 110025....Appellants

      Smt. Asha Tripathi, W/o Shri C P Tripathi

      R/o F-3220, Rajajipuram, Lucknow.                                       ....Respondent

BEFORE:

HON'BLE MR. RAJENDRA SINGH, MEMBER

HON’BLE MR. GOVARDHAN YADAV, MEMBER

HON’BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

For the Appellants  :      Sri Vinod Kumar Singh and Sri Satya Prakash

                                       Pandey, Advocate

For the respondent  :      Sri N C Upadhyaya, Advocate.

Date    : 19.03.2021

                                                       JUDGEMENT

                            PER MR. RAJENDRA SINGH, MEMBER

This appeal has been preferred against the judgement and order dated  19^th March 2016 passed by District Consumer Disputes  Redressal forum – 1, Lucknow in complaint case number  651 of 2010 by which the present Appellants have been directed to refund/pay ₹ 179,795/– that is the principal amount along with 9% interest from the date of institution of the complaint and also including direction to pay ₹ 20,000/– towards compensation and ₹ 3000/– towards litigation cost.

In short the appellants have stated that the judgement and order has been passed without considering the evidence of the applicants/appellants on record against the principle of natural justice, thereby avoiding the applicant/appellants the opportunity of fair and equitable trial for adjudication of the matter. The impugned order was passed on 19^th March 2016 and the certified copy of the same was received on 28^th April 2016.

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The Appellant company is functioning under the name and style of Mahindra  Holidays and Resorts India Ltd (MHRIL )  and is a part of the Mahindra Group company. The appellant company is engaged in the business of providing vacation ownership to its members (I.E, for a period of 25 years) who have purchased Club Mahindra  Holidays Membership (CM HM). CM HM is a holiday product which entitles the members to avail seven days of holidays every year, during the allotted season in the allotted apartment, in any of the resorts of club Mahindra in India and abroad for a period of 25 years subject to terms and conditions mentioned in the Membership Rules.

The brief facts of the case are that, that the complainant/respondent approached the Appellant in the month of August 2007 by visiting the appellant company office and showed her willingness to subscribe/purchase the membership of club Mahindra from the appellant and requested the representatives of the Appellant to explain the procedure and formalities for taking the membership along with the details. It is significant to mention here that the complainant/respondent was given proper presentation about the benefits of the membership, as also all terms and conditions of membership rules were explained to him. And only after having satisfied herself of such terms and conditions that the complainant/respondent signed the Membership Application form on 27^th August 2007.

It is pertinent to mention here that only after being satisfied with the membership scheme, the complainant/respondent with his own sweet will and volition purchased/subscribed “White Studio Category Membership” with membership cost being ₹ 1,94,409/–. The complainant/respondent as per the plan of payment made initial payment of ₹ 29,161/– that is 15% total membership cost and further agreed to pay the monthly instalment of Rs 4,726/- each for a period of 48 months against the membership that she bought from the appellant.  Admittedly , the complainant/respondent has paid ₹ 1,79,795/– to the appellant company with no further EMI. Not a single annual subscription fees (ASF) has been paid by the complainant/respondent which is mandatorily required to be paid by every member towards upkeep and maintenance of the resorts.

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The membership form itself contains extracts from the rules and complainant/respondent has duly signed the Member’s Review for Confirmation of Understanding. The same states :

1. “I/we confirm having read the Membership Rules governing allotment of Club Mahindra Holiday Membership and the RCI terms and conditions and agreed to abide by the same, and all necessary clarifications and information on the Membership Rules have been provided to us.
2. I/we understand that the amounts are paid towards Admission Fee (AF) is non-refundable”

After going through the rules, regulations, terms, conditions and payment schedule of the different schemes/membership and after being satisfied from the above said rules and regulations, the complainant/respondent opted to purchase the membership of the Appellant company by signing the membership contract i.e, membership application form on 27^th August 2007 . The complainant/respondent was enrolled as a member of the appellant company and the complainant/respondent was given enrolment benefits/special benefits as per Membership Application Form subject to terms and conditions which are as under :-

1. Seven Nights complimentary stay at the CM resorts in white and blue seasons only. (Terms: Holidays at Club Mahindra Resorts can be availed in Blue White Season only. Eligibility of the holiday is subject to the realisation of 15% of Membership Fee can be availed up to one year from the date of eligibility but not beyond 31^st December 2008, whichever is earlier)
2. food voucher worth ₹ 3000/– (terms ; Eligibility of the food coupon is subject to realisation of 15% to Membership Fee food vouchers That are buried at Club Mahindra Resorts Only Valid up to one year from holidays start date. Please note that extension will not be permitted. Food vouchers that can be used against fun dining). The little 01.10.2009.
3. 04 Indian Air Ticket (One-Way). Terms; eligibility of the is

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 subject to realisation of 15% of Membership Fee. The Indian Tickets are applicable for point-to-point travel only and valid till December 15 , 2007. The vouchers will be dispatched within 45 days from the date of entitlement.

The appellant company has already dispatched to all the above-mentioned complimentary enrolment benefits to the complainant/ respondent with the membership kit. This fact was also highlighted by the appellant company in their reply and evidence by way of affidavit filed before the District Forum but this very fact that could have changed the finding of the Hon’ble District Forum was erroneously overlooked by the Learned District Forum in gross disregard of the facts on record. Not only this The Learned District Forum interpreted the terms and conditions governing the enrolment benefits/complimentary benefits on imaginary basis with utter non application of judicial mind.

This complainant/respondent has averred in her complaint that when she had tried to use the offer vouchers, but the Appellant company denied to give such facility to the complainant/respondent due to rush season or complainant/ respondent has been deprived of getting facilities as per contract. It was further averred that the act of the Appellant company falls under the ambit of deficiency in service  and / or unfair trade practice. A perusal of the documents on record would clearly show that the complainant/respondent has distorted the material facts and misled The Hon’ble Forum to accept the version of the complainant/respondent verbatim without establishing the fact as to how the appellant company could be held liable as being deficient in providing services and/or indulging in unfair trade practices for not providing holiday if there is no document placed by the complainant/respondent on record to show in the complainant/respondent had ever requested for booking of holiday. In absence of any such request for the services and also not opting to avail the services as such by the complainant/respondent on account of paucity of time/or for other reasons at her own end cannot be any means be termed as deficiency in services on the part of the appellant company

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The complainant/respondent in the complaint has averred that the Appellant company has realised EMI regularly but has failed to give any facility as per contract which amounts to gross deficiency in services. However, such averment of the complainant/respondent is not supported by any cogent evidence showing the complainant/respondent has ever made request for booking of holiday . On The Contrary, a perusal of member’s review for confirmation of understanding of Member Application Form and next with the reply clearly shows that there are no other verbal/written promises or any other assurances not mentioned in the Membership Application Form ( MAF ) that have been given by the appellant company the relevant extract/rule/clause of Member’s Review Confirmation of Understanding forming part of the Membership Application which was duly signed by the complainant/respondent is being reproduced hereunder:

Clause 1 : “ I/we confirm having read the membership rules That governing allotment of Club Mahindra Holiday Membership and the RCI Terms And Conditions and agree to abide by the same. All necessary clarification is an information on the Membership Rules have been provided to us.

Clause 2 : I/we under stand that the amounts paid towards Admission Fee (AF) is non-refundable.”

Clause 8 : I/we understand that MHRIL needs to maintain the resort towards which I/we confirm having agreed to pay Annual Subscription Fees (ASF) whether I/we avail of holiday in a particular year or not and non-payment of the same shall result in my/our this entitlement from the use of and/or cancellation of CM HM.

Clause That 14 : I/we confirm that there are no other verbal/written promises or any other assurances not mentioned in the membership rules that have been made by any MHRIL Personnel .

The complainant/respondent in order to get out of the contract/membership of the appellant company and for getting the amount so given to the Appellant  company refunded, twisted the facts and in order to snatch order from the Learned Consumer Dispute Redressal Forum – 1, Lucknow preferred a complaint in the month of November 2010 . The appellant company filed statement denying all the averments. The Learned District Forum has rather set up a new case of the

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complainant which was never pleaded. The impugned judgement/order has been passed without proper appreciation of documents on record.

The learned District Consumer Forum has totally lost the sight of the fact that the complainant/respondent had never requested for availing the services of holiday from the appellant company and thus failure on the part of the complainant/respondent to derive the benefits of membership arising from paucity of time and/or for other reasons on the part of the complainant/respondent herself could not be fastened on the Appellant. The complainant herself is a defaulter and she also not paid the annual Subscription Fee since the year 2008 . The learned District Consumer Redressal Forum –1 has allowed the complaint on mere conjectures and surmises by accepting the averments of the complainant verbatim without appreciating the material facts on record as placed by the appellant company. The Learned Forum has also lost the sight of the fact that the complainant/respondent has herself failed to utilise the food voucher and air tickets within their validity period and thereafter has raised issue of deficiency in services on flimsy grounds with no cogent reasoning or proof whatsoever. The Learned Forum has also erroneously interpreted the validity Of Air Tickets and Food Was by linking them with holiday start date mentioned on the membership certificate without understanding the fact that these benefits were part of the complimentary offers/enrolment benefits and that were free for utilisation independent of holiday start date of membership.

The impugned order of the learned Forum is contrary to law, facts and circumstances of the case and suffers from non-application of mind. The impugned order is perverse, bad in law and has resulted in gross miscarriage of justice and has caused grave injustice, a new hardship, losses and irreparable injury to appellants. The Hon’ble learned Forum has failed to appreciate the true and correct fact as well as failed to this point of law as referred and relied upon by the appellant during the proceedings. The Hon’ble Forum has failed to appreciate between enrolment benefits and regular benefits of the membership and has come to an erroneous conclusion which is not based on true facts. The learned district forum has overlooked the fact that the complainant/respondent had never requested for availing the services of holiday from the appellant company and thus

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failure on the part of the complainant/respondent to derive the benefits of membership arising from paucity of time and/or for other reasons on the part of the complainant/respondent herself could not be fastened on the Appellant.

The Learned District Forum has erroneously interpreted the validity of air tickets, seven days holiday and food voucher by linking them with holiday start date. The learned Forum has erroneously concluded that when holiday start date is 1 October 2008 as per the membership certificate, how the complainant/respondent can use the air tickets with validity till 15 December 2007. The learned District Forum has also miserably failed to understand the basic difference between enrolment benefits/complement benefits and never benefits/entitlements are of membership. The observation of the Learned Forum on the face of it is fallacious. Similarly, the conclusion drawn by the learned Forum regarding seven days holiday i.e. when variety of holiday expires on 27^th August 2008 whereas holiday started it is 1 October 2008 then how this offer can be made use of because the offer gets expired before the holiday start date is misconstrued and wrongly interpreted without understanding the nature of offers. The learned Forum failed to appreciate that the terms and conditions of the membership were well in knowledge of the complainant/respondent. There is no proven deficiency in service by the Appellant. The learned Forum failed to appreciate the first principles of law that once an agreement has been entered into between the parties then the party alleging the violation has to discharge the duty of proving the violation. The Learned Forum failed to appreciate that the complainant/respondent had entered into enactment with the appellant company with her own sweet will and volition for subscribing/purchasing White Studio Category Membership with membership cost being ₹ 194,409/–. The complainant has not paid even a single annual subscription fee. The complainant/respondent apparently defaulted in making payment and further filed complaint on flimsy grounds without adducing any plausible evidence by merely alleging deficiency. The learned District Forum brushed aside the rules which are the binding contract between the parties. Rule 6 that a request of cancellation of membership is made within 10 days from the realisation of downpayment in that even the member is eligible for full refund, however, post 10 days  from the date of application of membership general

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cancellation rule applies .

“Extracts of rule 6.1 and rule 6.2 of the Membership Rules which states as :

“ 6.1 . In the event of termination/cancellation of CM HM the following shall apply- Recession Period Termination /cancellation: withdrawal of application for CM HM shall be permitted within the recession. Which is 10 days from the date of realisation of 25% of admission fee, provided such request for withdrawal is made in writing & by both the applicants/members in case of a joint membership and reaches MHRIL within 10 days from the date of application. In the event of such withdrawal, MHRIL shall refund the entire amount paid by the member towards membership fee within 30 days from the date of receipt for withdrawal.”

Post Recession Period Termination/cancellation (by applicant/member/MHRIL ): in the event of withdrawal of the application by an applicant beyond 10 days from the date of application, the applicant shall not be eligible for any refund of the amounts of the Admission Fee paid by him.

6.2 : upon the cancellation the following deduction shall be made byMHRIL from the amounts paid by the members towards the entitlement fee.

(a) pro-rated EF for the period (in years) from the start of membership usage period to the date of termination. Part of the year shall be treated as full year for the purpose of calculating the direction.

(b) outstanding annual subscription fee together with interest if any,

( c)  Taxes due

(d) cost of holidays enjoyed by the member in excess of entitlement;

(e) any other amounts of due to MHRIL

(F) any premium/enrolment incentives

So upon termination of the membership the procedure and deductions as enshrined rule 6.2 has to be followed but the Learned District Forum has totally

 overlooked this aspect of the matter .

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As per the provision of rule 6 which provides for the refund of money paid only when a request for cancellation of membership is made by the member within 10 days of realisation of downpayment and not thereafter. In the event of cancellation after recession period of 10 days, admission fees consisting of 60% of the total membership fee is non-refundable, only entitlement fee which forms 40% of the total membership fee is refundable which is subject to other applicable deductions. Thus as per membership contract containing binding contractual stipulations between the parties, refund is permissible in terms of membership contractor only and not otherwise. In terms of provisions of rule 6, the appellant company had provided detailed calculation of applicable refund in their evidence by way of affidavit dated 15 May 2015 to which the complainant/respondent was eligible for. It is written that apparently first of white studio category membership at the time of subscription/purchase of membership by the complainant was ₹ 194,409/– paid towards admission fee is non-refundable. Only 40% of membership cost that is ₹ 77,754/– is refundable subject to the other applicable deduction cost to be charged from the complainant by the OP company towards overdue of ASF stands at ₹ 23,826/– (for the year 2008, ASF is ₹ 7333/–, for the year 2009 ASF is ₹ 7948/-, for the year to 3^rd 10 ASF is ₹ 8545/–). Apparently, as recoverable amount by the OP company stands at ₹ 23,126/– to be deducted from 40% of membership cost that is ₹ 77,754/–, hence ₹ 53,928/– is refundable only to the complainant in terms of membership contract.”

The observation of the learned forum that the complainant/respondent is eligible for full refund as against the provisions of membership rules is erroneous as after signing the contract the complainant/respondent can neither have liberty nor could be allowed to rewrite the contract or act in contravention of contractual obligations. The complainant/respondent was well aware that cancellation of membership and refund arising there from has to be within recession period  Only , i.e, 10 days from the date of realisation of downpayment and not thereafter. It is made clear that the complainant/respondent had not made any duly signed request in writing to the appellant company for cancellation of his membership within the recession period of 10 days . This very fact has not been considered by the Hon’ble Learned Forum.

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The Appellant company is well within its right to forfeit 60% of the membership cost which forms admission fee. Only 40% of the membership cost forming entitlement fee is refundable subject to other applicable deduction. The objections and contentions raised by the appellant company in written statement/reply and evidence by way of affidavit have been erroneously overloaded by the learned District Forum. The Learned District Forum has interpreted the terms governing the enrolment/complimentary benefits on the basis of whims and fancies without going into merit of matter in issue. The Learned District Forum while allowing the complaint of the complainant/respondent has ignored the aforesaid facts which apparently seems biased and heavily tilted in favour of the complainant/respondent despite the evidence is on record adduced by the appellant company being contrary. The imputed judgement is neither just nor proper. The learned Forum has overlooked the case laws cited by the appellant’s here in and have not dealt with the same in the impugned order without furnishing reasons for the same and as such the impugned order is a nonspeaking order and the same are bad in law and liable to be set aside and quashed. The Hon’ble district forum failed to appreciate and consider the submissions and contentions raised by the appellant’s thereby ignoring the basic principles of law and thus passed the impugned order in haste. The impugned order passed by the Hon’ble forum i.e. also otherwise bad on facts and law and the plants crave leave to add to and file supplementary grounds as may be deemed necessary.

The finding of the Learned District Forum with regard to the deficiency in service is not sustainable in the eyes of law and the same is liable to be set aside. Therefore it is requested to allow the appeal while setting aside/modifying the order dated 19 March 2016 passed by the Learned District Disputes Redressal Forum – 1, Lucknow and pass such other/further order/direction as this Hon’ble commission may deem fit and proper in the facts and circumstances of the present case.

We have heard Sri  Vinod  Kumar  Singh and  Sri  Satya  Prakash  Pandey learned counsels for the Appellant’s and Sri  NC  Upadhyaya , learned counsel for the respondent and also perused the pleadings, evidences and documents on record. .

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During the arguments the Council for the appellant Sri  Vinod  Kumar  Singh has submitted at par that company is ready to comply with the order passed by the Hon’ble District Consumer Forum and also ready to make payments to the applicant within two weeks from today. The appellant also agreed to provide one week free holiday tour to the complainant, her husband and two children with all travelling expenses, fooding, lodging and miscellaneous expenses. Hence due to this submission this appeal is liable to be set aside with direction to the appellant to provide one week free holiday tour to the complainant along with her husband and two children of any station within India of his choice with all the travelling expenses including fooding and lodging and other miscellaneous expenses in the next 10 months                                            

                                            JUDGEMENT

This Appeal is dismissed with cost and the order of the District Consumer Disputes Redressal Forum-1 , Lucknow dated 19 March 2016 is confirmed with addition that the appellant shall provide one week free holiday tour to the complainant along with her husband and two children, of any station within India of his choice ,with all the travelling expenses including fooding and lodging and other miscellaneous expenses in the next 10 months . Let the copy of the judgement be issued as per rules.

         ( Rajendra Singh )      ( Govardhan Yadav )         (Justice Ashok Kumar )

                Member                         Member                              President

Judgement signed / dated today and pronounced in the open court. Let the file be consigned.

        ( Rajendra Singh )      ( Govardhan Yadav )         (Justice Ashok Kumar )

                Member                         Member                              President