DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.233/2007
1. Mrs. Brahmavidhya Katiyar
2. Mr. Rahul Katiyar
Both R/o
Flat C-3/403,
BPCL Housing Complex
Sector-56, Noida-201301 ….Complainant
Versus
1. Spring Holidays Ltd.
402, Nirmal Tower,
26 Barakhamba Road,
Connaught Place
New Delhi-110001
2. D’ Chalet
through its Proprietor
90/27-A, Basement,
Near Main Market,
Malviya Nagar, New Delhi-110017
3. D’ Chalet
Club House Road,
Manali (H.P.)-175131
4. RCI-Resort Condominiums India Pvt. Ltd.
208-209, Brigade Gardens19,
Church Street,
Bangalore-560001 ……Opposite Parties
Date of Institution : 01.02.07 Date of Order : 01.07.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S.S. Fonia Member
O R D E R
Briefly stated, the Complainants allege that in September, 2004 they were intimated by the OP No.1 that their number 55272455 had been randomly selected for a free gift and requested to visit Hotel Asian International on 17.10.04 to collect the gift. They visited the said hotel on 17.10.04 and found that the free gift was sponsored by OP No.1 who primarily wanted to sell the membership of D’ Chalet/OP No.2 & 3. After persuasion, Complainants agreed to purchase membership from OP No.2 & 3 and paid Rs.10,000/- on the spot as registration and confirmation fees through debit card and also gave a cheque No.0545696 in favour of OP No.1 for an amount of Rs.85,000/-. On 17.10.2004, they entered into D’ Chalet Purchase Agreement with OP No.1 to 3 vide Agreement No.SDC-2257 which was duly executed on Rs.10/- stamp paper wherein it was mentioned D’ Chalet is affiliated with RCI/OP No.4 and allows for the reciprocal exchange programme for the resort members. The said cheque for an amount Rs.85,000/- was debited from their account. They received a welcome letter dated 19.10.04 from OP No.1 confirming the membership of RCI. In January/February 2005, they received a call from OP No.1 to visit their corporate office to complete the forms for application to RCI for membership. They were made to understand that the forms would be forwarded to D’ Chalet who thereafter take it up to RCI for issuance of membership. From February 2005 to August 2006, innumerable calls were made to the OP No.1 to enquire about the status of RCI membership card but they were assured that the matter was under progress. On 23.09.06, they called up RCI directly to know the status of D’ Chalet resorts and were informed that the D’ Chalet resorts had been disaffiliated since early 2005. Thereafter, they issued a legal notice dated 26.09.2006 to the OP No.1 to 3 who neither replied the legal notice nor provided promised benefits. When Complainants were about to file the complaint, they received a travel club holiday membership from OP No.4 on 29.12.06 but the same did not provide the promised benefits as per the purchase agreement dated 17.10.04. Hence pleading deficiency of service and unfair trade practice on the part of the OPs, the complaint has been filed with the following reliefs:-
- Direct the OPs to pay to the Complainants a sum of Rs.1,42,500/- (Rs.95,000/- principal amount and Rs.47,500/- towards interest @ 24% p.a. from 17.10.04 to 11.11.06) alongwith interest @ 24% p.a. from 10.11.06 till the date of realization of the amount.
- Direct the OPs to the Complainants a sum of Rs.1 lac towards compensation for causing mental agony, humiliation and harassment to the Complainants.
- Direct the OPs to pay to the Complainants a sum of Rs.10,000/- towards cost of litigation.
OP No.1 in the written statement has inter-alia stated that the Complainants approached them out of their own free will for the purchase of membership of D’Chalet Resort and entered into a purchase agreement No.SDC-2257 dated 17.10.04 and OP No.1 was only the authorized marketier of the OP No.2 and the payments made by the Complainants were duly transferred to the OP No.3 and only thereafter the certificate was issued by the OP No.3. The Complainants never made any call to them after receiving the certificate from OP No.3. Therefore, there is no deficiency in service or any breach of terms and conditions with respect to the membership agreement against the OP No.1. It is admitted that the Complainants gave an amount of Rs.10,000/- and a cheque for an amount of Rs.85,000/- to them and the payment was transferred to the OP No.3. OP No.1 has prayed for dismissal of the complaint.
OP No.2 & 3 in their written statement have stated that the Complainants are the members and entitled to their scheduled holiday week and the membership card was issued by the OP No.4 and they are affiliated to RCI/OP No.4. The agreement was signed between the Complainants and the OP No.1 and they are not a signatory or subscriber thereto hence the Complainants are making frivolous allegations against them. The Complainants had paid the money for the time share and not for the membership of RCI. The Complainants were entitled to exchange benefit which they were entitled and OP No.2 & 3 are not guilty of any deficiency in service or unfair trade practice, nor they are liable to pay anything to the Complainants. The Complainants are liable to compensate the OP No.2 & 3 for filing the false, frivolous and vexatious complaint. The OP No.2 & 3 have prayed for dismissal of the complaint.
OP No.4 has been proceeded exparte vide order dated 19.07.07 passed by our predecessors.
Complainants have filed rejoinder to the written statement of OPs inter-alia reiterating the averments made in the complaint. In the rejoinder to the written statement of OP No.2 & 3 the Complainants have stated that they have entered into an agreement with OP No.2 & 3 and OP No.2 & 3 issued share ownership certificate. In the agreement it was mentioned that D’ Chalet affiliated with the OP No.4 allows for the reciprocal exchange programme for the resort members and they are entitled and may use their allotted weeks of stay at the resort or may exchange the same with any other resort affiliated with OP No.4 on payment of discounted charges. The agreement also provided that they could sell, rent, gift, lend and exchange their allotted weeks of stay but OPs failed to provide the promised services to them as per the agreement.
Thereafter, OP No.1 to 3 have been proceeded exparte.
Complainant No.2 has filed his affidavit in evidence in support of the claim and relied upon the documents Ex. C-1/1 (Colly) to C-6/1 (Colly) and written arguments. We have heard the arguments on behalf of the Complainants and have also gone through the file very carefully.
Admittedly, Complainants purchased a membership from OP No.2 & 3 and paid Rs.95,000/- on 17.10.04 and entered into D’ Chalet Purchase Agreement with OP No.1 to 3 vide Agreement No.SDC-2257 and the D’ Chalet is affiliated with RCI/OP No.4 and allows for the reciprocal exchange programme for the resort members.
Now we straightaway come to the question whether the Complainants are entitled to avail the services of OP No.4 or not? If not what benefits the Complainant are entitled to?
The OP No.2 & 3 issued a purchase agreement to the Complainants vide agreement dated 17.10.04 (Copy Ex. C-3/1). Copy Ex. C-3/4 is relates to the letter issued by the OP No.4. The OP No.2 & 3 issued a time share ownership certificate to the Complainant vide membership No.D-1720 dated 08.11.04 to the Complainants for the membership period of 32 years alternate (Copy Ex. C-5/1). The Complainants vide letter dated 25.09.06 sent a legal notice to the OP No.1 to 3 to refund an amount of Rs.95,000/- alongwith 12% interest. The OP No.4 vide letter dated 15.11.06 issued to the Complainants to activate their membership and start enjoying the holidays (for the purpose of identification we mark the document as Annexure-A).
The only grievance of the Complainants is that the travel club holiday membership received by them from OP No.4 on 29.12.2006 was not as per the terms contained in the agreement dated 17.10.2004 as the same did not provide the promised benefits. Copy of the agreement dated 17.10.2004 bearing No. SDC 2257 is Ex. C-3/1. Clauses 5 to 8 are relevant. They are reproduced as hereunder:-
“5. The Resort is affiliated with RCI (Resorts condomoniums International) and independent Exchange organization allowing for a reciprocal exchange programme for the Resort member. All representations set forth within the brochure and literature of the said organisation remain representations of that organisation.
6. The Management Charge payable to upkeep the resort per annum is INR Rs.2000.00 per annum.
7. Currently the exchange fees are:
Domestic International
Peak 3250 9000
Bonus Week
Peak 9000 13000
Low 4000 7000
8. I acknowledge that I may use my week at the resort, or I may exchange my week, lend it, gift it, rent it, sell it or bequeath it without restriction at any time.”
Now copy of letter dated 15.11.2006 stated to have been received by the Complainants from OP No.4 on 29.12.2006 is Annexure-A [Complainants have marked it as Annexure C-7 (Colly)]. By sending this letter alongwith the card, OP No.4 offered the facilities in all their resorts throughout the world to the Complainants during the validity of their membership. Thus, it stands proved that the OPs had fulfilled all the conditions of contract dated 17.10.2004 and thus the empty satisfaction of the Complainants cannot be allowed to prevail over the proved facts. MOREOVER, THE COMPLAINT and the ACCOMPANYING AFFIDAVIT ARE NEITHER SIGNED BY THE COMPLAINANTS OR ANY OF THEM OR THEIR ADVOCATE. Hence, the same is not a complaint as defined in the Consumer Protection Act.
In view of the above discussion, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Announced on 01.07.16.
