Date of Filing: 07/09/2011

        Date of Order:20/10/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  20^th DAY OF OCTOBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1661 OF 2011

Ravi Gupta,

R/at: 2^nd Floor, # 539,

Hanumappa Road, New Tippasandra,

BANGALORE-560 075.

(Rep. by In person)                                                         ….  Complainant.

V/s

Mr. Sriram, Manager,

A.J. Interlinks Private Limited,

Jayalakshmi Arcade 1B-48, 28^th Cross,

7^th Block, Jayanagar,

BANGALORE-560 082.

(Rep. by Sri.B.S.Raamprasad, Advocate)                              …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay the sum of Rs.60,000/-, are necessary:-

The complainant purchased a Holiday Package for seven years from the opposite party on 15.08.2011 by paying Rs.60,000/-.  The opposite party refused to provide services in spite of request letters dated: 23.08.2011, 20.08.2011, 17.08.2011, 19.08.2011 and personal discussion with Mr. Sriram the manager.  Hence the complaint.

2.       In brief the version of the opposite party are:-

          Regarding the matter in question between the parties an agreement was entered in to on 17.08.2011 and the complainant has paid the money to the opposite party as per the terms of the contract.  This Forum has no jurisdiction and only the Chennai Courts has jurisdiction.  The complainant has paid a non-refundable membership fee of Rs.60,000/- on 17.08.2011.  The relevant conditions speaks that the amount is not refundable.  According to the agreement the complainant had to incur exchange fee of Rs.2,200/- which is nominal and transferred to the alliance resort/accommodation provider towards cleaning/maintenance charges.  The said amount has not been paid by the complainant though he was notified on 18.08.2011.  The complainant has not come to the Forum with clean hands.  There is no justification to claim the refund of the amount.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the opposite party has filed their affidavit and the complainant has filed “Statement of objections in respect of the versions submitted by the opposite party” and stated that it may be read as his evidence.  Both the parties have filed respective documents.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether this Forum has no jurisdiction to entertain the complaint?
2. Whether claiming of the amount towards maintenance and other charges by the opposite party is deficiency in service?
3. What Order?

5.       Our findings are:-

Point (A)        :           This Forum has jurisdiction

Point (B)        :           In the Negative

Point (C)        :           As per the final Order

                             for the following:- 

-:REASONS:-

Point A to C:-

6.       Reading the pleadings in conjunction with the affidavits and documents both oral and documentary on record, it is an admitted fact that the opposite party is a service provider providing Holiday Package.  Accordingly the complainant has entered in to an agreement with the opposite party on 17.08.2011 and paid Rs.60,000/- to the opposite party.  The relevant portion of the said agreement reads thus:-

“The purchaser is entitled for one week (accommodation only) every year during the validity of scheme at any of the AJ Alliance Resorts, subject to the payment of AJ Alliance Exchange fees & utility charges.  This agreement entitles the purchaser to a total 5 weeks of holidays for a period of 5 years in India from the date of this agreement.”

“Upon receipt of total Payment (non refundable) from the purchaser, the purchaser shall be entitled to avail holidays, subject to availability and payment of applicable AJ alliance Exchange fees & utility charges for the particular accommodation.  The purchaser shall give minimum of 30 days prior intimation in writing to the company about his/her request for holiday booking.  Member can choose accommodation (occupancy) from STUDIO-02A/2C.”

“The purchaser shall be at liberty to accumulate, split into 3 night / 4 days his / her weeks or utilize at a stretch.  Advance utilization of the weeks is not permitted.”

“It is agreed by the purchaser that resort available through AJ Alliance may vary time to time.  No liability shall be attached to Promoter AJ INTERLINKS PVT LTD., for withdrawal of any resort from the AJ Alliance. AJ Alliance means resort available for the exchange, the purchasers titled as AJ Alliance.”

“Upon execution of this agreement and I and the event of the purchaser(s) failing to pay the agreed amount, the company at its discretion shall be entitled to terminate this agreement and the company may forfeit all monies paid.”

“This agreement is valid for a period of 5 years from the date of this agreement.”

This has come in to existence at Bangalore.  The stamp paper has been purchased at Bangalore.  The parties are at Bangalore.  The documents were executed at Bangalore.  The amount was paid by the complainant and received by the opposite party at Bangalore.  Hence all cause of action arose at Bangalore only.  The contention of the opposite party is that its registered office is at Chennai and according to the terms of the agreement it is Chennai Courts/Forums alone has jurisdiction and not this Forum.  This is an untenable contention.  It is a settled principle of law that if two courts have jurisdiction in the matter then the parties can restrict the jurisdiction to any one Forum, but in this case no cause of action arose at Chennai with respect to the mater in dispute in this case.  Everything is done at Bangalore.  Merely the registered office of the opposite party is at Chennai it does not mean that the Chennai Court alone has jurisdiction or Chennai Court has jurisdiction to entertain the matter.  Hence the contention of the opposite party that this Forum has no jurisdiction is an untenable contention.

7.       The grievance of the complainant is that, the opposite party has not provided the service of Holiday Package but demanded money for the package.   Here the contract is stated supra.  That is to say that the complainant is bound to pay the non-refundable deposit of Rs.60,000/- to become member of the opposite party and on becoming the member the opposite party has to provide the resort facility and the complainant has to pay the Exchange fee amounts as applicable for the accommodation.  This is the agreement between the parties.  In this regard the complainant had made request with the opposite party requesting certain Holiday Package on 17.08.2011 regarding that the opposite party on 18.08.2011 has sent an e-mail to the complainant which reads thus:-

“We request you to pay the exchange fees of Rs.2200 by 20^th to Miss Salma at our Bangalore office, once we get the amount confirmation from Bangalore you will be receiving the holiday confirmation in couple of Days.”

That is to say the opposite party wanted the complainant to pay Rs.2200/- towards exchange fee for this reservation to be made and will be given accommodation and the package.  This has not been complied with by the complainant.  He has to paid the exchange fee but he declined to pay and wanted the money back.  This is an untenable contention raised by the complainant.  Clause-1 of the agreement clearly says that the complainant is bound to pay the exchange fees and utility charges as demanded.  In this case that exchange fee and utility charges has been demanded and the complainant refused to pay.  Hence there is no deficiency in service on the part of the opposite party.

8.       The contention of the complainant is that, this contract is void contract, Under Section 20 of the Contract Act.  This is an untenable contention.  The complainant is basing his claim only on the basis of the agreement.  With eyes widely open he had entered in to the agreement and he wants benefits as under the agreement hence he cannot disown the agreement and claim refund of the money that is not a consumer dispute.  This Forum is not vested with the power of declaration of saying that an agreement is void or voidable.  If the complainant wants such declaration and consequential relief of refund of the money he could approach the Civil court for which this order will not come in the way.  We have to see the admitted facts and not the disputed facts.  Consumer Forum is vested with the summery jurisdiction only.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Dismissed.  No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 20^th Day of October 2011)

MEMBER                                       MEMBER                            PRESIDENT