| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.149/2014 Sh. Harish Sachdeva Proprietor M/s Paintwell Industries 9, DSIDC Sheds, Scheme- I, Okhla Industrial Area, Phase- 2, New Delhi- 110020 ….Complainant Versus M/s Sterling Holiday Resort (India) Ltd. Through its Directors M-28, First Floor, M-Block Market, Greater Kailash Part-II, New Delhi- 110048 ….Opposite Party Date of Institution : 17.04.2014 Date of Order : 18.07.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Member: Ms. Kiran Kaushal - On the strength of his complaint, Complainant sought following reliefs:
- Direct the Opposite Party to provide birth right resort at Goa in terms of agreement with the facility of using accumulated days and without charging any annual amenities charges and in alternate refund the amount along with 18% interest from the date of deposit till the actual realization of amount.
- Direct the Opposite Party to pay a sum of Rs.3,00,000/- as compensation to the complainant.
- Direct the Opposite Party to pay cost of Rs.50,000/- to the complainant.
- Pass any other such order that this Hon’ble court may deem fit and proper in the circumstances of the case.
- It is stated that an authorized representative of M/s Sterling Holiday Resorts (India) Ltd. (OP) told the Complainant that, OP had floated a scheme for Time Share Agreement for Goa Chapora Fort, Village Panchayat of Anjuna, Bardez, Goa. It was represented that the Complainant could avail the services of resort for a week of every calendar year, for period of 99 years starting from 1997 onwards. The Complainant was informed that OP is constructing the said resort which will be completed within two years. To avail the facilities of the said resort Complainant had to pay the cost of Time Share
i.e. Rs.28,350/- and Rs.34,650/- as advance subscription towards customer facility. Accordingly, Complainant paid Rs.63,000/-
to OP and agreement between the parties was signed.
- It is next stated that OP failed to develop the project within two years of signing the agreement. The Complainant vide numerous letters kept asking OP regarding the development of the resort but no proper reply was given by OP. It was after 18 years that OP vide email dated 04.06.2013 informed the Complainant that the Company had discontinued the project. It is stated that scraping the project arbitrarily after 18 years that too without seeking consent of the consumers amounts to deficiency in service and restricted trade practice.
- It is further stated that despite being deficient in service, OP stopped entertaining the request of the Complainant for Time share at other resorts on the pretext of annual maintenance charges. Whereas, in view of the agreement between the parties Complainant is not liable to pay any such charges to OP.
- Aggrieved by the deficient services of OP, it is further stated that as per clause 23 (ii) of the agreement the Complainant is entitled to seek damages calculated @18% p.a. on the amount paid by the Complainant. It is prayed accordingly.
- OP filed the written statement stating inter-alia that, the complaint is not maintainable as the present Commission is not vested with the Territorial Jurisdiction to entertain the instant complaint. It is next stated that OP Company is still having land in Goa Chapora Fort, however it was unable to construct the resort due to certain unavoidable reason, which were beyond the control of OP.
- It is next submitted that OP abided the said Vacation Time Share agreement and as per clause No. 21 (d), OP Company provided vacation to the Complainant/consumers at alternate locations of OP. It is further stated that Complainant too has enjoyed holidays with OP at other locations from time to time. Copy of statement showing holidays booked and availed by the Complainant is marked as Annexure-R/1. It is further submitted that Complainant was always provided accommodation as per his request.
- It is also stated that OP is running two functional resorts in Goa, which provide equivalent or better facilities for the complainant/consumers, than the proposed Aldeia Branca Resort. Complainant has availed facilities of one of the resort in Goa. Otherwise also in the event of non-availability of accommodation OP always gives an option of alternate arrangement.
- For the reasons stated above, it is prayed that the complaint be dismissed with exemplary costs.
- Complainant has filed rejoinder to the written statement of OP. Evidence by way of affidavit and written arguments are filed on behalf of parties. Arguments on behalf of parties are heard and material placed on records is perused.
- OP claims that no cause of action has accrued so as to invoke the territorial jurisdiction of the present Commission and mere correspondence between the parties with the branch office cannot confer territorial jurisdiction. The Complainant in its rejoinder has stated that the authorized agent of OP and manager of OP, who contacted the Complainant for the agreement are from Delhi office of OP. Agreement between Complainant and OP was signed in Delhi and all the payments were made to the Delhi office of OP. It is also seen from Exhibit No. R/1 annexed with OP’s evidence that the application form dated 31.08.1995 was signed by the complainant in OP’s New Delhi Branch. Moreover, it is hard to believe that OP, who resides in Faridabad and has his office in Okhla would go to Tamilnadu to sign a Holiday Agreement with OP. Therefore, we find that the argument of OP regarding non maintainability of complaint on ground of territorial jurisdiction is devoid of all force, hence rejected.
- It is the case of the Complainant that he signed an agreement with OP for Sterling Vacation Time Share Agreement specifically for Goa Chapora Fort Compact Apartment. Agreement to this effect is annexed as Annexure-A with the complaint. On perusal of the agreement, it is noticed that the Time Share period was for 99 years starting from 1997 wherein, the Time Share Holders were entitled to enjoy seven days holiday in a year. It is seen that the Complainant entered into agreement with OP for ‘Goa Chapora Fort’, which was his ‘Birth Right’ Resort. The said resort was never constructed or developed. OP’s evasive reply on the subject property leads to the conclusion that the said project has been discontinued. Therefore, we are of the opinion that OP is deficient in service for not honouring the commitment made and agreed upon by them. Consequences of breach agreed upon between the parties are contained in Clause 23 (ii) of the agreement. The said clause is reproduced as under:
Breach by the Company - In the unlikely event of the COMPANY committing a breach of the terms of this agreement by not providing the Apartment during the holiday week and/or days/week mentioned in the Confirmation Voucher, the COMPANY shall pay liquidated damages equivalent to 100% of the rent/tariff that may be charged by the COMPANY to other persons for staying in the Apartment during such holiday week and/or days/week. The liquidated damages shall be paid by the COMPANY to the TIMESHARE HOLDER alongwith the intimation from the COMPANY at the time of not providing the allotted Apartment.
- In case the COMPANY does not complete the construction of the Holiday Resort and hence is not able to provide the Holiday Week to the TIMESHARE HOLDER during the TIMESHARE PERIOD, the COMPANY shall be liable to pay damages calculated at 18% p.a. on the amount paid by the TIMESHARE HOLDER under Clause (2) above for the period of delay.
- The TIMESHARE HOLDER is not entitled to specific performance of this agreement.
- It is not in dispute that Complainant did avail the services of OP and stayed/enjoyed the alternate facilities of OP for five times from 1997 till 2001. Therefore, we are of the view that having availed the services of OP, Complainant is not entitled for full refund.
- The Complainant had paid Rs.63,000/- on 09.12.1997. OP till date has not constructed/developed the resort. Affording an approximate period of 2 years for the resort to be made operational, we are of the opinion that default on behalf of OP occurred on 09.12.1999. Complainant is thus entitled to damages as per
clause 23 (ii) of the agreement @18% from the date of default. We therefore direct OP to pay Rs.63,000/- @18% per annum from 09.12.1999.
- However, as the Complainant had availed the facility of OP on five occasions for about 15 days. OP is allowed to be paid the cost of facilities provided to the Complainant. OP has not placed on record the cost incurred by them on the holidays provided to the Complainant. Therefore, assessing the market value of similarly placed resorts we quantify the value of facilities provided by OP
at Rs.2,00,000/-. Accordingly, complainant is entitled to refund of Rs.63,000/- @18% per annum from 09.12.1999 after deducting Rs.2,00,000/- for the services provided by OP.
- In the terms decided above, complaint is disposed off and OP is directed to pay the above said amount within three months from pronouncement of the judgement, failing which OP shall additionally pay Rs.25,000/- till realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website. | |
