DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 373/2017
Sh. Swapan Kumar Sarkar
S/o Late B.N. Sarkar
K-45, Kailash Colony
New Delhi-110048
….Complainant
Versus
Sterling Holiday Resorts (India) Ltd.
Through its Directors
Reg. Office at :
#7, 3rd Cross Street, Citi Towers,
Kasturba Nagar, Adyar,
Chennai-600020
Branch Office at :
C-1, Green Park Extension
First Floor,
New Delhi-110016
….Opposite Party
Date of Institution : 24.10.2017
Date of Order : 24.02.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
- Complainant has requested to pass an award directing M/s Sterling Holiday Resorts (India) Ltd. (hereinafter referred to as OP) (i) to refund of Rs. 207,000/- with interest @ 18% p.a. from the date of demand ever made i.e. 21.10.2013; (ii) to pay a compensation of amount of Rs. 75000/-; (iii) to pay an amount of Rs. 25,000/- as the cost of litigation etc.
- Brief facts of the case are as under:-
The complainant holds alongwith his wife Privilege Vacation Membership vide customer No. 89579, type ISHI, allotted Vagator Goa, period classification : Red time, apartment type, twin week number 42 and validity from 1998 to 2023. It was assured by the OP that complainant would have rights to stay in allotted Sterling Crown Resort and could enjoy the amenities. Accordingly the complainant paid Rs. 2,07,000/- in various instalments and duly acknowledged by OP. He further contended that he could not avail any of the services as promised as the resorts were not ready within stipulated period and vacation weeks kept on mounting in favour of complainant. The OP did not provide any satisfactory reply. But OP in 2005, offered Exchange facility in RCI Network, according to which, all the accumulated weeks of complainant would be banked with RCI. Vide letter dated 12.02.2005 which was confirmed by OP. At this point, no additional charges were ever demanded. OP informed complainant to deposit additional charges of Rs. 9831.50 as utility charges/annual amenity charges for banking the accumulated weeks of the complainant with RCI. The complainant resisted stating that there was no mention of additional charges at the time of exchange offer. As such, the complainant felt deceived and wrote emails dated 21.10.2013 & 25.10.2013 for refund of the deposited amount of Rs. 2,07,000/-. The OP deliberately preferred to avoid the request of refund. Hence the complaint.
- OP, on the other hand, filed its reply interalia raised some preliminary objections. No cause of action had ever arisen in favour of OP. The complaint is time barred as per admitted e-mail dated 25.10.2013 and last date for filing the complaint would have been 24.10.2015 whereas the instant complaint was filed in 2017. It is not out of place to mention that sending a legal notice does not enhance the limitation period. It is maintained by the OP that the complainant by becoming a member with OP was entitled to use each and every resort maintained and operated by OP subject to availability on the given dates. The OP further stated that complainant had not availed the services at his end. The complainant had never made any endeavour to make reservation and reached to any of the resort of OP. The complainant had not shown any evidence to this effect that had been denied a vacation for any period. Since no holiday was availed hence, no deficiency in service could be even claimed. The OP further maintained that the agreement signed by the complainant with OP in 1998 clearly casts an obligation upon the complainant to make payment of AFSC charges and complainant was very well aware about this fact. The OP further stated that the complainant could not produce any shred of evidence for deficiency in service.
- Both the parties have filed Written Submissions and evidence in affidavits. Written Statement has been filed. The complainant did not wish to file the rejoinder as per order dated 18.09.2018. The complainant’s oral argument were heard and concluded.
- This Commission has gone into entire gamut of issues. Due consideration was given to the arguments. It is noticed that the complainant had never raised this issue of non-completion of property of OP for use/availment of services by the complainant. It is a fact that the issue of additional charges in the form of advance subscription towards customer facilities (ASCF) was raised in 2013. The OP had not given satisfactory reply on the contention of complainant that no charges were ever raised since 2005 when the complainant applied for Exchange Facility in RCI Network. It is also noted that the complainant had raised the issue of ASCF and also mailed dated 21.10.2013 for refund of deposited amount of Rs. 2,07,000/- .
- The OP also assailed the charge of complainant to this effect that he was well aware of any ASCF before the demand so made in 2013 and further stated that the said ASCF finds mention in terms & conditions agreed between the parties.
- The OP further contended that the complainant had emailed last time on 25.10.2013 and the complaint was filed in this Commission on 24.10.2017. Therefore the complaint is time-barred. In a similar case M/s Tolani Shipping Co. Ltd. Vs. Sterling Holidays Resorts (I) Ltd, The Hon’ble National Commission while holding the judgment of State Commission held as follows:-
“As seen from the record, this was followed by correspondence between two sides but the consumer complaint came to be the filed only in 2011, not within the period two years computed from the letter of 27.2.2002. The appellant has sought to rely upon the letter of 8.9.2010 written to it by the respondent, discussed earlier in this order. Clearly, this letter does not even mention the claim for refund and interest thereon. Therefore, in our view, this letter cannot be treated as acknowledgment of a liability of Rs. 68 lakhs, the issue raised in the Complainant’s letter of 27.2.2002. Therefore, the question of cause of action having continued from 27.2.2002 till 8.9.2010 or having arisen again on the later date, would not arise at all.
In conclusion, we find ourselves in complete agreement with the view of the State Commission that the complaint filed on 29.8.2011 is barred by limitation. Consequently, the First Appeal No. 430 of 2012 is held to be devoid of any merit and is dismissed as such. No order as to costs.”
- The Hon’ble National Commission’s verdict in this case has attained finality on the dismissal of appeal vide order dated 21.02.2019. However, the complainant had tried to cover the limitation period by issuance of legal notice. But the issuance of legal notice cannot cover the period of limitation.
Respecting the above dicta of Hon’ble National Commission, this Commission finds that case is barred by limitation as discussed above.
No order as to cost.
Parties to be provided copy of order as per rules. File be consigned to the record room. Order be uploaded on the website.
