FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, MEMBER.
The case of the complainant, in short, is that the complainant opted/purchased a membership of the OP on payment of requisite membership fees of Rs.48,500/- and accordingly an Agreement was executed on 01.03.1995 commencing from 1996 to 2094 . During the subsistence of the said membership , in August-2003 an amount of Rs. 17,750/- was paid to OP by the complainant on account of Annual Amenity Charges and Lifetime Annual Amenity Charges in respect of the said membership, upon making adjustments with the refund of the membership fees of his wife N.D. Singhania, having the OP’s Heritage Membership , bearing nos . 550135 and 550136 , which were cancelled later on . Since then the OP has failed to provide accommodation to the complainant in the resorts of the OP in the complainant’s desired holiday trips in Puri in 1998 and Goa in 2017 for seven days each year , for which the complainant was entitled to . But whenever the complainant questioned the services and/or the conducts of the OP in light of the OP’s obligations in terms of the said agreement, in every occasion, the OP gave assurance to the complainant that it was improving its services and the complainant’s unused days in enjoying holidays would be carried forward for the next cycle. In between the OP had changed bookings norms which is unreasonable and arbitrary and contrary to the terms of the agreement and also without knowledge and consent of the complainant. The OP has also altered the tenure for advance booking from 90 days to 180 days without any notice to that effect . In accordance with the terms of the said Vacation time Agreement , the OP was obliged to arrange alternative accommodation . But the OP neither provided alternative accommodation nor gave any compensation to the complaint for its failure to accept booking for such period and / or give an alternative arrangements even though the OP was obliged to do that in terms of the contract . Therefore the complainant sent legal notice to the OP to cancel the membership and simultaneously to refund the consideration price of Rs.48,500/- paid by the complainant for purchasing the said membership along with the an amount of Rs.17,750/- adjusted on the head of outstanding Annual Amenity Charges and Lifetime Annual Amenity Charges in respect of the said membership along with the interest thereon at the rate of 18 percent p.a. But the OP remained unturned . Finding no other option the complainant has to come for relief before this Ld. Commission.
OPs contested the case by filing W/V contending inter alia that the case is frivolous, vexatious and is liable to dismiss and also the case is not maintainable in law. The OPs alleged that the complaint filed as per the residence of the complainant which is against the scheme of the C.P. Act 1986 and the corporate office of the OPs is in Chennai which is not permissible as per the scheme of the C. P. Act 1986. Not only that , execution of the Agreement , remission of payments , issuance of receipts and membership certificate were operated from Chennai . All notices were sent by the complainant to Chennai .Therefore no cause of action has occurred at Kolkata. Moreover, the OPs in detail explained about the mode of payment , the manner in which vacation Time Share membership can be purchased and total consideration. It is also submitted by the OPs that availing holiday is subject to availability and compliance of terms and conditions of the Vacation Time Share Agreement . Framing reservation policy of the OPs is sole discretion of the OPs . Therefore the averments made by the complainant are false and made just to mislead the Hon’ble Commission to get a favorable order and wants to extort illegal , undue money from the OP and therefore has cooked a false , malafide and fanciful story to malign the goodwill of the OPs .
To prove their case both the parties have adduced evidence on affidavit. They have also filed questionnaires and reply vis-à-vis relevant documents in support of their respective cases. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us .
On perusal of the record it is found that the complainant executed Sterling Vacation Time Share Agreement with the OPs on 01.03.1995 for the period of 1996 to 2094.The fact also remains that the complainant asked for providing accommodation at Puri from 24.12.1998 to 27.12. 1998 which was 60 days prior to the commencement of their allotted week . In reply the OPs expressed their regret vide letter dated 04.11.1998 stating that : “We regret to state that we are unable to provide accommodation at Sterling Puri as on date as our resort at Puri is temporarily closed .” In another letter dated 30.11.1998 the OPs replied to the complainant stating the reason behind their inability to accept exchange requests :
“51st and 52nd weeks at our Goa resort are the two weeks where we face the maximum demand from birth right week holders , among all our resorts . This year we have found it difficult to entertain any exchange requests at all for these weeks.”
Again on17.11.2017 the complainant asked for a booking for Goa to the OPs for the period of 26.12.2017 to 02.01.2018 . In reply the OPs sent a mail on 18.11.2017 to the complainant expressing regret their inability to confirm the booking for the said period due to ‘bulk of demand’ during those dates for their Goa resort and requested the complainant that , “ if you are slightly flexible on your dates or there sort , we would be happy to offer you alternatives that could be confirmed right away .” Then complainant further communicate with the OPs on 01.12.2017 showing flexibility regarding dates and requested the OPs to allot/book 6 days on any dates between 22.12.2017 to 03.01.2018 in Goa and inform them atleast 15 days in advance so that they can make necessary arrangements . But the OPs failed to arrange said accommodation .This time also the OP failed ‘due to the incremental number of reservations that have poured in for this period’ and informed the complainant their inability vide letter dated 02.12.2017.The documents on record goes to show that the complainant made several correspondence with the OPs many times and expressed their dissatisfaction regarding the service of the OPs .
On perusal of the record it is found that in the cross examination the complainant asked the OPs that , “Is it true that an Agreement is a contract and it cannot be changed unilaterally?” The OPs replied: “Yes . However , change of period of advance booking is within the authority of the Opposite party under the agreement and does not result in change of agreement .” Well known established fact is that, in an agreement terms and conditions are binding upon parties. It cannot be one sided .Therefore this reply of the Ops is not acceptable to us .The OPs alleged that their main corporate office is in Chennai. Therefore this Ld. Commission has no jurisdiction to entertain this instant complaint petition . It is found from the record that the OPs have a branch office at Kolkata under Park Street Police Station which is within the jurisdiction of this Ld. Commission from where they conducted their business works in this region. Therefore this argument of the OPs has no leg to stand. Not only that , in the W.V. the OPs sighted several observations of the Hon’ble Supreme Court and Hon’ble NCDRC , which are not found really relevant to us regarding this instant case . Rather it appears that OPs are desperately trying to utilize those observations as a shield to cover up their inefficiency. But they miserably failed to hide up their failure as a service provider and business professional.
Therefore, we are of the opinion that the OPs are undoubtedly deficient in service and indulged in unfair trade service.
As such, the case succeeds .
Hence,
ORDERED
That the instant case be and the same is allowed on contest against the OPs.
OPs are jointly and severally directed to refund the entire amount of Rs.48,500/- along with an amount of Rs . 20,000/- as litigation cost to the complainant within 30 days.
OPs are also jointly and severally directed to pay an amount of Rs.50,000/- as compensation for prolonged harassment and mental agony caused to the complainant within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution.
