Order-14.

Date-13/06/2016.

This an application u/s-12 of the C.P. Act, 1986.

Complainant by filing this complaint has submitted that on 18/09/2011 an agreement for vacation membership was executed between the complainant and O.P. but due to financial hardship arising out of employment problem complainant could not utilize any facility as per agreement for which complainant by sending a regd. Letter dated 22/06/2015 to the O.P. prayed for accepting the resignation from membership and refunding the deposit amount of Rs.80,000/-. Subsequently complainant requested the O.P. through legal notice on 13/07/2015 either to refund the deposited amount or refer the matter to the Arbitrator but O.P. did not give any reply to the complainant and for such act of O.P. complainant harassed mentally and monitory loss and for getting redressal the complainant filed this case.

O.P. has contested the case by filing W.V. denied the allegations of complainant stating interalia that complainant signed the contract with consent and satisfied with the norms, rules and condition of the company, complaint petition is barred by limitation, O.P. has not made any unfair trade practice and prayed for dismissal of the case.

Decision with Reasons

On careful consideration of the materials, complaint and the written version and also the agreement it is found that OP is a company under the Indian Companies Act and they are selling such a product in the name of membership purchase agreement and no doubt OP is a service provider to the tour and travellers and the purpose of providing service to give holiday resort etc. to the customers.  Fact remains in the agreement it is specifically mentioned vacation charges is not returned under any circumstances and vacation fee is not refundable deposit.  Moot question is that whether there was any such application submitted by the complainant knowing fully well whether amount is refundable or not but no such application is found filed by the complainant or OP has failed to file such application.  Regarding any agreement if it is found that any printed form is supplied by the service provider company and if any customers signs  in that printed agreement in that case such an execution shall not be treated as an admitted execution knowing fully well of the terms and condition of the policy.

          In this context we want to mention one ruling of Competition Commission of India, in case of Haryana Urban Development Authority, Dept. of Town and Country Planning, State of Haryana and DLF Ltd. who are OPs whereas Bellaire Owners’ Association are the complainant and in that judgment being No.19 of 2010 Competition Commission of India has already decided that if in any agreement anyone signs but agreement clauses are unilateral one in of the printed form supplied by the service provider is such a clause is dominating to the purchaser in that case there must be an application and in the application what benefit the customer shall have to get on deposit of the amount shall be specifically mentioned so, chance shall be given to the purchaser to realize what is written in the book in printed form.  It is also observed by that judgment that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. so, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved.  And if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.  Moreover, in the present case the terms of agreement to be entered into with the purchaser were never shown to the complainant at the time of deposit of the said amount and the terms and condition of the agreement was prepared and framed by the company unilaterally without giving the buyer a chance to realise and as a result the company has already received the considerable amount from the buyer then invariably agreement was forced upon the complainant and complainant had no option but to sign the agreement when complainant found that there was scope for getting such resort etc. for tour.  Competition Commission of India by that judgment pointed out that  proper procedure ought to have been  followed in any such agreement what OP proposed to sell to the buyers complaint should have been made to known at  the time of inviting such sale of the products of the Company and any agreement should be signed in the reasonable date of such advertisement and if the entire agreement copy would be supplied to the complainant to realize the content of the agreement in that case the purchase ought to have get such chance about the bad sides and unilateral fact as imposed by the OP regarding forfeiture of entire amount/ and if complainant would get such chance he may not be agreeable to the terms of agreement and should have his right not to sign but all such scope was not there because on that date the signature was taken in the printed form of the OP giving no chance to realise what would be the fate in the future.  Peculiar factor is no complainant is not here and there for purchasing such product by wasting huge amount.

          In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by the Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by the Supreme Court in appeal. In the present case there is no material to show that application was filed by the complainant  and no such document was supplied to the complainant to realise what would be fate of Purchaser of that product but printed form is there which in unilateral authorization but Contract must not be unilateral  and a person who has signed in the contract he must be given a chance to realise what is written in a such printed form submitted by the company.  Another factor is that it is a product of the OP Company which was being sold and that product is called Membership but it is not Association or Club and it is not an Association under Society Registration Act.The judgement of Competition Commission of India which is confirmed by the Hon’ble Supreme Court is the guideline principle regarding such sort of agreement.  Considering all the above facts and circumstances, we find that the agreement which is produced by the OP is unilateral one no copy of application was produced by the OP to show that complainant initially submitted that application and in the application the conditions are duly ventilated to printed realise by the buyers  but in the present case it is proved that OP adopted an unfair practice and OP abused his dominant position violating the provision of Section 4 of the Competition Act also and OP managed to sign a highly abusive buyers agreement and this Forum also find that the clause of the agreement also biased in favour of the OP.  So, we conclude that the conduct of the OP is unfair in view of the Section 4 of the Competition Act also and OP is a domain enterprise and amended to abuse of dominance.

          In the light of the above observation we are convinced to hold that no doubt OP adopted unfair trade practice and managed to sell the same by giving a gift to the complainant but complainant failed to realize the fate of the amount deposited and at the same time the company  grabbed money without giving any scope to realize fate of deposit.  The company as a service provider cannot grab any money entirely if the purchaser without any full knowledge purchase it and has not enjoyed any part of that resort, holiday etc. and fact remains complainant has not enjoyed anything but  complainant found that everything is abusive one in the so called agreement then complainant realized the dominant position of the OPs to deceive the customer in such manner.  In fact as per Competition Act OP cannot supply such an agreement under any circumstances, violating the provision of Section 4 of the Competition Act but that is not being followed but no doubt complainant has been deceived by the OP.  Mere signing of agreement does not create any contract it as violated The Section-4 of competition Act. If it is found prior to that complainant was not supplied to such copy to realize but it is found that giving a gift secured signature of the complainant and such a business is continued by the OP Company but he is not a registered Association to open a Club like Mohanbagun, East Bengal but it is a sale of product but name of Product is club.  Whatever it may be in the light of the above observations we are convinced to hold that the complainant is entitled to get back the entire amount subject to deduction of 5 percent as service charge but not more than that. Insurance policy is a contract but if the policy is found lapse in that case entire amount cannot be forfeited but only after taking 5 percent service charge the remaining amount shall be repaid because he is not under the insurance coverage and in the present case complainant never enjoyed the hotels resorts etc. during travel but he cancelled it and in all agreement as per law where there is forfeiture clause there must be a cancellation clause that is the rule of contract.

          In the above facts and circumstances, there is sufficient ground to allow the complaint with cost and compensation by passing such order to refund the entire deposit amount of Rs.80,000/- after deducting 5 percent as service charge.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/-.

          OPs are hereby directed to pay the entire deposited amount of Rs.80,000/- after deducting 5 percent as service charge and also shall have to pay the compensation for adopting unfair trade practice in entering into such agreement with the complaint and for adopting such procedures violating the terms and condition of Section 4 of the Competition Act a sum of Rs.20,000/-  as compensation is awarded to the complainant for causing mental pain and agony also.        OPs are also directed to pay the decretal dues within one month from the date of this order to the complainant failing which for further harassing the complainant and for disobeyance of the Forum’s order OP shall have to pay penal damages  at the rate ofRs.2,000/- per month till full satisfaction of the decree and even if it is collected it shall be deposited to this Forum.

Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.