DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 349/2013
Sh. Baljit Singh Yadav
R/o A2/75 First Floor
Safdarjung Encalve,
New Delhi-110029 ……Complainant
Versus
1. The AGM
Country Club (India) Ltd.
25, UGF Community Centre,
East of Kailash, New Delhi-110065
2. Country Club (India) Ltd.
Through its Director/Chairman/President
Amrutha Castle 5-9-16 Saifabad
Opp. Secretariat, Hyderabad-500063.
3. Director/Chairman/President
Country Club (India) Ltd.
Amrutha Castle 5-9-16 Saifabad
Opp. Secretariat, Hyderabad-500063.
4. Mr. Ravi Singh, Sr. Manager
Country Club (India) Ltd.
203, 2nd Floor City Centre Hall,
M.G. Road, Gurgaon – 122002. ……Opposite Parties
Date of Institution : 11.06.2013 Date of Order : 01.03.2016
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S.S. Fonia, Member
O R D E R
Sh. S.S. Fonia, Member
Briefly stated, the facts of the complaint are that the complainant along with his spouse were called to City Centre Mall, M.G. Road, Gurgaon on 24.10.2012 by the OPs for free delivery of the voucher. OPs are alleged to have induced and lured by false and misleading representation about the facilities and benefits of the OPs and the complainant was asked to sign an agreement with OPs on payment of Rs. 1500/- on the same day. The complainant purchased one Red SR U12 (Billionaire Gold) membership for 30/32 years from the OPs on 24.10.12 for owning a red room type studio on consideration of Rs. 1,80,000/- as per agreement-cum-membership form annexed as Annexure. P-2. The full and final payment of this amount was paid on the same day and the payment receipt is annexed as Annx. P-3. On payment of the consideration amount the complainant was expected to be delivered by the OPs a permanent smart card plus welcome kit within four weeks but the complainant till 22.4.13 i.e. the date of issue of legal notice did not receive the smart card plus welcome kit; instead he received a temporary membership card No. CCDLO6BGCLUB 30LR14015 valid only upto 30-4-2013 alongwith a forwarding letter dated nil and a photocopy of manipulated Membership Purchase Agreement for Billionaire membership dated 24.10.12/7th Jan 2013/10 Jan. 2013. The complainant has further alleged that a blank form No. 959 of the said agreement was got signed from the complainant on 24.10.12 and it was signed by the OP-1 on 7.1.13 and it was dispatched belatedly on 16.1.13 along with a forwarding letter and temporary card after hot pursuit by him. The complainant has alleged failure of OPs to fulfill their obligation of the agreement and application form dated 24.10.12 causing deficiency of service (Annx. P-4). Complainant issued legal notice to the OPs on 30.4.13 (Annex. P-6) but of no avail. The complainant had been pursuing the matter with various officials of the OP including named in the complaint. Complainant is stated to have received impugned letter dated 16.1.13 in the body of which undue demand of Rs. 56700/- with additional demand of Rs. 6000/- towards administrative annual charges irrespective of use of card from the complainant was raised. Aggrieved with the deficiency of the OPs for their failure to issue the smart card and welcome kit, complainant has prayed for the following reliefs:
- to refund the amount of Rs. 1,80,000/- with 24% interest from 24.10.2012, the day of payment till realization of the amount.
- to grant Rs. 15,00,000/- as compensation on account of loss, damage, harassment, deficiency of service, weakness of complainant due to illness caused by OPs’ misrepresentation, cheating, mental torture, pain, agony, financial loss of retirement money of a senior citizen, etc.
- Heavy and exemplary penalty/costs for unfair trade practice and breach of agreement arbitrarily.
The OPs have denied all the allegations in their reply. The submissions of OPs may be summarised as follows:
- The subject matter of the complaint based on written contract and unilateral termination of the contract does not confer jurisdiction upon this forum to entertain the complaint. The complainant has no right for cancellation of membership or asking the refund of membership fee.
- This forum has no territorial jurisdiction to entertain the complaint as the OPs’ registered office is in Hyderabad, Andhra Pradesh.
- Clause 12 of the membership/purchase agreement provides that the parties are supposed to take recourse to arbitration to settle the dispute.
- The OP/Respondent Company had sent membership card to the complainant but he himself had refused to take/accept the membership card and is now claiming the deficiency in service.
- Complainant was well aware of the terms and conditions of the membership agreement and he signed the same after verifying them.
- Contract entered into between the parties had authorized the OPs to levy the annual administrative charges plus additional taxes, if any, as applicable from time to time.
It is denied that there was any deficiency in service on the part of OPs. Hence, it is prayed that the complaint be dismissed.
In the rejoinder, complainant has inter-alia stated as under:
“The copy of the agreement signed by the complainant on 24.10.2012 bears the actual date as 24.10.2012, whereas the said agreement also contains two forged dates as 07.01.2013 or 10.01.2013 which were inserted via back door through forgery done by O.P. in Jan. 2013 in the agreement signed by complainant on 24.10.2012. The complainant submits that no documents were signed by the complainant on 07.01.2013 or 10.01.2013.”
Complainant has filed his own affidavit in evidence while affidavit of Sh. Bharat Reddy, Legal Officer has been filed in evidence on behalf of OPs.
Written arguments have been filed on behalf of both the parties.
We have heard the arguments of the complainant in person and the counsel for OPs and have also gone through the record very carefully.
Now, we straightway come to the question, whether the complaint is maintainable and whether the complainant is entitled for the relief as prayed for?
It is settled law that the complaint under the Consumer Protection Act can be entertained and proceeded inspite of acceptance of arbitration agreement. Reliance is placed on the decisions reported as Fair Air Engineers Pvt. Ltd Vs. V.K. Modi (1996) 6 SCC 385 and Skypak Couriers Ltd Vs Tata Chemicals Ltd. (2000) 5 SCC 294.
As regards territorial jurisdiction, admittedly the OP Company has its regional office at East of Kailash, New Delhi which is within the territorial jurisdiction of this Forum. Therefore, this forum has territorial jurisdiction to entertain the complaint.
Admittedly, the payment of Rs. 1,80,000/- paid by the complainant on 24.10.12 duly acknowledged by the OPs gives rise to issue of permanent smart card and welcome kit to the complainant. OPs issued temporary membership card bearing No. CCDLO6BGCLUB 30LR14015 valid only upto 30-4-2013 which was not availed by the complainant. There is adequate communication by the complainant to various officials of the OPs for issuance of smart card and welcome kit which was never materialized. The claim of the OPs to have sent smart card and welcome kit through registered post has been examined by us (Mark A). We are surprised to know that this exhibit only reflects the dispatch of registered post by the OPs to the complainant but does not contain any remark of the postal authority regarding “acceptance” or “refusal” of the said communication. Therefore, this piece of evidence cannot be relied upon to prove that the membership card was dispatched to the complainant by the OPs. Moreover, smart card number stated to have been issued to the complainant has not been mentioned by the OPs. If the envelope containing the smart card had been refused by the complainant, the same must have been returned back to the OPs. In that situation or eventuality, the OPs could have produced the original smart card or photocopy thereof before this forum. But the same has not been done. Therefore, we draw an adverse presumption against the OPs.
As regards the stand taken by the OPs that membership fee once paid cannot be refunded is not tenable in the eyes of law. The very purpose of paying membership fee to the tune of Rs. 1,80,000/- was the very consideration for the complainant to become eligible to avail the benefits envisaged in the Billionaire membership for owning a red room type studio for 30/32 years. Unless and until the permanent membership card in the form of smart card was given to the complainant by the OPs, the cause of action continued to arise. It can be straightway inferred that the OPs are in breach of the contract. We have also taken note of the blame of forgery by the complainant upon the OPs in forging the agreement dated 7.1.13/10.1.13 but this forum is not meant for entertaining the complaint on forgery. Nonetheless, the deficiency caused by the OPs in their failure to issue permanent membership card in the form of smart card to the complainant stands established.
We, therefore, allow the complaint and direct OP No. 1 to 3, jointly and severally, to refund Rs.1,80,000/- (Rupees One Lac Eighty Thousand Only) alongwith simple interest @ 6% per annum from the date of filing of the complaint and to pay Rs. 10,000/- in lumpsum for mental pain etc. and costs of litigation to the complainant within 30 days of receipt of copy of this order, failing which the OP No. 1 to 3, jointly and severally, shall become liable to pay penal interest @ 9% p.a. on the amount of Rs. 1,80,000/- from the date of filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 01.03.16.
(NAINA BAKSHI) (S.S. FONIA) (N.K. GOEL) MEMBER MEMBER PRESIDENT
Case No. 349/13
01.03.16
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP No. 1 to 3, jointly and severally, are directed to refund Rs.1,80,000/- (Rupees One Lac Eighty Thousand Only) alongwith simple interest @ 6% per annum from the date of filing of the complaint and to pay Rs. 10,000/- in lumpsum for mental pain etc. and costs of litigation to the complainant within 30 days of receipt of copy of this order, failing which the OP No. 1 to 3, jointly and severally, shall become liable to pay penal interest @ 9% p.a. on the amount of Rs. 1,80,000/- from the date of filing of complaint till realization. Let the file be consigned to record room.
(NAINA BAKSHI) (S.S. FONIA) (N.K. GOEL) MEMBER MEMBER PRESIDENT
