FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Complainants’ case, in brief, is that being allured to the representation of the Agent of OPs Complainants took OPs.’ club Membership on 08/06/2018 by instantly depositing Rs.39,000/- and Rs.14,000/- by the Debit Card and the rest Rs.37,000/- to be paid by way of cheque and to be collected from the resident of the Complainant. A representative of the OPs collected the cheque of Rs.37,000/- with an assurance that within a week allmoney receipts would be sent by post to the Complainant. Realizing the blunder while going through the terms and conditions of the said Agreement the Complainant immediately informed his Bank (SBI H. C. Bench Kolkata) to stop payment of cheque for Rs.37,000/- and requested the OPs to cancel the membership and refund the deposited amount. Thereafter the Complainant sent an e-mail and also speed post with A/D to the OP2 with the same request. Complainants have made several requests through emails for refunding the deposited amount and get assurance from the OPs. They did not bother to reply till date. Being aggrieved by the illegal act of the OPs the Complainant filed a complaint petition to theCentral Consumer Grievance Redressal Cell (Dy. No. 50/CAD). A tripartite meeting have been arranged and representative of the OPs attended the meeting by submitting their version and agreed to pay the demanded money. Till date OPs did not refund the deposited amount. Having no other alternatives the Complainants approached before this Commission praying for relief/reliefs.
The instant consumer complaint is contested by the OPs by filing WV contending inter alia that the Complainants have deliberately suppressed and concealed various facts related to membership Agreement as well as efforts made by the OPs to resolve all such issues arising out of it and it does not disclose any deficiency in service. The case of the OPs is that understanding the benefits and after satisfaction Complainants decided to purchase the Membership and deposited the amount with full knowledge. The mail from the Complainants evoking the “Cool Off” as per the Agreement was received and unilaterally termination of the written contract/agreement is not permissible under law. The membership is a valid contract, therefore, once the parties accept the Terms and Conditions thereof, the same cannot be repudiated on unilateral whims of any parties. Complainants are adamant in their extortion ways of gaining out more money from the OPs wrongfully. Admittedly the representative of the OPs had attended the meeting whereby they assured about the refund of the membership amount as per “Cool Off Clause” in the agreement. As such, OPs have prayed for dismissal of the instant consumer complaint.
Ld. Advocate for the Complainants has advanced the case by adducing relevant evidences and documents. Per contra, OPs did not rely upon any documents. We have gone through all the evidences and documents on record and gave a thoughtful consideration to the entire fact.
It is admitted fact that Complainants have purchased Membership from OPs against payment through Debit Card amounting to Rs.39,000/-and Rs.14,600/-(in total Rs.53,600/-) on 08/06/2018 out of total consideration of Rs.91,000/-. Complainant alleged that after purchasing the said Membershiphe applied for “Cool Off” as per Clause 26 of the Sale Agreement of OPs and requested to refund deposited amount on 13/06/2018 vide speed post. Photocopies of the said letter furnished by the Complainants support this contention. On perusal of the record it is found that the Complainant has tried to resolve the dispute through CAD, CA & FBP, Kolkata and lodged a complaint before the CAD, West Bengal on 26/11/2018. Ld. Advocate for the Complainant argued that OPs assured to refund the deposited amount to the Complainant by appearing at tripartite meeting before the CAD but neglected to fulfil their commitmenttill date. Photocopy of the letter dated 02/05/2019 issued by the CAD, CA & FBP, Kolkata reveals that:
Though the representative of Opposite Party attended the meetings held and submitted their versions either verbally or in writing, it appears that the Company authority has failed to refund the money to the complainants (names listed above) even after lapse of a considerable period. It seems that they are not intending to settle the dispute at the prelitigation level.
As such, the OPs have failed to refund the said deposited amount.
On the other hand, OPs did not furnish any document regarding the said Sale Agreement on negotiation with the Complainants. Ld. Advocate for the OPs denied the allegations made in the Complaint Petition and alleged that there was a welcome call conducted by the officials of OPs, whereby the Complainant was re-explained the benefits and facilities being provided to them along with all other obligations as a result of the agreement and during that call the Complainant had not raised any query and they shall submit the copy of the said audio call before this Commission for perusal.In reality, we could not find any piece of documents in the entire case record which can support such submission of the OPs. Thus, we cannot but to decline with the aforesaid submission of the OPs.It is further submitted by the OPs that they will file supporting evidential documents as Exhibits during the appropriate stages of the case to prove their transparency. But the OPs failed to furnish any piece of evidence in support of such contention. Therefore, the case of transparency, aforesaid, could not be established by the OPs.
In this context, we are of the opinion that the gesture of the OPs by violating the Terms and Conditions of the Sale Agreement and failing to refund the deposited sum, is surely falls under unfair trade practice on the part of the OPs.
Therefore, Complainants are entitled to get relief or reliefs.
In result, the case merit succeeds.
Hence,
ORDERED
That the case be and the same is allowed on contest against the OPs.
- OPs arejointly and severally directed to refund Rs.53,600/-to the complainant along with litigation cost of Rs.10,000/- within 45 days from the date of this order.
- OPs are alsojointly and severally directed to pay Rs.20,000/- to the complainants as compensation for causing harassment, mental pain and agony within stipulated period failing which the deposited amount shall attract simple interest @12% p.a.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
