FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
Complainants’ case, in brief, is that being allured to the representation of the OPs Complainants took OPs.’ club Membership on 24/03/2019 by depositing Rs.1,35,000/- and the said membership Agreement was handover to the Complainants on 30.03.2019. Realizing the blunder the Complainant requested the OPs on 06/04/2019 to cancel the membership and refund the deposited vide e-mail and the OPs replied through mail that since the claim had been made after 10 days from 24/03/2019 the deposited amount shall not be refunded. Further it is stated that the official confirmation letter dated 09/06/2019 of membership of the club with membership number was sent by post while the cancelation mail was sent on 06/04/2019.Hence it can be submitted that till date the Complainants could not even enjoy the club facility as has been promised by the OPs because whenever the Complainants have asked the OPs about it they got areply either it was booked or unavailable.Being aggrieved by the act of the OPs the Complainants issued a Legal Notice dated 23/06/2019 which was duly received by the OPs but Complainants still having no reply from the OPs till filing this suit. 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 opted under category of “Blue Season”, Studio type, under which as per Clause No.1 of the Agreement the Complainants are entitled to stay for 6 nights 7 days each year within India for the next 5 years from the date of Agreement along with clubbing facilities of the OPs’ as applicable as per the terms and conditions of the club membership rules. The Complainants have purchased the said Membership and deposited an amount of Rs.1,35,000/- with full knowledge on 24/03/2019. The mail from the Complainants for cancelling the Agreement was received on 06/04/2019 i.e. after 13 days after getting into the Agreement and unilaterally termination of the written contract/agreement is not permissible under law. The Cool-Off Clause in the said Agreement also states that cancellation can be availed within 10 days of execution of the agreement which the Complainant did not do. Moreover, the said 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. As such, OPs have prayed for dismissal of the instant consumer complaint.
Ld. Advocate for the Complainants have 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 being No. CVKK1MPCLUB5LB263074 from OPs against payment of Rs.1,35,000/- through online transaction on 24/03/2019 and entered into a Sale Agreement. Ld. Advocate for the Complainant alleged that after purchasing the said Membership Complainants sent a mail for cancelling the same on 06/04/2019 and requested to refund the deposited amount. Photocopies of the said email furnished by the Complainants support this contention. On perusal of the record it is found that on receipt of the emails dated 06/04/2019, 08/04/2019, 20/04/2019 and 25/04/2019 sent by the Complainants requesting to cancel the said Membership, OPs replied vide Email dated 26/04/2019 that:
If you have intimated us within the Cooling Off period then we will be able to help you out to release your payment. We would like to inform you that you will eligible to get those facilities whatever facilities are available in the agreement. So it’s our kind request to attain our any one vacation under membership as provided to you by us. We think we wouldn’t disappoint you with our facilities available in different locations, as because both of you are precious members for us and we will provide our best/efficient services forever.
Still you do not want to continue further, we have given you the option to transfer your member through your contact as because membership fees is not refundable.
In reply, the Complainant No.1 wrote to OPs that:
I paid the membership fees on 24-03-2019 and I was told that I shall get the original receipt with the agreement papers on 26-03-2019. However I found that all the money receipts were mailed to me on 26-03-2019, so I went there on 30-03-2019 to get the original agreement. After scanning the agreement I decided to cancel the same and I sent a mail to this effect on 06-04-2019, thus very much within the cooling period.Hence I request you to refund the money less the admt charges as I have no desire to avail any of facilities offered by the company.
Ld. Advocate for the Complainant argued that a Legal Notice dated 29/07/2019 also sent to OPs requesting the same which remains unanswered.
Ld. Advocate for the OPs argued that being satisfied with the Scheme the Complainants decided to purchase the said Blue Studio Category Membership at a discounted price worth Rs.1,35,000/- on 24/03/2019 and accordingly, they were instantly issued an online membership account so that the Complainants can start availing the benefits to the membership and it was also made clear to the Complainant that the said Membership Fee is non-refundable under any circumstances. It is also argued by the Ld. Advocate for the OPs that as per Terms and Conditions of the said Agreement cancellation request of the membership should be made on within Cool-Off period i.e. within 10 days but in this instant case Complainants made cancellation request on 06/04/2019i.e. on 13th day from the issuance of the said Membership.
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 the Complainant was explained the benefits and facilities being provided to them along with all other obligations as a result of the said Agreement. It is also submitted by the Ld. Advocate for the OPs that they shall submit the supporting evidential documents as Exhibits before this Commission during the appropriate stages of the case to prove their transparency. In reality, we could not find any piece of documents in the entire case record which can support such submission of the OPs. Thus, the OPs have 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. Moreover, on scrutiny of the records it is found OPs were agreed to appear before the LOKADALAT on 16.12.2022 to settle the matter but did not turn up on call. This gesture of the OPs appears as gross negligence on the part of the OPs.
In this context, we are of the opinion that the gesture of the OPs is surely falls under unfair trade practice on the part of the OPs. Therefore, Complainants are entitled to get relief or reliefs.
Based on the above discussion we are of the opinion that the Complaint Petition is allowed on contest against the OPs with following directions:
1. OPs are jointly and severally directed to refund Rs.1,35,000/-to the Complainants along with litigation cost of Rs.10,000/- within 45 days from the date of this order.
2. OPs are also jointly 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 refund 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.
Copy of the Judgment be given to the parties as per rules
