Delhi

West Delhi

CC/16/278

JITENDER ARORA - Complainant(s)

Versus

THE COUNTRY CLUB HOSPITALITY - Opp.Party(s)

18 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III WEST

GOVT. OF NCT OF DELHI

C-150-151, COMMUNITY CENTRE, JANAKPURI

NEW DELHI-110058

 

Complaint Case No.  278/16

 

In the matter of:

 

Mr. Jitender Arora,

resident of D-66,

Mansa Ram Park. Uttam Nagar,

New Delhi. M-9910 91 92 55                                    …………Complainant

 

 

 

Versus

 

The Country Club Hospitality & Holidays Ltd.

 (The Manager/ Director/s)

Office at Shop No.6, 2nd Floor, City Square Mall,

Rajouri Garden, New Delhi-110027                            ……..Opposite Party

 

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:         DATE OF DECISION      :

26.04.2016 10.10.2022 18.10.2022

Coram:

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member

Mr Anil Kumar Koushal, Member

Present: Mr. Dev Rishi for the complainant

               Mr.Munish Kumar counsel for the OP.

 

 

ORDER

Per: Anil Kumar Koushal (Member)

 

1.        This complaint is directed against the Opposite Party for providing  deficient services and indulging in unfair trade practices which has resulted in   undue harassment, mental agony and hardship to the complainant.

2.        According to the complainant, the OP is a company registered under the Companies Act, 1956 having its registered office in Andhra Pradesh and also having various branches all over India including Delhi and  engaged in the business of providing, inter-alia, holiday packages, clubs, hotels, resorts, fitness and events facilities at various locations across India and claims to be a biggest chain of family clubs in India.

3.        The facts and circumstances leading to filing of the present complaint are as follow:

4.        Upon a representation made from the Opposite Party through its representative one  Mr. Akshit Kakkar  regarding a vacation plan for 10 years only at Rs.50,000/-, the complainant had subscribed a vacation plan by paying on 23.12.2015 by way of cash Rs.25,000/- vide receipt No.12153F-29578, dated 24.12.2015 and  another Rs.25,000/- vide receipt No.12153F-29579, dated 24.12.2015 through Debit Card to the OP.  At the time of making above said payment, Complainant had not signed and executed any document/agreement with regard to the holiday package availed by him, however some receipts and blank form had been signed by the complainant as Opposite Party had asked him to do so. When the Complainant was reading the receipts and form, Opposite Party mentioned that these documents can be read and explained to the Complainant at the time of signing and executing the agreement.  On 25.12.2015, the Complainant wrote to the Opposite Party an email thereby informing that vacation plan for which Complainant had deposited Rs.50,000/- is not suitable for him and his family and thus the Complainant requested Opposite Party to refund the amount paid on 23.12.2015. Complainant had also sent various subsequent e-mails on 30.12.2015, 02.01.2016 and 07.01.2016 requesting Opposite Party to refund the amount of Rs.50,000/-, but Opposite Party did not respond to said requests and all of a sudden he  received a courier containing brochure of the Opposite Party and an agreement dated 07.01.2016 with a covering letter demanding additional fee of Rs. 55,000/- within 45 days.  Complainant was utterly shocked after reading the contents of the letter as well as the Agreement as  he had had never signed and executed any agreement at Andhra Pradesh. The additional demand of Rs.55,000/- was vague and an afterthought as Complainant had already paid/deposited with the Opposite Party full payment of Rs.50,000/- as was the requirement for subscribing the 10 year vacation plan. Apart from demand in the said letter, Complainant had neither agreed to any terms as mentioned in the Agreement nor filled or read the Agreement at the time of signing it as Opposite Party had mentioned that this form can be read and explained to Complainant at the time of executing the Agreement.  Complainant stated that it is also to be noted that the Agreement had been attested at Andhra Pradesh, whereas Complainant never visited Andhra Pradesh to sign and execute the Agreement, the blank form was only signed by the Complainant in New Delhi at the office of Opposite Party at the address as mentioned in the memo of parties at the time of making payment. The Opposite Party forged a form signed by the Complainant and converted it into an Agreement to bind the Complainant with the terms and conditions which were never agreed by the Complainant. According to the Complainant, he  had already intimated to OP on 25.12.2015 vide an e-mail that he  wants refund of the money paid to Opposite Party on 23.12.2015 but Opposite Party deliberately moved forward and after six days of receiving payment of Rs.50,000/ and after four days of receiving e-mail dated 25.12.2015, issued receipt to Complainant which was printed on 24.12.2015, and thereafter, on 07.01.2016, Opposite Party made a false and forged document/agreement. Thereafter Complainant  sent a legal notice dated 27.01.2016 on 10.02.2016, whereby the Complainant denied all the contents  of the Agreement dated 07.01.2016 as the Agreement was a forged agreement and Opposite Party had dishonestly and fraudulently made/forged the agreement to cause wrongful damage and injury to Complainant, only to support the claim of additional fee of 55,000/- as made by Opposite Party vide said letter, thereby causing wrongful loss to Complainant and wrongful gain to Opposite Party. Complainant  contended that it had also been made clear in the legal notice that Opposite Party has no right at all to forfeit any amount paid by Complainant to Opposite Party since on 23.12.2015, when he made the payment of Rs.50,000/-,  no terms to this effect had been agreed between Complainant and Opposite Party. As per complainant, the OP  had mentioned in receipt printed on 24.12.2015 that the agreement number is 13803, whereas the forged Agreement is dated 07.01.2016. The aforesaid acts of the Opposite Party inter-alia show that the Opposite Party has apart from committing apparent and evident acts and omission of cheating and criminal breach of trust have also committed acts which tantamount and proved to the hilt that Opposite Party has committed acts of deficiency in service and has been practicing unfair trade tactics, as also the Opposite Party has failed to perform the services as were required to be performed by the Opposite Party  which have given rise to the present cause of action in favour of the Complainant and against the Opposite Party,  resulting into the present complaint being filed by the Complainant. Complainant submits that by using unfair trade practice, Opposite Party has extracted hard-earned money of the Complainant and has also caused wrongful loss to him. He  further states that the said apparent and evident acts and omissions have caused undue stress, hardship, mental agony, harassment and injury to the Complainant.

7.        The following prayers are made by the complainant:

a.        To pass an order in favour of the complainant and against the Opposite party to pay by way of compensation an amount of Rs.5,00,000/ (Rupees Five Lakh) to the complainant;

8.        The complainant has attached with the complainant copy of his adhar card, two emails dated 24.12.2015 from the OP  confirming  receipt of payment of Rs.25,000/- each, emails exchanged between the complainant and OP  from 25.12.2015 to 31.3.2016, copies of receipts of two payments in the sum of Rs.25,000/- each issued by the OP to the complainant. Copy of letter dated 11.01.2016 issued  by the OP confirming receipt of payment of Rs.50,000/- from the complainant and seeking balance payment of Rs.55,000/- as also enclosing therewith the “Only Vacations Agreement” executed between the complainant and OP  on 07.01.2016, copy of letter dated 20.01.2016 from the OP to complainant enclosing therewith the DAE(dial an exchange) Smart Card with copy of Smart Card, copy of legal notice dated 27.01.2016 sent by the complainant to OP.

9.        Upon admission of the complaint, notice was issued to the OP on 26.4.2016, who upon service filed written statement.

9.        In the written statement, OP  denied all the averments, allegations and contentions made by the Complainant as alleged in the complaint, which are in any manner, contrary to or inconsistent with whatever is stated hereinafter. The Opposite party states that none of said contrary or inconsistent allegations, contentions should be deemed to be admitted by opposite parties merely because of non traverse. Specific non-traversal of any submission made by the Complainant should be read as categorical denial.

10.      As per OP, the present Complaint also raises the question about the applicability of the Law of Contract in a Consumer Complaint. When an offer was made by the Opposite Party, the same was accepted by the complainant when he signed the same. A valid and binding contract came to be executed upon the Complainant signing the said agreement and making the payment towards the membership plan and thus accepted.  The Complainant had tried to rescind the contract due to the membership plan not being suitable for him anymore and not due to any lapses of the Opposite Party and, therefore, it is obvious that the subsequent story put forth by the Complainant is false and all trumped up because the Complainant himself does not allege any deficiency in service or unfair trade practice.

11.      According to the OP, the  Complainant had visited the Opposite Party on his own volition and had enquired about different products and services available and the terms and conditions attached thereto. All benefits were explained to the complainant who purchased the membership only after thoroughly satisfying himself about the terms and conditions regarding the product. On queries being made, the complainant was explained in detail about the product and services. He was also handed over the brochure and was taken through the services so that he satisfies himself before buying a product/membership. After careful deliberations and on being thoroughly satisfied with all the terms and conditions enumerated as well as after going through the fine print of the agreement and understanding the benefits of the membership, the complainant expressed an interest in purchasing membership of the services offered by the opposite party and he decided to finally purchase a 10 Years Blue membership for a total worth of Rs.1,05,000/-. Thereafter, the Complainant paid a partial amount of Rs.50,000/- towards the membership fee. The balance amount of Rs. 55,000/- was due to be paid within a period of 45 days which was duly communicated to the Complainant. It was made clear to the Complainant that the Membership Fee so paid is not a deposit and was non-refundable under any circumstances. The Complainant has been well aware of the said non-refundable clause ever since he met the representatives of the Opposite Party. According to the OP, by buying the said membership, the Complainant was entitled to services which were set out in the agreement that was accepted and signed by him. The said facts were made crystal clear to the Complainant after which he agreed to buy the membership.  Upon an offer being made by the Opposite Party by means of the presentation of the membership package and acceptance of the said offer by the Complainant by virtue of his signing the said agreement and making part payment of consideration amount, a valid and enforceable contract came to be executed.

12.      OP contends that the complainant's claim for refund of membership fee is not maintainable as he has deliberately not brought the attention of this Commission to the express clause in the said Membership Agreement mentioning: "AND WHEREAS the II Party hereby unconditionally give his/her/their irrevocable consent to purchase the Vacation membership of CCIL. The II Party understands that THE MEMBERSHIP FEES IS NON-REFUNDABLE UNDER ANY CIRCUMSTANCES and THE MEMBERSHIP FEE IS NOT A REFUNDABLE DEPOSIT." It is therefore submitted that the complainant has no right to ask for the refund of the membership fee. The said Membership Agreement was duly signed by the complainant after going through the terms and conditions of the same. Thus, the entire complaint is nothing but a method adopted by the complainant to exert pressure on the Opposite Party and an escape route to wriggle out of his contractual obligation, thus the present complaint suffers from malice and has been filed against the Opposite Party with mala fide intention and is liable to be dismissed. The Complainant has caused wrongful loss to the Opposite Party.

13.      The aforesaid facts as per OP, show no deficiency of service or 'unfair trade practice within the meaning of the Consumer Protection Act 1986. The Complainant himself does not allege any defect/deficiency in providing the services to the Complainant as per his membership eligibility.  It is  stated  that the present Complaint is frivolous for the reason that the Complainant's grievance is based on the erroneous belief that membership bought once can be revoked. The Complainant has entered into an Agreement wherein he was aware that he has voluntarily agreed to all the covenants of the agreement and the said agreement came into existence upon his accepting the terms thereof and affixing his signature thereon. Therefore, the Complainant is trying to exert undue pressure on the Opposite Party by moving beyond the purview of the duly executed membership agreement.  Voluntary payment of the amount for the membership he chose to purchase by signing the agreement was further confirmed by the Complainant himself via the telephonic welcome call with the Opposite Party. After having perused the agreement at length as well as understanding the pros and cons of the membership plans of the Opposite Party, the Complainant had decided to purchase the Six Nights and Seven Day's annual vacation in Blue season category for 10 years. Strangely, despite having invested so much thought and time into purchasing the membership as well as signing the agreement, the Complainant subsequently sought to override the agreement and cancelled the membership due to it not being suitable for his family. When the Complainant was reminded of the specific binding clauses of the agreement regarding membership fee not being a deposit and non-refundable under any circumstances, he concocted a new story and alleged that he had not signed the agreement at all and in turn made a false allegation of forgery on the Opposite Party. This story put forth by the Complainant is completely false and all trumped up. The Complainant's fake story of 'not signing' the agreement is an afterthought and had never been communicated to the Opposite Party in the past.

14.      OP took the objection that since its Registered Office is in Hyderabad, the Complainant ought to have approached the Court of competent jurisdiction at Hyderabad. As such, this Forum lacks the jurisdiction to adjudicate the present complaint. Reliance is placed on Clauses 46 and 47 of the Agreement.

        “46. It is agreed between the parties herein that in the event of any dispute, claim or differences arising under the agreement, the second party shall contact the central Customer Care team at CCIL at centralcustomercare@countryclubmail.com or at 04044331360.

        In the event the second party reaches no resolution, the second party shall discuss the issue with the officers of the resolution cell of the first party. Thereafter, if the parties fail to reach any resolution even after discussions with the officers from the resolution cell, the second party may then adjudicate the dispute by way of sole arbitration alone as per the provision contained in the Arbitration and Conciliation Act 1996 and the amendment thereto. The Sole Arbitrator shall be appointed by the first party and/or the authorized person of the first party alone. The seat of arbitration shall be at Hyderabad alone.

        47. All disputes arising out of relation to the present agreement including for Arbitration proceeding shall be subject to exclusive and sole jurisdiction of the Court (the definition of the Courts includes the district/ state and national consumer courts also situated at Hyderabad alone and nowhere else since the agreement is entered between the parties into Hyderabad for all material purpose and by virtue of the present agreement, the jurisdiction of all Courts is excluded by the parties except for the Court situated at Hyderabad alone. The second party is hereby unconditionally and irrevocably agreed that the place of jurisdiction for adopting any kind of legal recourse will be at Hyderabad."

15.     It is further stated by the OP that the Complainant has not utilized any service of the Opposite Party. Non-utilisation of the services does not imply 'deficiency of service’. The fine print of the agreement as signed by the Complainant himself clearly proves that the Opposite Party had been absolutely unambiguous and transparent in its transaction. The present complaint, therefore, deserves rejection on the question of maintainability. According to the OP, the complaint lacks bona fide and is a clear abuse of the provisions of the Consumer Protection Act. The complaint ought to be dismissed with costs.

16.      On the question of Sanctity of the agreement, the OP relied on the judgment of the  Hon'ble National Consumer Disputes Redressal Commission in the matter of Country Club India Ltd vs L. Mahadevan (Revision Petition No.1191/2010) wherein it  was held that the agreement between the parties in such cases and the terms and conditions enumerated therein are binding  on the parties. Furthermore, the Hon'ble State Consumer Dispute Commission for the UT, Chandigarh has dealt with similar matters and has authoritatively decided identical matters in  favour of the Opposite Party. In the said matters. the Complainants had tried to extort from the Opposite Party by filing frivolous petitions. Said decisions, namely. Anil Hunjan vs Country Club India Ltd; Country Club India Ltd vs J.Kaur are relevant in the present case. Further, the Hon'ble Supreme Court in Vikram Greentech Ltd. & Anr. v. New India Assurance Co. Ltd.. (2009) 5 SCC 599, while dealing with consumer dispute involving insurance contract categorically laid down the law that the endeavour of the Court must always be to interpret words of contract. The Courts are not expected to venture into extra liberalism that may result in re-writing the contract/substituting terms not intended by the parties. The said decision has subsequently been followed by the Hon'ble Supreme Court itself in Export Credit Guarantee Corp. of India Ltd. vs M/s Garg Sons International (2014) 1 SCC 686; Sikka Papers Ltd vs National Insurance Co. Ltd. & Ors (2009) 7 SCC 777 and a very recent decision of United India Insurance Co. Ltd vs M/s. Orient Treasures Pvt. Ltd, all rely on the Vikram Greentech (Supra) to uphold the said established legal principle.

 

17.      On the question whether Agreement/contract applies to the Consumer Protection Act, it was  submitted by the OP that parties to a dispute even in a consumer dispute are bound by the provisions of contract act. The decision in Marine Container Services South Pvt. Ltd. v. Go Go Garments, (1998) 3 SCC 247 is relevant. Question which arose for consideration before the Hon’ble Supreme Court in Go Go Garments' case was in regard to applicability of Section 230 of the Contract Act to the consumer complaint filed under the Act. The Apex Court held that the Contract Act does apply to the complaints filed under the Consumer Protection Act, 1986 The said decision was followed by the Hon'ble Supreme Court in Prem Nath Motors Ltd vs Anurag Mittal (2009) 16 SCC 274 and various other decisions. The aforesaid ratio laid down by the Hon'ble Supreme Court is good law and this  Forum is therefore bound by it due to doctrine of judicial precedence.

18.      The Opposite Party states that a valid contract exists between the parties in the facts of the case. In this regard, reliance is placed on a decision of the Hon'ble Delhi High Court in Shri Vipin Mehra vs Star India Pvt. Ltd 2003 (3) ARBLR 178 Delhi, 106 (2003) DLT 516, 2003 (70) DRJ 677, 2003 (3) RAJ 435.

           

Accordingly, in view of the aforesaid judgments of the Supreme Court and also the provisions of the Indian Contract Act, the Complainant is bound by the agreement that he affirmed and signed.

19.      On the question of ESTOPPEL, OP submitted that the Complainant cannot be permitted to rescind from his earlier position. The Complainant voluntarily entered into the agreement and later sought to cancel the same. Now the Complainant has improved upon a case and tried to fasten a web of lies through the present complaint. The present complaint is therefore barred by the principle of estoppel.

20.      According to the OP, the Complainant is an educated and independent individual who cannot be pressurized  into doing or restraining himself from doing anything by any third party. He cannot be made to do or resist from doing anything solely because the Opposite Party expects him to do the same. Assuming and not admitting that the Complainant did sign on blank forms, to allege that he signed on them only because the Opposite Party had asked him to sign on blank forms is not just peculiar and uncanny but is absolutely unbelievable. It is reiterated that at no point in time was the Complainant advised to read the agreement which was executed between both the parties at a later time. Once the agreement had been signed by the Complainant, the same had been executed.  Assuming that he was not willing to take the membership then why did the complainant not raise an objection on the welcome call made by the Opposite Party.

 21.     OP states that it replied to all the emails of  complainant  he had sent to the opposite party and it is further submitted that the complainant himself in his email dated 25th December 2015 states that he is looking for cancellation as this is not suitable for his family and further the complainant here is misleading the this Commission by raising allegations which are baseless against the Opposite Party.

22.      According to OP, as per Company Policy, the letter dated 11.01.2016 was sent to complainant with details of the payments made so far and the payment which was due to be paid. The courier was not 'suddenly' sent to the Complainant but as per company policy and as per the agreement as agreed upon and executed by the complainant, the Opposite Party was legally bound to send the courier to the Complainant and give him relevant information regarding the membership programme.  The said agreement was submitted by the complainant with his documents which were collated. The same was thereafter franked in Hyderabad. However, the contract came to be executed on the Complainant accepting the Opposite Party's offer. The formality of franking in Hyderabad does not imply that the contract/agreement came to be executed subsequently. The basic principle of contract law mandates that acceptance is a final and unqualified expression of assent to the terms of an offer. Signing of a contract is one way a party may show his assent. Alternatively, the performance of the requested act (actual payment) also indicates objectively, the party's assent to the terms of the offer. The franked agreement was duly sent to the Complainant along with his membership entitlement and a letter detailing the same. The said agreement shall also be filed by the Opposite Party and. Therefore, the question of forgery does not arise. The allegations made by the Complainant are preposterous.

 23.     It is stated by the OP that to seek and demand what the Complainant is not entitled for, does not make the Opposite Party guilty of providing deficient service. The allegations of the Complainant are absolutely false because no membership package at the rate of Rs.50,000/- was available with the Opposite Party and his entire story is a creation of fertile mind. The Opposite Party is not responsible for any stress that the Complainant may have gone through. It is further stated that in any case, the Complainant himself has not availed any service from the Opposite Party as yet and therefore the question of deficiency in service does not even arise. The demands of the Complainant are unreasonable, de hors the agreement and unrealistic. The Complainant is not entitled to any refund whatsoever since the amount deposited by the Complainant was non-refundable. The Complainant has not proved any case of anxiety, loss harassment and therefore the exorbitant compensation is merely an effort to unjustly enrich himself. Such endeavour ought to be viewed seriously by this Commission and the present Complaint ought to be rejected at the threshold.

24.      Along with the written statement, the OP filed copy of Board Resolution  authorizing its Officer to file and pursue the present case, copy of the agreement dad 07.01.2016 executed between  the complainant and the OP. Copy of the Welcome letter dated 11.01.2016 issued to the complainant acknowledging the receipt of Rs.50,000/- and seeking balance payment of Rs.55,000/- within 45 days.

25.      Per contra, being not satisfied with the averments made by the OP in their written statement, complainant chose to file rejoinder.  It was submitted by the complainant that the contents of written statement, which are contrary to the contents of present complaint are specifically and vehemently denied in literatim. Complainant stated that the Opposite Party cannot deny the deficiency in service provided to the Complainant and indulgence in unfair trade practices and causing harassment, mental agony and hardship to the Complainant. Complainant contended that the Opposite Party forged a form signed by the Complainant and converted it into an agreement to bind the Complainant with the terms and conditions which were never agreed by the Complainant. The agreement signed by the Complainant was blank document and was not bearing any stamp or signature of any other person.

26.      Complainant specifically and vehemently denied the allegations of OP that reliance can be placed upon the terms of the Agreement for the purpose of  jurisdiction as well as non refundable membership fee, no cause of action in favour of the complainant or the CP Act not applicable to the facts of the case in view of the fact that the said Agreement is forged and fabricated document created by the Opposite Party to gain wrongfully. The Complainant had not agreed to any of the terms mentioned therein and had every right  to ask for the refund of the membership fee and thus the Complainant is not at all bound by the terms of Agreement. Opposite Party has wrongly applied the principles of estoppel in the present complaint.

27.      Evidence by way of affidavit was filed by the complainant and he exhibited the documents filed on record as Ex. C.W.1/1 to C.W.1/8.  Evidence by way of affidavit was also filed by the OP and it exhibited the documents filed on record.  Written arguments were filed by the complainant and the OP.

28.      Oral arguments were heard on 30.05.2022 and orders reserved.  Thereafter while going through the pleadings, it came to   our notice that Evidence in this case had not been filed.  In fact the evidence of some other case (Jitender Kaur vs. M/s Country Club Hospitality and Holidays Ltd) by simply changing the Complaint Case No. to 278/2016 in relation to the present complainant was filed.  On 01.07.2022, the matter was directed to be posted for 13.07.2022 for filing of evidence by the OP in this case.  On 13.07.2022, counsel for the OP sought time to do the needful by 10.10.2022.  On 10.10.2022,  evidence on behalf of OP was filed and the matter again reserved for orders.    

29.      We have gone through the pleadings filed on record by the parties and on the basis of those documents and oral arguments advanced by counsel for the parties proceed to decide the matter.

30.      The  arguments of the OP are  manifold:(1) there is no jurisdiction of this Commission to adjudicate this matter as the contact was finalized at Hyderabad and  in terms of Section 46 and 47 of the Agreement entered into between the complainant and OP, the matter has to be decided through arbitration at Hyderabad, (2) the contract was concluded  between the complainant and the OP upon execution of an agreement and therefore, complainant  cannot seek refund now simply because the same does not suit his family and the  membership fee is non-refundable, (3) there is no deficiency in service and unfair trade practice alleged by the complainant in this case as the OP  fulfilled all its commitments.

31.     As regards the jurisdiction of this Commission to try the present complaint, we may refer to Section 3 of the Consumer Protection Act, 1986 (for short the CPA) and Section 100 of the CPA, 2019, 2019, which are similar in nature,  as under:

“3. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

 

“100. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. 

 

32.     Consumer Protection Act is a beneficial legislation specially enacted for  protection of consumers and provides an additional remedy in the shape of Section 3 of 1986 Act (old Act) and Section 100 of CPA, 2019(new Act) and is therefore, in addition to and not in derogation of any other provision of any other law for the time being in force and a harmonious construction of provisions  contained in the CPA  shall indicate that jurisdiction of Consumer Forums is not barred  as  is laid down in a catena of judgment of Hon’ble Supreme Court  in Secretary, Thirumurugan vs M. Lalitha (Dead) Through Lrs. & Ors, decided on 11 December, 2003  and and  State of Karnataka vs. Vishwabharathi House Building Coop. Society and others [(2003) 2 SCC 412].  Therefore, the said CP Act supplements and not supplants the jurisdiction of Civil Courts or other statutory authorities.

 

33.     Further, the contention of the OP that the agreement between the  complainant and the OP was executed at Hyderabad and therefore, this Commission has no jurisdiction to hear this complaint,  we may quote the relevant Section 11 of the CP Act, 1986 in relation to jurisdiction of this Commission:

“11.      Jurisdiction of the District Forum.—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.

 

(2)   A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a)   the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)   any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c)   the cause of action, wholly or in part, arises. 

 

As per the above Section, the jurisdiction of this Commission is covered by Section 11(2(a) of the CP Act, 1986.   All the deliberations between the complainant and the OP were held at Delhi in the Branch office of OP mentioned in the memo of parties. 

Hon'ble Supreme Court in the case of Alchemist Limited and Anr. v. State Bank of Sikkim and Ors. AIR 2007 Supreme Court 1812 has held as under:

"..It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition..

34.     In view of  the above legal position, the present  complaint is very much maintainable before this Court.

35.     As regards the   conclusion of the  agreement between the complainant and the OP, the complainant contended that  on 23.12.2015, upon making the payment of Rs.50,000/- some  blank papers were got signed from him with the understanding that the final agreement shall be executed and sent to him detailing out all the terms and conditions of the agreement.  According to him, in the two receipts issued to him for Rs.25,000/- each, the Agreement No.13803 has been specifically mentioned whereas the  agreement  executed by the OP on 7^th January, 2016 bears the No.13806.  According to the complainant, it is apparent that the actual agreement was  executed later on   on 7^th January, 2016 by forging his signatures.   We find force in the arguments of the complainant that  on 23.12.2015 when he made the payment, the  agreement was not executed and as per own admission of the OP, the same was executed on 07.1.2016 in the absence of complainant and got signed by the OP at Hyderabad  whereas the complainant had  made the payment at Delhi only and never visited Hyderabad.

36.     At this stage it is relevant to refer to the judicial pronouncement in an almost similar matter by the Hon’ble SCDRC at Chandigarh in   Country Club Hospitality  vs Dr. Janak Raj Singla (First Appeal No.292 of 2021), decided on 30 March, 2022 in which  the Hon’ble SCDRC, Chandigarh, held  that the contract entered into between the complainant was arbitrary, one sided  as no scope was made for the respondent to wriggle out of the contract and  since  no services were availed by the respondent therein from the appellant, no loss has been occasioned to the OP by  withdrawal of membership by the complainant. The OP cannot deny refund of the  money deposited by the complainant.  In the said case, reference was also made to the judgment rendered by the Hon'ble Supreme Court in the  case of  Supreet Batra v. Union of India 2003 (1) SLT 730, wherein it was  held that "service provider cannot forfeit the fee or consideration for services, which are not provided.   Further  in  Deepanshu Saini v. M/s S.S. Group Pvt. Ltd. 2019 (4) CLT 479 (NC),  the Hon'ble National Commission while dealing with a case of Builder-Buyer Agreement held that "all these conditions are totally one sided and are the result of the dominant position of the builder at the time of signing the builder-buyer agreement because by that time, a lot of money of the complainant is already blocked with the builder. The complaint was allowed."

37.     In the case of Country Club Hospitality  vs Dr. Janak Raj Singla (supra), reliance was also placed on  the law laid down in the case of   Indira Gandhi Medical College v. Prem Seth,  2015 (3) CLT 327 (NC). In that case, the prospectus provided that fee once received shall not be refunded and it was observed that due to withdrawal of candidature by the complainant, the petitioners did not suffer any financial loss. It was further observed that that the purpose of providing Clause for non-refundable in the prospectus was not to make unearned gains but to guard against any financial loss due to sudden withdrawal of student. It was held that equity demanded that they should have refunded the fee. The relevant portion of said judgment is reproduced as under:

"due to withdrawal of candidature by the complainant, the petitioners have not suffered any financial loss. Purpose of providing non-refundable clause in the prospectus is not to make unearned gains but to guard against any financial loss due to sudden withdrawal by a student. Equity demands that they should have refunded the fee."

38.      Same is the position in the present  case.  Since the complainant  was not agree to continue with the membership and wanted refund of the money deposited by him with the OP even before the final execution/receipt of  agreement dated 07.01.2016, on 25.12.2015, wrote to the OP to cancel the membership agreement entered into with it as he had not availed off any services from the OP.  However, the OP showing its highhandedness, relying on the “No refund clause in the agreement” did not refund the amount of Rs.50,000/- deposited with it  by the complainant.  The OP never mentioned in the pleadings  that upon the withdrawal of membership and seeking refund of the amount  by the complainant, any loss has been suffered by it.   The OP is also silent on the allegation of the complainant that in the receipts for Rs.50,000/- issued to him, the Agreement No. is 13803 whereas on the agreement dated 07.01.2016, it is 13806.   The conduct of OP in dealing with the case of complainant, clearly  depicts deficiency in service and especially unfair trade practice as no scope was given to the complainant to withdraw from the agreement which was altogether one sided.

39.      For the foregoing conclusions arrived at by us, we allow the complaint holding the OP guilty of deficiency in service  and unfair trade practice by denying refund of the amount deposited by the complaint upon a written request made on 25.12.2015, i.e.  much before final execution of the agreement between the parties on 07.01.2016, which was admittedly sent to the complainant vide letter dated 11.01.2016.  Accordingly, OP is directed to refund the amount of Rs.50,000/- to the complainant along with interest @ 6% p.a. from the date of filing of the complainant till final realization.  The OP is also directed to pay a sum of Rs.10,000/- as compensation to the complainant for the deficiency in service and unfair trade practice.  Let this order be complied with within 30 days from receipt of copy of this order.

A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them in the name of  President of this Commission.

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President