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Advocate Abhijit Deshmukh for the Complainants
Advocate K.R.Maniyar for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 24th December 2013
This complaint is filed by two consumers against Country Club (I) Ltd. for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainants are residing at Anandnagar, Sinhagad Road, Pune and Mahesh Society, Bibwewadi, Pune. Opponent is an Institute providing services. It is the case of complainants that the representatives of Opponent have encouraged them to acquire membership of the Opponent Club. Opponent also assured about the services and facilities of tour packages and land allotment plans of company to the complainants. Complainants have submitted written proposal for providing membership of the Opponent by submitting cheuqe of Rs.1,75,000/- each. Opponents have assured to provide direct access to all the Country Clubs and Resort, 220 affiliated 155 franchises in India, free health club facility for life time, trip to Goa, Gangalore, or Kerala, accidental policy from HDFC Bank of Rs.6,00,000/-. Opponents have also assured to allot complementary plot of 2000 sq.ft. at Golf Village Kolad on Mumbai Goa highway and complainants can get 1000 sq.ft plot on one time payment and 2000 sq.ft. plot under MGM scheme. Such and other various facilities were promised by the Opponents. But none of the promise was fulfilled. Opponents have not issued membership cards in the name of member, spouse and children of complainants. Accidental policy is also not issued. The plots were not given. The other facilities such as services at the time of trips were not availed by the complainants. Opponents had demanded maintenance charges. Complainants have decided to cancel the membership. It is the case of complainants that Opponents have not extended any kind of facilities and services hence they have claimed refund of Rs.1,75,000/- along with interest @ 15% p.a. and compensation of Rs.5,00,000/- for deficiency in service.
[2] Opponents resisted the claim by filing written version. The contents as regards the payment are not seriously disputed. But it is flatly denied that there is deficiency in service. According to the Opponents as per the terms and conditions in the agreement only Courts at Securandabad and Hyderabad have jurisdiction, if any dispute arise. Hence, this Forum has no jurisdiction to entertain the present complaint. It is further contended that the complainants have agreed that the membership cannot be cancelled. The plots which were agreed were for free of cost. Hence, that promise cannot be termed as service. Complainants have not submitted the documents. As per the agreement membership is irrevocable. Hence, complainants are not entitled for refund. Opponents have claimed that there is no deficiency in service and complaint is liable to be dismissed.
[3] Considering the voluminous documents which are produced before the Forum, pleadings of both parties, brochure, written argument as well as hearing the argument of both counsel, and considering the legal position, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the complaint filed by the complainants ? | In the negative |
2 | Whether Opponent has caused deficiency in service ? | Does not survive |
3 | What order ? | Complaint is returned to the complainants for presenting the same before proper Forum. |
Reasons
As to the Point Nos. 1 to 3-
[4] The learned Advocate for the Opponents argued that as the complainant has admitted the terms and conditions of the agreement in which it is clearly mentioned that if there is any dispute between the parties, then the proceeding is to be initiated before the court which is situated at Hyderabad or Secundarabad. It reveals from the agreements which are produced on behalf of Opponents that both complainants have agreed the terms and conditions of agreement and as per the condition No. 48 they have admitted that only the courts at Secundarabad and Hyderabad will have jurisdiction in case of dispute arise, if any. The learned Advocate for the opponents drew my attention to clause No.48 of the agreement which can be read as under-
“ 48. Only Courts of Secunderabad and Hyderabad will have jurisdiction in case of disputes arising, if any. ”
In order to support the contention of the said clause the learned Advocate for the Opponent strongly relied upon the ruling of Hon’ble Supreme Court of India between ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem in Civil Appeal No. 2682 of 1982 decided on 13/3/1989. In the said ruling it has been observed by the apex court that,
“where the parties to a contract agreed to submit the dispute arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to void as being against public policy.”
[5] Similar view is taken by the apex Court in the recent judgment of the Hon’ble Supreme Court in Civil Appeal No.5086 of 2013 between M/s. Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd., decided on 03/07/2013. It has been observed in this ruling, after discussing various judgments of apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,
“This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the Courts at Kolkatta, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner. ”
[6] In the present proceeding the head of the Opponent is situated at Hyderabad and as per section 11 of the Consumer Protection Act, 1986, the places of head office as well as branch of the Opponent are the proper jurisdiction.
[7] In the present proceeding the complainant has waived and excluded their right to initiate the proceeding at branch office and in view of the above noted ruling, that agreement is not against the public policy. After considering the ratio laid down in the above quoted ruling, we held that this Forum has no jurisdiction to try and entertain the present complaint and the complaint should be returned to the complainants for presenting the same in proper Forum. Hence, Forum held that the issue as regards deficiency in service is treated as does not survive. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is hereby returned to the complainants for presenting the same before appropriate Forum within one month from the date of order.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are
provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 24/12/2013
