For the complainant                                -Sayanika  De, Advocate

For the OP                                        - Mr. Suneet chowdhury, advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT           :      

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainants, in brief; is that they purchased Membership of Country Club Hospitability & Holidays Ltd. for a period of 30 years on payment of Rs. 16,666/- as EMI. Complainants also paid additional amount of Rs.20,000/- to the OP through SBI Credit Card  to get special privilege of procuring holidays.  The OP debited the EMIs from the account of the Complainants and on 07.08.2017 complainants also paid remaining amount of Rs.1,30,000/-. In fact, the entire exercise of EMI calculation was a mere camouflage in order to induce the complainants to opt the Membership package against a lucrative EMI which was far from truth. OP received Rs.52,800/- in excess than claimed to be payable. Ultimately, the OP issued two cards instead of three to the complainants and since then they are receiving phone calls from C.C.H.H.L, Hyderabad and Kolkata to pay Annual Maintenance Charges, though the complainants did not get any service or benefit of the purported membership. Finding no other alternative, the complainants have repeatedly requested the OP for cancellation of membership and refund the money. But the OP did not cancel the membership agreement. Till the date of filing of the complaint, complainants have not availed any offer or benefit against such membership from the OP.  The OP has failed to fulfill their services as promised in terms of the agreement. Legal notice dated 04.06.2018 of the complainants was also unattended. The complainants have alleged gross deficiency in services and unfair trade practice on the part of the OP. Hence, the consumer complaint.

The OP has contested the case by filing W/V containing inter alia that the instant complaint is vindictive, motivated, harassive and misconceived one. The OP has denied the allegations made out in the complaint petition. The specific case of the OP is that the complainants did not clear Annual Maintenance charges for the period from 30.07.2017 to 30.07.2018 and also violated the terms and conditions of the Agreement. Terms and Conditions of the agreement is binding and enforceable upon both the parties. There is no ambiguity regarding the terms governed in the membership. Complainants voluntarily entered the agreement with the OP and also paid non refundable membership fees. Membership kit containing cards, welcome letter and copy of agreement was sent to the complainants. The OP also denied that there is any deficiency in service and unfair trade practice on their part. Accordingly, the OP has prayed for dismissal of the complaint with cost.

In the light of the above pleadings, the following points necessarily come up for determination :

1)         Are the complainants consumer U/s 2 (1) (d) (ii) of the CP Act, 1986?

2)         Has the OP deficient in rendering services to the complainants?

3)         Has the OP indulged in unfair trade practice?

4)         Are the complainants entitled to get any relief or reliefs as prayed for?

Decision with Reasons

Point No. 1:

            We have perused the pleadings of the parties including the evidence as well as documents on record. On perusal of the Sale Agreement, we find that the complainants purchased Country Vacation’s Membership bearing No. CVKAIP Club 30LR 240 232 against payment of Rs.3,71,000/- and the said agreement is in force for 30 years.  Therefore, we hold that the complainants are the consumers U/s 2(1) (d) (ii) of the CP Act,1986 and also availed /hired services from the OP on payment of money. Thus, this point answered in the affirmative.

Point Nos. 2 to 4:

            These three points are taken up together for the sake of convenience and brevity in discussion.

            We have perused the evidence as well as documents on record. We have also carefully considered the arguments advanced by the Ld. Advocate for the parties.

            Admittedly, complainants purchased Membership  of country club Hospitality & Holidays  Ltd. for a period of 30 days  on payment  of Rs. 3,71,000/-.Payments were made through EMIs. Club Membership Purchase Agreement dated 30.07.2017 was executed between the parties. The allegation of the complainants is that at the time of execution of purchase agreement the representative of the OP have disclosed about any sort of Annual Maintenance charges which had come to their knowledge after making full payment. On the contrary, clause 10 of the vacations agreement goes to show that the complainants are required  to pay annual maintenance  charges from the date of agreement . Complainants failed to clear annual maintenance charges for the period from 30.07.2017 to 30.07.2018.

            Fact remains that in the agreement, it is specifically mentioned vacation charges is not refundable under any circumstances and vacation fee is not refundable deposit.  Moot question is that whether there was any such application submitted by the complainants knowing fully well whether amount is refundable or not but no such application is filed by the complainants or OP has failed to file such application.  In this regard Ld. Lawyer for the OP submitted that an order of the State Commission passed in FA No.A/298/15 in case of Bhaskar Majumder Vs. Country Vacations Dated 19-02-2016 and submitted that State Commission already decided when the agreement is accepted by a literate person and educated person then terms and conditions are bonding so, the complaint is not maintainable when there is no deficiency of service.  In this regard, we want to mention that regarding any agreement, if it is found that any printed form is supplied by the service provider company and if any customers signs  in that printed agreement in that case such an execution shall not be treated as an admitted execution knowing fully well of the terms and condition of the policy.

            In this context, we want to mention one ruling of Competition Commission of India, in case of Haryana Urban Development Authority, Dept. of Town and Country Planning, State of Haryana and DLF Ltd. who are OPs whereas Belaire Owners’ Association are the complainant and in that judgment being No.19 of 2010 Competition Commission of India has already decided that if in any agreement anyone signs but agreement clauses are unilateral one in of the printed form supplied by the service provider is such a clause is dominating to the purchaser in that case there must be an application and in the application what benefit the customer shall have to get on deposit of the amount shall be specifically mentioned so, chance shall be given to the purchaser to realize what is written in the book in printed form.  It is also observed by that judgment that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. so, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved  and if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.  Moreover, in the present case the terms of agreement to be entered into with the purchaser were never shown to the complainants at the time of deposit of the said amount and the terms and conditions of the agreement was prepared and framed by the company unilaterally without giving the buyer a chance to realize and as a result, the company has already received the considerable amount from the buyer then invariably agreement was forced upon the complainants and complainants had no option but to sign the agreement when complainants found that there was scope for getting such resort etc. for tour.  Competition Commission of India by that judgment pointed out that  proper procedure ought to have been  followed in any such agreement what OP proposed to sell to the buyers complaint should have been made to known at  the time of inviting such sale of the products of the Company and any agreement should be signed in the reasonable date of such advertisement and if the entire agreement copy would be supplied to the complainant to realize the content of the agreement in that case the purchase ought to have get such chance about the bad sides and unilateral fact as imposed by the OP regarding forfeiture of entire amount/ and if complainant would get such chance he may not be agreeable to the terms of agreement and should have his right not to sign but all such scope was not there because on that date the signature was taken in the printed form of the OP giving no chance to realise what would be the fate in the future. 

            In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by the Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by the Supreme Court in appeal.  If that judgment would be read by the Fora invariably such a casual order must not be passed.  We have gathered that many orders are being passed without considering the judgment of the different trade practices and different ruling already published in several Ruling books.  In this regard it is to be mentioned that judgment of Competition Commission of India regarding agreement is binding upon the Fora.  So, the order as passed by the Fora and submitted before this Forum is found violating judgement of Competition Commission of India.  We have gathered that there is no legal friction no determination of legal friction in the produced order as if a casual order is passed as because there is an agreement but that is not the provision of law moreover Supreme Court has also passed such judgment. In the present case there is no material to show that application was filed by the complainant  and no such document was supplied to the complainant to realize what would be fate of Purchaser of that product but printed form is there which in unilateral authorization but Contract must not be unilateral  and a person who has signed in the contract he must be given a chance to realize what is written in a such printed form submitted by the company.  Another factor is that it is a product of the OP Company which was being sold and that product is called membership but it is not association or club and it is not an association under society registration act but that matter also not considered by Fora and all the legal friction and principle are not decided Fora but matter should be looked into for proper justice but Casual order is passed in a bureaucratic manner but legal knowledge shall be there to decide but in some of the cases legal knowledge is absent and bureaucratic order is being passed.  So, the copy of the order FA No. A/298 of 2015 is found not applicable rather the judgement of Competition Commission of India which is confirmed by the Hon’ble Supreme Court is the guideline principle regarding such sort of agreement.  Considering all the above facts and circumstances, we find that the agreement which is produced by the OP is unilateral one no copy of application was produced by the OP to show that complainant initially submitted that application and in the application the conditions  are duly ventilated to printed realize by the buyers  but in the present case it is proved that OP adopted an unfair practice and OP abused his dominant position violating the provision of Section 4 of the Competition Act also and OP managed to sign a highly abusive buyers agreement and this Forum also find that the clause of the agreement also biased in favour of the OP.  So, we conclude that the conduct of the OP is unfair in view of the Section 4 of the Competition Act also and OP is a domain enterprise and amended to abuse of dominance.

            In the light of the above observation we are convinced to hold that no doubt OP adopted unfair trade practice and managed to sell the same to the complainants  but complainants failed to realize the fate of the amount deposited and at the same time, the company  grabbed money without giving any scope to realize fate of deposit.  The company as a service provider cannot grab any money entirely, if the purchaser without any full knowledge purchase it and has not enjoyed any part of that resort, holiday etc. and fact remains complainant has not enjoyed anything but  within 7 days from the date of receipt complainants found that everything is abusive one in the so called agreement then complainant realized the dominant position of the OPs to deceive the customer in such manner. 

  Whatever it may be in the light of the above observations, we are convinced to hold that the complainants are entitled to get back the entire amount subject to deduction of 5 percent as service charge but not more than that.  Probably the Fora are not aware of the fact that insurance policy is a contract but if the policy is found lapse in that case entire amount cannot be forfeited but only after taking 5 percent service charge the remaining amount shall be repaid because he is not under the insurance coverage and in the present case complainants never enjoyed the hotels resorts etc.  during travel but they cancelled it and in all agreement as per law where there is forfeiture clause  there must be a cancellation clause that is the  rule of contract that is not also followed by the Fora because books are in their cages that is being never handled for which such sort of order is being passed for misguiding the other Fora etc. 

            In the above facts and circumstances, there is sufficient ground to allow the complaint with cost and compensation by passing such order to refund the entire deposit amount after deducting 5 percent as service charge.

In the result, the case succeeds in part.

Hence,

Ordered

That the case be and the same is allowed in part on contest against the OP with a cost of Rs. (Rupees ten thousand) only.

            OP is directed to refund Rs. 3,71,000/- (Rupees three lacs seventy one thousand) only after deducting 5 percent as service charges and shall have to pay Rs. 25,000/- (Rupees twenty five thousand) only as  compensation for adopting unfair trade practice in entering into such purchase agreement  and also  for causing mental pain and agony.  OP is also directed to pay the decretal amount within 30 days from the date of this order to the complainants in default, liberty be given to the complainants to put the order in execution according to law.