Order-19.

Date-14/09/2017.

        Smt. Sangita Paul, Member.

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

Complainants’ case in short is that complainant-1 received a phone call from Biswajit Roy, representative of O.P.-2 that he had to collect the gift which he had won from the office of the O.P.-2. The representative of O.P. forced complainants to take five years membership of the O.Ps.’ Club for Rs.70,000/-. Complainants were made to pay rs.41,000/- in advance through his credit card on 26/01/2014 and he was assured that after payment of balance amount full amount will be refunded to complainants. After receiving the amount, O.Ps. provided with the complainants the membership No.ACVKK18CLUBSLB168285 which includes Counttry Vacation Holiday Club Membership Agreement and Billionaire Vacations Agreement both dated 26/01/2014. Complainant after surfing the internet came to know about deficiency of service of Country Vacation. Many persons have not received any service of the O.Ps. and complainants sought to cancel the membership and wanted refund of the sum of Rs.41,000/-. Complainants were told by the representative to make full payment of Rs.70,000/- and the total sum would be refunded within 2 to 3 months. Complainants accordingly made payment of balance amount of Rs.29,000/- by cheque. Complainants tried to contact O.Ps.-1 to 5 but the O.Ps. did not provide any response. Complainant visited office of the O.Ps.-1 to 5 at Kolkata, Pune and Telegana and told the representatives to cancel the membership as they were not providing any satisfactory service. Complainants did not receive any satisfactory response from the O.ps. till date. Complainants wrote letters in this regard. O.Ps. signed in the agreement on payment of money towards membership fees. Upon receiving several letters and e-mails O.Ps. did not take any step. Hence complainants pray for refund of the amount paid by complainants towards membership fees and also pray for refund of legal charges incuding a fresh filing of complaint in Kolkata and  Punewith incidental cost and expenses for filing the same of Rs.45,000/- and pray for Rs.50,000/- for causing mental disturbance and agony, also pray for closure of offices of the O.Ps. throughout India.

            O.Ps.-1, 2 and 5 have contested the the case in filing W.V. stating that complainants are not consumers in terms of Consumer Protection Act, 1986 and the definition of deficiency defined u/s-2(g) of the C. P. Act, 1986 does not cover the claims arising under present dispute. There is no post as Managing Director in the company. So the case against O.Ps.-3, 4 and 6 does not lie on the ground of non-existing persons. O.Ps.-1, 2 and 5 have no privity of contract with complainants and has been added as party on representative capacity. But without the service provider itself, having been made a party. O.P.-3 is not a company  registered under the Companies Act under 1956 and thus the O.P.-3 should be dropped from being prosecuted against the order. O.Ps.-1, 2, 4 and 5 are not branch office of O.P.-3 and thus O.Ps.-1, 2, 4 and 5 should be dropped from being prosecuted against the order. It is clear that O.Ps.-1, 2, 3, 4, 5 and 6 have no existence in the eyes of Law. The agreement was non-notarized, hand-written one. The cause of action arose in January-2014 when the agreement was entered into, but the case has been filed much after the prescribed periodunder this Act. Hence O.Ps. pray for dismissal of the complaint since the same suffers from non-joinder of necessary parties.

            There is no post of Managing Director, Country Vacations. So O.Ps.-3, 4, 6 are dropped on ground of non-existing persons.

            Complainants cannot cover up the defects of the service provider. A person who is unaware of Law cannot escape liability for violation of Law because of ignorance of content. Complainants do not want to make Mr. Biswajit Roy and Mrs. S. Roy as party, but they contacted with the complainants. Complainants by their own volition, choose not to make them parties. But they are necessary parties in the instant case and ought to be granted an opportunity to put forth their defences, without which there should be grave injustice. No body has forced complainants to enter into an agreement. There is no deficiency of service on the part of the O.Ps. Complainants never availed of servicefrom the O.Ps. nor have been subjected to any unfair trade practice. The allegations made by complainants are opposed and denied.

Decision with Reasons

            We have travelled over the documents on record i.e. the complaint petition, written version, evidence-in-chief, photocopy od letters, billionaire vacations agreement dated 26/01/2014, mails on different dates.

            It is evident that after receiving a phone call from one Mr. Biswajit Roy. Complainant faced representatives of the O.Ps. he was shown Billionaire Vacation s Agreement, for which complainant had to pay Rs.70,000/-. Complainants after making full payment will be entitled to enjoy vacations through their resorts. They had resorts in various places of India. Complainants believed in the words of O.Ps. representatives, initially they paid Rs.41,000/-. Complainants were made to pay the remaining amount in 3 EMIs. After making full payment the company executive provided complainants with Membership No.CVKKIB168265. Later on, complainants found several complaints against the O.P. company and told company to cancel the membership and to refund his money but till date complainants have not received a single penny. They did not receive any response from the O.P. company about the refund of payment. Complainants contacted with the O.Ps. for several times, but each time complainants were given false assurance and nobody solved the problem. O.Ps. state that there was no privity of contract between complainants and O.Ps. whenthe contract has been signed by and between the parties, then O.Ps. cannot deny to be outside the privity of contract. They cannot escape their liability. It was stated in the contract that the amount is non-refundable but against this paymentcomplainants are entitledto avail of the resorts, facilities of spa etc. but complainants could not availany of the facilities and complainants made this complaint on the basis of documents forwarded to them by the O.Ps. O.Ps. wanted to expunge the names of O.Ps.-3, 4 and 6 on the ground of non-existing persons. Country Vacations is a company registered under Companies Act and the post of Managing Director of O.Ps.-3, 4 and 6 exists. So all the O.Ps. are very much responsible for adopting unfair trade practice against complainants. As complainants could not avail of the facilities of the company becausethey lost faith upon the company and demanded refund of money, but the representatives of the O.P. company did not refund for which complainants faced mental stress and agony. We think that O.Ps. are deficient in rendering service to complainants who are consumers under section 2(1)(d) of the C. P. Act, 1986. Complainants were termed as precious member in a letter dated 08/11/2014 addressed to complainants, but the service of the O.P. company is really disappointing.

            Consequently, the case merits success.            

Hence,

Ordered

That the case be and the same is allowed on contest against the O.Ps.with cost of Rs.10,000/-.

            O.Ps. are directed to refund Rs.70,000/- to the complainants along with interest  at the rate of9 percent p.a. w.e.f. 26/01/2014 till compliance within one month from the date of this order.

            O.Ps. are directed to pay an amount of Rs.10,000/-to this Forum for indulging in unfair trade practice.

Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision in C.P. Act.