Haryana

Ambala

CC/463/2022

MADHU BALA. - Complainant(s)

Versus

THE PARK HOLIDAY INTERNATIONAL & RESORT PVT.LTD. - Opp.Party(s)

ASHVANI NADNA

02 May 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case No.	:	463 of 2022
Date of Institution	:	12.12.2022
Date of decision	:	02.05.2024

1. Madhu Bala wife of Sh. Ashok Kumar Passi

2. Ashok Kumar Passi son of Sh. Pyare Lal

Both residents of H.No.1507, Sector-9, Near Mahadev Mandir, Amabla City.

          ……. Complainants

                                                Versus

1. The Park Holiday International & Resorts Pvt. Ltd. 306, Sheetla House, 73/74, Third Floor, Nehru Palace, New Delhi, through its Authorized Signatory Mr. Raghav.
2. Mr. Raghav Authorized Signatory of The Park Holiday International & Resorts Pvt. Ltd. 306, Sheetla House, 73/74, Third Floor, Nehru Palace, New Delhi.
3. Mr. Ankur Chauhan, Authorized Signatory of The Park Holiday International & Resorts Pvt. Ltd. 306, Sheetla House, 73/74, Third Floor, Nehru Palace, New Delhi.
4. Ms. Richa, Venue Manager, of The Park Holiday International & Resorts Pvt. Ltd. 306, Sheetla House, 73/74, Third Floor, Nehru Palace, New Delhi.
5. Mr. Kamaal Khan, Attending Person of The Park Holiday International & Resorts Pvt. Ltd. 306, Sheetla House, 73/74, Third Floor, Nehru Palace, New Delhi.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Ashwani Nandra, Advocate, counsel for the complainants.

                     Shri Himanshu Anand, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the amount of Rs.50,000/- alongwith interest @ 18% p.a. from 14.08.2020, i.e the date of receipt of the amount, till its realization.
2. To pay Rs.1,00,000/- on account of the harassment suffered by the complainants
3.  To pay  Rs. 30,000/- as litigation expenses
4. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainants were invited by the representatives of OPs at Hotel Amrapally, Located at GT Road, Near Modern Automobiles, Ambala City on 04.08.2020 and they were attended by a team comprising of Ms. Richa, Venue Manager, Mr. Kamaal Khan, Attending Person & Mr. Ankur Chauhan, Sr. person of the team i.e. OP No. 3 to 5. OP No.3 to 5 offered a package of holidays for 5 years against payment of Rs.50,000/- in lumpsum and Rs.7500/- as maintenance charges. Under the said package it was assured that the complainants can visit to any of properties of the OPs located in India and abroad. The complainants went through the terms and conditions which were offered by OP No. 3 to 5 and refused to take membership as the same were not found to be acceptable. OP No.3 to 5 were offering the tea with snacks and did not allow the complainants to leave the venue and put a lot of pressure upon them.  At that time the complainants succumbed to the pressure the OP No.3 to 5 and complainant No.2 gave his credit card for payment which was swiped by the OP No.5 immediately and they had not given any time to change our mind. OP No.3 to 5 gave the documents after swiping the credit card. After reaching the house, the complainants again went through the documents given by the OP No.3 to 5 and found that the verbal assurances given by the OP No.3 to 5 were all contrary to the written terms and conditions in the agreement. Even it is stated that no verbal assurance given by the members will be honoured/accepted by the company. As such, the complainants prepared a list of such disparities, and met OPs No.3 to 5 in the next morning in the Amrapalli Hotel and discussed the disparities. Mr.Ankur Chauhan i.e. OP No.3 signed the list spontaneously that everything was acceptable by the company which aroused suspicion that the team only wanted to get rid of the situation.  As such, the complainants immediately sent email dated 15/08/2022 to the OPs, to cancel their membership and refund the money paid by them but to no avail. The complainants again sent a regd. letter on 19/08/2020 and requested for cancellation of membership and refund of the amount paid but to no avail. Thereafter on 23.10.2021, the complainants applied for availment of property of company at Goa from 21.01.2022 to 27.01.2022 and made a request to refund the amount of Rs.50,000/- in case the said holiday are not made available, but OP No.1 rejected the same on the ground that it was too early to apply. The complainants again applied on 18.06.2022 for same destination from 13.08.2022 to 18.08.2022 which was also denied on the same ground by the OPs. Under those circumstances, the complainants sent registered letter on 20.09.2022, seeking refund of amount of Rs.50,000/-  but to no avail. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they took numerous objections to the effect that the present complaint is not maintainable as the complainants are not consumers and it is not the consumer dispute. It is stated that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Dalmia Resorts International Private Limited versus Ranjana Gupta 1997 (1) CPJ 63 held that disputes regarding purchase of timeshare in holiday resort is not a consumer dispute and such a question has to be raised before civil court. Relying upon the same judgment and also upon another judgment of National Commission 1997 (1) 26, Hon'ble Chandigarh Consumer Commission in case titled Sterling holidays resorts versus V.P. Gupta 2003 (3) CPJ 3 again held that dispute related to purchase of timeshare in immovable properties is not a consumer dispute and as such the complainants are not consumers etc. On merits, it has been stated that on 14th August 2020, the complainants entered into Purchase Agreement with the OPs for 5 years Plus 3 Years at a consideration of Rs.50,000/- Time vacation ownership fees under which complainants (2 adults and 2 kids or 3 adults) were entitled to Studio holidays at the OPs owned and associated properties for 35 nights days. The said membership is valid upto September 2025. An approval form in this respect was also signed by complainants and OPs. The complainants visited the OPs venue on 14.08.2020, where a presentation was given to them, by sales representative of OP Company and detailed terms and conditions, benefits, respective prices thereof were explained to complainants. Thus, after understanding and knowing all the membership plans, benefits, terms and conditions thereof, the complainants agreed to purchase the present membership as suiting their requirement and pocket, at a negotiated price of Rs.50,000/-.  The complainants also submitted duly signed Member/Owner declaration form, having details of the membership plan, under which, they also agreed to pay annual maintenance charges of Rs.7500/- Plus taxes. The term "studio" is defined under clause 1.6 under the agreement which means fully furnished apartment consisting of a bedroom cum living room with kitchenette or without kitchenette and entitlement of persons are 2 adults and 2 kids. The complainants have given declaration under the agreement which reads as:-

 

"1. I/We declare that I/we have gone through all the terms and conditions of 'The Park Holidays International Vacation Ownership guidelines/rules of Occupations and Purchaser Agreements' (hereinafter referred to as 'The Park Holidays International RULES'] relating to The Park Holidays International Vacation Ownership program of 6 nights/7 days (hereinafter referred to as Holidays International'] and also I/we 'The Park further acknowledge that I/we have understood and accepted the same before enrolling myself/partial as a Member of 'The Park Holidays International' wherein it is made absolutely clear that it is not an investment of any nature whatsoever but a simple Timeshare Vacation Ownership program and the sole objective of which is to bring the spiritually inclined closer to their faith.

 

2. I/we have been given an opportunity to ask for any clarification/information in this regard and, wherever required have sought the requisite clarifications/information in this regard, and are satisfied with the same and also confirm that the terms of 'The Park Holidays International Vacation Ownership Guidelines/Rules of the Occupations and Purchaser Agreements' governing my/our Vacations Ownership of 'The Park International Holidays' are acceptable to me/us and are final and bonding upon me/us.

 

Alongwith the agreement there were terms and conditions and purchaser's declaration signed by complainants, which was deliberately concealed and not annexed by the complainants. The Terms and Conditions and purchaser's declaration bearing the signature of complainants and the OPs is annexed as Annexure R-3 as under:-

• Clause No. 16: "we understand that we have bought timeshare vacation ownership and are only entitled for accommodation at The Park Holidays International Associated Resort/Hotel only. Bookings are subject to availability."
• Clause No. 21 V states "The booking should be confirmed within the validity period. Room availability is on first come first serve basis".
• Clause No. 21 VI:-" An Electronic Booking Confirmation Voucher (e-BCV) would be sent to your email address registered with us within an hour from the time of booking. You can also print the electronic booking confirmation voucher by providing your registration No. and email address registered in our website.
• Clause 21 VII.: To respect your reservation, Please carry the Booking Confirmation Voucher with α valid government photo identity proof at the time of checking at the resort
• Clause 21 X: "Allocation of dates is completely under the discrition of the company."

Vide email dated 23/10/2021 and 18/06/2022, the complainants requested for the booking of hotel and the OPs company never denied any booking, but agreed to confirm the booking as per membership product and eligibility. All the e-mails of the complainants were duly replied by the company and taken into consideration. The complainants had approached for booking of hotel only on 23/10/2021 and 18/06/2022. Vide email dated 23/10/2021 they requested for booking of Goa for the month of 21/01/2022 and vide email dated 18/06/2022 they requested for booking of Goa for the month of 13/08/2022. However, the OPs replied vide email dated 25/10/2021 that 'For Jan Month Booking, they should send request earliest by December Mid as they are not taking so much advance bookings because of COVID". Further vide email dated 20/06/2022 the OPs replied to the complainants vide email dated 18/06/2022 that "At The Outset, We Would Like To Inform You That We Can Not Accept Advance Notice Booking Request For Aug Booking Please Email Us July End Mid.". Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with exemplary costs.

4.           Learned counsel for the complainants tendered affidavit of complainant no.2 as Annexure CW1/A alongwith documents as Annexure C-1 to C-13 and closed the evidence on behalf of complainants. Learned counsel for the OPs tendered affidavit of Shri Bhawan Kumar Mishra son of Shri Jagannath Mishra, address at 404/42, 4^th/F Laxmi Bhawan, Nehru Place, New Delhi-110019 as Annexure OP-1/A alongwith documents as Annexure OP-1 to OP-4 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainants submitted that by neither  arranging booking of the hotels sought for by the  complainants to  avail the benefit of holidays under the agreement in question nor refunding the amount of Rs.50,000/- paid by the complainants, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
7.           On the contrary, the learned counsel for the OPs submitted that the present complaint is not maintainable as the complainants are not consumers, in view of ratio of law laid down by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Dalmia Resorts International Private Limited versus Ranjana Gupta 1997 (1) CPJ 63 wherein it was held that disputes regarding purchase of timeshare in holiday resort is not a consumer dispute and such a question has to be raised before civil court. He further submitted that the  complainants visited the OPs venue on 14.08.2020 and  after understanding and knowing all the membership plans, benefits, terms and conditions thereof, the complainants agreed to purchase the present membership at a negotiated price of Rs.50,000/-. He further submitted that vide email dated 23/10/2021 and 18/06/2022, the complainants were requested for the booking of hotel and OPs company never denied any booking, but agreed to confirm the booking as per membership product and eligibility. He further submitted that all the e-mails of the complainants were duly replied by the company and taken into considerations. He further submitted that vide email dated 23/10/2021 the complainants requested for booking of Goa for the month of 21/01/2022 and vide email dated 18/06/2022 they requested for booking of Goa for the month of 13/08/2022, yet, the OPs replied vide email dated 25/10/2021 that 'For Jan Month Booking they should send request earliest by December Mid as they are not taking so much advance bookings because of COVID". He further submitted that vide email dated 20/06/2022 the OPs replied to the complainants email dated 18/06/2022 that "At The Outset, We Would Like To Inform You That We Can Not Accept Advance Notice Booking Request For Aug Booking Please Email Us July End Mid.".
8.           Admittedly, the complainants in the present case have purchased timeshare vacation vide Timeshare Purchase Agreement dated 14.08.2020, Annexure C-4 for a period of 5 years + 3 years valid  upto 2025 +3 (2028) on making payment of Rs.50,000/- to the OPs. Under these circumstances, the moot question which falls for consideration is, as to whether the complainants fall under the definition of consumer or not. It may be stated here that a very similar question has already been adjudicated by the Hon’ble National Commission in I(1997) CPJ 26 (NC) Punjab Tourism Development Corporation Ltd. & Anr. V/s. Kirit P. Doshi and others wherein it was held that purchase of time-share in immovable property in a Holiday Home Club scheme is not a consumer dispute. Similarly, the Hon’ble  National Commission in the case of Dalmia Resorts Pvt. Ltd., vs Dr Ranjana Gupta (1977(1) CPR 173) has held that purchase of a time-share in a holiday resort is a purchase of share in immovable property and any dispute arising out of such transactions could not be termed a consumer dispute. Under these circumstances, in view of the ratio of law laid down by the Hon’ble National Commission in Punjab Tourism Development Corporation Ltd.  and Dalmia Resorts Pvt. Ltd.’s case (supra), the complainants did not fall within the definition of consumer.
9.           In view of peculiar facts and circumstances of this case, it is held that this complaint stands dismissed with no order as to cost, being not maintainable before this Commission. However, the complainants are at liberty to avail legal remedy for redressal of their grievance, before appropriate platform of law. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

  Announced:- 02.05.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President