BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   11^th DAY OF SEPTEMBER 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to refund a sum of Rs.2,80,000/- with 12% interest from 06.04.2018 to till the date of payment, to pay a sum of Rs.50,000/- as damages towards mental agony, inconvenience and hardship caused, to pay cost of the proceedings and to award such other reliefs.

2.      The brief facts of complaint is as under:

Complainant submitted that OP-1 is carrying the business under the name and style of Country Vacations and it claimed to be in the said business for the past 25 years.  OP-2 was appointed by OP-1 to manage the business in Karnataka in general and Bengaluru in particular.

Complainant further submitted that on 06.04.2018 he received a call from OP-2 saying that complainant won a prize in a lucky dip and asked him to collect it very same without fail.  Complainant along with his wife visited the OP-2 office around 6.30 PM.  Complainant and his wife waited for more than an hour, OP-2 was very convincing and drew rosy picture about vacation scheme floated by them as well as benefits for becoming a member of OP-1.  Complainant asked OP-2 about the extra charges he needs to pay apart from paying the membership fee.  But OP-2 replied in negative and thereby induced him to become a member of OP-1.  That despite of asking OP-2 did not serve the copy of sale agreement by stating that the same will be sent to him through courier by OP-1 within 10 days from the date of signing the sale agreement.  OP-2 cleverly made the complainant from going through the terms and conditions that have been incorporated in the sale agreement.  Acting on the representations made by the OP-2, complainant became the member of OP-1 by entering into ‘Sale Agreement’ and paid a sum of Rs.2,80,000/- by way of NEFT.

Complainant further submitted that he did not receive the copy of the sale agreement within the period of 10 days but he received the same almost in the 3^rd week April 2018.  After going through the same complainant came to know that the sale agreement is one sided, onerous and it is drafted in such way only to favour the OP-1 and he gets no benefit by becoming a member except losing Rs.2,80,000/- that too forever apart from additional burden of paying annual maintenance fee of Rs.10,500/- plus taxes every year.  OP-2 made to sign the sale agreement by misrepresenting and twisting the facts and made complainant to enter the sale agreement without giving an opportunity of going through the terms and conditions of the said agreement.  Complainant got issued notice dated 01.10.2018 demanding refund of Rs.2,80,000/- with 12% interest.  The said notice duly served on OPs.  OPs neither refunded the amount nor replied the notice.  Hence the complainant filed this complaint.

3. In response to the notice issued, OP.1 & 2 appeared through advocate and filed their version in brief as under:

OP.1 & 2 submitted that the complaint filed by the complainant is not maintainable either in law or on facts and is liable to be dismissed in limine as the complainant has not approached this Forum with clean hands.  Complainant has shown interest to become a member and to avail Holiday Vacation.  The complainant entered into purchase agreement dated 06.04.2018 and in terms of agreement the complainant has paid amount of Rs.2,80,000/-.  That in terms of the purchase agreement, the complainant is entitled for holiday vacation for 6 night 7 days in year for a period of 30 years and club membership of life time, subject to the terms and conditions mentioned in the purchase agreement.

OP.1 & 2 further submitted that upon receipt of the said amount has issued the permanent laminated club membership cards to the complainant and the dependents.  The complainant knowing the said facts has made false and frivolous allegation against the OPs.  OP never promised or assured nor forced to become the member.  Complainant has not produced piece of document for having been assured by OP.  That in terms of purchase agreement, the complainant is entitled for holiday vacation for 6 night 7 days in year for a period of 30 years and club membership of life time, subject to the terms and conditions mentioned in the purchase agreement and also he is eligible for Blue Seasons.  As a matter of fact the complainant is entitle for holiday vacation and entitled to access the website and they can also book the holiday vacation as and when their requirement.  Inspite of that the complainant for the purpose of filing the complaint has made false allegation and nothing else.

OP-1 & 2 further submitted that the main benefits for Club Membership and a holiday/vacation package.  OP is always ready to provide the package to the complainant but there should be 30 days in advance booking to be made to make necessary arrangements.  Further the club membership is for Life Time and it is transferable to their family members.  That in regard to providing of accommodation of Holiday Vacations, the complainant has not made any booking for availing of holiday package, at any point of time and in this regard piece of document has not been produced.

OP-1 & 2 further submitted that from the complaint averments there is no deficiency on the part of OP.  The complainant entered into the purchase agreement dated 06.04.2018 with OP.  In terms of the agreement there is no provision for cancellation of the club membership.  Whereas the second party understands that the charges is not a refundable deposit and not an investment, the fee is not a refundable under any circumstances.  However the complainant is at liberty to sell or transfer or gift the club membership to any third party.  Inspite of that the complainant for the reasons best known to him has filed the false and frivolous complainant.  This Forum has no jurisdiction to try the case.

OP.1 & 2 further submitted that the complainant with a dishonest and malafide intention has filed this complaint by making all false and baseless allegations for which there is no basis.  OP performed its contractual obligation.  OPs are providing best services in their field without any blemish and even in the complaint there is no iota of evidence.  The complainant is not entitled for any relief much less than they have sought in the complaint.  The complainant is trying to take aid of this Forum for illegal claim.  OPs never rendered any deficiency in service in providing the facilities as agreed.  This offer is free of cost for which there is no amount is charged.  Hence refunding of amount and compensation as claimed when there is no contract in this aspect and also to pay compensation does not arise.  Complainant has not paid the annual maintenance charges for the last two years and in order to escape from the said payment, has filed the false and frivolous complaint.  There is no any deficiency in service on the part of OP.1 & 2.  There is no cause of action to file the complaint consequently question of refund of amount or payment of compensation does not arise.  Hence OP.1 & 2 prayed for dismissal of the complaint with exemplary cost.

 4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPs have produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

7. Point No.1:  On perusal of the pleadings, evidence and documents produced by both parties, it is an admitted fact that the complainant and the OPs have entered into an sale agreement dated 06.04.2018/Ex-A1.  It is also admitted fact that the complainant paid Rs.2,80,000/- to the OPs on 06.04.2018.  In this regard the OP issued receipt dated 07.04.2018/Ex-A2.  Complainant alleged that at the time of entering into sale agreement, OP-1 had not handed over the sale agreement copy to the complainant.  The OPs have informed that they will send the same through courier within 10 days from the date of signing of the sale agreement.  Complainant submitted that he received the said sale agreement copy in third week of April 2018.  Thereafter the complainant go through the said sale agreement and he came to know that the sale agreement is one sided and it is favour only to OP-1 and he won’t get any benefit except losing Rs.2,80,000/- that too forever apart from additional burden of paying annual maintenance fee of Rs.10,500/- + tax every year.  Hence complainant requested for refund of the amount through legal notice dated 01.10.2018 but the OPs have not refunded the amount.

8. On perusal of the sale agreement terms and conditions clause 34 which reads here as under:

34. There shall be a cool off period of 10 days from the date of signing of this Agreement wherein member can discontinue the agreement by paying a nominal administration charges of Rs.3800/- to the Company.  After deduction of the aforesaid amount (Rs.3800/-) remaining amount would be refunded to the member within 120 days from the date of invoking of cool off period.  For invoking the cooling off period the member shall send a written communication to the Country Club, Central Customer Care, 4^th Floor, Asian building, Begumpet, Hyderabad-500016 through registered speed post or an e-mail to

9. Admittedly the complainant entered into a sale agreement on 06.04.2018 and he received an agreement copy after 15 days of the sale agreement.  As per clause 34 of the sale agreement the OPs have given 10 days’ time to look into the agreement if he has not interested to continue with the membership, the complainant can seek refund of the amount within the cool period and it is also mentioned that after expiry of the cool period the membership fee cannot be refundable.  If at all considering the complainant received an agreement in the 3^rd week of April complainant could have approached the OP in the month May after going through the agreement.  The complainant slept over the matter for nearly 5 months and wake up from the deep slumber and issued a notice demanding for refund of the amount.  Once the complainant entered into the contract with the OPs and accepted and signed the terms and conditions of the agreement, now the complainant cannot turn back and say he is not satisfied with the agreement and it is one sided agreement.  Having accepted the terms and conditions of the agreement and signed the agreement and paid the amount, the complainant is estopped from taking such contention.

10. Thus looking from any angle, we are of the opinion that, the complainant has failed to establish that OPs have committed deficiency, by violating the terms and conditions incorporated in the sale agreement.  No doubt the complainant has been provided with laminated membership card which he can use for making use of the club facilities.  The complainant has not placed any material on record to substantiate his allegation that the OPs have acted in contravention of the terms and conditions of the above mentioned agreement.  It has been categorically mentioned in the sale agreement that the membership fee paid is not a refundable deposit.  The complainant having agreed to the terms and conditions of the said agreement, now cannot demand refund of the amount paid by him.  Therefore, we are of the opinion that the complaint is liable to be dismissed.  Accordingly, we answer the point No.1 in negative.

11. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 11^th day of September 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.P.Shankar.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs by way of affidavit:

Sri.Mohammed Akmal Pasha.

Documents produced on behalf of Opposite Party.

Vln*