Chandigarh

StateCommission

A/186/2023

JATINDER CHOPRA - Complainant(s)

Versus

TOSHALI RESORTS INTERNATIONAL - Opp.Party(s)

ROHIT MITTAL

07 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	186 of 2023
Date of Institution	:	28.07.2023
Date of Decision	:	07.02.2024

 

1.Jatinder Chopra aged about 51 years S/o Sh.S.D. Chopra, R/o H.No. 2204/2, Sector 45-C, Chandigarh.

2.Mukta Chopra aged about 48 years W/o Sh.Jatinder Chopra, R/o H.No. 2204/2, Sector 45-C, Chandigarh.

 

……Appellants/Complainants

V e r s u s

1.Toshali Resorts International Y-42/4, Shahtoot Marg, DLF Phase-1, Near DLF Plaza Town, Gurgaon and T.K. International Ltd., C-40, Market Building, Sahid Nagar, Bhubaneshwar.

2.Global Vacations Pvt. Ltd., 1/8-B, 3rd Floor, Apsara Arcade, Pusa Road, New Delhi 110005

3.Travel Hut, 223, Vashisht Complex, MG Road, Sikanderpur, Gurgaon.

…..Respondents/opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER

                            

Present:-              Sh.Rohit Mittal, Advocate for the appellant.

                             Sh.Mukannd Gupta, Advocate for respondent no.1.

                             Appeal dismissed as withdrawn against respondents no.2 and 3 vide order dated 12.09.2023.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants (now appellants) have assailed the order dated 12.01.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), vide which the consumer complaint bearing no.408 of 2019 filed by them was dismissed by it holding that since the complainants were entitled to sell out their weeks’ time holiday every year in the resort to some other person, as such, they did not fall within the ambit of consumers as defined under the Act, 2019.

2.           Before the District Commission, it was the case of the complainants that they purchased a Timeshare Apartment No.10 for the holiday of Toshali Royal View Resort, Shimla from the opposite parties by depositing Rs.71907/- in October, 7, 1996 valid upto 31.12.2096 vide ‘Time Share Agreement’ dated 7.10.1996. It was averred that at the time of execution of the said agreement, Annual Maintenance Charges were only Rs.750/-, which were subject to change/increase from time to time, but in a rational and proportionate manner.  It was stated that the complainants at the time of buying membership were told by the opposite parties that they will also have an option to sell their week at resort to some other person also. Subsequently, a scheme was floated by the opposite parties in the year 2005 under which on payment of Rs.17,000/- as onetime fee, one can avail the benefit of selling of one week every year on behalf of complainants to make it a source of income, when week is not availed by the complainants.  It was the case of the complainants that though on Nov. 22, 2005, the complainants paid additional amount of Rs.17,000/-  but it led to no benefit thereafter as the resort owner disowned the scheme saying that they have no link up with “Travel Hut” who took the fee of Rs.17000/-. It was stated that the complainants waited for income, regularly sent AMC invoices till 2013 and the AMC has been paid upto the year 2013 under protest when it gradually increased from Rs.750/- to Rs.5505/- per year vide invoice dated 6.11.2010 for three years (Ann.3).  It was submitted that the complainants agitated the irrational and inflated increase of AMC charges by the opposite parties, but they did not pay any heed.  The complainants have last utilized the timeshare from 12.6.2013 to 16.6.2013 where no bill number was marked on the final invoice and only Regd. No.5309 was marked (Ann.5).  At the time of selling the timeshare in 1996, the room rent was Rs.2750/- per night, but now the opposite parties are giving it @Rs.2857/- per night even to the members.  There was no rational for increase of AMC over the year and no clarity to the members who have paid huge amount of Rs.71907/- way back in the year 1996.  It was  pleaded that the opposite parties are illegally retaining the money of the complainants and earning high interest on it, in addition to selling the timeshare week of the complainants every year and further using it for their profitable business purposes, whereas the complainants are being deprived of the use of their legitimate money.  Hence the consumer complaint was filed by the complainants before the District Commission seeking directions to the opposite parties to refund Rs.71,907/- plus Rs.17000/- plus income generated by them by selling nights at their apartment No.10 for 15 years (when they have not used) which is 15 years * 7 days per = 105  nights @ Rs.2750/- which equals to Rs.2,88,750/- along with interest @18% p.a. from the date of payment till the date of its refund with compensation and litigation expenses etc.
3.           Opposite party no.1 contested the consumer complaint and filed written statement, wherein, while admitting the factual matrix of the case, it was stated that the complainants purchased the Time share in the year 1996 by paying Rs.71,097/- on 07.10.1996 and utilized the hotel accommodation for seven years by staying in the hotel without paying any rent and now after a gap of 18 years, they want refund of the amount paid. As per Clause 17 of the agreement, the agreement is irrevocable and cannot be cancelled/rescinded. It was averred that the complainants were paying the annual maintenance charges without any protest. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint was made.
4.           Despite service, none put in appearance on behalf of opposite parties no.2 and 3, as a result of which, they were proceeded against exparte vide order dated 26.8.2019. 
5.           The complainants filed replication to the written reply of opposite party no.1 controverting its stand and reiterating their own.
6.           The District Commission after hearing the contesting parties and on going through the material available on record, dismissed the consumer complaint while observing as under:-

“………In the present complaint, the complainants have themselves stated that they had purchased a Timeshare Apartment No.10 for the holiday of Toshali Royal View Resort, Shimla from the Opposite Parties by depositing a sum of Rs.71,907/- in Oct., 7, 1996 valid upto 31.12.2096 and an agreement to this effect i.e. ‘Time Share Agreement’ was executed on 7.10.1996 between the parties.  The complainants have also mentioned in the complaint that in the year 2005, the OPs floated a scheme stating that by depositing a sum of Rs.17,000/- as onetime fee, one can avail the benefit of selling of their week’s time period  holiday every year on behalf of the complainants to make it a source of income when the week’s time period holiday is not availed by them and accordingly, the complainants paid the amount of Rs.17,000/- to  the  OPs on 22.11.2005 to avail the benefit of the said scheme. So the OPs provided alternative to the complainants either they can spend a week’s time holiday in the resort themselves or they can sell it out to someone else for earning income.

Section 2(7) of the Consumer Protection Act, 2019 defines ‘consumer’ as under:

Definition

"consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

Explanation.—For the purposes of this clause,—

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment”;

As, the complainants are entitled to sell out their weeks’ time holiday every year in the resort to some other person, therefore, the complainants do not fall under the definition of ‘consumer’ as defined under Section 2(7) of the Consumer Protection Act, 2019. Keeping in view the provisions of the Consumer Protection Act, 2019 as reproduced above, the same cannot be said to be an income earned by the complainants by way of self-employment exclusively for the purpose of earning their livelihood and rather the same falls within the definition of ‘commercial purpose’. Hence, the complainants do not fall under the definition of ‘consumer’ as defined under the provisions of the Consumer Protection Act, 2019.

Consequently, this complaint stands dismissed, being not maintainable before this Commission. The complaint along with documents annexed therewith be returned to the complainants, with liberty to  get her grievances redressed through alternative remedy, permissible to them under law.……..”

7.           Hence this appeal has been filed by the complainants.  
8.           Alongwith this appeal, the appellants have also filed miscellaneous application no.584 of 2023 for condoning the delay of 160 days, yet as per office 149 days in filing the same, wherein it has been stated that order impugned was passed on 12.01.2023 and the same was uploaded on the website of the District Commission on 05.02.2023.  Thereafter, the matter was taken by the appellants with their Counsel who started preparing the matter. Drafting of appeal was completed, yet , for filing the same, certified copy was applied on 21.03.2023, which was received on 02.04.2023. Thereafter, the appeal was filed before this Commission. It has been stated that thus, delay in filing this appeal  being totally bonafide and unintentional  be condoned. 
9.           Respondent no.1 did not file any reply to the application for condonation of delay.  Accordingly, arguments on this application were heard.
10.           For the reasons recorded in the application for condonation of delay, the delay of 149 days in filing this appeal stands condoned. Resultantly, this application stands allowed and is disposed of, accordingly. 
11.           Appeal against respondents no.2 and 3 was dismissed as withdrawn vide order dated 12.09.2023.
12.           We have heard the counsel for the appellants/complainants and respondent no.1/opposite party no.1 and carefully gone through the material available on the record.
13.           The short question which falls for consideration before this Commission is, as to whether, the District Commission was right in dismissing the consumer complaint on the ground that since the complainants were also entitled to sell out their weeks’ time holiday every year in the resort to some other person, as such, they did not fall within the ambit of consumers as defined under the Act, 2019. It may be stated here that the mere fact that vide clause no.10 of the Time Share Membership Agreement dated 07.10.1996, Annexure C-1, the complainants have also been given right that in case in any year they did not use their weeks, they can sell, lend, rent or bequeath the same to  a third party, is not a valid ground to hold that they are not consumers. Had the complainants purchased the said Membership only for selling, lending and renting or bequeathing the same to a third party and not for using the weeks for their own use also, the matter would have been different. At the same time, in our considered view, if some company invites deposits alongwith some membership, on promise of some attractive schemes, which includes rates of interest, assured return, re-payment of principal and interest etc. etc.  is rendering a service in the form of safe avenue for investment of funds for consideration. Our this view is supported by the observations made by the Hon’ble  National Commission in Neela Vasantrajay v. Aamogh Industries and Another, reported in III (1993) CPJ 261 (NC) and Dhanalakshmi Consolidates Industries Ltd. v. C.S. Menon and Others, reported in III (1993) CPJ 299 (NC). However, the District Commission fell into an error by dismissing the complaint while holding to the contrary.   
14.           Resultantly, this appeal stands allowed and the order impugned is set aside. Consequently, the case is remanded back to the District Commission-II, U.T., Chandigarh, with the direction to decide it afresh on merits. Since, the proceedings in the consumer complaint are almost complete, as reply and evidence as also rejoinder stood filed by parties concerned and the matter is pending since 2019, as such, the District Commission-II, U.T., Chandigarh shall hear the arguments of the parties and try to dispose of this case, preferably within a period of 45 days from the date of passing of this order.
15.           However, it is made clear that since in this appeal, this Commission has only dealt with the question qua status of the complainants as ‘consumer’ and has not touched the merits of this case, as such, this order passed will not have any bearing on the merits of the case at the time of deciding the consumer complaint afresh by the District Commission.
16.           Accordingly, the parties are directed to appear before the District Commission-II, U.T., Chandigarh on 16.02.2024. 
17.           Certified copies of this order be sent to the parties, free of charge, forthwith.
18.           The parties be also informed about this order through whatsApp/email/through their respective Advocates.
19.           The appeal file be consigned to Record Room, after completion and record of the District Commission concerned be sent back immediately.

 

Pronounced

07.02.2024

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 

 

 

Rg