Chandigarh

DF-II

CC/408/2019

Jatinder Chopra & Mukta Chopra - Complainant(s)

Versus

Toshali Resorts International - Opp.Party(s)

In Person

12 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	408/2019
Date of Institution	:	23.05.2019
Date of Decision	:	12.01.2023

 

                     

            

 

1]  Jatinder Chopra, R/o # 2204/2, Sector 45-C, Chandigarh.

 

2]  Mukta Chopra, R/o # 2204/2, Sector 45-C, Chandigarh.

              ……..Complainants

Versus

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.

…. Opposite Parties

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
Present:-
	Sh.Rohit Mittal, Adv. for complainant Sh.Mukund Gupta, Adv. for OP No.1 OP No.2 exparte.

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     The present complaint stands allowed by this Commission vide its order dated 01.10.2019. Aggrieved against the aforesaid order, OP No.1 preferred Appeal No.2/2020 before the Hon’ble State Commission, which was allowed and the order dated 01.10.2019 of this Commission was set aside subject to payment of cost of Rs.5,000/- by the opposite party No.1 to complainants by way of demand draft(s), in equal share, i.e. Rs.2,500/- each, on the date of appearance before the District Commission. The complaint case has been remanded back to this Commission with a direction to decide it a fresh as early as possible preferably within a period of 90 days from the date of appearance before it. District Commission-II, U.T., Chandigarh shall afford an opportunity to the opposite parties to file their reply/written statement and evidence/documents.
2.     The complainants have filed the present complaint alleging therein that they purchased a Timeshare Apartment No.10 for the holiday of Toshali Royal View Resort, Shimla from Opposite Parties by depositing Rs.71907/- 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. It is averred that at the time of execution of said agreement, the Annual Maintenance Charges were only Rs.750/- and the same is subject to change/increase from time to time, but in a rational & proportionate manner.  It is averred that the complainants at the time of buying membership were told by Opposite Parties that they will sell their week at resort and pay them and subsequently, a scheme was floated by OPs in 2005 that by depositing Rs.17000/- 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.  In Nov.22, 2005, the complainants paid the additional amount of Rs.17,000/- which 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/- (Ann.2). It is 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 years vide invoice dated 6.11.2010 for three years (Ann.3).  It is also submitted that the complainants agitated the irrational & inflated increase of AMC charges by the OPs, but they did not pay any heed.  It is stated that 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).  It is also stated that 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.  It is also stated that there is 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 to the Opposite Parties.  It is 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.  Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainants have filed the instant complaint with a prayer that the OPs be directed 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.     In its written reply, OP No.1 while admitting the factual matrix of the case has stated that the complainants purcahsed 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, he wants to return the same and sought refund of the amount. As per Clause 17 of the agreement, the agreement is irrevocable and the cannot be cancelled/rescinded.  It has further been stated that the complainants were paying the annual maintenance charges without any protest from 2000 till 2013 but vide letter dated 08.05.2015, he stated that the OPs are wrongly demanding the annual maintenance charges which was replied vide letter dated 14.05.2015 stating therein that the complainants have to pay the annual maintenance charges   and thereafter on 23.05.2019 after a gap of more than four years, they filed the present complaint. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.
4.     The complainants filed replication to the written reply of OP No.1 controverting its stand and reiterating his own.
5.     OPs No.2 & 3 did not appear despite having been served through publication, hence they were proceeded exparte vide order dated 26.8.2019. 
6.     We have heard the Counsel for the contesting parties  and have gone through the documents on record.
7.     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.
8.     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”;

 

9.     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.
10.     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.
11.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 12/01/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER