1. Shri Sant Ram Kaushal,

Son of late Shri Tul Bahadur Kaushal

2. Smt. Aruna Kaushal,

wife of Shri Sant Ram Kaushal

both residents of Jai Shiri Niwas,

Ghora Chowki, Shimla-171005.

… Complainants
Versus

1. R.C.I. India (P) Ltd.,

208, Brigade Gardens,

19, Church Street,

Bangalore, Karnataka (India)

Through its Managing Director.

2. U.G. Hotels and Resorts Ltd.

Shillon Resort, Shillon Bagh,

Kufri-Chail Road, P.O. Mundaghat,

Tehsil and District Shimla, H.P.
…Opposite Parties

O R D E R:
Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OPs averring that the OPs are engaged in the business of hotel and resort and provide the service of boarding, lodging etc. to the different customers, hence, they in order to promote and boost up their business, floated the scheme in the market for the purpose of selling of Holiday Packages Scheme, whereby, it misrepresented the entire facts and adopted unfair trade practice to allure the complainants to take/purchase the aforesaid scheme.

It is averred, that the OP No.2 apprised the complainants that they are the luckiest persons of having been selected from the telephone directory, who have won the free gift hamper of the RCI, which is free for stay at any of the RCI Resorts throughout India for 7 days. The complainants further proceeded to aver that after persuasion by the OPs and giving allurement of the scheme, deposited a sum of Rs.12,000/- on 15.01.2003 and thereafter on 18.03.2003, deposited remaining amount of Rs.67,500/- through cheques, whereas, the OPs did not issue the membership card, which was issued only on 12.10.2003,whereas, the entire amount of the scheme was deposited on 18.03.2003 itself.

It is averred that they have been cheated by the OPs, inasmuch, as, what was agreed by the OPs at Shilonbagh were totally false, and this all was for extracting money. Thereafter, it is averred, that the OPs were requested to refund the amount of Rs.79,500/-, but the OPs did not budge, and dilly-dallied the payment on one reason or other. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs filed reply to the complaint and raised preliminary objections vis-à-vis maintainability of the complaint, jurisdiction of this Forum to entertain and try the present complaint, status of the complainant as a consumer and estoppel. On merits, it is admitted on behalf of the OP No.1 that it floated a scheme in the market for Holiday Package. However, it is denied that the free gift hamper was for free stay of any RCI Resorts throughout India for seven days. It is contended that there is no provision for refund of any money for not availing the benefit of scheme in a particular year as per agreement. It is admitted that an amount of Rs.12,000/- and Rs.67,500/- was deposited with them.

It is contended that OP No.1 was to provide one week’s stay in its resort for sixteen years as per the agreement. It is contended that the agreement between OP No.1 and complainants is still enforceable and they can avail at any time one week’s stay with all the facilities/privileges available to them as member of the scheme and they by filing the instant complaint intend to wriggle out of the agreement, as such, committing the breach of trust.

It is contended that since the complainants have committed the breach of contract, as the OP No.2 was ready and willing to perform its part of the agreement and still ready to permit the complainants to avail the holiday package scheme, the complainants are not entitled for refund of the money deposited by them as they could not terminate the agreement in between the period for which the agreement was executed. Hence, it is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, both the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. Even though, the voluminous pleadings have been exchanged between the parties at contest, yet succinctly, the controversy between the parties, is ,qua the fact whether the complainants are entitled to seek refund of the money as delivered by them to the OPs for theirs availing holiday package on their becoming a member of the RCI. The complainants have proceeded to make verbose pleadings qua various misrepresentations made by the OPs, which drove or goaded them to make a decision to seek relief of cancellation of his RCI membership against the OPs and they be directed to refund the money as deposited by them with them.

6. They do not deny the fact that, they , are a signatory to various agreements elucidating the terms and conditions which govern their membership with the RCI. Obviously, then, the terms and conditions, under which they become a member of the RCI, are binding upon them. The complainants neither avers nor urges that, they, at any stage had ever called upon the OPs, to, comply with the terms and conditions under which they were made a member of RCI.

7. As a sequel, obviously, when no such request was made by the complainants to the OPs, seeking performance of the various obligations detailed in the agreement arrived at between them naturally, there was no occasion for the OPs to either comply or refuse to perform, its, obligations as detailed in them. The obvious deduction which flows, is, that when their, is, no refusal on the part of the OPs to comply with the terms and conditions as detailed in various annexures, which refusal on their part would have enabled us to construe that there was, hence, a deficiency in service on the part of the OPs . As such, for non-refusal on the part of the OPs to comply with the terms and conditions, of their agreement with the complainants there, is, concurrently, no, accrual of cause of action in favour of the complainants, the complaint, hence, being pre-mature is liable to be rejected. However, the complainants are, at liberty to give authorization letter to the OPs, authorizing them to sell the membership and defray to him the sale proceeds.

8. Resultantly, in the interest of justice and equity, we deem it, fit and proper, to dispose of the complaint with the direction that the complainants shall give authorization letter to the OPs, enabling them, to sell the membership, within a period of forty five days after the date of receipt of copy of this order, and, thereafter, the OPs, shall, sell the holiday membership of the complainant within three weeks and refund the sale proceeds to the complainant within one week, thereafter, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 25.05.2005, till the entire amount is defrayed to the complainant. In addition to this, the OPs shall also pay Rs.3,000/- as cost of litigation. The ordered amount shall be defrayed by the OPs to the complainants.