BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

 Date of filing :  19.08.2014

                                                                                              Date of Order : 30.06.2017

PRESENT:

 Shri. Sheen Jose,                                                 Member (President-in-charge)
 Smt. Beena Kumari V.K.                              Member.

                            CC.No.612/2014

                                   Between

O R D E R

Beena Kumari V.K.   Member 

1)     A brief statement of facts of this complaint is as stated below:

         The 1^st complainant Sri.Prasanth Surendranath is an engineer by profession and he is employed in Merchant Navy.  The 2^nd complainant Lakshmi is wife of the 1^st complainant who is employed in Syndicate Bank.  The 1^st opposite party – Country Club (India) Ltd., Bangalore is an entertainment and leisure conglomerate in India and the 2^nd opposite party is a division of the 1^st opposite party.  Impressed by the offers made by the representatives of the opposite parties and the facilities stated in the brochures shown by them, the complainant entered into ‘club and vacation’ agreement with the opposite parties on 27.08.2013.  The opposite parties are having valid affiliation with more than 200 clubs all over India, including ‘Century Club’ at Cochin which is near to the complainant’s residence.  Therefore the complainants took club membership from the opposite parties on the assurance of the opposite parties that the complainants could avail all facilities ‘Century Club’ Cochin and of 4 other clubs at Ernakulam.  At the time of execution of the agreement between the complainant and the opposite parties, the complainants paid an amount of Rs.30,000/- as advance.  But the membership card was not issued to the complainants within 30 days from the date of execution of the agreement, as promised.  The above act of the opposite parties amounted to deficiency in service on the part of the opposite parties and the above act inflicted mental agony and unwanted stress to the complainants.  The complainants have availed the Club membership of the opposite parties mainly for availing the facilities provided by the affiliated clubs and the opposite parties issued a membership card only after the issuance of an advocate Notice dated 24.02.2014 to the opposite parties demanding refund of the amount of Rs.30,000/- paid to the opposite parties, that too after the lapse of more than 10 months from the date of agreement.  Therefore, the complainant filed this complaint seeking direction from this Forum to the opposite parties to refund Rs.30,000/- which was paid by the complainants to the opposite parties with 12% interest p.a from the date of receipt, to pay Rs.15000/- towards compensation along with costs of the proceedings of Rs.5000/-.

2)     Notice was issued from this Forum to the opposite parties.  The 1^st opposite party filed their version resisting the averments in the complaint.

3)     Version of the 1^st opposite party

        It is contended that the complaint is not maintainable in law.  The cause of action for the case is based on two contracts and admittedly there is violation of the terms of the contract on the part of the 2^nd complainant.  The alleged non-extending of services was caused only due to the non-payment of the agreed purchase amount by the 2^nd complainant.  A part payment was made at Bangalore.  Hence an appropriate Civil Court at Bangalore alone has the jurisdiction to entertain this complaint.  The 8^th paragraph of the complaint stating that the cause of action of the case arose on 27.08.2013 is vague and incomplete.  The two agreements were executed between the 2^nd complainant and the 1^st opposite party at Bangalore, Karnataka State and the averment of the complainant that on 26.10.2013 that the 2^nd complainant approached Ernakulam Office of the opposite parties is false as the said office at Ernakulam was closed much prior to the said date.  The averment that the complainants received the membership card at Ernakulam on 13.06.2014 is also false as no business was carried on from the Ernakulam office after July 2013 as it was closed by then.  The total consideration for both agreements entered into between the 2^nd complainant and 1^st complainant at Bangalore (Koramangala) comes to Rs.125,000/- plus payment of annual maintenance charges, thus there is no privity of contract between the 1^st complainant and the opposite parties and the 2^nd complainant is misusing the platform of this Forum for getting back her advance amount of purchase consideration, which is non-refundable as per the terms of agreements which she had entered into, the 2^nd complainant is also not entitled to get the membership certificate without paying the entire purchase price of Rs.125,000/- as per the terms of the agreement.  The opposite parties had never made any false representations before the 2^nd complainant that the opposite parties had not practised any unfair trade practice or offered any deficient service to the 2^nd complainant and there had been no violation of the terms of the agreements.  Hence this compliant is liable to be dismissed with compensatory costs to the opposite parties.

4)     The issues to be considered in this case are as stated below:

        (i)      Whether this complaint is maintainable before this Forum?

(ii)      Whether the complainants have proved deficiency in service or unfair trade practice on the part of the opposite parties?  If so, whether the opposite parties are liable to refund the advance amount of Rs.30,000/- to the complainant?

(iii)     Whether the opposite parties are liable to pay compensation of Rs.15,000/- and costs to the complainants?

5)       The evidence in this case consisted of the proof affidavit filed by the 2^nd complainant and the documentary evidences furnished by the complainants which were marked Exbt.A1 to A4.  No oral or documentary evidence furnished by the opposite parties.

6)       Issue Nos. (i) and (ii)

          The 1^st and 2^nd complainants are husband and wife.  The 1^st complainant is an Engineer in Merchant Navy and the 2^nd complainant, his wife is an employee of Syndicate Bank.  The 1^st opposite party – Country Club (I) Ltd is an entertainment and leisure conglomerate having its registered office in Hyderabad.  The 1^st opposite party engaged in hospitality business operating clubs, Hotels and resorts and marketing Billionaire vacations.  The 2^nd opposite party had purchased vacations of all types ie Red (High Priority), White (Medium Priority) and Blue (standard Priority) and Blue (standard Priority) as evident from Billionaire vacations Agreement appended to Exbt.A1 purchase agreement in original along with a copy of the same.  The agreement date was 27.08.2013.  Both the purchase agreement and Billionaire vacations Agreement were executed on 27.08.2013.  The purchase price was shown as Rs.100,000 (Rupees one lakh only) and initial payment was shown as Rs.30,000/- in the original of the Billionaire vacations Agreement on 27.08.2013 at the time of executing the above 2 agreements, the 1^st opposite party assured the complainants that the membership card will be sent within 30 days from 27.08.2013 but the membership card was not issued to the 2^nd complainant as promised.  The repeated requests of the 2^nd complainant to issue the membership card failed.  The non-issuance of the membership card within 30 days of agreement  amounted to deficiency in service on the part of the 1^st opposite party and the above act of the opposite party instilled severe mental agony to the complainants.  The complainants submitted that the 2^nd complainant entered into an agreement for the purchase of vacations believing the words of the representatives of the 1^st opposite party that the 1^st opposite party – Country Club is having more than 200 clubs all over India and the 2^nd opposite party – Country club is an affiliated club of the 1^st opposite party. The Exbt.A2 (in original) is the list of affiliated clubs we have gone through the Exbt.A2 list and we find that the 1^st opposite party – Country Club is having around 213 affiliated clubs and there are around 17 affiliated clubs in the state of Kerala.  The Sl. No. 54 of the list showed that Century Club is an affiliated Club to the 1^st opposite party – Country Club.  The 2^nd complainant entered into Agreement with the 1^st opposite party with the intention to avail the facilities of century club which is situated very near to her residence.  The 2^nd complainant under suspicion contacted the Century club and few other clubs in Ernakulam and learnt that the 1^st opposite party – Country Club has no affiliation with the century club.  The complainant contended that a false information was given by the 1^st opposite party that it had around 200 affiliated clubs all over India.  Believing the statement of the 1^st opposite party/his representatives who approached the 2^nd opposite party at her residence in Bangalore, the 2^nd complainant entered into the purchase agreement on 27.08.2013.  The 2^nd complainant thereafter, on 26.10.2013 approached the Ernakulam office of the 1^st opposite party and informed them that she had not yet received the membership card.  Subsequently on 13.06.2014, the complainant received the membership card from the Ernakulam office of the 1^st opposite party in the address shown in respect of the 2^nd opposite party.  The 1^st opposite party averred that the Ernakulam of the 1^st opposite party had closed their business in Ernakulam early in July 2013 and that no business was carried out after July 2013. Except for the above averment, no evidence has been furnished by the 1^st opposite party to substantiate their averment.  We find no reason to discard the sworn statement of the 2^nd complainant that she had received the membership card from Ernakulam office of the 1^st opposite party- Country Club.  Thus we find that part of the cause of action was in Ernakulam and this Forum has all the power to entertain this complaint ie., this complaint is maintainable before this Forum.

7)       There is no dispute regarding the fact that the 2^nd complainant had made an initial payment of Rs.30,000/- on the date of execution of the purchase Agreement on 27.08.2013 at Hyderabad.  The initial payment of Rs.30,000/- was made by the 2^nd complainant as evident from the endorsement in the Billionaire vacations Agreement executed on the very same day also by the Exbt.A3 letter of the 1^st opposite party confirming the receipt of Rs.30,000/- towards membership fee.  It is seen that the 1^st opposite party – Country Club had issued the membership card through their office at Ernakulam on 13.06.2014.  There is considerable delay, even in issuing a membership card to the 2^nd complainant who had paid a lump sum amount of Rs.30,000/-.  The above act of the opposite parties not only amounted to deficiency in service but also unfair trade practice on the part of the opposite parties.

8)       Another contention raised by the 1^st opposite party is that the issuance of membership card by the 1^st opposite party does not confer a right to get any facilities offered by the 1^st opposite party until purchase price is paid in full.  Nowhere in the purchase Agreement, it is stated that the entire consideration should be paid in advance.  If the argument of the 1^st opposite party is admitted for argument safe, the 1^st opposite party should not have accepted part payment of consideration.  By accepting part payment of consideration the 1^st opposite party cannot raise such a contention.  Further the 1^st opposite party vide Exbt.A3 letter dated nil demanded Rs.70,000/- and a further amount of Rs.7500/- towards Annual Administration charges. It is seen that the complainants have not availed any facilities of the properties belonging to the 1^st opposite party.  Therefore the complainants are not liable to pay any amount towards Annual Administration charges.  The above demand of the 1^st opposite party is found illegal and not sustainable in view of the deficient service offered to the 2^nd complainant. Hence the above demand is cancelled.

9)       Issue Nos. (iii) and (iv)

          In view of the observations above we find that the 2^nd complainant is entitled to get refund of Rs.30,000/- along with interest @ 12% p.a. from the date of filing this complaint ie. from 19.08.2014.  The opposite parties shall pay the above said amount within 30 days of receipt of a copy of this order.  The opposite party shall also pay Rs.10,000/- towards compensation for the deficient service offered for the unfair trade practice committed by them and for the mental agony suffered by the complainants.  

10)     The complainants have spent their valuable time and money to contest this case before this Forum.  Therefore we find that the complainants are entitled to get costs of Rs.5000/-.

11)     In the result we allow the complaint in part and we direct as follows:

1. The 1^st opposite party shall refund to the 2^nd complainant Rs.30,000/- with interest @ 12% p.a. from the date of filing this complaint ie from 19.08.2014 till the date of realization of the above amount.
2. The opposite party shall also pay to the 2^nd complainant Rs.10,000/- towards compensation and Rs.5000/- towards costs of the proceedings.

Pronounced in the open Forum on this the 30^th day of June, 2017.

Sd/-Beena Kumari V.K. , Member

Sd/-Sheen Jose, Member (President-in-charge)

                                                                   Forwarded by Order

                                                                   Senior Superintendent

                                                          APPENDIX

Complainants Exhibits

Opposite party's Exhibits:          No

Depositions :

PW1            : Lakshmi Bhuvanendran

  Date of Despatch ::

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