Delhi

StateCommission

A/150/2016

AJAY PRATAP SINGH - Complainant(s)

Versus

COUNTRY CLUB INDIA LTD. - Opp.Party(s)

RAJESH KUMAR

31 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:31.08.2018

 

First Appeal-150/2016

 (Arising out of the order dated 04.01.2016 passed in Complainant Case No. 527/2010 by the District Consumer Disputes Redressal Forum (VII), Sheikh Sarai, New Delhi)

 

Ajay Pratap Singh,

A-32, Mohan Garden Ext.,

Nr. Shankar Dairy, Gurudwara Road,

New Delhi-110059.

 

…..Appellant

 

Versus

Country Club India Ltd.,

25 UG Floor, Community Center,

East of Kailash,

Opp. Sapna Cinema,

New Delhi-110065.

 

(Also at Regd. Office)

Country Club India Ltd.,

Amrutha Castle 5-9-16,

Saifabad, Opp. Secretariat,

Hyderabad-500063.

.….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.     To be referred to the reporter or not?

 

 

 

 

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) challenging order dated 04.01.2016 passed by the Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi (in short, the “District Forum”) in Complainant Case No.527/2010 whereby the aforesaid complaint has been allowed and appellant/OP has been directed as under:

“We, therefore, direct the O.P. to refund to the Complainant a sum of Rs.2,25,000/- within 30 days of receipt of copy of this order failing which they shall pay interest on this amount @ 9% p.a. till realization.”

 

 

2.    Briefly the facts are that a complaint under Section 12 of the Act was filed by the appellant herein i.e. complainant before the District Forum stating therein that he was lured by the representatives of respondent/OP for joining the respondent/OP club along with RCI Membership on total payment of Rs.2,25,000/-.  It was stated that he had paid a sum of Rs.75,000/- through cheque and balance amount was agreed to be paid in 36 equal instalments.  It was alleged that even the balance amount was charged in one shot. The appellant/complainant had alleged that he had received only a temporary membership card. Thereafter he had received a membership confirmation letter from respondent/OP. It was alleged that virtually he was being treated as customer of respondent/OP company and not a member as was promised. The respondent/OP had also issued two letters of allotment both dated 11.9.09 about promised plot issued by Country Condo’s Ltd. at Vedic Country Spa, Project 11 KOOL and demanded a sum of Rs.20,000/- and Rs.15,000/- respectively.  The appellant/complainant had alleged that he did not use the services of respondent/OP as he never got any free or paid holiday from respondent/OP despite request sent.  Therefore, he requested for refund of membership fee and cancellation of his membership.  However, the amount was not refunded.  Alleging deficiency in service and unfair trade practice on the part of respondent/OP, appellant/complainant had filed a complaint before District Forum for refund of amount of Rs.2,25,000/- along with interest and also prayed for award of compensation and litigation cost.

 

3.     The complaint was contested by respondent/OP wherein allegations of deficiency in service were denied.  It was alleged that the appellant/complainant was well aware of the terms and conditions of the Purchase Agreement and hence could not unilaterally terminate the same.  It was also alleged that Membership Fee was not refundable under any circumstances.

  

4.     Both the parties filed evidence by way of affidavits.  After hearing the parties, Ld. District Forum allowed the complaint and ordered for refund of money as has been stated above.

 

5.     The appeal is filed by appellant/complainant by alleging that though the Consumer Complaint has been allowed by the Ld. District Forum, however, the appellant/complainant has not been awarded any interest on the amount deposited nor cost or compensation has been awarded to him.  It is contended that in the facts and circumstances of the case, the Ld. District Forum ought to have awarded cost as well as interest on the deposited amount.

 

6.     On the other hand, Counsel for respondent/OP has argued that the appellant/complainant was not entitled even for refund of amount as has been awarded by the District Forum. It is contended that appellant/complainant after satisfying himself about different services available had signed the Agreement.  It is further contended that the impugned order has already been complied with by the respondent/OP and factum of having received the amount has been concealed by appellant/complainant and appellant/complainant has not approached this Commission with clean hands.  It is submitted that in pursuance to impugned order, the respondent/OP has paid the entire amount to the appellant/complainant. It is contended that payment was made after consulting appellant/complainant and in good faith, impugned order was not challenged.  It is submitted that the appellant/complainant is not entitled for any relief.

 

7.     Ld. Counsel for parties are heard.

 

8.     We may mention that impugned order is dated 1.12.15.  The appeal is filed on 9.3.16 along with application for condonation of delay. The said application was allowed vide order dated 13.4.17.  As per the respondent/OP, they had complied with the impugned order.  The relevant portion of the reply to the appeal is as under:

“VII.   When the impugned order was pronounced, although the Opposite Party had a right to appeal, it decided to comply with the verdict of the learned Forum (although it was incorrect), and meet the directions made therein.  An appeal was not preferred at that stage in good faith.  This was done after consulting the Petitioner.  Accordingly, Total Four (4) Cheque’s drawn on Axis Bank i.e. Three (3) Cheque’s bearing numbers507700/507701/507702 dated 03.02.2016/06.02.2016/08.02.2016 for an amount of Rs.50,000/- each and Fourth Cheque bearing number 507703 dated 09.02.2016 for an amount of Rs.75,000/- of Rs.2.25L was made in his favour and dispatched to him.  The Petitioner gladly accepted the payment and duly fulfilled his part of the understanding that he had with the Opposite Party.  The cheque was encashed in April 2016 i.e. after filing of the appeal.  If this is the position, then the subsequent events make the present appeal unsustainable.”

 

9.     It is admitted position that in compliance of impugned order, appellant/complainant has received the aforesaid cheques for an amount of Rs.2,25,000/-.  The cheques were received by him before filing the appeal and were encashed after filing the appeal.  The factum of having received the cheques in compliance of impugned order and having encashed the same has been concealed from this Commission.  It is only when the reply to appeal was filed by the respondent/OP and Counsel for the appellant/complainant was confronted with same, Ld. Counsel stated on 13.4.18 that the cheques had been received and further stated  that he had to verify from his client as to whether the same were encashed or not.  Thereafter, Ld. Counsel took instructions and stated that the same were encashed after filing of the appeal.  It is not the stand of the appellant/complainant that the cheques were received without prejudice to the rights and contentions of receiving compensation.  In these circumstances, the stand of the respondent/OP that the cheques were given after consulting appellant/complainant with the understanding that matter has attained finality and that due to said reason, respondent/OP has not challenged the impugned order cannot be brushed aside. When the cheques were encashed in April 2016, the appellant/complainant ought to have disclosed the same to this Commission.  The conduct of appellant/complainant shows that he has not approached this Commission with clean hands. 

 

10.   Even on merits also, we do not find that present is a case of grant of compensation.  The material on record shows that appellant/complainant had enquired from representatives of respondent/OP about different services available and thereafter had signed the Agreement. Brochure/Terms and Conditions were supplied by respondent/OP to the appellant/complainant before joining the respondent/OP club.  The Purchase Agreement was signed after being satisfied with the terms and conditions of the same.  The rational of charging administrative charges was also mentioned in the Agreement. In these circumstances, appellant/complainant is not entitled for compensation by way of interest on the deposited amount. 

11.   In these circumstances, we do not find present is a fit case for grant of compensation.  Appeal stands dismissed.

 

12.   A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.      

 

 

 (Justice Veena Birbal)

• President