Order-19.

Date-13/01/201.

       Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

The case of the Complainant is that he purchased a Club Membership on 14.,03.2014 from the OPs at an offer for regular club services at Kolkata viz. Restaurent facilities, rest room facilities at a price of Rs.50,000/- . On payment of the Club Membership Fee of the said Rs.50,000/-, a card was sent to the Complainant with his name, mobile phone  nos. and Club Membership No. embossed thereon. Thereafter, the Complainant visited the OPs’ Kasba, Kolkata establishment, but could not find any such restaurent or rest room facilities as promised by the representative of the Companynamely one Mr. Samiul Basar. The Complainant also contacted Mr. Samiul Basar, who had been found to be very vague about the possibilities of Club services he had promised at the time of his selling of membership to the Complaimnant. Mr. Basar was not even sure whether the Kasba Unit will have such restaurent or rest room facilities. The Complainant then decided to cancel the membership as the Company had failed to perform or to deliver the services. The Complainant alleges that he had felt cheated and the scheme was just for raise money by way of unfair trade practice. The Complainant thereafter lodged a claim dated 01.06.2015 with the Board of Directors of the Company, but to no good for refund of the membership fees paid by him. The Complainant has alleged deficiency of service  and unfair trade practice against the OPs. Hence this case.

The OPs have contested the case in filing w.v. contending inter alia that the name of the Company Country Club India has been changed with effect from 27.01.2014 from Country Club India Limited to Country Club Hospitality and Holidays Limited. It is also stated that the complaint is not maintainable either in law or in fact. It is stated that the Complainant is not a consumer in terms of the provision of Consumer Protection Act, 1986. It is stated that the Complainant entered into an  agreement with the OP parties after going through the terms and conditions of the said agreement and duly put his signature and as such it is well known by the Complainant regarding terms and conditions of the agreement in question and as per the specific performance of contract the parties to the agreement shall be duty bound to comply  with the terms and conditions of the said agreement.

It is also alleged that the Complainant has failed to pay Annual Administrative charges as per schedule in the agreement clause and as such the membership has been cancelled long back. It is stated that there is no deficiency in service on the part of the OP and no question of unfair trade practice is committed by the OP. These OPs have prayed for dismissal of the case.

Point for Decision

1)         Whether the OPs are deficient in rendering services to the Complainant?

2)         Whether the OPs have committed unfair trade practice?

3)         Whether the Complainant is entitled to  get relief as prayed for?

Decision with Reasons

            We have travelled over the documents on record, i.e. photocopy of proposal letter of Country Club Fitness and Club Membership, photocopy of Club Membership payment receipt, photocopy of Club Membership purchase agreement, photocopy of the letter dated 01.03.2015 for refund of membership fees and other documents on record.

            It appears that the name of the Country Club India Limited has been changed with effect from 27.01.2014 from Country Club India Limited to Country Club Hospitality and  Holidays Limited. Perused the Exhibit 1 as filed from the side of the OPs. We find that Country Club Hospitality and Holidays Ltd. has also  been added as OP No. 4 in this case at the instance of the Complainant. It appears that Complainant obtained Club Membership of the OPs on 24.03.2014  with the hope and promise by the OPs  for regular club services at Kolkata for CC fitness center swimming pool and other services on payment of Rs.60,000/-. We find that he has made the payment on 15.03.2014. We also find that the so called Club membership purchase agreement is dated 24.03.2014. It alleged by the Complainant that he visited the Company’s Kasba Kolkata establishment and found no restaurent or rest room facilities or other facilities as promised by the sales representative of the Company, namely Samiul Basar. Mr. Samiul Basar was not even sure that the Kasba Unit will have such Restaurant, rest room or other facilities promised under the Club Membership Project agreement.

          OPs have not been able to establish before this Forum by producing any photograph of the site that Kasba Establishment is equipped with Restaurent, rest room, fitness center, swimming pool and other services. It appears that the Ops  have failed  to deliver the services here as the Complainant paid  of full consideration for the promised service.

 It is argued by the Ld. Lawyer for the OPs that the case is not maintainable  and it is barred by  limitation. But we find that the Complainant deposited the money with the Ops on 15.03.2014 and Club Membership purchase agreement is dated 24.03.2014. We also find from the Annexure (II) of the petition of the Complainant that the Jim facilities were valid up to 26.03.2014. We find that the case is filed within 2 years from the date of purchase agreement and payment of Rs.60,000/- with the Ops. Moreover, we find that the Complainant claimed for refund of Membership fees vide letter dated 01.06.2015 but OPs failed and neglected to reply to such claim.

 It is also argued by the Ld. Lawyer for the OP that the Complainant has not paid AMC and as such the Complainant failed to renew the Membership on and from the month of April,2015 and the case is vitiated  by limitation as the Complainant is no longer a Club member of the OPs.

We are unable to accept such argument as advanced by the Ld. Lawyer for the OP because we find that the Complainant wrote to the Board of Directors of the Ops on 01.06.2015 claiming refund of Membership fees paid as there was no Club center at Kasba with Club facilities, Restaurant etc. It appears that the OPs  cannot agitate  over the nonpayment of AMC when it has not provided  any service to the Complainant or it  has no infrastructure  of a Club like fitness center, swimming pool and other services as per the terms of the agreement. We find that the Membership  benefits include Club Membership, access to entertainment, event and amusement facilities which are not available  at Kolkata. Moreover, we find that the Club Membership can not be sold in this manner by way of any so called purchase agreement. No goods or movable or immovable property was sold in lieu of consideration by the OPs. There is no complexity of fact involved in this case because we find that the OPs were not been able to make any visual representation by way of photograph or otherwise that it has the infrastructure of Club like CC Fitness Center, Swimming pool  amusement, and other services  that Complainant could avail entertainment, event and amusement facilities thereat as promised. We find  that Complainant had paid full consideration  for the service and he felt cheated. We find that the scheme was just designed to raise money by unfair trade practice. We also find that the Company did not even reply to the claim letter dated 01.06.2015 served by the Complainant upon the Ops by Registered Post for the reason best known to the Ops.

We find that Ops are trying to take advantage of the terms of the agreement without rendering any service to the Complainant. We think that the Ops have indulged unfair trade practice and the deposit in the name of so called non-refundable clause  has been designed to raise money for unfair trade practice.

The issues are thus decided in the affirmative for the petitioner and in the negative as against the OPs.

In result, the case merits success.

Hence,

Ordered

That the instant case be and the same is allowed on contest with a cost of Rs.10,000/-.

OPs are jointly and severely directed to refund an amount of Rs.60,000/- to the Complainant within one month from the date of this order.

The OPs are also directed to pay an amount of Rs.25,000/- to this Forum for indulging in unfair trade practice within the stipulated period.

            Failure to comply with the order will entitle the Complainant put the order into execution  under section 25 read with Section 27 of CP Act.