Order-13.

Date-03/03/2017.

       Shri Kamal De, President.

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

Complainants’ case, in short, is that being persuaded by the authorized representatives of the OPs, the Complainants entered into an agreement with the OPs on 30.05.2015. OP No. 2 is a ‘Division of OP No. 1’ Company, registered under Companies Act, 1956. The Complainants allege that a personnel attached to the office of the OP 2 rang Complainant No. 1, informing her that she and her husband (Complainant No. 2) have been selected for prize of Country Club and they were requested to be present at City Centre, Salt Lake. The Complainants accordingly attended the venue where the authorized representatives of OP No. 2 showed them a rosy picture about travel concession/ accommodation/air fare discount/health club society and insisted them to sign on the agreement thereat. The Complainants state that they in good faith signed the agreement without realizing that the OPs are a fraud organization and which they realized subsequently.

It is also stated that the OPs through their representatives realized Rs.12,25,000/- from the Complainants issuing acknowledgement / receipt thereof. The Complainants also submit that in addition to initial agreement dated 30.05.2015, OP also got executed and a subsequent agreement for maintenance charges for each year of service. The Complainants alleged that they several times enquired about the availability of accommodation in different parts of India, but were told that the places for which they were enquired were already booked. The Complainants submits that they also came to know that many customers were thus denied or deprived services of the OPs. The Complainants alleged that they on several occasions verbally requested the OPs to render services as customer, but the OPs did not provide any service. The Complainant s have alleged deficiency in service and unfair trade against the OPs.   Hence this case.

OPs have contested the case in filing w.v. contending inter alia, that the instant complaint is vindictive, motivated, harassing and misconceived. It is also alleged that the Complaint petition does not disclose any deficiency in service on the part of the OPs. It is stated that the name of the Company is Country Vacations. Country Vacations is a division of Country Club Hospitality and Hotels Limited (formerly known as Country Club India  Limited).  It is stated that the statements made in para 3 are not clear and false, in correct. It is stated that the Complainants are not only highly qualified, educated but are also highly placed individuals in the society and it is ridiculous to comprehend and belief that they lost their guard when they purchased the Membership of “ Country Vacations Holiday Club Membership “ and they did not exercise proper vigil on mind to understand the entire product information in details. It is stated that the Complainants voluntarily paid the requisite charges for such Membership for 10 years and the terms and conditions guiding services of the OPs on offer were duly signed sealed and executed by and between the parties. It is stated the members are likely to avail the holidays through on line process. The Company has a mobile application also and it is not understood what the Complainants meant by “proper service“. It is alleged that the Complainants never requested the OPs for providing any service to them, but it is also stated that as per terms and conditions of the aforesaid agreement the Complainants are liable to pay the outstanding amount pertaining to ‘AMC’ to the OPs and the Complainants have failed to make out any justifiable case.

It is stated that the Complainant is devoid of any merit and the complaint be dismissed with cost in limine.

Point for Decision

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

2)         Whether the OPs have indulged in unfair trade practice?

3)         Whether the Complainants are entitled to get relief as prayed for?

Decision with Reasons

            We have perused the documents on record i.e. photocopy of purchase agreement dated 30.05.2015, photocopy of payment receipts, photocopy of cheque dated 30.05.2015 and other documents on record.

            From the materials on record we find that Country Vacations is a division of Country Club Holidays Limited (formerly known as Country Club India Ltd.). It also appears that the Complainants entered into an agreement with the OPs on 30.05.2015. It is claimed by the OPs that they are one of the largest and most known name in the recreation and entertainment Industry offering more than 44 properties that are spread all over the India and abroad. The main aim of the OPs is to ensure to the customers of good and memorable vacation and/or recreational time.

We find that the Complainants have paid an amount of Rs.1,25,000/- for such vacations in the Hotels and Resorts of the OPs.  It is given to understand that OP is engaged in hospitality business, operating clubs, Hotels, resorts on vacations.

            We find that the Complainants approached the OPs for availability of accommodation in different parts of India but were always told that the place for which they were enquiring was already booked.

            We also find that the Complainants also paid Rs.7,000/- by cheque being no. 614171 dated 30.11.2015 as Annual Maintenance Charges. We also find that the Complainants on several occasions requested the OP for accommodation, but the OPs failed to render services to the Complainants. The main allegation against the OP as we find is Unfair Trade Practice and deficiency of service.  It appears from the evidences on record that the authorized representatives of the OPs informed Complainant No. 1 over phone that she and her husband have been selected for prize of Country Club and they were requested to be and present at the City Centre, Salt Lake. The Complainants attended the venue where the representatives of the OPs insisted them to sign on the agreement thereat holding rosy picture of holiday accommodation in different parts of the country, air fare discount, health club etc. etc. It also appears that the Complainants in good faith signed the agreement and the OPs realized Rs.1,25,000/- from them in addition to Rs.7,000/- for AMC. The Complainants thereafter approached the OPs for availability of accommodation in different parts of India, but were always told that the places for which they are enquiring were already booked, so we find that the Complainants could not avail any holiday accommodation anywhere in the country as per the agreement dated 30.05.2015.

            We find that the OPs had push sold 10 years membership to the Complainants. We also find that the first page of the agreement is Computer typed / printed and the other pages were previously prepared printed form containing all the terms and conditions and the points of which are totally one sided. The first page is only Computer typed on Non Judicial Stamp Paper and the names are written thereon in ink and the other pages of agreement are printed and not typed.

            Moreover, we find that reverse of the first page of the agreement does not bear date of purchase of such agreement or the name of the Licensed Stamp Vendor.  We think that the agreement as such, was not also properly executed at the instance of the OPs. The representatives of the OPs somehow got it signed by the Complainants practicing Unfair Trade.

            We think that “informed consent“was not obtained from the Complainant. Informed consent is full disclosure of information. The printed form appears to be a common stereotyped form used to all purposes and the first page does not also bear the date of purchase or the name of the Stamp Vendor on its reverse. So, it cannot be said that valid consent is procured from the Complainant. The ‘consent’ we think should be real and valid which means that the Complainants must have the opportunity to go through the terms and conditions. The OPs got the agreement signed at City Centre without giving the Complainants any opportunity to go through the terms and conditions. The consent we think should be real and valid which means that the Complainants must have the opportunity to go through the terms and conditions. The consent should be voluntary and free as envisaged under section 10 of the Indian Contract Act. A duty is caused upon the OPs to prove that OPs did not use any undue force or misrepresentation to get a legally and valid consent from the Complainants and OP had at no points of time utilized its dominant and superior position in obtaining consent from the Complainants. We think that no valid consent or ‘informed consent’ was procured from the Complainants before signing of the agreement. We think that OP Company is guilty of deficiency in service and unfair trade practice. We find that the Complainants have made payment of Rs.1,25,000/- + Rs.7,000/- as AMC but to no good. We find that the scheme was just designed to raise money by unfair trade practice.

            We find that OP has tried to take advantage of the terms of the agreement without rendering service to the Complainant and obtained signatures of the Complainants on some previously printed forms without obtaining valid consent from the Complainants procuring payment.  We think that OP has indulged in 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. Moreover, we think that the Club Membership cannot be sold in such manner by way of such purchase agreement. No goods or moveable or immoveable property was sold in lieu of consideration by the OPs.

In result, the case merits success.

Hence,

Ordered

That the instant case be and the same is allowed on contest against the OPs.

            OPs are jointly and severely directed to refund the amount of Rs.1,32,000/- to the Complainant within one month from the date of this order, apart from litigation cost of Rs.5,000/-.

            OPs are also directed to pay an amount of Rs.15,000/- to this Forum for indulging unfair trade practice within the said stipulated period.

Failure to comply with the order will entitle the complainants to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OPs shall be liable to pay penal damage  at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.