Order-14.
Date-20/09/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Case of the complainant, in short, is that he entered into an agreement with OP Club on payment of Rs.35,000/- to enjoy various facilities at the Kolkata Unit of Country Club (India) Ltd. at CK 27 Kasba, Kolkata based on various assurances given by Mr. Pratap Pal. Business Development Officer, on behalf of Country Club (India) Ltd. The complainant was assured of the facilities at the Kolkata Kasba Unit like Swimming Pool, Multi-Cuisine Restaurant, Lounge and Resto Bar, Conference Hall and Banquet Hall, complimentary pass for 6-7 events every year to be organized, 24 hours Gym and Spa etc. etc. The complainant was further assured of 7 days – 6 nights of free holiday every year for 10 years. The complainant alleges that whenever he contacted the Country Club (India) Ltd., thereafter, they did not give any positive response. It is also the case of the complainant that the proposed unit of OP has never been opened with the facilities which were promised or which in general should be provided by Country Club (India) Ltd. as per their leaflet – booklet. The complainant talked to the representatives of the OP who always assured that the facility to be extended shortly. OP opened a Gym at Kolkata Kasba with a board .Country Club. but no facilities were provided at that premises at Kasba. Subsequently, when the facilities were not developed by the OP at the Kolkata Unit, the complainant has filed the instant case.
OP has contested the case in filing written version contending, inter alia, that the case is not maintainable either in fact or in law. The allegations made in different paragraphs of the petition of complaint against the answering OP are also denied. It is stated that the complainant entered into an agreement with the OP and the complainant after going through the terms and agreement has duly put his signature and as such it is well known by the complainant regarding the 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 all the terms and conditions of the said agreement duly signed by and between the parties in the year 2011. It is also stated that the complainant has failed and neglected to comply his duty and obligations in terms of the agreement in question and the complainant has also failed to pay the yearly administrative charges which has become due on and from 2012. It is also stated that the case is not maintainable in the eye of law since the complaint is absolutely barred by the law of limitation and in the instant case the payment was made in the year 2011 and the complaint case has been filed in the year 2016 i.e. after expiry of 5 years from the date of agreement. It is stated that there is no deficiency of service on the part of the OP and the complainant to avail zing membership was to make payment of amount of Rs.1,10,000/- but the complainant agreed to pay the amount of
Rs.35,000/- only for his membership and he was provided with the facilities of holidays 6 nights 7 days for 5 years, Season . Blue (45-60) days advance, Room Type . Studio. It is also alleged that complainant cannot claim the facilities of the membership of the amount of Rs.1,10,000/- and this OP has prayed for dismissal of the case.
Point for Decision
- Whether the OP is deficient in service?
- Whether OP has indulged in unfair trade practice?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record viz. Membership receipt, annual maintenance charges bill, welcome letter of OP Company, proposal letter for Zing, purchase agreement for Country Club Membership, letter addressed to General Manager, OP, Hyderabad dated 28-12-2011 by the complainant, copy of letter dated 03-09-2012 alleging incomplete facilities at Kasba Unit of Country Club Ltd. by the complainant and other materials on record as filed from the side of the complainant. OP has, however, filed no document along with its written version.
It is argued from the side of the OP that the complaint is filed on 28-03-2016 and the purchase agreement was dated 12-08-2011 and as such the complaint is barred by time and ought to be dismissed as such. Seen the purchase agreement for country club membership in between the parties. It appears that it is for utilization of the club facilities for indefinite period and there is no time limit for its expiry. It also contains a complimentary holiday for 6 nights and 7 days for the next 5 years at CCIL properties in India. Moreover, we find that the complainant vide a letter dated 03-09-2012 addressed to General Manager of the OP alleged incomplete facilities at Kasba Unit of Country Club Ltd. We think that the cause of action as such is continuing. So, we are not consensus of opinion with the argument as advanced from the side of the Ld. Lawyer for the OP that the case is hit by limitation.
It appears that the OP Club is engaged in Hospitality Industry operating Clubs, Hotels, Restaurants and Resorts and Club facilities. OP is a company which has branch at Kolkata as per the leaflet and the documents on record. It also claims to be in clubbing and holiday options also and, as such, it is not a conventional club. From the documents on record it appears that the OP claims that its properties are equipped with best of World Class family clubbing facilities including club houses, health and Spas, fully furnished rooms, fully equipped gymnasium, multi-cuisine restaurants, lounge bars, sports bars with multiple live feed screens, mini theatres, wedding halls, air-conditions squash scores and various other indoor and outdoor games. We find that the complainant entered into an agreement for country club membership from the country club India Ltd. on payment of Rs.35,000/- to enjoy various facility at the Kolkata Unit of Country Club India Ltd. but astonishingly the complainant alleged that the Gym at the Kolkata Unit is a mere sign board with a board ‘Country Club’. It also appears that the OP Company has not developed any infrastructure or other facilities as agreed upon between the parties. We also find that the complainant enquired about the matter by writing letters to the OP but facilities have never been provided at the premises at Kasba. There is no document coming from the side of the OP that the OP has arranged for club facility at Kasba Club as per its promise in leaflet/booklet. It appears that the OP has not complied or acted as per the specific performance of contract between the parties of the agreement. Ld. Lawyer appearing from the side of the OP has argued that complainant has become a defaulter and has not paid annual administrative charges as per schedule duly mentioned in the agreement clause etc. etc. but we find that the OP has not developed any infrastructure of Gym or other club facilities at Kolkata Unit. Contract or agreement is not a one-way traffic. It is bilateral. OP has not opened the facilities which were promised as per its booklet or leaflet. OP cannot impose the terms and conditions of the purchase agreement when OP has not developed the facilities at the premises at Kasba. So, it appears that the OP has utilized the deposited amount for its own gain without giving any benefit of Gym, clubbing, Sports Bars, air-conditioned squash courts and various other indoor and outdoor games under the said agreement. The question remains why a person would invest such a big amount without any benefit? We find that OP has played with the trust reposed on it by the complainant. We think that OP has adopted unfair trade practice. The OP is also in our opinion deficient in rendering services to the complainant.
It is argued by the Ld. Lawyer appearing for the OP that the complainant signed the agreement on his own volition and he is bound by the terms and conditions of the agreement. Seen the purchase agreement for club membership. There is no certificate or endorsement appearing in the documents that the terms and conditions therein were read over and explained to the complainant and the complainant being satisfied with the norms, rules and terms and conditions of the said company signed the document. We also find that the stipulations therein are printed in very small font and it requires microscope to go through such terms and conditions. So, we cannot say that the complainant is bound by the terms and conditions of the agreement.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP with cost of Rs.10,000/-.
OP is directed to refund an amount of Rs.35,000/- with 10 percent deduction thereof on non standard basis for service charges and miscellaneous charges to the complainant within one month from the date of this order.
OP is further directed to pay Rs.20,000/- for unfair trade practice to the complainant within the said stipulated period.
OP is directed to comply with the order within one month from the date of this order failing which complainants will be at liberty to put this order into execution u/s.25 read with Section 27 of the C.P. Act and in that event OP 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.
