CC No: 1136/2014

 Filed on 25.06.2014

Disposed on 04.02.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BANGALORE – 560 052

DATED THIS THE 4^th DAY OF FEBRUARY 2016

CONSUMER COMPLAINT NO.1136/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER 

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Parties under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Party to refund Rs.50,000/-, Penalty of Rs.20,000/- and Rs.50,000/- for financial burden suffered by the Complainant.

2.         The brief facts of the Complaint can be stated as under:

The Complainant alleged that on 19.04.2014 the Complainant’s sister Mrs. Jayashree Chakraverty was informed over phone by someone from Country Club that she had won a lucky draw on the basis of a questionnaire she had filled at Total Mall, Sarjpaur Road a couple of days ago and was entitled to a few gifts free of cost including free travel vouchers.  The Complainant further informed that she was entitled to collect her free gifts as a couple, after spending a few hours helping with the promotional activities of the mall the next day, organized at one of the clubs nearby.  As his brother-in-law in based in another city, she was informed that he could collect the gifts if he went along with his family.  So next day, the Complainant along with his family including his sister went to the venue as guided by the person on telephone whom introduced himself as a guy from Total Mall.  After reaching there, they were asked to attend the so called promotional event which turned out to be nothing but an aggressive campaign to sell Country Club Vacation membership and other services.  They were little alarmed, but still waited for the next set of events.  All were made to sit in one of the rooms meant for this purpose and which was already very crowded with people who were invited just the way we were.  Music was also being played aloud.  In the background of such a crowded and noisy environment, we were introduced to a concept (as called by Country Vacations Manager Mr. Tousif Pasha & his associate Mr. Partha) which was clearly aimed at marketing and selling Country Club Vacations and memberships.  The detailed explanation of the concept and endless list of benefits/commitments that was laid out by them sounded very interesting.  However, bunch of major false commitments were part and parcel of this briefing and we were unable to realize it until it was too late.  Even when he asked both of them repeatedly if all these wordings would be documented in the Agreements in case we bought the vacation membership.  They decided to return home with free gifts since the purchase price of Rs.1,20,000/- was an amount they couldn’t afford.  Mr.Tousif Pasha apparently made great effort to negotiate the price to a final amount of Rs.1,00,000/- which was still beyond their means and they decided not to go ahead with the deal.  Then again both made a volley of offers to us which we couldn’t resist and eventually ended buying the membership.  In a great hurry to get their signature, get their sign the agreement documents, both insisted that they could read the policy document at home during leisure hours and both again reconfirmed that whatever concept was explained that was what they could eventually receive as Agreement Document.  Even the working sheets were not given to us on the pretext that policy wordings are customized for each customer as per the concept briefings.  The so called Purchase Agreement document was also deliberately brought to the table at the last stages of our discussion were already much exhausted mentally, hungry and wanted to return home.  They were reassured that they could sign the documents without any hesitation as Country Club is in business for a few decades and had all the reputation that customers look for.  The Complainant is still tried to browse a few workings of the agreement before signing and questioned Mr. Tousif Pasha about the refund policy of the purchase price.  Though it is clearly written in the policy that the amount is non-refundable, Mr. Tousif Pasha reconfirmed that it was completely refundable being a deposit and a separate letter to that effect would reach us along with our membership cards.  Believing Mr. Tousif Pasha & Mr.Partha’s words and assuming that Country Club being a very old organization must have stood the test of time and has good reputation and they went ahead and made payment of Rs.50,000/- in two installments of Rs.15,000/- and Rs.35,000/- by swiping of his credit cards.  However, none of the documents reflecting the terms of concept explained previously by Mr. Tousif Pasha and Mr. Partha reached us till 3^rd May 2014.  By then, the Complainant also received credit card statement for the transaction made as stated above.  The Complainant was asked to see that the transactions were not converted into Zero % monthly EMIs as promised by Mr. Tousif Pasha.  Upon calling Mr. Tousif Pasha and his Manager Mr. Ravi, both asked the Complainant to call up the banks and arrange for the EMIs all by himself.  The Complainant has done that of course but then the Complainant required to interests to the bank in addition to the Principal amount.  This led the Complainant to a firm conclusion that they were cheated by numerous false commitments from Country Club Vacations.  So the Complainant wrote a letter on 04.05.2014 seeking clarification on all the commitments made to them during concept presentation.  The letter was directed to his Senior Mr. Ravi and copied to Mr. Tousif Pasha.  He received no response to his mail.  Again he sent a second reminder on 11.05.2014 seeking their clarification.  He requested them to cancel his membership and refund money as Country Club had not delivered what was promised to them.  Hence, this complaint.

            3.         In response to the notice, the Opposite Party appeared through counsel and filed version.  In the version, the Opposite Party pleaded that this complaint is not maintainable either in law or on facts.  There is no cause of action, complaint is vague, bald and the complaint is devoid of merits.  The complaint is barred by law of limitation, hence, liable to be dismissed.  The Opposite Party further pleaded that the Complainant has shown interest to become the Member and to avail Holiday Vacation.  The Complainant entered into Purchase Agreement dt.20.04.2014 and in terms of agreement, they received a sum of Rs.50,000/- from the Complainant as against the agreed amount of Rs.1,00,000/- towards the holiday vacations.  Upon receipt of the amount, the Opposite Party has issued a laminated club membership card to the Complainant.  The Opposite Party never promised or assured to give or forced to become the member and also never promised the Complainant to pay in installments through the transactions were not converted into Zero % monthly EMIs 18 installments in total question of converting of EMI or to repayment of interest thereon to the Complainant does not arise.  Even after repeated reminders, Complainant has not paid the balance amount.  The main benefits for Club Membership and a Holiday/ Vacation Package, the Opposite Party offered yearly one week accommodation in their property totally free of cost its more than two star facilities for a period of continuous 5 years 6 night 7 days complementary and this Opposite Party is always ready to provide the package to the Complainant, but there should be 30 days in advance booking to be made to make necessary arrangements.  Further, the club membership is for life time and it is transferable to their family members apart from the Health Club for a period of 5 years and club membership of lift time subject to the terms and conditions mentioned in the Purchase Agreement.  The club membership is for life time and it is transferable to their family members.  The documents produced by the Complainants it is crystal clear that the complaint is imaginary, illusory and baseless, they can go to the at any heights.  The Complainant is not an illiterate person and enjoying the benefits and services of the club membership and Opposite Party is having unit at Yelahanka, Magadi Road, Mysore Road, Bannerghatta Road and Sarjapura.  All the units have multi gym facility and body spa is exclusively provided at Sarjapura unit.  Inspite of that the Complainant has filed the false and frivolous complaint and the same is not maintainable and liable to be dismissed.  The Complainant entered into an agreement dt.24.04.2014.  The complaint is barred by limitation even otherwise in terms of agreement clause, there is no provision for refund of the amount or cancellation of club membership.  On this ground also the complaint is liable to be dismissed.  Hence, prays to dismiss the complaint.

4.         In support of the complaint, the complainant has filed his affidavit by way of evidence.  For the Opposite Party one Mr. V.N. Girish Kumar, Manager has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

5.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged unfair trade practice by the Opposite Party?
2. If so, to what relief the Complainant is entitled?

6.         Our findings on the above points are:-

                        POINT (1):-  Negative

                        POINT (2):-As per the final Order

REASONS

7.         POINT NO. 1:-         It is the case of the Complainant that on 19.04.2014 the Complainant’s sister Mrs. Jayashree Chakraverty was informed over phone by someone from the Opposite Party that she had won a lucky draw on the basis of a questionnaire she had filled at Total Mall, Sarjpaur Road and was entitled to a few gifts free of cost including free travel vouchers and she was entitled to collect free gifts as a couple, after spending a few hours helping with the promotional activities of the mall the next day, organized at one of the clubs nearby.  The next day Complainant along with his family including his sister went to the venue as guided by the person on telephone whom introduced himself as a guy from Total Mall.  After reaching there, they were asked to attend the so called promotional event which turned out to be nothing but an aggressive campaign to sell Country Club Vacation membership.  In a crowded and noisy environment, they introduced to a concept which was clearly aimed at marketing and selling country club vacation and membership, but they decided to return home with a free gift since the purchase price of Rs.1,20,000/- was an amount they couldn’t afford.  Mr.Tousif Pasha apparently made great effort to negotiate the price to a final amount of Rs.1,00,000/- which was still beyond their means and they decided not to go ahead with the deal.  Then again both made a volley of offers to us which we couldn’t resist and eventually ended buying the membership.  So even by looking into the averments of the complaint, it is crystal clear that even though the Complainant and his family members are not interested to purchase the Country Club Membership, but atlast they purchased the Country Club Membership by paying Rs.50,000/- in two installments i.e. Rs.15,000/- and Rs.35,000/-.  This fact i.e. purchase of Country Club Membership by paying Rs.50,000/- is not in dispute.  Further to substantiate this fact, the Complainant in his sworn testimony reiterated the same and also produced the receipt issued by the Country Club for receiving Rs.35,000/- and Rs.15,000/- on 20.04.2014.  This is also further supported by the Purchase Agreement for Club and Vacation Membership entered between the Complainant and the Opposite Party and this agreement is entered on 20.04.2014 and also Vacation Agreement and Club Membership Purchase Agreement.

            8.         It is the definite case of the Complainant that even though he has not interested to purchase the Vacation Club Membership, but the Opposite Party officials Mr. Tousif Pasha forcibly made them to purchase the said membership by giving false assurances.  Except the interested version of the Complainant, he has not placed any piece of evidence in support of their contention that Mr. Tousif Pasha forced the Complainant to become a Life Membership of the Opposite Party and adopting unfair trade practice Opposite Party officials made the Complainant to purchase the Club Membership.

            9.         On the other hand, the defence of the Opposite Party is that the Complainant has shown interest to become a member and to avail holiday vacation entered into a Purchase Agreement dt.20.04.2014 and in terms of agreement, they received a sum of Rs.50,000/- as a part payment from the Complainant as against Rs.1,00,000/-.  The Opposite Party upon receiving the amount from the Complainant issued a laminated Club Membership Card to the Complainant, but they never promised the Complainant to converted into Zero % monthly EMIs of 18 installments to pay the membership amount.  To substantiate this defence, Mr. V.N. Girish Kumar in the sworn testimony has reiterated the same and produced the Purchase Agreement for Club and Vacation Membership.  This agreement is dt.20.04.2014 entered between the Complainant and the Opposite Party.  As looking into this agreement, it bears the signature of the Complainant on each page and as per the terms of the agreement, the Complainant has agreed to become a Club Member by paying Rs.1,00,000/- and on that day, the Complainant paid advance of Rs.50,000/-.  Further the Complainant is not an illiterate man and he used to sign in English.  The alleged agreement i.e. document produced by the Complainant as well as the Opposite Party is in English.  So before affixing the signature to the agreement, the Complainant has gone through the contents of the agreement and thereafter, he attested his signature.  Thereby as rightly argued by the learned counsel for the Opposite Party that the Complainant knowing fully aware about the terms and conditions of the Opposite Party by paying advance of Rs.50,000/- and agreed to become a member of the Opposite Party for a sum of Rs.1,00,000/.  After receipt of Rs.50,000/- by the Opposite Party from the Complainant, the Opposite Party has issued a laminated card and the copy of the card also produced by the Opposite Party.  So to discard this evidence, nothing was elicitated by the Complainant, thereby it is proper to accept the defence taken by the Opposite Party that the Complainant has shown interest to become a member and to avail the holiday vacation by entering into a Purchase Agreement on 20.04.2014 by paying advance of Rs.50,000/-.

            10.      It is the further case of the Complainant that at the time of explaining the concept of the membership of the Opposite Party, they assured a list of benefits/commitments and bunches of major false commitments.  Though it is clearly written in the policy that amount is not refundable, Mr. Tousif Pasha reconfirmed that it was completely refundable deposit and a separate letter to that effect would reached them along with other membership cards.  Believing the words of Mr. Tousif Pasha and assuming that Country Club being a old organization must have stood the test of time and has good reputation and they went ahead and made payment of Rs.50,000/- in two installments.  However, none of the documents reflecting the terms of concept explained previously by Mr.Tousif Pasha till 03.05.2014, by then he also received a credit card statement for transaction he was made as stated above and he was shocked to see the transaction are not covered into Zero % monthly EMI of 18 months.  But to substantiate this contention, except the interested version of the Complainant, he has not placed any piece of evidence and on the other hand,e ven in the complaint he clearly admitted that in the agreement it is clearly mentioned that amount is non-refundable, but Mr. Tousif Pasha who hasspens to be a representative of the Opposite Party confirmed that it was completely refundable.  Believing the words of Toushif Pasha, the Complainant paid Rs.50,000/-.  As stated earlier, except the interested version, he has not placed any evidence and on the other hand, by looking into the documentary evidence placed by the parties clearly goes to show that the membership fee is non-refundable and there is no condition that the Opposite Party providing 18 monthly installments for payment of the membership fee.  If it is not acceptable for the Complainant, the Complainant ought to have not entered into the Purchase Agreement dt.20.04.2014.  On the other hand, as stated earlier the Complainant being an educated man and he has got worldly knowledge and only after going through the agreement, he affixed his signature to the Purchase Agreement dt.20.04.2014 by paying advance of Rs.50,000/-.

            11.      Further, absolutely the Complainant fails to prove that make believe Complainant that Opposite Party will provide so many benefits if at all such assurance was made by Mr. Tousif Pasha, Complainant ought to have narrated in the complaint about the assurance given by Mr.Tousif Pasha and also sworn before the Court what are the benefits given by the Opposite Party to the Complainant and on the other hand, it is not mentioned in the complaint or it come in the evidence.  On the other hand, very vaguely in the complaint pleaded that so many assurances and promises were made by the Opposite Party, therefore, the Complainant fails to prove the alleged fact.

            12.      On the other hand, in the version the Opposite Party clearly pleaded that the Complainant has not paid the balance amount.  The main benefit of the Club Membership and Holiday Vacation Package the Opposite Party offered yearly one week accommodation in their property totally free of cost except the service tax applicable for a period of continuous 5 years 6 nights and 7 days complimentary and this Opposite Party is always ready to provide the package to the Complainant, but there should be 30 days in advance booking to be made to make necessary arrangements.  The Club Membership is for life time and it is transferable to their family members and apart from the health club for the period of 5 years and Club Membership of life time subject to terms and conditions.  The Complainant has not paid the maintenance charges to the Opposite Party from last one year.  In support of this defence also, the Opposite Party in the sworn statement reiterated the same and produced the Purchase Agreement dt.20.04.2014.  In the agreement, it clearly mentioned that the membership fee is not refundable and even as looking into the averments of the complaint and the evidence of the Complainant, he has not paid full amount of Rs.1,00,000/- as agreed by him except the advance of Rs.50,000/-, the Complainant has not paid any further sum.  So when the Opposite Party demanded for the payment of balance amount, the Complainant filed this complaint and also from the evidence available on record clearly shows that the Complainant is not paying annual maintenance charges.  So the Complainant has not adduced any proper evidence to substantiate his contention that the Opposite Party has adopted unfair trade practice.

            13.      The learned counsel for the Opposite Party argued that since the Complainant has not paid the balance amount within 45 days as per the terms and conditions of the agreement, thereby the advance amount of Rs.50,000/- deposited was liable to be forfeited.  In support of his argument, he relied upon an unreported decision between Country Club (I) Ltd., v/s L. Mahadevan passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.1191/2010 clearly held that on the bare reading of the condition in the agreement that on failure on the part of the complaint to make payment of full amount of the membership fee within 45 days from the date of their payment to the membership of the club and the amount deposited by them earlier was liable to be forfeited.  Even in this present case also as per the averments of the complaint, the Complainant has paid only Rs.50,000/- as against sum of Rs.1,00,000/-.  As per the terms and conditions of the agreement, it is clear that the balance amount will be payable within 45 days and the Opposite Party is liable to be forfeited the advance amount.  Thereby the said decision is applicable to the facts of this case.  So by looking into the evidence placed by the parties, the Complainant utterly failed to prove that there is deficiency of service on the part of the Opposite Party or the Opposite Party adopted the unfair trade practice.  Hence, this point is held in the negative.

14.      POINT NO.2:-          In view of the finding on Point No.1, we proceed to pass the following;

ORDER

The Complaint is dismissed.  No costs.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 4^th day of February 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.1136/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri Ranabir Roychoudhury has filed his affidavit for Complainant.
2. Sri V.N. Girish Kumar, Manager has filed his affidavit for Opposite Party No.2.

List of documents filed by the Complainant :

1. Copy of the list of major false commitments assured by the Opposite Party.
2. Copy of the email letter dt.11.05.2014, 04.05.2014.
3. Copy of the two receipts dt.20.04.2014.
4. Copy of the credit card bill.
5. Copy of the Purchase Agreement for Club and Vacation Membership.
6. Copy of the Vacation Agreement.
7. Copy of the Club Membership Purchase Agreement.

List of documents filed by the Opposite Parties

1. Copy of the Purchase Agreement dt.20.04.2014.
2. Copy of the Membership Cards.
3. Copy of the balance statement.
4. Copy of the Gift Voucher.
5. Copy of the Password.
6. Copy of the Confirmation letter of the members.

MEMBER                                                                               PRESIDENT