Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 13-01-2017, passed by the Ld. District Forum, Kolkata, Unit II (Central) in C.C. No. 241/2016 whereof the complaint has been allowed.

Briefly stated, case of the Complainant is that he took Membership of the OP Club on 14-03-2014 on payment of Membership fees for a sum of Rs. 50,000/- for getting regular club services, viz., rest room facilities, restaurant facilities.  It is alleged that when he visited the company’s Kasba establishment, he did not get any of the above facilities.  Feeling dejected, he decided to give up his membership and therefore, vide his letter dated 01-06-2015, requested the OPs to refund his membership fees.  However, since he did not get any response from them, the complaint was filed.

Counter case of the OPs is that in order to get due benefits of the scheme, Complainant was required to pay Annual Administrative Charges as per schedule mentioned in the agreement executed in this regard.  However, the Complainant failed to discharge his responsibility in this regard for which, his membership got cancelled long ago.  There is a clear provision in the agreement whereby members give their irrevocable consent to purchase the membership of the CCIL and the same is non-refundable under any circumstances and is not a deposit.  Further case of the OPs is that photocopy of the proposal letter was forwarded to the Complainant in order to avail of membership by making payment of Rs. 80,000/-, but the Complainant only paid Rs. 50,000/- and accordingly, these OPs provided the facilities as mentioned in the agreement clause only and not the facilities as per the proposal of Membership of Rs. 80,000/-.  It is alleged that the Complainant by showing the booklet containing facilities accorded to Members who pay subscription amount to the tune of Rs. 80,000/- tried to mislead the Ld. District Forum.  The OPs contended that, by making payment of Rs. 50,000/-, Complainant cannot claim facilities that is provided against payment of membership fees amounting to Rs. 80,000/-.  It is stated that, as per Clause 3 of the agreement, the Complainant was only entitled to get the facilities which runs as under “as of 2014, we have over 40 own/leased Country Clubs’ and Country Club fitness in India at  Ahmedabad - (2),  Bangalore - (7), Chandigarh, Chennai - (4), Cochin, Coimbatore, Delhi NCR - (3), Hyderabad – (2), Hubli, Indore – (2), Jaipur – (2), Kolkata – (2), Lucknow, Mangalore, Mysore, Mumbai (7), Nagpur, Pune – (4), Surat”  and it is also stated in Clause (4) of the Membership benefit, “Free usage of CC fitness centre, swimming pool and other services (where these facilities and services are available) for the member’s family from the date of agreement.  To maintain facilities for members as AMC of Rs. 6,000/-  excluding taxes is applicable irrespective of usage from the date of this agreement and which may be revised based on increase in costs without prior notice….”

Decision with reasons

We have heard the parties at length and gone through the documents on record, including the photocopy of Agreement executed in between the parties.

It appears from the photocopy of agreement on record that the same was executed in between the parties on 24-03-2014 and the same was renewable on payment of Annual Maintenance Charge (AMC) of Rs. 6,000/-. 

Undisputedly, the Respondent did not pay the AMC resulting which his membership stood cancelled.  Since it is clearly stipulated in the agreement that club facilities would be offered to members subject to clearance of all dues, including AMC, that being not done, we afraid, the Respondent had no legal right to claim any facility from the Appellants. 

However, it bears mentioning that non-refundable clause is unconscionable u/s 23 of the Indian Contract Act, 1872; also it contravenes the principles of public policy.  In view of this, the Appellants cannot forfeit the Membership Fees amounting to Rs. 50,000/- paid by the Respondent.

It seems, the Ld. District Forum erred in directing the Appellants to refund Rs. 60,000/- on account of membership fees whereas admittedly, the Respondent paid Rs. 50,000/- to the Appellants. 

Accordingly, the Appeal stands allowed in part.

Hence,

O R D E R E D

The Appeal stands allowed on contest in part.  The impugned order is modified as under:

The Appellants shall refund Rs. 50,000/- to the Respondent within 45 days from this day, i.d., simple interest @ 9% p.a. over this amount shall be payable for the entire period of default.