02.04.2015.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 30.12.2013 passed by Ld. District Forum, South 24 Parganas in Complaint Case being No. 224/2013 allowing the same with cost of Rs.10,000/- against the O.Ps, directing the O.Ps to refund the amount of Rs.85,000/- to the Complainant within one month from the date of order along with interest @ 10% p.a. from 04.07.2013 till date and also to pay a compensation of Rs.50,000/- for harassment and mental agony within fifteen days from the date of the order failing which the entire amount would carry interest @ 9% p.a. from the date of default till realization.

Being aggrieved by the order the O.Ps have preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum has failed to appreciate that as per terms and conditions of the agreement executed by and between the Complainant and the O.Ps in respect of the membership, the deposited amount was not refundable and awarded an exorbitant amount of Rs.50,000/- towards compensation.

The case of the Complainant (Respondent herein), in brief, is that, the Complainant for availing the facility of enjoying vacation rendered by the O.Ps entered into a Membership Purchase Agreement for Club and Vacation Membership with the O.Ps (Appellant herein) on 06.07.2012 and paid Rs.85,000/- to the O.Ps towards consideration amount of Membership.  The O.Ps issued a temporary Membership Card at the time of execution of the said agreement but did not issue any permanent Membership Card which they were supposed to issue subsequently and, as a result, the Complainant could not avail the membership facility of holiday resort ran by the O.Ps.  The Complainant requested the O.Ps to issue the permanent Membership Card on several occasions, but all were in vain.  Hence, the case.  The Complainant prayed for direction upon the O.Ps to return an amount of Rs.85,000/- along with interest @ 12%, Rs.2,00,000/- as compensation due to mental agony, harassment and also a litigation cost to the tune of Rs.15,000/-.

The O.Ps contested the case and filed W. V. denying and disputing all material allegations levelled against them stating, inter alia, that they had intention to issue permanent Membership Card to the Complainant later on but in the meantime the Complainant has filed the complaint case.  It is further contended in the W. V. filed the O.Ps that the amount deposited by the Complainant cannot be refunded in view of the terms of the agreement dated 06.07.2012. 

In course of hearing of the appeal Ld. Advocate for the Appellants has submitted that after receiving the amount of Rs.85,000/- , temporary membership card was given to the Complainant but there occurred a bit of delay in issuance of permanent Membership Card and in the meantime the Respondent – Complainant filed the complaint case.  Ld. Advocate for the Appellants has further stated that there is allegation regarding the rules and regulations of the membership card but the Ld. District Forum observed wrongly regarding allegation made by the Complainant in respect of said rules and regulations.  Ld. Advocate for the Appellants further submitted that the permanent membership card has been issued to the Respondent – Complainant after filing of the complaint case before the Ld. District Forum.  Ld. Advocate for the Appellants has specifically submitted that the Respondent – Complainant under no circumstances can get the deposited amount refunded.  In support of his contention Ld. Advocate for the Appellant has relied upon the following decisions:-

(1)     II (2011) CPJ 1 (SC) – Ravinder Raj – vs. – Competent Motors Co. Pvt. Ltd. & Anr.

(2)     Revision Petition No. 2999 of 212, order pronounced on 18.03.2013 (NC) Adi Barami – vs. – Country Vacations International Holiday Club & Anr.

Ld. Advocate for the Respondent has submitted that the parties entered into an agreement for obtaining a membership card for availing the holiday resorts of the Appellants for enjoying the vacations and, accordingly made payment of Rs.85,000/- towards that.  Ld. Advocate for the Respondent has also submitted that inspite of receiving the said amount the Appellants did not issue a permanent membership card to him for which he has been deprived of enjoying the vacations in the resorts of the Appellants although the Appellants issued a temporary membership card to him but that did not serve the purpose of enjoying the vacation in holiday resorts.  Ld. Advocate for the Respondent has specifically submitted that no permanent membership card has been issued to him till now.

Having heard submissions made by both sides and on perusal of the materials on record it appears that admittedly the Respondent entered into an agreement on 06.07.2012 with the Appellants for Country Club Membership and it also appears from money receipts that the Complainant has paid the entire agreed amount of Rs.85,000/- to the O.Ps.  It also appears from the photocopy of the letter dated 25.03.2013 written by the Respondent – Complainant to the administrative head, Managing Director of the O.P. No. 2 that he asked for issuance of permanent membership card stating that the temporary membership card was valid till July 25, 2012.  From these averments made in the letter it is evident that after expiry of the validity period, the Respondent could not avail any facility for having the enjoyment of vacation using the membership card for which he had paid an amount of Rs.85,000/-.  Ld. Advocate for the Appellants had stated that they had issued a permanent membership card to the Complainant after institution of the complaint case which the respondent – Complainant denied and, in this respect the Appellants failed to adduce any cogent evidence in support of their contentions.

It appears from the record that as per terms of the agreement the Complainant – Respondent had paid the required amount to the O.Ps.  But, the O.P. Appellants failed to provide him with a permanent membership card which was of their contractual obligation and it is an example of deficiency in service on the party of the Appellants – O.Ps.  Therefore, regarding the refund of the amount the plea taken by the Appellants that the amount once deposited shall not be refunded is not sustainable. 

The decisions referred by the Ld. Advocate for the Appellants have no applicability in the instant case since those are of different context.

In view of the discussions made hereinabove, we are of opinion that Ld. District Forum rightly directed the O.Ps to refund the deposited amount of Rs.85,000/- with interest @ 10% per annum accrued from 14.07.2013 but, we are inclined to set aside the direction for payment of compensation since the direction for payment of interest is given to compensate the Complainant – Respondent.

In the result, the appeal succeeds in part.

Hence, ORDERED, that the appeal is allowed in part on contest but without any order as to costs.  The impugned judgment is modified to the following extent –

The O.Ps are directed to refund the amount of Rs.85,000/- to the Complainant within one month from the date along with interest @ 10% per annum from 04.07.2013 till the date of realization in full and also to pay Rs.10,000/- towards cost of the litigation within one month from the date failing which the aforesaid amount will carry interest @ 9% per annum from the date of default till realization in full.