STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Country Club India Ltd., through Mr. Vijay Choudhary, DGM (Sales & Marketing) Apna Marine (Adjoining Hotel Aroma), Sector 22-C, Chandigarh.
2. Country Club India Ltd., through its Managing Director, 6-31219, Begumpt, Hyderabad.

……Appellants/Opposite Parties.

Versus

Gurmukh Singh S/o S. Sardar Singh, resident of #225, Sector-35-A, Chandigarh.

....Respondent/Complainant.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

Argued by: Sh. Pradeep Sharma, Advocate for the appellants.

PER DEV RAJ, MEMBER

            This appeal has been filed against the order dated 23.09.2015 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘Forum’), vide which, the consumer complaint filed by the complainant (now respondent) was allowed, ordering the Opposite Parties (now appellants) to refund Rs.80,000/- alongwith interest @9% per annum from the date of payment/agreement till its payment besides payment of Rs.10,000/- as compensation and Rs.7,000/- as litigation expenses. The order impugned was directed to be complied with within 45 days from the date of receipt of its copy, failing which, the amount of refund and compensation amount was to carry interest @18% per annum till actual payment.

2.       The facts, in brief, are that the respondent visited the office of appellant No.1 for collecting free holiday gift, when its DGM Vijay Chowdhary, allured him by stating that they are selling vocational holiday resort having resorts all over India and offered many facilities and benefits from the company and told that the cost of white house was Rs.1,25,000/-. It was also assured that the respondent would be given rebate of 45% on the aforesaid amount and the amount payable would be Rs.68,750/-. The respondent purchased the same but the appellants wrongly debited Rs.80,000/- through Credit Card and, thus, appellant No.1 fraudulently taken his signatures on Vocations Purchase Agreement where he was told that the same would come from the head office.  The respondent received the vocations purchase agreement and terms and conditions on 27.10.2013. However, nothing was mentioned in the agreement regarding the benefits and facilities agreed upon at the time of purchase of the vocations resort by appellant No.1. The respondent agitated the issue vide letters dated 18.11.2013, 26.12.2013 and 10.2.2014 with the appellants but to no effect. As per the respondent, at the time of purchase of vocational holiday resort, no terms and conditions were explained to him.
3.       On the other hand, the appellants, while denying the averments made in the complaint, stated that the respondent himself approached their representative and being satisfied with the terms and conditions of the membership opted by him, he agreed to pay the membership fee. It was stated that as mentioned in agreement, the membership was for Rs.80,000/-. It was further stated that no rebate was given to the complainant, as alleged. The appellants, however, admitted that their representative explained the benefits, as available in various plans, to the respondent. It was further stated that agreement, Annexure C-2, was entered between the parties, which was duly signed by the respondent after being fully satisfied and understanding the contents thereof. It was further stated that the respondent was not entitled for refund as the same was non-refundable as it was not a deposit. It was further stated that neither there was any deficiency, in rendering service, on the part of the appellants, nor did they indulge into unfair trade practice.
4.       We have heard the Counsel for the appellants/Opposite Parties, at the preliminary stage, and have gone through the evidence, and record of the case, carefully. 
5.       After giving our thoughtful consideration, to the contentions, raised by the appellants/Opposite Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter.
6. The first question, which falls for consideration, is, as to whether the respondent was allured by the appellants to purchase the holiday membership by presenting a rosy picture and assuring a number of promises. It is on record that a gift voucher under the caption “Congratulations. In being the Lucky Winner of Seven days accommodation” was offered by the appellants. The respondent in the opening para of his complaint has stated that he received a telephone call from the office of Country Club India Ltd., Chandigarh and was told that he was selected for a free holiday gift voucher. Undoubtedly, this gift voucher was an allurement and the respondent got duped and believing the version of the appellants and various promises made orally to be correct, the respondent signed the agreement. When the respondent received the agreement signed by the appellants on 27.10.2013, he realized that promises/benefits assured were not part of the agreement and immediately wrote letter dated 18.11.2013 to the appellants regarding the failure of mentioning the benefits and facilities in the agreement as promised at the time of selling the product. Again letters       dated 26.12.2013 and 10.02.2014 were sent by the respondent. It is, thus, clear that the respondent disputed the terms and conditions of the agreement within reasonable time. The agreement was signed by the appellants on 27.10.2013 and the letters disputing the terms and conditions were sent by the respondent on 18.11.2013, 26.12.2013 and 10.02.2014. The mere fact that the communications of the respondent were responded to vide appellants letter dated 24.5.2014, itself reveals that their conduct was not fair. If the appellants were so casual in responding to the communications of the respondent, one can well imagine the quality of service, which they were going to render. The fact that the respondent was promised other benefits and presented a rosy picture is corroborated from Paras 13 and 14 of reply to Legal Notice dated 24.5.2014, which are extracted hereunder:-

“13) In addition to above, the CCIL has a global gateway via Country Vacations, and RCI affiliation of 4000 resorts for its esteemed members. Still further CCIL is the country’s largest chain of Family Clubs, recognized by the Limca Book of World Records, and counts amongst its clientele, prominent citizens from all walks of life. In addition to individual members, they have approximately 600 Corporate Members, including renowned companies such as Microsoft, Satyam Computers, Brokke Bond Lipton (India), CMC Ltd. etc.

14)  That our client provide state-of-the-art Health Club, multi-cuisine restaurants, business centers, swimming pools and other facilities and are powerhouse of entertainment – organizing beauty pageants as well as varied events on the eve of Holi, Navarathri, Dussehara, Diwali, Christmas, Lohdi and New Year. The CCIL regularly invites celebrities, performing artists from Bollywood and entertainers, to attend the events and participate in the celebrations which clearly show about the effort of the CCIL to enhance their reputation and marketing efforts.”

Not only this, to wriggle out from the benefits told orally, Clause 24 has been incorporated in the Agreement, which reads as under:-

“24. SECOND PARTY understands that this Agreement (in the printed form ONLY) SUPERCEDES any communication whether written or oral or any variation or hand written remarks rewriting the printed Agreement made by the Agents and/or representatives  of  CCIL  or  SECOND

PARTY to this Agreement and/or any other written communication issued by CCIL representatives (including on Company Letter Head or STAMP PAPER). Further, SECOND PARTY understands that the benefits and terms of the vacations as set out in this Agreement are final and binding on CCIL, and SECOND PARTY.”

The incorporation of aforesaid clause reveals that the appellants, in fact, presented a rosy picture and assured certain benefits to the respondent, which were not stipulated in the Agreement. It is a fact that the respondent neither availed of the gift voucher nor any holiday and finding the terms of the agreement to be one sided, opted to choose for cancellation.

7. The next question, which falls for consideration, is, as to whether the respondent in such a situation is entitled to refund or not. No doubt, the first page of Vacations Purchase Agreement (Annexure C-2), stipulates that the vacation charges are non refundable under any circumstances the same being not a deposit. Nevertheless, such a clause is clearly unconscionable and unreasonable. In the instant case, the respondent immediately after receipt of the agreement, within a reasonable time expressed his intention not to continue with the agreement and requested for cancellation. Apparently, by offering gift voucher and in all probability some other benefits also, the appellants made the respondent to sign the agreement and he (respondent) apparently did so in good faith believing the version of the appellants to be correct. In our considered opinion, forfeiture of entire amount in the sum of Rs.80,000/-, when the respondent did not avail of gift voucher and any holiday package, is too harsh and unreasonable. It may be stated here that in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.01.2015, by the National Consumer Disputes Redressal Commission, New Delhi, as per the Agreement, 20% of the sale price of the premises was to collectively constitute the earnest money, which was to be forfeited, in case, the allottee made a default in payment of instalments(s) and asked for refund of the amount deposited. Such Clause came up for interpretation, before the National Commission, in the aforesaid case. The National Commission, ultimately, held that an Agreement having forfeiture Clause of more than 10% of the sale consideration, would be invalid, as it would be contrary to the established legal principle that only a reasonable amount could be forfeited, in the event of default on the part of the buyer. In the aforesaid case, the National Commission placed reliance on Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704, wherein the Hon’ble Supreme Court of India accepted the contention that in appropriate case, the Consumer Forum, without trenching upon acute disputed questions of fact, may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts. Similarly, as already discussed above, the clause in Vacations Purchase Agreement (Annexure C-2) stipulating non-refund of vacation charges in any circumstances, is unconscionable and unreasonable. On the basis of ratio  in DLF Ltd. Vs. Bhagwanti Narula’s case (supra), the appellants could at best forfeit 10% of Rs.80,000/- and ought to have refunded a sum of Rs.72,000/- but they did not do so and retained the money of the respondent for around two years. By not refunding the amount, the appellants were deficient in rendering service. The respondent was forced to file complaint before the Forum, by engaging a Counsel. He, thus, underwent immense mental agony and physical harassment. In these circumstances, the respondent is entitled to refund of the entire amount. We are also of the view that the Forum in Paras 12 and 13 of the impugned order rightly held as under:-

“12]……..In the present complaint too, the complainant claimed that he was allured and explained about the different terms, benefits and facilities, which were not part and parcel of the copy of the agreement received by him.  It seems that the complainant never get an opportunity to go through the terms & conditions of the said agreement while signing the same, being influenced by the allurements made by the representative of the OP-2 and only get an opportunity to read the same when the copy of the said agreement landed in the hands of the complainant on 27.10.2013.

13]      We are of the opinion that the complainant without any delay apprised OPs that the terms & conditions of the present agreement were not inconsonance with the initial proposal or invitations to offer made by the representative of the company. By not honouring the request of the complainant to cancel the contract and by not refunding the amount, the OPs are found to be deficient in rendering service and indulging into unfair trade practice.” 

Purchase price of Rs.80,000/- indicated in Annexure C-2 towards vacation short term accommodation apparently did not include any component of service tax. The contention of the appellants that the Forum did not appreciate that they (appellants) paid service tax @12.5% on the amount of Rs.80,000/- paid by the respondent, in the absence of any cogent evidence, is not tenable. The same is, therefore, rejected. No such objection was taken in the written statement. In view of the aforesaid, the Forum while allowing the complaint, rightly directed the appellants to refund Rs.80,000/- alongwith interest @9% per annum from the date of payment/agreement till its payment besides payment of Rs.10,000/- as compensation and Rs.7,000/- as litigation expenses.

8.       No other point, was urged, by the Counsel for the appellants.
9.       In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality, warranting the interference of this Commission.
10.       For the reasons recorded above, the appeal, being devoid of merit, is dismissed, at the preliminary stage, with no order as to costs. The order under challenge is upheld.
11.       Certified copies of this order, be sent to the parties, free of charge.
12.       The file be consigned to Record Room, after completion.

Pronounced.

November 18, 2015.

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

Sd/-

 [DEV RAJ]

MEMBER

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 [PADMA PANDEY]

 MEMBER