This is an application u/s.12 of the C.P. Act, 1986.
As understood during the course of discussion with their company’s representative Mr. Sukhendu Mondal (Manager), who came to my house, the membership fees was supposed to be paid in installments. Hence as advised by Mr. Sukhendu Mondal an amount of Rs. 70,000/- was paid to CCIL upfront and subsequently a credit card was swiped for amounts of Rs. 50,000/- Rs. 50,000/- Rs. 20,000/- and Rs. 5,000/- total being Rs. 1,95,000/- on the assurance that the total remaining amount of Rs. 1,25,000/- will be recovered in 18 installments. Surprisingly, ongoing through HDFC Bank statements it was found that CCIL is asking for full payment from February 2014, but could not recover, luckily, due to insufficient
balance. In the month of March, 2014 also they have repeated the same practice by trying to charge an amount which we could not understand how arrived.
My Banker, HDFC Bank also criticized the practice.
The matter was immediately brought to the notice of Mr. Sukhendu Mondal and he assured that the issue will be shorted out at the earliest on discussion with their Accounts Office. But nothing took place.
Important to note that even after writing about the issue to their customer care and their Executive Mr. Sukhendu Mondal, also personal visit to their Kolkata Office, not a single revert has come from their end and standing instruction was issued to my Banker not to honor any payment raised by CCIL towards recovery of Membership fees for the above mentioned Membership No.We sincerely tried to communicate and sort out the matter through a number of communication from our end in the form of e-mail and telephonic conversation, personal request on visiting their office but CCIL never got back to us with any resolution. HDFC Bank, Golpark Branch, also tried to resolve the issue of installment payments on my behalf but they also did not find any response from the club.
Lately, We wrote to Mr. Reddy, M.D. of the club with a hope that he will definitely resolve the issue, but he also never care to reply even.
Since then a consideration time has lapsed trying to sort out the payment related problem and because of this we could not avail any of the holidays that we were entitled to. The experience has been so bitter with CCIL from day one that we do not wish to continue with the said membership any longer.
I am enclosing copies of all mails sent and letters to the Managing Director of the Club.
It is therefore most respectfully prayed that, in view of the above fact, CCIL Kolkata should be advised to refund the amount of Rs. 70,000/- paid initially for the
said membership along with Rs. 12,420/- realised from my bank account during Feb and March 2014 to the undersigned at the earliest. I am a senior citizen of 72 years prayed for justice so that my hard earned money is not wasted.
Written Version of O.Ps.-1 & 2
The Opposite Parties stated that the Complainant claimed that one Ms. Sreemoyee Gupta is his daughter but neither the Opposite Parties had knowledge about the fact nor it transpired from any document that either he is the father of the said Ms. Sreemoyee Gupta or that he is authorised by the said Ms. Sreemoyee Gupta to file this instant case. It even did not appear from the Complaint that the Complainant was the beneficiary with respect to his relation with the said Ms. Sreemoyee Gupta. Thus, the Complainant had no locus-standi to file this instant case before this Ld. Forum.
The Opposite Parties stated that the Complainant had neither mentioned in his entire Complaint as to who he represented nor had produced any document before this Ld. Forum to establish his representative capacity.
The Complainant had not provided any copy of any Agreement and/ or Money Receipt in support of his case to establish any relationship with the Opposite Parties. Thus the Complainant had failed to establish any relationship with the Opposite Parties.
The Complainant had, in his Complaint and other documents, which are parts of therecord, claimed that one certain bank is a party to the instant matter but he had not arraigned the said Ms. Swapna Gupta as a party in the cause-title of the instant case. Thus this case again failed on the grounds of non-joinder of necessary parties.
The Complainant had taken shelter of innumerous lies in his petition of Complaint, wherein he stated in his petition of Complaint that an amount of Rs.
70,000/- was paid to the Opposite Parties, followed by payments amounting to Rs. 50,000/- Rs. 50,000/-, Rs. 20,000/- and Rs. 5,000/- (totaling to Rs. 1,95,000/-), made
through swiping of Credit Card and that the balance amount of Rs. 1,25,000/- was to be paid to the Opposite Parties through 18installments. The falsehood of the Complainant’s claim was negated by his own documents which is already a part of the record. Thus, when on the face of it itself, it is clear that the Complainant himself had taken shelter of a hoard of lies to file a false Complaint against anyone, such Complaint deserves to be summarily rejected and exemplary costs be imposed to curb such unholy practice and wastage of time of judicial process.
That the Opposite Party stated that the very fact that the Complainant had not produced and/or could not produce any Agreement and/ or Money Receipt to show that he had any relationship with the Complainant coupled with the fact that his statements made in the Complaint and those mentioned in the annexures belie each other is a neat and conclusive proof that the Complainant has filed this case against the Opposite Parties with crooked intentions and malafide.
That the Opposite Parties stated that the Complainant stated in his petition of Complaint that he paid an amount of Rs. 70,000/- was paid to the O.Ps. followed by payments amounting to Rs. 50,000/-, Rs. 50,000/- , Rs.20,000/- and Rs. 5,000/- (totaling to Rs.1,95,000/-) to the O.Ps. while in the same breathe he stated that payments made by him were dishonoured due to insufficiency of funds in his bank account. The O.Ps. craved leave to refer to the relevant position of law during the time of Hearing of this application.
That the O.Ps. stated that neither the Complainant nor anyone named in the Complaint had any relation with the O.Ps. that would render them as Consumers of the O.Ps.
That the definition of “Deficiency” as defined in section 2 (g) of the said Act does not cover the claims arising under the present dispute and that from the
aforesaid definitions, the Complaint is not ‘Consumer’ and the controversy involved in the Complaint is not a ‘Consumer’ and the controversy involved in the Complaint is not a ‘Consumer dispute’.
Points for Decision
1) Whether the Complaint is Maintainable;
2) Whether the Complainant is a Consumer under the O.Ps.
3) Whether the O.Ps. are deficient in rendering service to the Complainant;
4) Whether the complainant deserves relief.
Decision with Reasons
1) It is tobe noted at the outset that the O.Ps. repeatedly insisted on the point of non-maintainability of the Complaint. It is insisted on that the complainant does not have any relationship with O.Ps. and so, the Complainant is not a Consumer under the O.Ps.
2)It appears that the membership no. CCK3BGCLUB 30 LR66149 belongs to Sreemoyee Gupta. But the Complainant is Saktimoy Gupta. The Complainant stated at para 1 of the Complaint that the Said membership was a gift from him to his daughter Sreemoyee Gupta in the year 2013. But the Complainant could not file any document with respect to such gift. So, such statement does not carry any legal weight at all.
3) As the dispute relates to the said membership number belonging to Sreemoyee Gupta and as Sreemoyee Gupta did not authorise the Complainant to lodge this Complaint before this Forum as required under rules, the Complainant has no power to lodge this Complaint. The complainant has failed to establish his representative capacity and so has no locus-standi to file this Complaint. The Complainant also failed to substantiate with documents that the club membership card holder, Sreemoyee Gupta is his beneficiary.
4) From the copies of emails, it appears that various persons including the Complainant, and one Arnab Mukherjee, Swapna Gupta are involved in the Communication with the O.Ps. It also appeared from email dated 14 May, 2014 that four amounts, namely Rs. 5,000/-, 50,000/-, Rs. 50,000/- and Rs. 20,000/- were transacted on 10 April, 2014 from the HDFC bank credit card of Mrs. Swapna Gupta (Annexure 6) but in the mail dated 10 May, 2014 said Swapna Gupta wrote to the Manager, Customer Care in respect of her credit card no. 5289451200007249 that she swept card for 50,000/-, 50,000/-,20,000/- and Rs. 5,000/- on December, 2013.So, Sreemoyee Gupta having the club membership has no role to play in such payment. It appears from the whole episode beginning from the 2013 that the dispute does not relate to any deficiency in service for enjoying the club membership by the membership holder Smt. Sreemoyee Gupta. The dispute appears from the transaction (payment by various persons to the O.Ps.) and the efforts of the O.Ps. to draw the whole amount from the HDFC bank account of Swapna Gupta. All email communications were relating to the normalizationof the refund of the amount the O.Ps. tried to draw at a time without recourse to withdrawal through 18 installments. Five years of long time elapsed for settlement of refund of the amounts.
5) So, this is the case of monetary dispute and not a Consumer dispute. In this angle, the Complaint is not at all maintainable at this Forum.
6)The Complainant might have understood the loop-hole of his case and tried to make it up by way of enclosing a petition for addition of party as Complainant no. 2 by his daughter, Sreemoyee Gupta. The said petition signed by Sreemoyee Gupta was attached with the Brief Notes of Argument by the Complainant on 01.11.2018. The said petition for addition of party as Complainant no. 2, Sreemoyee Gupta under Order 1 Rule 10 of CPC read with section 151 of C.P. Code has been signed by said Sreemoyee Gupta and has no endorsement of the Complainant Saktimoy Gupta. The B.N.A. with which said petition was attached has also no mention of such petition for
addition of party. The Order sheet recording final Argument, bearing no. 22 dated 01.11.2018 has also no reference of the said petition. Sreemoyee Gupta the petitioner for addition of party has no legal power to file such petition. The petition for adding Sreemoyee Gupta as Complainant no. 2 could have been filed by the Complainant himself in proper time well ahead of the final argument. Ld. Advocate for the Complainant also did not agitate any point on such petition.
7)It appears from above discussion that the Complaint is not at all Maintainable in the present form at this Forum, the Complainant being not a consumer as defined under section 2 (1) (d) (ii) of the C.P. Act, 1986 and the dispute being not a Consumer dispute as defined under section 2 (1) (e) of the said Act. So, there is no question of deficiency of service on the part of the O.Ps.as per section 2 (1) (e) read with section 2 (1) (o) the Act is concerned.
8) The dispute of Rs. 70,000/-alleged to be due to the Complainant and his kins by the O.Ps. may be resolved at the appropriate court of law or through mutual settlement, as was reported to have been going on and time was prayed for proposed settlement by the parties.
In the Circumstances of above analytical discussions, we are inclined to pass
ORDER
That the complaint be and the same is dismissed on Contest being not Maintainable, in terms of section 13 (2)(b)(i) of the C.P.Act, 1986;
That the Complainant will be atliberty to raise his grievance on Rs. 70,000/- at the appropriate court of law or elsewhere, as discussed at Para 8 of above analysis, if he so desires;
No Order as to costs;
Let copy of the judgement be handed over to the parties when applied for.
