BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.178 of 2016

      Date of Instt. 20.04.2016

      Date of Decision: 21.10.2019

Sh. Salwinder Singh son of Sh. Waryam Singh, resident of House No.2, Dhiman Nagar, Kapurthala Road, Jalandhar.

..........Complainant

Versus

M/s Club Cabana, Cabbana Orchid, Village Saprod, Phagwara- Jalandhar Highway, Phagwara, District Kapurthala, having its registered office at Central Mills, Old Railway Road, Jalandhar, through Sh. Manoj Chodha, Managing Director.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. P. M. S. Narang, Adv Counsel for the Complainant.

Sh. Umesh Dhingra, Adv Counsel for the OP.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant, wherein alleged that the complainant got membership of the OP on 31.05.2007, vide application form No.304 and paid the membership fees of Rs.1,25,800/-, vide receipt No.1482 dated 30.05.2007 for Rs.10,000/-, receipt No.1216 dated 04.07.2007 for Rs.32,000/- receipt No.1448 dated 11.08.2007 for Rs.33,000/-, receipt No.1070 dated 23.07.2007 for amount of Rs.25,000/-, receipt No.1110 dated 26.11.2007 for an amount of Rs.25,000/-. At the time of selling membership to the complainant, the OP had lured the complainant that he will enjoy the facilities like swimming pool, gymnasium, steam & sauna bath and many other sports facilities like lawn tennis, badminton, squash, golf etc. and all these facilities can be enjoyed by the complainant and his family members. Many other facilities like restaurant and guest room were also promised. It was further promised that the facilities will be available to only the persons, who get the membership of the club and all the facilities shall be exclusively for the members of the club and non members shall not be allowed to avail the facilities of the club. However, the said facilities can be availed by the members on the payment of charges as applicable to the said facility and fixed by the club. On the allurement of the OP and keeping in view of facilities offered, the complainant became interested in getting membership and become member of the club of OP by paying Rs.1,25,000/- as membership fees. Further, while giving the membership the OP also levied the monthly subscription charges to the members which was renewed, vide letter dated 15.03.2013 of OP and as per the said letter, the monthly subscription charges have been enhanced to Rs.999/- plus taxes applicable, meaning thereby that the life member has to pay Rs.12,000/- plus taxes per year to the club as monthly subscription charges.

2.                That now the OP has started giving all the above said facilities to the non members, by charging the fee of the said facility as is charged from the life members of the club, who became members of the club by paying hefty amount of Rs.1,25,000/-. The club has not made any difference between the club members and non members for giving the facilities, so there is no question of becoming the member of club by paying hefty amount to the club to the tune of Rs.1,25,000/-. The OP has started selling annual membership to non members for amount of Rs.8000/- annually for availing the facilities and the life members are paying Rs.12,000/- plus taxes in the shape of monthly subscription charges for availing the above said facilities. The complainant also served a legal notice dated 21.09.2015 through his counsel on the OP, but the same was replied by the OP through their counsel taking false and flimsy grounds. The act of the OP has caused mental agony, tension and harassment to the complainant and OP has also illegally retained the amount of membership of the complainant as OP have started giving facilities to non members and as such, cause of action accrued to the complainant to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to reimburse the membership fee of Rs.1,25,000/- along with interest @ 18% per annum and be also directed to pay Rs.50,000/- as damages for mental agony, harassment, deficiency in service  and unfair trade practice and further, OP be directed to pay Rs.10,000/- as litigation expenses.

3.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable under the law. The complaint does not come under the preview of the complaint under Consumer Protection Act, as such, the present complaint is liable to be dismissed. It is further alleged that the complaint has been filed against wrong person. In fact, the answering OP is a company incorporated under the Companies Act and no complaint lies against any other entity in place of an Incorporated Company. It is further averred that the present complaint is misconceived, vexatious, frivolous, false and is based upon concealment of true and correct facts, as such, the present complaint is liable to be dismissed. It is further alleged that the present complaint has been wrongly filed at Jalandhar, where no cause of action has arisen, as such this Forum has no jurisdiction to entertain the present complaint. On merits, it is admitted that the complainant obtained the  membership of the club, but the complainant did not make the payment as alleged in Para No.1 of the complaint rather the complainant maneuvered and fabricated the alleged receipts as rebate receipts in order to show the payment of full amount of the membership and further submitted that in fact the facilities of the club can be availed by the visitor also staying in the hotel of the club but i.e. subject to payment of the facilities so availed. However, the discounts provided to the member for availing the facilities of restaurant etc. are not applicable to the non-members and the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

4.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-12 and then closed the evidence.

5.                Similarly, counsel for the OP tendered into evidence affidavit Ex.OP/A alongwith documents Ex.OP-1 and Ex.OP-2 and then closed the evidence.

6.                We bestowed our thoughtful consideration to the argument put forth by the learned counsel for the respective parties and also scanned the case file very minutely with their able assistance.

7.                After considering the over all circumstances as put before us by both the parties through their respective pleadings, we find and revealed that taking of membership of the Club by the complainant by submitting an application No.304 dated 31.05.2007, is not in dispute rather the allegations of the complainant is refuted by the OP that the complainant has not paid the entire membership fee i.e. Rs.1,25,000/- and as such, there is no negligence and deficiency on the part of the OP.

8.                We have considered this aspect of the OP that the membership fee has been paid by the complainant or not and accordingly, we have to glance the all receipts placed on the file by the complainant i.e. Ex.C-2 to Ex.C-6, whereby the complainant alleged that he make the payment of entire membership fee Rs.1,25,000/-. The first receipt Ex.C-2 itself speaks that the amount deposited through this receipt i.e. Rs.10,000/- is acknowledged as membership fee and this fact is very much mentioned in this receipt. Further, receipts Ex.C-3 to Ex.C-6 itself speaks that the amount deposited through these receipts are against ‘Rebate Offer’ and no where in these receipts have been mentioned that the amount deposited as membership fee as detailed/described in first receipt Ex.C-2. So, the version of the complainant that he has deposited the entire fee of membership is itself falsified from his own documents and if the complainant has not deposited the entire fee of the membership, then he cannot be considered to become a member of the Club, if so, then he is not entitled to get the services from the OP and accordingly, his case does not fall under the preview of Consumer Protection Act and therefore, we find no merits in the case of the complainant and accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

9.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

21.10.2019                                        Member                          President