For the complainant                           - Kalpana Bose, Advocate

For the OPs                                       -Sumeet Choudhury, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT           :  

This is an application u/s.12 of the C.P. Act, 1986.

The case of the complainants, in brief; is that they are the members of Country Club of India Ltd. since 22.06.2010 under Membership No. DT1/126/0039 on payment of Rs. 1 lac.  Complainant-2 received a call from Mobile No. 9189678991 and informed that he has been selected for foreign trip for 06 days and 07 night. Complainants had been to the City Centre, New town Kolkata where Mr. Nadim representative of OP-2 insisted them for different type of the membership of club of  30 years  against payment of Rs. 1,10,000/- and Rs. 2 lac for upgradation of membership with offer to get a plot of land. Complainants were compelled to put their respective signatures on different stamp papers against payment of Rs. 3,10,000/- for upgradation of membership and allotment of plot of land. The description of the plot of land was not mentioned in the Memorandum of Agreement. The OPs further demanded huge money for registration of the plot. The activities of the OPs is unfair manner. The OPs cheated the complainants by taking advantage of their old age. Legal notice was duly served upon the OPs but such notice was unattended. The OPs have failed to fulfill their services as promised. Complainants has alleged gross deficiency in services and unfair trade practice and on the part of the OPs. Hence, the consumer complaint.

The OPs have contested the case by filing Written Version contending inter alia, that the instant complaint is vindictive, motivated, harassive and misconceived one. The OPs have denied the allegations made out in the complaint petition. The specific case of the OPs is that the complainants are not consumers under the CP Act, 1986 and complainant -1 at her own will requested the OPs to provide another membership. Upon the constant insistences of  the complainant No.1 the OPs provided a fresh membership  in respect of Holiday and Club Membership to the complainants vide Agreement dated 19.01.2017. There was no agreement between the parties in respect of allotment of any plot of land in favour of the complainants as the OPs are not carrying on business of real estate. Legal notice of the complainants was duly replied. The OPs also denied that there is any deficiency in service and unfair trade practice on their part. Accordingly, the OPs have prayed for dismissal of the complaint with cost.

In the light of the above pleadings, the following points necessarily come up for determination:

1)         Are the complainants consumer U/s 2 (1) (d) (ii) of the CP Act, 1986?

2)         Have the OPs deficient in rendering services to the complainants?

3)         Have the OPs indulged in unfair trade practice?

4)         Are the complainants entitled to get any relief or reliefs as prayed for?

Decision with Reasons

Point No. 1:

            We have perused the pleadings of the parties including the evidence as well as documents on record. On perusal of the Purchase Agreement dated 19.01.2017, we find that the complainants purchased Country Vacation Holiday Club against payment of Rs.2,30,000/- and the said agreement is in force for 30 years.Therefore, we hold that the complainants are the consumers U/s 2(1) (d) (ii) of the CP Act,1986 and also availed /hired services from the OPs on payment of money. Thus, this point answered in the affirmative.

Point Nos. 2 to 4:

            These three points are taken up together for the sake of convenience and brevity in discussion.

            We have perused the evidence as well as documents on record.

            Fact remains that the complainants are the Member of Country Club of India Ltd. since 22.06.2010 against Membership No. DT1/126/0039 against on payment of Rs. 1 lac. It is also true that on 19.01.2017 a fresh Purchase Agreement was executed between the parties and the said agreement is inforce for 30 years. In terms of the Purchase Agreement dated 19.01.2017 complainants paid Rs. 2,30,000/- to the OPs and existing membership was upgraded against execution of Memorandum of Understanding. The allegation of the complainants is that they were forced to put their signatures in purchase agreement and Memorandum of Understanding against payment of Rs. 2,10,000/-. The OPs agreed to transfer right, title and interest of area of land measuring about 150 sq. yards without mentioning description of plot of land in the Memo of Undertaking. Non mentioning the Plot No. and its full description in the Memorandum of Undertaking is obviously an unfair trade practice on the part of the OPs. The allegation of the complainants is that taking advantage of their old age, the representative of the OP-2 took their signatures on different stamp papers without explaining the contents of the Purchase Agreement and Memorandum of Understanding.

            In this context, we want to mention one ruling of Competition Commission of India, in case of Haryana Urban Development Authority, Dept. of Town and Country Planning, State of Haryana and DLF Ltd. who are OPs whereas Belaire Owners’ Association are the complainant and in that judgment being No.19 of 2010 Competition Commission of India has already decided that if in any agreement anyone signs but agreement clauses are unilateral one in of the printed form supplied by the service provider is such a clause is dominating to the purchaser in that case there must be an application and in the application what benefit the customer shall have to get on deposit of the amount shall be specifically mentioned so, chance shall be given to the purchaser to realize what is written in the book in printed form.  It is also observed by that judgment that all the companies have decided and reserved so many excuses for grabbing the entire amount as non-refundable amount etc. so, sole discretion are of the company but regarding agreement the notable execution is here and there must be proved  and if any clauses are there which is abusive one side and shown as dominance of Company in that case such a clause cannot be binding upon the customers because an agreement must be equitable in dealing with both the sides.  Moreover, in the present case the terms of agreement to be entered into with the purchaser were never shown to the complainants at the time of deposit of the said amount and the terms and conditions of the agreement was prepared and framed by the company unilaterally without giving the buyer a chance to realize and as a result, the company has already received the considerable amount from the buyer then invariably agreement was forced upon the complainants and complainants had no option but to sign the agreement when complainants found that there was scope for getting such resort etc. for tour.  Competition Commission of India by that judgment pointed out that  proper procedure ought to have been  followed in any such agreement what OP proposed to sell to the buyers complaint should have been made to known at  the time of inviting such sale of the products of the Company and any agreement should be signed in the reasonable date of such advertisement and if the entire agreement copy would be supplied to the complainant to realize the content of the agreement in that case the purchase ought to have get such chance about the bad sides and unilateral fact as imposed by the OP regarding forfeiture of entire amount/ and if complainant would get such chance he may not be agreeable to the terms of agreement and should have his right not to sign but all such scope was not there because on that date the signature was taken in the printed form of the OP giving no chance to realise what would be the fate in the future. 

            In the above circumstances, Competition Commission of India rejected all unilateral clauses in the said agreement to sell in between the parties and fact remains by that judgment the agreement of purchase was modified by the Commission of India on the ground that the agreement form printed by the Company is unilateral one so modified all unilateral clause which has affected the interest of the purchaser and this judgment was also confirmed by the Supreme Court in appeal.  If that judgment would be read by the Fora invariably such a casual order must not be passed.  We have gathered that many orders are being passed without considering the judgment of the different trade practices and different ruling already published in several Ruling books.  In this regard it is to be mentioned that judgment of Competition Commission of India regarding agreement is binding upon the Fora.  So, the order as passed by the Fora and submitted before this Forum is found violating judgement of Competition Commission of India.  We have gathered that there is no legal friction no determination of legal friction in the produced order as if a casual order is passed as because there is an agreement but that is not the provision of law moreover Supreme Court has also passed such judgment. In the present case there is no material to show that application was filed by the complainant  and no such document was supplied to the complainant to realize what would be fate of Purchaser of that product but printed form is there which in unilateral authorization but Contract must not be unilateral  and a person who has signed in the contract he must be given a chance to realize what is written in a such printed form submitted by the company.  Another factor is that it is a product of the OP Company which was being sold and that product is called membership but it is not association or club and it is not an association under society registration act but that matter also not considered by Fora and all the legal friction and principle are not decided Fora but matter should be looked into for proper justice but Casual order is passed in a bureaucratic manner but legal knowledge shall be there to decide but in some of the cases legal knowledge is absent and bureaucratic order is being passed.  So, the copy of the order FA No. A/298 of 2015 is found not applicable rather the judgement of Competition Commission of India which is confirmed by the Hon’ble Supreme Court is the guideline principle regarding such sort of agreement.  Considering all the above facts and circumstances, we find that the agreement which is produced by the OP is unilateral one no copy of application was produced by the OP to show that complainant initially submitted that application and in the application the conditions  are duly ventilated to printed realize by the buyers  but in the present case it is proved that OP adopted an unfair practice and OP abused his dominant position violating the provision of Section 4 of the Competition Act also and OP managed to sign a highly abusive buyers agreement and this Forum also find that the clause of the agreement also biased in favour of the OP.  So, we conclude that the conduct of the OP is unfair in view of the Section 4 of the Competition Act also and OP is a domain enterprise and amended to abuse of dominance.

            In the light of the above observation, we are convinced to hold that no doubt OPs adopted unfair trade practice and managed to upgraded the Purchase Agreement and Memo of Undertaking allured to allot a plot of land measuring about 150 sq. yard without mentioning the description of the plot of land. The OPs grabbed money without giving any scope to realize fate of deposit.  The OPs as a service provider cannot grab any money entirely, if the purchaser without any full knowledge purchase it and has not obtained the plot of land.

  Whatever it may be in the light of the above observations, we are convinced to hold that the complainants are entitled to get back the entire amount subject to deduction of 10 percent as service charge but not more than that. In the above facts and circumstances, there is sufficient ground to allow the complaint with cost and compensation by passing such order to refund the entire deposited amount after deducting 10 percent as service charge.

In the result, the case succeeds in part.

Hence,

Ordered

That the complaint case be and the same is allowed in part on contest against the OPs with a cost of Rs.5,000/- (Rupees five thousand) only.

            OPs are directed to refund Rs. 2,10,000/- (Rupees two lacs ten thousand) only after deducting 10 percent as service charges and shall have to pay Rs. 10,000/- (Rupees ten thousand) only as  compensation for adopting unfair trade practice in entering into such Purchase Agreement, Memo of Undertaking  and also for causing mental pain and agony.  OPs are also directed to pay the decretal amount along with compensation and litigation cost to the complainants within 45 days from the date of this order failing which the complainants shall be entitled to seek execution of this order in accordance with law.