STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

Country Club (India) Ltd. SCO No.44-45, Sector 9D, Chandigarh.

                                                                                      …Appellant

                                         V e r s u s

Sanjana Kaundal wife of Sh. Suresh  Kant, R/o #704, Top Floor, Phase X, Mohali.

                                                                           ...Respondent

 Appeal under Section 15 of the Consumer Protection          Act, 1986 against   order dated 29.09.2016 passed by                   District   Consumer Disputes Redressal Forum-II,               U.T.Chandigarh in Consumer Complaint No.448/2015..

Argued by:    Mr.Pardeep Sharma, Advocate for the appellant.

                       Mr.H.P.S.Ghuman,Advocate for the respondent.

 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.                                                    MR.DEV RAJ, MEMBER

                   MRS. PADMA PANDEY, MEMBER

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                   Appellant/Opposite Party has filed this appeal against order dated 29.9.2016 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘the Forum’ only), allowing a complaint filed by respondent/complainant.

 2.            Before the Forum, it was case of the complainant  that OP by giving a call on her husband’s mobile phone called them to their office stating that their mobile number had worn a prize. They were asked to collect it.  When they reached in the office of OP, no such prize was available, rather they were allured to sign a holiday package scheme for 10 years on payment of an amount of 70,000/- plus Rs.2100/- . They were promised that they can enjoy vacation facilities in resorts of the appellant for a specific number of days and also can enjoy many other facilities.  It was specifically stated that thereafter one application was got signed on 20.8.2013. It was grievance of the complainant that  as promised, blue season membership cards  were not supplied to them. It is further stated that at the time when they were allured to sign the agreement, she was told that  the appellant owned a club at Zirakpur. If any customer organizes a function therein, only electricity charges will be claimed by the appellant.  However, no such club was existed there.  In the last week of December,2013, when they  approached OP to book a trip to Goa, they were refused by stating that during that period, facility was not available.  Fed up with the behavior of the appellant, she wrote a letter seeking refund of the amount paid. When nothing was done, she filed a consumer complaint. 

3.            Upon notice, reply was filed by the appellant/Opposite Party . It was stated that the complainant visited its office at her own. No telephone  call was made to her. She was satisfied with the scheme and purchased vacation membership for 10 years by signing an agreement. It was further stated that there was no necessity to issue any membership card, as alleged. It was further stated that non-issue of Identity card will not be going to effect the right of a customer to enjoy vacations. It was also denied that the complainant approached the appellant for booking in the month of Decemdber,2013 and she was refused booking, as alleged. It was further stated that as per terms and conditions of the agreement, the amount cannot be refunded. 

4.          Both parties led evidence. The Forum, on analysis of pleadings of the parties, evidence on record, and the arguments addressed, allowed the complaint on 29.9.2016, by observing as under;

“It is well proved on record that the complainant acquired the 10 years membership worth Rs.70,000/- from the OP whereby she was eligible  to avail 6 nights 7 days vacations  every year for 10 years in blue season. It is proved on record that the complainant was not issued separate membership cards as is agreed in the Annexure C-4, which reads as under:-

“8. Dependent children TILL THEY ATTAIN AGE OF 25 YEARS and the spouse are, also entitled for issue of photo laminated membership cards when they furnished signed membership cards alongwith with two photographs each. In case of dependent children date of Birth Certificate are also to be produced.”

 The OP has not denied submission of this form (Annexure C-4) to the OP whereby the complainant provided the photos of her family members with the requisite details to the OP in order to get the individual membership cards which in factwere not issued by the OPs.. For the act of Non-issuance of the individual cards, it can safely be presumed that the complainant might not have availed the benefit of facilities of the club and might not have been allowed to enter the premises of the OP club to enjoy the facilities of the club as alleged  which would had also caused a lot of harassment to the complainant. Hence, non-issuance of the individual cards amounts to deficiency in service on the part of the OP.

         The claim of the complainant that while she tried to avail the vacation facility under the membership purchased by her from the OP in the month of December, 2013, the OP refused to accommodate her stating that from 24th December to 3rd January are blocked out dates. Though the complainant has not placed on record any document to prove the same but this submission cannot out rightly be rejected in view of the fact that till date the complainant had failed to avail any of the services of the OP and no membership benefit till date has been availed by the complainant.

   According to the complainant, the OP did not refund the amount deposited by her despite repeated requests. It is claimed by the  OP that the said amount is not refundable as per the Vacation Purchase Agreement signed between the parties. We do not agree with this contention of the OP being unreasonable and illegal in the eyes of law. It has been clearly held by our Hon’ble State Commission in case titled as Country Club India Ltd. and anr. Vs. Gurumukh Singh decided on 18.11.2015 that forfeiture of more than 10% of the amount is invalid and unreasonable the relevant portion of the order is as under:-

“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.

      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.” 

    The principle of law laid down in the aforesaid case squarely covers the facts and circumstances of the instant case. Hence, we hold that the OP cannot forfeit the entire amount of the complainant and it can at the most forfeit 10% of the same. Hence, the OP is held liable for rendering deficient service to the complainant and thus it is liable to refund the amount of the complainant after deducting 10% out of the same.  

                     5.                      Counsel for the appellant has vehemently contended that terms and conditions of the agreement dated 19.8.2013 are binding upon the parties and there was no promise to provide any identity card.   It was further argued that at no point of time any booking was refused to the complainant, as alleged. It was only said that during the month of December, as per terms and conditions, booking was not permissible.

                                 We have gone through the documents available on record.   The agreement was got signed on 19.8.2013.  Its terms and conditions are mentioned in a very fine and small print  which are even difficult to read, which would amount to adopting of unfair trade practice.  It is so  held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi,  in Tata Chemicals Ltd. Vs Skypak Couriers Pvt. Ltd. II(2002)CPJ 24(NC) and then in Blaze Flash Couriers Pvt. Ltd. Vs Rohit J Poladiya & anr 1(2008)CPJ452(NC).

                    6.                   Not only as above, contention of the complainant that she was allured to sign the agreement appears to be correct.  Signing of application for membership of the complainant is not controverted and instructions contained therein are virtually admitted by the OP. The said application was supplied by the OP/appellant for signing. When we read instructions given therein it becomes apparently clear that issuance of identity card was committed. Furthermore, the complainant and her family members put on record of the appellant/OP their photographs and specimen signatures. At this stage, it does not lie in the mouth of the OP that there was no necessity to issue identity card. In view of the above, no case is made out to interfere in the order, under challenge.

7.               For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District  Forum is upheld.

8                Certified copies of this order, be sent to the parties, free of charge.

9.           The file be consigned to Record Room, after completion.

Pronounced.

  23.03.2017