Sri Shyamal Gupta, Member

Challenge under this Appeal is the Order dated 20-09-2016, passed by the Ld. District Forum, Kolkata-II (Central) in CC/160/2016, whereof the complaint case has been allowed.

Case of the Complainant, in short, as stated in the petition of complaint, is that, Complainant took the Membership of OP club  by paying a sum of Rs. 35,000/-.  Although he was assured of various privileges at the time of signing the agreement, he was at his wit’s end to find that such promises were mere rhetoric.  Out of disguise, he sent a complaint letter to the OP, but in vain.  Therefore, the complaint case was filed.

In its WV, the OP stated that the Complainant was required to pay annual administrative charge to keep the membership valid which however was not paid by the Complainant from the year 2012 onwards.  It was also submitted that the complaint case was barred by limitation.  Further, in terms of the agreement executed between the parties, Membership fee was non-refundable.  The OP also submitted that it never made any such promise to provide any kind of club facility at Kasba.  In terms of the welcome letter, the Complainant was entitled to enjoy facilities, viz., Holidays 6 nights 7 days for 5 years, Season : Blue (45-60) days advance, Room type: Studio.  Save and except that facilities, no other facilities had been promised by the OP to the Complainant.  In order to get the facilities, as claimed by the Complainant, he was required to opt for Blue Season Membership at a cost of Rs. 1,10,000/-.  The photocopy of the proposal letter was forwarded to the Complainant to avail Zing Membership.  However, the Complainant agreed to pay only the sum of Rs. 35,000/- for his membership.  On payment of the sum of Rs. 35,000/-, it was futile on his part to expect the facilities that entailed payment of Rs. 1,10,000/-.

Decision with reasons

We have heard the parties and gone through the documents on record.   

On a reference to the impugned order, it is observed that the maintainability aspects, as pointed out by the Appellant, has been quite judiciously discussed by the Ld. District Forum to which we are fully in agreement.  We, therefore, refrain from discussing this issue in this Appeal. 

It is a fact that the Appellant initially approached the Respondent for availing of Zing Membership  at a cost of Rs. 1,00,000/-.  However, the Respondent paid only a sum of Rs. 35,000/- as Membership fee. 

That said, it transpires from the photocopy of agreement on record that there were basically 6 types of schemes  - (1) Rs. 56,667/- (2) Rs. 60,000/- (3) Rs. 63,334/- (4) Rs. 66,667/- (5) Rs. 70,000/- and (6) Rs. 72,334/-.  There was no official scheme for Rs. 35,000/-.  Evidently, the same was manually incorporated following intense negotiation between club officials and the Respondent.

Notwithstanding it is claimed by the Appellant that the Zing Membership was available subject to payment of Rs. 1,10,000/-, it is manifested from the subject agreement itself that the Respondent purchased Zing Membership of the Appellant Club (Cause No. 1). There is ample reason to believe that said Zing membership was accorded to the Respondent based on the verbal discussion held between the officials of the Appellant and Respondent.  Also, in terms of Clause 3 of the agreement, Respondent was entitled to have due access to all Zing properties in India. 

Thus, there will hardly be any taker of Appellant’s contention that the Respondent was not entitled to the facilities of Zing membership. 

It appears that the Ld. District Forum has quite effectively dealt with Appellant’s contention about non-refundable aspect of the membership fee.  Therefore, hardly any purpose will be served to reiterate the view here. 

Against this backdrop, in our considered opinion, by allowing the complaint case, the Ld. District Forum committed no incongruity.  However, in the given facts and circumstances of the case, we are inclined to relieve the Appellant from the liability of payment of penal damage, as ordered by the Ld. District Forum.

Hence,

O R D E R E D

The Appeal stands allowed on contest in part.  The impugned order is modified to the extent that the Appellant need not pay any penal damage.  Rest of the impugned order shall remain unaltered.