Chandigarh

StateCommission

A/104/2015

Neelakshi Chopra - Complainant(s)

Versus

Sterling Holiday Resorts (India) Ltd. - Opp.Party(s)

Inderpreet Singh, Adv.

19 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	104 of 2015
Date of Institution	:	14.05.2015
Date of Decision	:	19.05.2015

 

 

Neelakshi Chopra wife of Shri P.K. Chopra resident of H.No.92, Sector 11A, Chandigarh.

……Appellant/Complainant

Versus

1. Sterling Holiday Resorts (India) Ltd., S.C.O. 186-187, Sector 8, Chandigarh through the Branch Manager.
2. Sterling Holiday Resorts (India) Ltd., 163, TTK Road, Alwarpet, Chennai 600018, through the Managing Director, hereinafter called the “company”.

(Address of service of notice)

Presently Sterling Holiday Resorts (India) Limited, City Tower No.7, 3rd Cross Street, Kasturba Nagar, (Near Nalli Silks), Adyar, Chennai 600020.

 

                    ....Respondents/Opposite Parties

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by:

 

Sh. Inderpreet Singh, Advocate for the appellant.

                  

PER DEV RAJ, MEMBER

            This appeal is directed against the order dated 30.01.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint filed by the complainant (now appellant) and directed the respondents (now respondents), jointly and severally, as under:-

“20. For the reasons recorded above, we find merit in the complaint and same is partly allowed. The OPs are jointly and severally directed as under :-

(i)   To make payment of an amount of Rs.30,000/- as       compensation to the complainant for deficiency in       service and causing physical and mental       harassment to her.

(ii)  To pay Rs.10,000/- to the complainant towards       litigation expenses.

21.  This order shall be complied with by the OPs within one month from the date of receipt of its certified copy; thereafter, the OPs shall pay the amount at Sr.No.(i) above with interest @ 12% per annum from the date of filing of the complaint till realization, besides complying with direction at Sr.No.(ii) above.”

2.         The facts, in brief, are that after going through the advertisement and brochure (Annexures A & B) of the Opposite Parties, the complainant purchased a time share in Sterling Aldeia Branca at Benaulim Beach, Goa.  It was stated that the time share was for the premium “Red Week” 29 December to 4th January.  It was further stated that the time share was sold to the complainant by the Opposite Parties with the promise and assurance that she would get a beach holiday of 7 days at Goa in their resort Sterling Aldeia Branca, at Benaulim Beach on every new year eve for 99 years from 1996 to 2096. It was further stated that on receipt of full payment, membership certificate (Annexure D) was issued to the complainant, which constituted a legally binding agreement between the complainant and the Opposite Parties.  It was further stated that as per the said Agreement, the complainant was entitled to get Holiday Time Share, which consisted of regular apartment, with accommodation for four adults.  It was further stated that the Opposite Parties assured that the said resort was ready in all respects with lavish facilities, as mentioned in the brochure. It was further stated that the complainant had not been given the promised accommodation by the Opposite Parties, in the said resort, for a single week, since 1996 till date, on the pretext that the same was not available. It was further stated that the complainant was given accommodation at Beach Resort at Vagator, Goa, till 2005-06 but the facilities in the said resort were somewhat equivalent to those promised by the Opposite Parties.  

3.         It was further stated that thereafter the complainant did not ask for accommodation at Vagator, Goa until 2012 as the Company stopped offering accommodation at the beach resort at Vagator and was instead offering accommodation at an inferior Hotel, Mella Rosa, which was far away from the beach. It was further stated that on 29.9.2008, the Company had informed the complainant that accommodation was only being offered at two places ‘Sunshine Royal’ and ‘Fantasy Resort’ both of which were over 3/4 kms. from the beach and without cooking facilities.  It was further stated that as per Para 2.2.4 of the Certificate of membership, on 1.10.2012, the entitlement of the complainant was for three holiday weeks of the years 2010, 2011 and 2012. It was further stated that vide email dated 28.9.2012 (Annexure G), the complainant requested the Opposite Parties for three rooms for 52nd week at Aldeia Branca but they issued accommodation voucher for Camphor Resort at Porvorim, Goa, which was not a beach resort.  It was further stated that, in addition, the accommodation offered did not have any cooking facilities and the Company specified Rs.1,150/- per room per day as utility charges, Rs.50/- as voucher charges and Rs.1,000/- towards guest charges in violation of the entitlement agreement dated 25.10.1996.

4.         It was further stated that accordingly, the complainant vide letter dated 30.11.2012 (Annexure I) informed the Opposite Parties, that the offer was not acceptable to her.  It was further stated that in reply to the same, the Opposite Parties, vide letter dated 27.12.2012 (Annexure L) intimated the complainant that due to various reasons, beyond their control, the resort at Benaulim had not been constructed and the accommodation provided at Camphor resort was 5KM from the beach. It was further stated that the complainant was also informed vide the said letter that the utility charges of Rs.1,150/- per day per room, were reasonable.  It was further stated that the complainant was promised a great free holiday experience, at a well equipped beach resort, but even after 15 years, the Company had failed in its promise. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

5.         When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to pay Rs.1,00,600/- as compensation as detailed in Para 16  of the complaint alongwith interest @15% per annum from the date of filing the application till the date of payment; provide equivalent accommodation or pay charges in future as per Para 17 of the complaint until Aldeia Branca was constructed.  

6.         The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that the District Forum had no territorial jurisdiction to entertain the complaint, as no cause of action had arisen at Chandigarh; that the complaint was time barred; and that the complaint was bad for non-joinder of necessary parties etc.  

7.         On merits, it was admitted that the complainant purchased a time share in Sterling Aldeia Branca at Benaulim Beach, Goa. It was denied that the advertisement promised holidays for 99 years.  It was stated that availing of holidays was subject to fulfillment of certain terms and conditions. It was further stated that mere purchasing of the membership did not guarantee the holidays and rather the same was subject to booking/advance reservation in the desired resort of the Opposite Parties and other applicable terms and conditions.  It was admitted that on receipt of full payment a certificate of membership was issued to the complainant on 25.10.1996 for the period expiring in 2096. It was further stated that since the construction of the resort could not be completed due to the reasons beyond their control, the Opposite Parties, provided equivalent accommodation at Vagator, in accordance with the terms and conditions. It was further stated that the complainant was always provided accommodation whenever the request was made by her.  It was further stated that the complainant accepted and availed of holidays without protest and, therefore, was estopped from raising any grievance. It was further stated that the members/guests were liable to pay the utility charges as per Clause 3.3 of the membership Rules and all other charges are levied as per Rules.   It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

8.         The complainant filed replication, wherein, she reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

9.         The parties led evidence, in support of their case.

10.       After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum partly allowed the complaint, as stated above, in the opening para of the instant order. 

11.       Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

12.       We have heard the Counsel for the appellant/complainant, and have gone through the evidence, and record of the case, carefully. 

13.       We have heard the Counsel for the appellant/complainant, at the preliminary stage, and have gone through the evidence, and record of the case, carefully. 

14.       The Counsel for the appellant/complainant submitted that the District Forum failed to appreciate the fact that the respondents/Opposite Parties had sold a time share of a particular resort named Sterling Aldeia Branca at Benaulim Beanch, Goa for a specific period and non-availability of the resort facilities to the appellant/complainant constituted deficiency, in rendering service on the part of the respondents/Opposite Parties. He further submitted that full payment had already been made for holidays at Sterling Aldeia Branca for next 99 years in advance but facilities of the same were never provided. He further submitted  that the respondents/Opposite Parties, for the first time, informed vide letter dated 27.12.2012 that due to various reasons beyond their control, the resort at Benaulim beach had not been constructed. He further submitted that the appellant/complainant had prayed that the respondents/Opposite Parties be directed to provide equivalent accommodation as per Clause 4.1 of Annexure-D i.e. for four persons at a beach resort with cooking facilities for their specified period or in the alternative to remit the amount charged but the District Forum did not acknowledge or grant the most essential prayer of the appellant as per Clause 4.1 above. He further submitted that the District Forum gravely erred by holding that the appellant/complainant was bound to pay the utility charges as per Clause 3.3(d) of the agreement, whereas, the appellant/complainant in the complaint had specifically challenged that quantum of charges and not their validity. He further submitted that charging an exorbitant amount of Rs.1,150/- per day without any logical basis was a brazen attempt to recover rent. He further submitted that compensation awarded by it (District Forum) is inadequate and the same be enhanced.  

15.       After giving our thoughtful consideration, to the contentions, raised by Counsel for the appellant/complainant and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.

16.       Admittedly, the appellant/complainant purchased  a  time  share  in  Sterling  Aldeia Branca at

Benaulim Beach Goa from Sterling Holiday Resorts (India) Ltd. in the year 1996 and the respondents/Opposite Parties assured her that she could have a beach holiday in Goa at new year eve every year till 2096.  It was also admitted that a 7 days holiday was promised for the resort at Sterling Aldeia Branca at Benaulim Beach Goa from 29th December to 4th January every year.  The respondents/Opposite Parties also issued a membership certificate Annexure D for the period from 1998 to 2096 as a premium time share holder to the appellant/complainant and Mr. Pramod Kumar Chopra and she (appellant/complainant) was also entitled to regular apartment having accommodation for 4 adults.  

17.       The main grievance of the appellant/complainant is that she was never given the promised accommodation with lavish facilities at Aldeia Branca for a single week from 1996 till date on the ground that the resort was not ready/available and instead she was given accommodation at beach resort at Vagator, Goa till 2005-06. The appellant/complainant also contended that she was, thus, a victim of fraud and cheating on the part of the respondents/Opposite Parties, as the resort at Aldeia Branca was not likely to be ready in near future also. The District Forum in Para 12 of its order has rightly held ………if any fraud and cheating were played by the OPs upon the complainant in the year 1996, the complaint filed on 13.2.2014 before the Forum was patently beyond limitation with regard to that event.  Otherwise also, the allegations regarding fraud and cheating require detailed evidence including examination and cross examination of the witnesses which are beyond the purview of the Forum.  

18.       However, as per clause 4.1 of the terms and conditions of the certificate of membership, in case the company (OP) did not provide allotted holiday week due to the non completion of the construction of holiday resort and if the Company did not provide holiday week and/or days/week mentioned in the confirmation voucher due to any reason, whatsoever, it was to provide equivalent stay facilities. Accordingly, the District Forum could certainly go into the question whether the OPs had provided equivalent stay facilities in the allotted holiday resort i.e. Aldeia Branca to the complainant or not. It is also evident from letter dated 26.09.2012 (Annexure G), that the appellant/complainant herself requested for the allotment of three rooms of the entitled category at an equivalent South Goa beach resort, in response to which, confirmation vouchers Annexure M & H at Camphor Goa were sent by the respondents/Opposite Parties. When the appellant pointed out that  the same was not equivalent to the accommodation of her entitlement, the respondents/Opposite Parties sent confirmation voucher for Club Estadia on 1.10.2012, with booking date from 29.12.2012 to 5.1.2013 (Exhibit OP/2), which was also not acceptable to her (appellant)  due to the reason that the same was not a beach resort.

19.       The District Forum also rightly held that the burden was upon the respondents/Opposite Parties to prove that the accommodation offered to the complainant was equivalent to the description of Aldeia Branca at Benaulim beach. The District Forum was also right in holding that the Opposite Parties failed to prove that Camphor resort, Goa and Club Estadia, Goa offered to the appellant/complainant were beach resorts having kitchen with cooking facilities and accommodation for four adults as per entitlement of the appellant/complainant. There was a huge qualitative difference in Goa between the experience of staying at beach resorts and staying at a hotel far away from the beach. Besides, in the absence of the kitchen facilities, the appellant/complainant could not cook food according to her own preference. In the absence of production of any cogent evidence by the respondents/Opposite Parties that the accommodation provided was equivalent to the entitlement of the appellant, the District Forum was right in holding that it amounted to deficiency, in rendering service, on the part of the respondents/Opposite Parties. Since no receipt/evidence in support of the expenditure of Rs.1,06,000/- incurred in Goa during the period 25.12.2012 to 5.1.2013 was produced by the appellant/complainant, it has to be assumed that the aforesaid expenditure was not incurred. Nevertheless, there was deficiency, in rendering service, and the appellant/complainant also suffered harassment.

20.       As regards the grievance of the appellant/complainant that utility charges @Rs.1,150/- per day were exorbitant, as per Clause 3.3(d) of the terms and conditions of the membership certificate, the time share holder was liable to pay utility charges as may be fixed from time to time by the Company in respect of electricity, air conditioning or heater, water, other utilities etc. Thus, in view of the specific provision in the membership certificate, such charges were payable by the appellant/complainant, and the District Forum was right in holding so.

21.       The appellant/complainant definitely suffered immense mental agony and physical harassment, due to deficiency, in rendering service, on the part of the Opposite Parties, which the District Forum has taken care of by awarding compensation in the sum of Rs.30,000/-, which, in our considered opinion, is adequate and sufficient, to meet the ends of justice.

22.       No other point was urged by the Counsel for the appellant/complainant.

23.       For the reasons, recorded above, the appeal is dismissed, at the preliminary stage, with no order as to costs.

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

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

Pronounced.

May 19, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

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STATE COMMISSION

(First Appeal No.104 of 2015)

 

[Neelakshi Chopra Vs. Sterling Holiday Resorts (India) Ltd. and Anr.]

 

 

Argued by:

 

Sh. Inderpreet Singh, Advocate for the applicant/appellant.

 

Date the  19^th day of May,  2015.

 

ORDER

              Alongwith the appeal, an application for condonation of delay of 69 days, as per the applicant/appellant (as per the office report 66 days) was filed by the Counsel for the applicant/appellant, on the ground that copy of the order dated 31.01.2015 was received on 04.02.2015 and the limitation for filing the appeal was up to 06.03.2015. It was further stated that the applicant/appellant could not be contacted by him as she (applicant/appellant) was abroad and returned to India on 11.03.2015. It was further stated that before that the sister-in-law of the complainant namely Mrs. Ish Chopra w/o Sh. Prem Datt Chopra, who was hospitalized in Max Hospital, Saket, New Delhi and being attended to by her, passed away on 16.03.2015. It was further stated that the complainant was in deep shock of passing away of one of her closest and beloved family members and could not think of any social, business or any other matters. It was further stated that it was only when the applicant/appellant came out of mourning that she contacted her Counsel on 12.05.2015, who apprised her of the order passed by the District Forum, and its implications. It was further stated that after discussing the matter with the Counsel and family, the applicant/appellant gave instructions to the Counsel to file an appeal against the order of the District Forum, as a result whereof, the aforesaid delay in filing the appeal occurred.

2.           Arguments, in the application were heard.

3.           No doubt, there is delay of 69 days as per the applicant/appellant (as per the office report 66 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicant/appellant. Before discussing this question, let us have a look at law, laid down by the Hon’ble Supreme Court and the Delhi High Court, regarding the condonation of delay.  In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-

 (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

 (ii).          Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

 (iii).          Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

 (iv).          Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

5.           The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

6.        In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day’s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353”.

 

 

7.           The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case also. The reasons, mentioned in the application, for condonation  of  delay  can  be  said  to  be    plausible. The application for condonation of delay, is duly   supported  by  the  affidavit  of  Mrs. Neelakshi Copra,  applicant/appellant. The delay in filing the appeal has been sufficiently explained, by the applicant/appellant. The delay, in filing the appeal was, thus, not intentional. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter.  The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. Some lapse, on the part of the litigant alone is not enough to turn down his plea, and shut the door against him/her. The explanation furnished for delay, in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hyper-technicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the appeal, by the applicant/appellant. Thus, the delay in filing the appeal is liable to be condoned. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.

8.           For the reasons recorded above, the application for condonation of delay of 69 days as per the applicant/appellant (as per the office report 66 days), in filing the appeal, is allowed, and the delay is, accordingly, condoned.

9.           Arguments, in the appeal already heard.

10.         Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, at the preliminary stage, with no order as to costs. 

11.         Certified copies of the order be sent to the parties free of charge.

 

      Sd/-                        Sd/-                                Sd/-

(DEV RAJ) MEMBER

(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

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