BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   17^th DAY OF AUGUST 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OP to refund the membership amount of Rs.75,000/-, to reimburse the interest on credit card for a sum of Rs.42,360/- with conversion charges of Rs.1,875/-, to pay compensation of Rs.3,00,000/- for mental agony and harassment caused.

2.      The brief facts of complaint is as under:

Complainant submitted that he got a call on his mobile phone from OP saying the complainant won a prize and asked the complainant to collect the prize.  The complainant visited the OP office to collect the prize.  OP Executives and manager informed about their packages and offered with regard to club membership.  The OP had promised the complainant to give the membership for Rs.85,000/- and Rs.30,000/- will be given discount.  Further they offered two coupons worth Rs.25,000/-.  The OP also informed that they have tie up with the banks.  To believe the words of the OP, the complainant paid Rs.10,000/- through credit card and entered into agreement.  Remaining amount of Rs.75,000/- paid through credit card.

The complainant further submitted that after signing the membership agreement complainant came to know about false promises made by the OP.  The complainant submitted that the OP has promised that they will convert EMI for 5 years without any additional charges or rate of interest.  If the OP failed to do so the interest charged by the Bank the OP will waive off the difference amount.  The complainant further submitted that, he was paying an interest for Rs.42,360/- with conversion charges of Rs.1,875/-.  The OP promised that they will reimburse the interest amount but after more than one year they have not refunded the difference amount.  Further the OP assured about the holiday destination all over India including Andaman, Kerala boat house and in foreign countries.  However when complainant tried to book there was no destination and no associate properties in these locations.  The complainant further submitted that the OP informed at the time of booking the membership there was no additional charges including indoor games, spa and party hall.  However when tried to book the spa multiple times but they cancel the booking every time making excuses.  Further the OP assured that they will provide during holiday stay free cab guide and 50% discount on transport.  Further the OP has also assured that free holiday package for 6 days and 5 nights every year without any charges except AMC.  AMC is applicable only if the complainant avail the holiday.  The complainant alleged that the OP has failed to provide the above facilities to the complainant.  Hence the complainant sought for refund of the amount.

3. In response to the notice issued, OP appeared through advocate and filed their version in brief as under:

That the complaint filed by the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine as the complainant has not approached this Forum with clean hands.  Complainant has paid in all total sum of Rs.85,000/- towards holiday vacation and entered into purchase agreement dated 25.06.2016 as against Rs.1,15,000/-.  OP has issued the laminated club membership card to the complainant and also to the dependents.  The complainant has acknowledged the membership card issued by the OP.

OP further submitted that in terms of the purchase agreement the complainant is entitle for 6 nights and 7 days holiday vacation every year for a period of 5 years and in addition the complainant will get life membership to the country club as complimentary.  In pursuance to the said offer and acceptance, the complainant has availed the holiday vacation at Country Vacation at Pune, Maharashtra for the period 18.03.2017 to 21.03.2017.  The complainant has fully satisfied the services rendered by OP during the said holiday vacation.  That even after repeated request and demand the complainant not paid the balance amount of Rs.30,000/- till today.  In fact though the complainant not paid the entire membership amount, this OP with a fond hope that he will pay the due amount during the course of the days has provided the holiday vacation.  The complainant has filed the false and frivolous complaint by making false allegations against OP.

OPs further submitted that converting of EMI payment is an option to the parties and it is not mandatory.  Complainant initially has not chosen to go for EMI payment and later the complainant requested to convert the payment into EMI, but question of converting of EMI does not arise.  That the complainant by creating story as per his whims and fancies has filed the false and frivolous complaint against OP for wrongful gain and nothing else.  It is well settled law unless otherwise the electronics documents are not certified by the authenticated authority the same has no sanctity in the eye of law.  The complainant has mere making false and frivolous allegations do not make out the case before the Forum.  There is no cause of action to file the complaint and the complainant deserves to be dismissed on this ground alone.

OPs further submitted that as already submitted the main benefits for Club Membership and a holiday/vacation package.  In terms of the offer, is entitled for 6 nights and 7 days holidays vacations in a year for a period of 5 years.  OP is always ready to provide the holiday vacation to the complainant but there should be 30 days in advance booking to be made to make necessary arrangements.  Further the Club Membership is for Life Time and it is transferable to their family members the complainant that in regard to providing of accommodation of holiday vacations.  That the complainant has not bothered to pay the annual maintenance amount till today and is due of Rs.9,725/- towards annual maintenance charges.

OP further submitted that entering into the purchase agreement is not in dispute and in terms of the agreement clauses there is no provision for refund of amount or cancellation of the club membership.  However the complainant is at liberty to sell or transfer or gift the club membership to any third party.  Inspite of that the complainant for the reasons best known to him has filed the above false and frivolous complaint for cancellation.  There is no deficiency on the part of OP and OP not rendered any deficiency in service nor engaging in the unfair trade practice at any point of time and this Forum has no jurisdiction to try the case.

OP further submitted that the complainant with a dishonest and malafide intention has filed the above complaint by making all false and baseless allegations after lapse of two years.  That they are providing best services in their field without any blemish and even in the complaint there is no iota of evidence.  But the complainant suppressing the true facts has filed the false and frivolous complaint against the OP.  The complainant is not entitled for any relief much less than they have sought in the complaint.  The complainant is trying to take aid of this Forum for their illegal claim. 

OP further submitted that it is crystal clear from the complaint and documents that there was no deficiency on the part of the OP in rendering the services.  The allegation of the complainant against OP is without any basis.  That the complaint is imaginary, illusory and baseless they can go to at any heights.  The complainant has not paid the entire amount of Rs.1,15,000/- and similarly the complainant not paid the annual maintenance charges and in fact has availed the holiday vacation at Pune.  That it is submitted from the averments of the complaint it can be presumed that the complainant not an illiterate person and inspite has made false allegations for the purpose of filing the complaint and nothing else.  There is no cause of action to file the complaint consequently question of refund of amount or payment of compensation does not arise.  Hence OP prayed for dismissal of the complaint with exemplary cost.

4. In the course of enquiry into the complaint, the complainant and the OP has filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OP has produced certain documents.  We have heard the arguments of complainant and OP and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OP, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

7. Point No.1:  Admittedly complainant become member of the OP Club by entering into purchase agreement for club and vacation membership with the OP on 25.06.2016 by paying an amount of Rs.85,000/- as per Ex-A2 and A3.  The complainant alleged that at the time of obtaining the club membership, OP has given certain assurances.  After signing the club membership agreement he came to know about the false promises made by the OP.  Hence complainant sought for refund of the amount along with interest.

8. Per contra OP submitted that the complainant paid only Rs.85,000/- as against Rs.1,15,000/-.  The complainant has not paid balance amount of Rs.30,000/- till today.  Further as per the terms of agreement the complainant is entitled for 6 nights 7 days holiday vacation every year for a period of 5 years and in addition the complainant will get life membership as a complimentary.  Pursuant to the said offer the complainant accepted and he availed holiday vacation at Pune, Maharashtra from 18.03.2017 to 21.03.2017.  The complainant had fully satisfied with the OP services during holiday vacation.  Further the complainant has not paid the annual maintenance amount till today and is due a sum of Rs.9,725/-.  As per the agreement clause, there is no provision for refund of the amount or cancellation of the membership.  However the complainant is at liberty to sell or transfer or gift the club membership to any third party.

9. Admittedly complainant had purchased the club and vacation membership with the OP on 25.06.2016 with the OP as per Ex-A2 & A3.  The complainant has also received membership card from OP.  Further on perusal of Ex-B2 it clearly shows that the complainant has availed the facilities of holiday vacation from 18.03.2017 to 21.03.2017.  Thereafter on 16.06.2017/Ex-A9 and 07.09.2017/Ex-A1 complainant approached OP for refund of interest amount collected by the Bank from the complainant.  The complainant in his affidavit evidence alleged that the OP has assured that they will provide EMI for 5 years without any rate of interest.  If the Bank has charged interest the OP will refund the difference amount.  To substantiate this contention the complainant has not produced any document to show that OP has assured that they will refund the difference amount to the complainant.  Mere allegation of the complainant cannot be acceptable without any documentary evidence. 

10. Further the complainant alleged that before signing of the agreement OP had given a certain assurances.  After signing of the agreement, the complainant came to know about the OP false promises.  Admittedly the complainant availed the holiday vacation package and enjoyed the club membership for nearly 2 years now the complainant cannot point out his finger that OP has made a false promises to the complainant to sell the membership. 

11. Thus looking from any angle, we are of the opinion that, the complainant has failed to establish that OP has committed deficiency, by violating the terms and conditions incorporated in the purchase agreement for club and vacation membership.  No doubt the complainant has been provided with laminated membership card which he can use for making use of the club facilities.  The complainant has not placed any material on record to substantiate his allegation that the OP has acted in contravention of the terms and conditions of the above mentioned agreement.  It has been categorically mentioned in vacation agreement that the vacation fee paid is not a refundable deposit.  The complainant having agreed to the terms and conditions of the said agreement, now cannot demand refund of the fees paid by him for purchasing vacation as well as club membership.  Therefore, we are of the opinion that the complaint is liable to be dismissed.  Accordingly, we answer the point No.1 in negative.

12. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 17^th day of August 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Janendra Khare.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OP by way of affidavit:

Sri.Mohammed Akmal Pasha.

Documents produced on behalf of Opposite Party.

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