ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service and to repay a sum of Rs.2,90,000/- as a life membership charges and Rs.10,500/- as annual maintenance charges received from the complainant along with interest at the rate of 24% per annum and further to pay a sum of Rs.50,000/- towards damages and other reliefs and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; OPs are doing business in the country club hospitalities providing facilities at their resorts, clubs, fitness center, hotels, travel planning services in India and foreign countries. The complainant after seeing the advertisement of the business of the OP company and enquired the facilities available in the company.  Further complainant enquired with the OP Company’s Manager Javed Shariff who was in the office explained to the complainant by coating the diagrams and informed that the membership period for 30 years. Initially the said person explained him as to the total cost for the tenure as Rs.3,50,000/- for life time and then reduced to Rs.3,15,000/- if paid on spot booking.

3.     OP officials came to the house of the complainant and told and assured that the amount is paid in night with credit card on EMI basis, it will be reduced to Rs.2,90,000/-. The complainant convinced with the business of the OPs and agreed to take the life time membership on 12.11.2018 for a sum of Rs.2,90,000/- through bank account. On the very next day authorized representative of the OP-1 executed the agreement in the name of the “Club and Vacations Sale Agreement” in favour of the complainant and choose to opt for 30 years vacation and OP-1 has issued the membership number bearing No. CVBG2MPCLUB5LB258715. OP has offered a free trip to Thailand with flight tickets and free accommodation to his wife and two children.   OP also assured that the complainant would get free complimentary membership at snap fitness which is present in Jaya Prakash Nagara and also told that he would get DAE membership free of cost for travel to different countries in Europe.

4.     The complainant submits that on several times requested OP-1 orally as well as over phone and also on email for a trip to Thailand with flight booking for the family of the complainant in the month of March and April 2019 and complainant made several calls during April 2019. But nobody picks up the calls. Complainant also sent emails to different people in this regard. The complainant after taking the considerable time searched the new office location and went to enquire personally about the assured facilities. At that time one Javed who is the representative of the OP instead of fulfilling the facilities again in order to gain more money, illegally insisted the complainant to pay Rs.5,00,000/- to get all the above benefits.  OPs without providing the agreed benefits, made phone call asking the complainant to pay annual maintenance charge of Rs.10,500/- to process his trip to Thailand. Complainant believing the version  of the representative of the OP, paid immediately Rs.10,500/- online thinking that they would get the complimentary holiday.

5.     Complainant even made several request orally as well as through mail but no one was responding to provide the agreed benefits to him, except receiving the annual  maintenance charges and other charges for no service a facility. From all the above facts and circumstances it is clear that the OP company are illegally collecting the money from the customers by making  false promises which is not in existence. Inspite of it, OP have not provided the benefits assured and hence the complaint.

6.     Upon service of notice, OPs appeared before the commission and filed their version denying all the allegations made against it. Further contended that there is no cause of action for the complaint and the reason assigned is vague bald and the complaint is liable to be dismissed. 

7.     The complainant themselves requested OPs to do all the necessary documentation work required for admitting them as member of the country club hospitability and holiday limited. They explained to the complainant regarding different holiday packages and copy of the purchase of membership agreement was given to them and they after going through the same came to their office on 12.11.2018 and agreed to abide by the terms and conditions of the agreement and showed interest to become the members by paying Rs.2,90,000/- and purchased the membership. In terms of the purchase agreement, complainants family are entitle for holiday vacation 6 nights 7 days in a years for about 5 years and agreed to pay mandatory annual administrative charges every year irrespective of usage of the membership facility. The complainant was provided with access to website through online by giving ID and password and laminated membership card.

8.     It is further contended that, Spa coupons and one day privileged gift vouchers was also given.  They never promised and assured to give a free tour either to Dubai, Srilanka, Singapore, Maladives Malaysia or fitness membership for the life time for the family members for about 25 years.  They also never promised air fares and free breakfasts. They have not received any emails said to have been sent by the complainant.  The communication produced is created one.  There is no evidence and proof to prove and establish that the OP has engaged in unfair trade practice and that there is deficiency in service. The letter dated 12.11.2018 is created for the purpose of filing this complaint. The electronic document cannot be looked unless it is duly authenticated by the competent authorities. Complainant is not a illiterate person.  Complainant executed the purchase agreement on 12.11.2018 after understanding the terms and conditions of the membership fee and the membership fee is not refundable under any circumstances and there is no provision to cancel the membership. Whereas, complainant is at liberty to sell or transfer or gift the membership to any third party. Inspite of it, the complainant has filed this false and frivolous complaint to enrich himself, by creating false stories, fabricating the documents. There is no deficiency in service or unfair trade practice on their part.  They are not liable to pay any compensation as the claim is with a dishonest and mala fide intention. On all these grounds prayed this commission to dismiss the complaint.

9.     In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1 :   In the Affirmative.

POINT NO.2 :   Partly in the Affirmative.

                        For the following.

REASONS

POINT No.1:-

11.   On perusing the documents evidence filed it becomes clear that the complainant became member of OPs club by paying Rs.2,90,000/- and also obtained millionaire club premium package membership and Rs.10,500/- as mandatory annual administrative charges (AMC), irrespective of usage of facilities in execution of club and vacations sale agreement. The terms and conditions have been mentioned for refund of the amount after cool off period.  It is not in dispute that OPs received the amount from the complainant at the time of executing the sale agreement.  Copy of the statement is produced by the complainant.  Copy of the email also mentions regarding providing membership to the complainant on 12.11.2018. The complainant has requested OPs to cancel the membership and sought for the refund of Rs.2,90,000/- + Rs.10,500/-. Emails correspondences have also been produced. It do not lie in the mouth of OPs that they are not bound to refund the membership amount, when they have not given the any services, they are not liable to retain any of the amount from the complainant. According to membership agreement, they are bound to provide the facilities failing which, they have to refund the amount.

12.   In the instant case, it is worth to note that when the complainant visited the premises of OPs, promised  and induced the complainant to purchase the life time membership without giving opportunity to examine the contents of the agreement which is nothing but a coercive and unilateral agreement. If the complainant is dissatisfied with the service of OPs, a duty is cast on the OPs to return back the amount received by the complainant. Further it is pertinent to note that there is no record placed before this commission to show that the complainant availed any service from the OPs. Under the circumstances the contention raised by the OPs are not feasible.  Further it clearly goes to show that complainant has paid a sum of Rs.2,90,000/- as life membership fee and Rs.10,500/- towards annual maintenance charges but OPs did not provide the facilities as assured by them and caused deficiency in service and even the OPs refused to accept the surrender of membership stating that the memberships is a permanent membership and the amount paid by the complainant is non-refundable deposit, and cannot be refunded. Such act of OPs amounts to deficiency of service and also unfair trade practice of OPs. Accordingly we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

13.   In the result OPs are bound to refund the amount to the complainant.  The complainant has sought refund of Rs.2,90,000/- as Life membership charges and Rs.10,500/- annual maintenance charges collected from him.  After receiving the amount, the agreement has been entered into between the parties, the membership card and other details was also given to the complainant. OPs have spent some amount towards stationary and office maintenance. Hence in our view if OP is ordered to retain Rs.30,000/- towards administrative, stationary, office expenses and order to refund the balance i.e. Rs.2,60,000/- + Rs.10,500/- to the complainant would be just, property and reasonable along with interest at 12% from the date of payment till the entire amount is paid on the said amount. Further if a sum of Rs.5,000/- towards damages for causing mental agony and Rs.5,000/- towards cost of the litigation if ordered to pay to the complainant would meet the ends of justice. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is partly allowed with cost.

2. OPs are jointly and severally hereby directed to pay a sum of Rs.2,60,000/- + Rs.10,500/- to the complainant would be just, property and reasonable along with interest at 12% from the date of payment till the entire amount is paid on the said amount.

3. Further OPs are hereby directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards cost of proceedings.

4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 08^th day of November 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the club and vacation sale agreement.

Ex P2: Copy of the letter written by OP.

Ex. P3: Copy of the email correspondences.

Ex P4: Copy of the Legal Notice.

Ex P5: Postal acknowledgement.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Ananda, Legal Officer of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorisation letter.

Ex R2: Copy of the Membership details.

Ex R3: Copy of the Statement regarding amount due towards AMC.

Ex R4: Copy of the Details of the password given to the complainant.

MEMBER                        PRESIDENT

RAK*