Complaint filed on: 20.11.2017

Disposed on: 16.04.2019

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

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

CC.No.3022/2017

DATED THIS THE 16^th APRIL OF 2019

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

Complainant/s: -                           

Sri.Kishore Babu.K.M.

Aged 38 years,

S/o Muniraju,

R/at No.202, Mayur Garden Apartments, 28^th Cross,

VGS Layout, Ejipura, Bengaluru-47.

By Adv.Sri.M.K.Venkataramana

V/s

Opposite party/s:-    

1. The Chief Executive

M/s.Country Club India Ltd., Unit: Country Vacations, Registered Office:

Amrutha Castle,

No.5/9/16, Saifabad,

Opposite Secretariat,

Hyderabad-63.

2. The Chief Executive

M/s.Country Club India Ltd., Unit: Country Vacations

No.6-3-1219/A-Second

Floor, Begumpet,

Hyderabad-16.

3. The Regional Manager,

Country Vacations,

Care of Country Club India ltd., No.102, First Floor,

S & S Chambers, Next to

Kamath Hotel, Bowring

Hospital Road, Shivajinagar, Bengaluru-01.

By Adv Sri.D.Narase Gowda

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

            This complaint is filed by the Complainant against the Opposite party no.1 to 3 (herein after called as OPs), under section 12 of the Consumer Protection Act, 1986. The Complainant prays to direct the OPs to pay the advance amount Rs.45,000/- with interest, to pay compensation of Rs.25,000/- towards loss, and Rs.20,000/- towards mental tension and costs.

2. The brief facts of the complaint is as under:

The Complainant submits that, OP.3 approached the Complainant for membership of Country Vacations. Accordingly, the Complainant become member by paying a sum of Rs.45,000/- vide receipt dtd.29.11.15 vide purchase agreement for “Gymkhana Club Membership No.12684’. The total contribution is Rs.2,50,000/- for life membership for 25 years all season membership studio+delux+superior unit type. Remaining membership fees to be paid in subsequent instalments. He is eligible to utilize 7 days stay at any of the resorts of the OPs based on availability every year as per country vacations.

2a. The Complainant further submits that, he has booked a vacation on 04.12.15 for 2 nights and 3 days to stay in Matrix Inn Shirdi on 10.12.15. He came to know through OP.3 that the facility is not available to the Complainant and further he came to know that the said facility was available to one Mr.Thomas Raju who has only a basic membership with the OP. Hence, after discussion with OP.3, the OP.3 through email dtd.22.12.15 advised him, alleging that the Complainant has not utilized the membership, so he can transfer his membership to another member and will close Complainant’s membership within 3 months. However, OPs have not issued any membership card as agreed. Hence, question of utilization of non-issue of membership card does not arise at all.

2b. The Complainant further submits that, he has made request with OP.3 to refund the paid amount, but they have postponed the same for one or the other reasons best known to them. Further OP.3 again sent email dtd.25.01.16 requesting him to co-operate regarding refund of paid amount. But OPs failed and neglected to respond his repeated requests and reminders. Hence, he caused legal notice dtd.10.08.17, but received untenable reply from OPs on 10.08.17.  Hence, this complaint.

3. The OPs appeared before this forum and filed objection. In the objection, the OPs submits that, the complaint is not maintainable either in law or on facts. The Complainant has not approached this forum with clean hands, hence, it is liable to be dismissed. OPs submit that, the Complainant has shown interest to become the member and to avail holiday vacation. In this regard, he entered in to purchase agreement dtd.28.11.15 and paid part amount Rs.45,000/- against agreed amount of Rs.2,05,000/- towards holiday vacations. The Complainant due to pay Rs.1,60,000/-. Upon receipt of the said amount OP.3 issued the permanent laminated club membership cards to the Complainant. That apart, the Complainant was provided to access the website through on-line by giving ID and password and also complimentary Spa coupons and one day privilege pass holiday gift voucher was given to the Complainant. As a matter of fact, he is entitled for holiday vacation on all the seasons and entitle to access the website and they can also book the holiday vacation as and when their requirement.

3a. Ops further submit that, the Complainant by creating story and fabricating the documents as per his whims and fancies has filed the frivolous complaint against the OP. 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 main benefits for club membership and in terms of the offer, the Complainant is entitled for 6 nights and 7 days holiday vacations in a year for a period of 10 years and club membership for life time, subject to the terms & conditions mentioned in the purchase agreement. OP is always ready to provide the package 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. In regard to providing of accommodation of holiday vacations, the Complainant has not made any booking for availing of holiday package, at any point of time and in this regard any piece of document has not been produced.

3b. Ops further submit that, as per the terms & conditions the Complainant has limited and exclusive offer incase full amount towards vacation is not remitted within 45 days from the date of schedule payment or date of allotment of vacation, 90% of the money remitted till the completion of 45 days would be forfeited and vacation allotted if any, would be cancelled within 45 days, the Complainant has to pay the entire membership fee. In the event failure of the entire membership fee, the fee paid by the Complainant will be forfeited by the OP.

3c. Ops further submit that, 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. There is no cause of action to file this complaint. OPs have 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 above case. They are providing best services in their filed without any blemish and even in the complaint there is no iota of evidence. The given offer is free of cost for which there is no amount is charged. The agreement clauses terms & conditions no.9, in fact the Complainant has not paid the annual maintenance charges due of Rs.9,725/- for the last years and in order to escape from the said payment, he has filed this frivolous complaint. Hence, prays this forum to dismiss the complaint.

4. In the course of enquiry into the complaint, the Complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaints and objection. The Complainant has filed written arguments. Both parties have produced documents which were marked. We have heard the arguments of both sides 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 OPs, if so, whether he entitled for the relief sought for ?

2.  What order?

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

Point No.1:  In the negative

Point No.2:  As per the order below

REASONS

7. Point No.1: On perusal of the pleadings, objection, evidence and documents of both the parties, it is an admitted fact that, the Complainant entered in to “Gymkhana Club Membership and Purchase agreement”/Ex-A2 & A4 and vacation agreement/Ex-A3 dtd.28.11.15 with the OPs for an amount of Rs.2,05,000/-. In this regard, the Complainant had paid part amount of Rs.45,000/- on 29.11.15 for which OPs issued permanent receipt/Ex-A1. But the Complainant is due to pay an amount of Rs.1,60,000/-.

8. The Complainant’s contention is that, as per the terms of the offer, he is entitled for 6 nights and 7 days holiday vacations in a year for a period of 10 years and club membership for life time, subject to the terms & conditions mentioned in the agreements/Ex-A2 & A3. Further, the contention is that, he has booked a vacation for 2 nights and 3 days on 04.12.15 for stay in Matrix Inn Shirdi on 10.12.15. Later, he came to know that, the said facility is not available.  Hence, the Complainant approached the OPs that, he has not utilized the membership, so sought for transfer his membership to another member and he intended to close the membership within 3 months.  The OPs have not issued the membership card as agreed. Hence, the Complainant seeking for refund of the paid amount. But the OPs have postponing one or the other reasons. Hence, there is negligency and deficiency in service on the part of OPs. To substantiate this contention, the Complainant has produced email correspondence/Ex-A5. The OPs submitted that, as per the terms & conditions of the agreement, there is no provision for refund of the amount or cancellation of the club membership. However, the Complainant is at liberty to sell, transfer or gift the club membership to any third party. As per the terms & conditions of the agreement, the Complainant has not remitted the full membership fees/amount within 45 days. Hence, entire paid amount is forfeited by the OPs.

9. On perusal of the agreement/Ex-A3, produced by both the parties clause 12 & 20 reads as here under:

12. This is a limited and exclusive offer. In case full amount of fee is not remitted within 45 days from the date of initial payment, the money remitted till then would be forfeited by the CCHHL and vacations allotted, if any would be cancelled.

20. The second party understands that the Vacation Charges is non-refundable under any circumstances and that the Vacation Fee is not a refundable deposit.

10. In the instant case, the Complainant has not remitted the full membership fees/amount within 45 days from the date of initial payment. Further it is also clear that, vacation charges/fees are non-refundable under any circumstances. On perusal of Ex-A5/emails produced by the Complainant, email dtd.08.07.16 reads as here under:

Dear Mr.Kishore,

Sorry for delay and we are working on clearing the issue and will clear it at the earliest and will update you when you have to come and collect it.

Email dtd.29.07.16 reads as here under:

Dear Mr.Kishore,

Sorry for delay as we have already coordinating with our higher management and will clear the issue at the earliest and will let you know when you have to come and collect it.

But the OPs have not assured that, they will refund the amount of Rs.45,000/-. The OPs have acted upon the terms & conditions incorporated under the agreements. Hence, on the above discussions made heither to, there is no deficiency in service on the part of OPs in not refunding the amount and hence, the Complainant filed by the Complainant is liable to be dismissed. Accordingly, point no.1 is answered in the negative.

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

ORDER

The complaint filed by the Complainant is hereby dismissed. No costs.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by us in the Open Forum on this, the 16^th day of April 2019)

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

Sri.Kishore Babu who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

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

Sri.Mohammed Akmal Pasha, who being the Manager of OP.3 was examined. 

Copies of Documents produced on behalf of OP.3: