Karnataka

Bangalore 4th Additional

CC/16/226

Mr. Raghavan N.V.K, S/o. Late Kelu K. - Complainant(s)

Versus

The Managing Director, M/s. Country Vacations, A Divison of Country Club (I) Ltd. A Company incorpor - Opp.Party(s)

20 Feb 2019

ORDER

 

 Complaint filed on: 08.02.2016

                                                      Disposed on: 20.02.2019

 

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.226/2016

DATED THIS THE 20^th FEBRUARY OF 2019

PRESENT

 

SRI.H.Y.VASANTH KUMAR, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Mr.Raghavan N.V.K., S/o Late Kelu.K., Aged about 65 years, R/at No.103, 1st Cross, Balaji Nagar, D.R.C. Post, Bangalore-560 029.   By.Adv.Juris Consult	1	The Managing Director, M/s Country Vacations, A Division of Country Clubs (I) Ltd., A Company incorporated under the Companies Act, 1956, having its Registered Office at Amrutha Castle, 5-9-16, Saifabad, Opposite the Secretariat, Hyderabad-500 063 and a branch office at Himayatnagar No.3-6-367/368/369, 3rd Floor, Skill Spectrum Building, Liberty ‘X’ Roads, Himayat Nagar, Hyderabad-560 016.
		2	The Manager, Country Vacations, A Division of Country Clubs (I) Ltd., Having its Bangalore Branch Office at No.55/1, Varthur Hobli, Devarabisanahalli, Sarjapur, Bangalore-560 103.   By.Adv.D.Narase Gowda

 

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

1.       The Complainant has alleged the deficiency in service and unfair trade practice against the Ops 1 and 2/the Country Vacations relating to his membership privilege and has prayed for direction against the Ops to seek apology with him by refunding membership fee of Rs.79,000/- with penal interest along with total damages of Rs.45,000/-.

2.       The case of the Complainant in brief is that, the Ops in the name of lucky drip draw winner, made him to attend with family members in a “seminar” and got his membership by receiving Rs.79,000/- by offering various privileges and benefits on 2.8.2013. With such immense pressure, he was made to sign purchase agreement for Ops 1 and 2. On 7.8.2013, he was asked to pay Rs.7500/- for annual maintenance charges which was not mentioned earlier and hence, he started enquiring about the benefits of the assurances and the OP officials started giving vague answers though referred the “billionaire vacation scheme”. He is not ready to transfer or gift the membership as suggested by them and being the defrauded member, becomes entitled to get refund. The Ops have failed to issue the membership cards also. He issued the letter dt.11.9.2013 and the Ops even after the receipt of the same, did not respond. Hence, he had filed C.C.No.2363/2013 and C.C.No.1387/2015, which came to be disposed-off on 1.7.2015 and 10.12.2015 respectively and thereafter, this complaint is filed. He being the senior citizen, who appeared in person in previous cases, now filed this case through advocate and hence, prayed for the reliefs. 

3.       The Ops 1 and 2 filed their common version contending that the complaint is not maintainable for want of cause of action and is barred by limitation. The purchase agreements were signed by the complainant on 2.8.2013 after knowing the terms and conditions therein. The membership cards were issued to the complainant along with cards of various privileges. The complainant is not an illiterate. After enjoying the benefits and services, now has been trying to gain illegally. The Ops are always ready and willing to provide the privileges and services subject to the terms and conditions even now. The cause of action is a created story with malafide intention. The complainant is at liberty to sell or transfer or gift the membership privilege to any other third party, but not entitled for the reliefs as sought for.   Hence, prayed for dismissal of the complaint.

          4.       The Complainant and the OP has filed their affidavit evidences, relying on Ex-A1 to A15 and B1 to B5 documents respectively. Written arguments were filed by both the parties. Arguments were heard. Perused the records.

5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged deficiency in service against the Ops in not refunding the membership fees ?
2. Whether, the Complainant is entitled to get the relief as prayed for ?
3. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) Negative

3) As per final order – for the following

REASONS

          7. Consumer Dispute No.1 & 2: The undisputed facts reveal that, the Complainant became the member of the Ops 1 and 2 by executing the Purchase Agreement Ex-A1 and A2/B1 both dt.2.8.2013 on seeing the brochure of the Ops Ex-A8 and A9 (a) (b) (c) (d).

          8.       The Complainant had filed C.C.No.2363/2013 and got it withdrawn on 1.7.2015. He filed another C.C.No.1387/2015 and it also came to be dismissed for non-prosecution on 10.12.2015 as supported by Ex-A5 copy of order sheet sent through registered post Ex-A6. The complainant filed this case along with application Ex-A7 u/o 9 Rule 4 r/w 151 of CPC, seeking permission to file this complaint.

          9.       This complaint is filed on 8.2.2016 explaining about the earlier two consumer complaints contending that by engaging an advocate moved this complaint along with Ex-A7 application seeking orders to set aside or recall the order dt.10.12.2015. In continuation, the complainant has contended that it is the fresh complaint in the absence of provision about the maintainability of Ex-A7/ IA.

          10.     Ex-A4 and A5 relating to the earlier two cases become useless on the say of the complainant that it is the fresh complaint filed for the third time. In this fresh complaint, the cause of action has to be considered.

11.     Ex-A8 and A9 were obtained before the complainant becoming member. Ex-A10 privilege cards Ex-A11 offer letter Ex-A12 holiday gift vouchers are also relating to the period of registration of the membership i.e. August 2013. The complimentary pass Ex-A15 also relating to the Navrathri Utsav of October 2013. Ex-A14 health cards/gift vouchers show that they are not valid after August 2014 though started from 2013.

12.     Ex-3 (a) copy of the letter dt.11.9.2013 shows that the allegations of the harassment, cheating, unfair trade practice and request for compensation along with refund of the amount of Rs.79,000/-. It shows that the cause of action started from 11.9.2013. This complaint was filed on 8.2.2016. This complaint for the third time was filed after more than 2 years as against the limitation period u/s 24 (A) of CP Act. In connection with this, the complainant has relied on the following decisions:

1. Anil Bhambri V/s North Delhi Power Ltd.,-CDJ 2012 DHC

    886-Delhi High Court

2. Laxmi Engineering Works Vs P.S.G. Industrial Institute-

    1995 AIR 1428, 1995 SCC (3) 583.

3. City Municipal Council Vs S.A. Lateef & Co.-AIR 2004 Kar 491

4. Andhra Pradesh State Consumer Disputes Redressal

    Forum, Hyderabad in the case of Mandeep Kumar

   Markandey Vs. The Country Clubs (India) Ltd.,

 

and contending that he is entitled to get exclusion of the period spent before the Consumer Forum during the period of 2 earlier cases, competition of the period of limitation excluding the period of two cases entitles him to get the benefit u/s 14 and the present complaint filed also within the limitation period and thereby he is entitled to get the refund of membership fees with damages and with a letter of apology.

 

13.     The first case was withdrawn by the complainant with a liberty to file a fresh complaint. Accordingly, the second complaint was filed and it came to be dismissed for non-prosecution on 10.12.2015. The second case is not the case ended with privileges to the complainant. The complainant has not preferred an appeal to get the dismissal order of the order set aside. Unless such legal remedy is availed by the complainant, he has no right to seek the benefit on the basis of the above referred 4 cases. The duration of the earlier two cases cannot be excluded to count the limitation and to allow the IA filed and marked as Ex-A7. The dual submission of the complainant that it is a fresh complaint filed for the 3^rd time and the time of the earlier two complaints to be excluded go against each other.

 

          14.     The terms and conditions of the purchase agreements Ex-A1 and A2 clearly show that the membership fees was paid unconditionally treating it as non-refundable one under any circumstances. The signature of the complainant in all the pages of Ex-A1 and A2 indicate reiteration of the same condition and such being the case, he has no right to seek refund of the membership amount by writing letter as per Ex-3 (a). His remedy in terms of the agreements itself were defined with choice of transferring it to any other third member by way of gift or sell or transfer to his family members. The Complainant who got the privilege cards as per Ex-A11, 12, 14 and 15/B2 in terms of the purchase agreements become liable to pay annual maintenance charges as per Ex-B4 with arrears.

 

          15.     The complainant instead of complying the terms and conditions demanded the refund, contrary to the said terms and hence, he gets no right to demand the refund and to find deficiency in service with the Ops.  In the result, the Consumer Dispute No.1 & 2 are answered in the negative.

         

16. Consumer Dispute No.3: In view of findings of the Consumer Dispute No.1 & 2, the Complainant deserves to get the following:

ORDER

          The CC.No.226/2016 filed by the Complainant is hereby dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 20^th February of 2019).

 

 

(ROOPA.N.R)     MEMBER

(VASANTHKUMAR.H.Y)  PRESIDENT

 

          Copies of Documents marked on behalf of Complainant:

Ex-A1	Billionaire Vacation agreement dt.2.8.2013
Ex-A2	Purchase agreement for club and vacation membership dt.2.8.2013
Ex-A3	Letter of complainant’s son dt.11.9.2013
Ex-A4	Order sheet in C.C.No.2363/2013
Ex-A5	Order sheet in C.C.No.1387/2015
Ex-A6	Original registered post cover
Ex-A7	Application filed by complainant
Ex-A8	Original brochure book
Ex-A9	Three booklets
Ex-A10	Original country club-one day privilege cards
Ex-A11	Original Taasha offer letter dt.29.8.2013
Ex-A12	Holiday gift voucher dt.2.8.2013
Ex-A13	List of properties of the Ops
Ex-A14	Spa Coupons (5 sheets) sealed by the Ops
Ex-A15	Great Indian Navarathri Utsav-2013 family entry pass with cover

 

Copies of Documents marked on behalf of Opposite Party

Ex-B1	Purchase agreement dt.2.8.2013
Ex-B2	Membership cards
Ex-B3	Work sheet
Ex-B4	AMC details
Ex-B5	password

 

 

(ROOPA.N.R)     MEMBER

(VASANTH KUMAR.H.Y)  PRESIDENT