Dev Raj, Member:
1. This appeal is directed against the order dated 31.01.2014 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant and directed the Opposite Parties (now appellants) as under:-
œ10. In the given situation and taking a lenient view in favour of the Complainant, we allow this complaint and order the Opposite Parties to refund Rs.70,000/- paid by the Complainant for taking the Membership. No costs.
11. This order be complied with by the Opposite Parties within 45 days from the date of receipt of its certified copy, failing which, the Opposite Parties shall be liable to pay interest @12% p.a. on Rs.70,000/- from the date of deposit i.e. 20.01.2013, till its realization.?
2. The facts, in brief, are that the as a sequel to the representation of the Opposite Parties, held at Chandigarh on 20.1.2013, the complainant became a member of Country Club describable as œTen years vacations (Blue) member? vide membership No.CCDL12VIOLB 14624, starting from the year 2013 upto 2023 and the same was approved by them (Opposite Parties) vide approval form dated 20.1.2013, Annexure A. It was stated that the total cost of membership was Rs.70,000/-, which the complainant duly paid on 20.01.2013. It was further stated that, in terms of the letter, Annexure B, the complainant was entitled to utilize/avail of the facilities/benefits viz. Holidays of six nights, seven days for 10 days, season (Blue) room type, studio. It was further stated that apart from Annexures A and B, a membership purchase agreement was also executed between the parties, Annexure C. It was further stated that at the time of execution of the purchase agreement, Annexure C, after thorough deliberations/ negotiations, the complainant was assured by the Opposite Parties that no annual maintenance charges, as mentioned in the said agreement, would be charged and any stipulation in this regard would be deemed to be deleted, as a goodwill gesture, as the complainant was an Ex-Defence personnel. It was further stated that the Opposite Parties had given an ancillary gift voucher, Annexure D. It was further stated that in May 2013, when the complainant approached the Opposite Parties, to allow him to avail of the benefits, the Opposite Parties flatly refused to provide the same, till the annual maintenance charges of Rs.6,500/- were paid by the complainant. It was further stated that despite assurance given by the Opposite Parties of not charging any annual maintenance charges, they did not allow the complainant to avail of the benefits and rejected his request. It was further stated that now on 1.6.2013, the Opposite Parties flatly refused to aceede to the request of the complainant. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. 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, directing the Opposite Parties not to charge/demand the annual maintenance chargers or in the alternative refund the amount of Rs.70,000/- alongwith interest besides costs of litigation.
3. The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that the since neither any transaction between the parties took place at Chandigarh nor the membership agreement was executed at Chandigarh nor any amount was paid to any of their representatives at Chandigarh, the District Forum was not having the territorial jurisdiction to entertain and try the complaint; that as per Clause 12 of the membership agreement, any dispute between the parties, was to be adjudicated upon by the Arbitration; and that the complainant had not come to the District Forum with clean hands as he willfully suppressed/concealed the material facts.
4. On merits, it was stated that the branch office of Opposite Party No.2 at Chandigarh was only to invite application and for promotion of plans of the Company and explaining their features. It was admitted that the complainant visited the hotel on 20.1.2013 where he was held out a representation. It was denied that the complainant became member then and there on 20.1.2013 itself at Hotel Aroma, Chandigarh. It was further stated that the approval form and all the required documents were sent to the Head Office of the answering Opposite Parties, for verification and approval. It was further stated that on showing interest by the complainant, he was given an approval form, Annexure A, which clearly mentioned annual maintenance charges as Rs.7,500/-, which was signed by him as main applicant and his wife as co-applicant on 20.1.2013. It was further stated that the membership was accepted subject to the terms and conditions in the agreement and as a ten year vacations (blue) member, the complainant was required to pay Rs.6,500/- as annual administrative charges, irrespective of usage. It was further stated that the complainant, being an educated person, admittedly signed the approval form and the membership purchase agreement. It was further stated that the complainant did not reserve any right to terminate the membership unilaterally as per his whims and fancies and in deviation of the express terms of the contract. It was further stated that the complainant was bound by the terms and conditions of the membership purchase agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties submitted that the membership was given to the respondent/complainant at a discounted price of Rs.70,000/- for a period of ten years. It was further submitted that there was no deficiency, in rendering service or indulgence into unfair trade practice when the membership purchase agreement clearly stated that the annual maintenance charges (AMC) of Rs.6,500/- were payable. It was further submitted that the District Forum deviated from the express binding terms of membership purchase agreement and did not refer to the case law cited by the appellants/Opposite Parties, in their written arguments, titled œVikram Greentech (I) Ltd. and Anr. Vs. New India Assurance Co. Ltd., II (2009) CPJ 34?. It was further submitted that the District Forum took an incorrect view of law and wrongly relied on judgment Lucknow Development Authority Vs. M. K. Gupta, 1994 (1) CLT 1 (SC). It was further submitted that the order of the District Forum, being unsustainable, in the eyes of law, deserves to be set aside.
10. The Counsel for the respondent/complainant submitted that, at the time of execution of the membership purchase agreement, it was assured that no annual maintenance charges would be chargeable from the respondent/complainant. However, the appellants/Opposite Parties did not allow him to avail/utilize the facilities/benefits for want of annual maintenance charges to the tune of Rs.6,500/- per annum. It was further submitted that the District Forum, after appreciating the facts and evidence, on record, rightly allowed the complaint. It was further submitted that the order of the District Forum, being just and fair, is liable to be upheld.
11. Admittedly, the respondent/complainant attended the promotional meeting of the appellants/Opposite Parties on 20.01.2013. Undisputedly, he signed the membership purchase agreement for vacation Membership (Annexure C). The payment of Rs.70,000/- by the respondent/complainant to the appellants/Opposite Parties, as membership fee, is also an admitted fact.
12. The appellants/Opposite Parties, in their written statement, took up the preliminary objections, as regards the territorial jurisdiction of the District Forum and that of existence of arbitration clause in the agreement. So far as the preliminary objection regarding the territorial jurisdiction is concerned, a part of cause of action definitely arose to the complainant at Chandigarh, as he admittedly attended the promotional meeting at Chandigarh on 20.01.2013 and signed the approval form (Annexure A) on 20.01.2013 itself, which bears the note œThis offer for membership is valid only on approval of the Manager assigned for Chandigarh?. Therefore, this objection of the appellants/Opposite Parties stands rejected.
13. The next preliminary objection raised was regarding the existence of arbitration clause in the agreement. Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. and another Vs. N.K.Modi (1996)6 SCC 385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
14. It is evident that membership purchase agreement (Exhibit C) is duly signed by the respondent/complainant. His signatures thereon fortifies the fact that he accepted the terms and conditions of the membership purchase agreement. When the complainant signed the agreement (Exhibit C), and accepted the terms and conditions enshrined therein, his contention that he was promised of not charging the annual maintenance chargers of Rs.6,500/-, as promised during the promotional meeting, is not sustainable and the same is rejected being devoid of merit. The signatures of the respondent/complainant on Exhibit C, clearly reveals that he signed the agreement on 20.1.2013 itself and the agreement became final when the same was signed by the appellants/Opposite Parties. Clause 3, under the heading œConditions Apply?, on reverse of Annexure C, is extracted below:-
œIt is understood that the Annual Maintenance Charges (AMC) are Rs.6,500/- (Rupees Six Thousand Five Hundred Only) Plus 15% Admin/Processing fee for Accommodation type for Children below 12 years and Rs.8,500/- (Rupees Eight Thousand Five Hundred Only) Plus 15% Admin/Processing Fee for Accommodation type for Children below 25 years payable Online, excluding taxes currently, or as amended from time to time, irrespective of usage of the vacations/facilities/amenities. The same shall be applicable from the date of enrollment of membership. The AMC needs to be paid on time. Failure to pay the said amount or any other amount due shall be a default and members cannot utilize the facilities until the dues are cleared.?
15. Further under the heading œCOVENANTS OF MEMBER PURCHASER (ANNEXURE III), it was mentioned as under:-
œI understand that this Membership Agreement SUPERCEDES communication, if any, issued by CCIL representatives (including on Company Letter Head or STAMP PAPER) and the benefits and terms of membership listed here and amendment are final and binding on CCIL, and myself.?
16. Clearly, the respondent/complainant signed the agreement with his eyes wide open and there was also a stipulation, under this œCOVENANTS OF MEMBER PURCHASER (ANNEXURE III), that œI hereby confirm that I have gone through the aforesaid Terms and Conditions and Membership Benefits/Obligations and I have understood and accept the same.? Clause 3 under the heading œConditions Apply?, extracted above, specifically mentioned that annual maintenance charges (AMC) need to be paid on time and failure to pay the said amount or any other amount due shall be a default and members cannot utilize the facilities until the dues are cleared. There is no clause in the terms and conditions, under which, the membership fee, paid by respondent/complainant, could be refunded. The terms and conditions were binding upon the respondent/complainant, and he has failed to prove any deficiency, on the part of the appellants/Opposite Parties.
17. Thus, the District Forum did err in relying upon the Lucknow Development Authority Vs. M. K. Guptas case, wherein it was held by the Honble Apex Court that the provisions of the Act have to be construed in favour of the consumer to achieve purpose of the enactment as it is a social benefit oriented legislation. It also wrongly relied upon another judgment rendered in Kulwinder Kaur Vs. Life Insurance Corporation of India, 2007 (1) CLT 303 (Pb.), by holding that where two views are possible, the one, which favours the consumer, should be taken. The facts of the case, in hand, are totally distinguishable. In Vikram Greentech (I) Ltd. and Anr. Vs. New India Assurance Co. Ltd., case (supra), the Honble Apex Court categorically laid down the law that endeavour of the Court must always be to interpret words of contract. The Courts are not expected to venture into extra liberalism that may result in re-writing the contract/substituting terms not intended by the parties. The annual maintenance charges (AMC) were payable as per the agreed terms and conditions and when the same were not paid by the respondent/complainant, the appellants/Opposite Parties rightly denied the benefits/facilities to the complainant. There is stipulation in membership purchase agreement (Annexure C) to the effect that œ¦¦...The II Party understands that THE MEMBERSHIP FEES IS NON-REFUNDABLE UNDER ANY CIRCUMSTANCES and THE MEMBERSHIP FEE IS NOT A DEPOSIT.? In these circumstances, the District Forum wrongly held the appellants/Opposite Parties deficient in rendering proper service to the respondent/complainant.
18. No other point, was urged, by the Counsel for the parties.
19. In view of the above discussion, it is held that the District Forum, erred in allowing the complaint and order passed by it, suffers from illegality, warranting the interference of this Commission.
20. For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, is accepted, with no order as to costs. The order of the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant, before the District Forum, is dismissed with no order as to costs.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.