Dev Raj, Member:
1. This appeal is directed against the order dated 30.09.2013, 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:-
œ13. In the light of above observations, we are of the concerted view that the Opposite Parties No.1 to 2 are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 to 2, jointly and severally, and the same is allowed, qua them. The Opposite Parties are directed to:-
[a] To make necessary changes in the agreement, as per the promise made to the Complainant, or refund Rs.70,000/- along with interest @9% p.a. from the date of its deposit, till it is paid;
[b] To pay Rs.25,000/-on account of unfair trade practice, deficiency in service and causing mental and harassment to the Complainant;
[c] To pay Rs.7,000/- as cost of litigation;
14. The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 to 2; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] and [b] of para 13 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of this complaint, till it is paid.?
2. The facts, in brief, are that the complainant alongwith her husband attended introduction-cum-promotional meeting at Aroma Hotel, Chandigarh on 2.4.2012 and they were given Code No.MLJVS003. It was stated that the complainant and her husband were informed about the vacation membership plans and entire vacation membership of CCIL, in detail, and many promises were made by the Opposite Parties. It was further stated that finding the Vacation Membership Plan of the Opposite Parties interesting, the complainant and her husband opted for a 10 years Vacation Member (Blue) and paid Rs.70,000/- as the entire payment of Membership, on the same day. It was told by the Opposite Parties, that this payment of Rs.70,000/- would be a onetime payment, inclusive of all taxes and no amount except the annual maintenance charges would be claimed from her (Receipts Annexure C-2 to C-4). It was further stated that the complainant also signed an approval form, and she was given a copy of the draft agreement, which was to be entered into between the parties (Annexure C-5). It was further stated that the complainant and her husband were also given two gift vouchers (Annexure C-6 and C-7). It was further stated that the Opposite Parties had assured the complainant and her husband that all terms and conditions, as promised during the promotional meeting, if not incorporated, in the draft agreement, would be incorporated in the final agreement later on, to be signed between the parties. It was further stated that believing the assurance of the Opposite Parties, the complainant and her husband did not go through the terms and conditions mentioned in the draft agreement. It was further stated that on going through the draft agreement, on the next day, the complainant and her husband found various deviations and contradictions in the terms and conditions, as incorporated in the draft agreement, which were explained and agreed upon/promised between the parties during the promotional meeting held on 02.04.2012. Such points of conflict, were detailed in Para No.4 of the complaint viz. Membership fee of Rs.70,000/- was inclusive of all taxes, No rules and regulations for members or byelaws prevailing in CCIL were told or explained, Option for blue type plan, options of availing vacation plans, DAE USA or RCI properties in India and abroad, CCIL owned properties in Bangkok, Bali, Dubai and Sri Lanka opened for 10 years, 3 buffet meals + evening snacks for Rs.457/- per day per person during vacation, annual maintenance charges of Rs.7,500/- could go upto maximum Rs.8,000/- during next ten years, access to all properties owned by RCI and DAE (USA) group all over India and abroad, gift vouchers shall be extended for one more year uptill September 2013 etc.. It was further stated that the Opposite Parties never disclosed that the complainant could not bring food or beverages in the club/resort.
3. It was further stated that the matter was immediately brought to the notice of the Opposite Parties, which assured the complainant and her husband that whatever was agreed and promised during the promotional meeting, would be incorporated, in the final agreement. It was further stated that the Opposite Parties also told that the draft agreement was a standard agreement, as framed by the Company, and was always open to the necessary changes, as agreed upon, between the parties. It was further stated that as a matter of abundant caution, the complainant and her husband wrote letter dated 07.04.2012 (Annexure C-8) to the Opposite Parties explaining, in detail, their grievance, which was never replied by the Opposite Parties. It was further stated that the verbal communications made by the complainant and her husband with the Opposite Parties for incorporating the promised terms and conditions of the final agreement, also yielded no result. It was further stated that, in the meantime, the complainant received copy of the Membership Purchase Agreement for vacation membership from the Opposite Parties alongwith forwarding letter dated 05.05.2012 (Annexure C-10 and C-11 respectively). It was further stated that to the utmost shock of the complainant and her husband, the said letter and Membership Purchase Agreement did not contain any of the terms and conditions, as agreed to between the parties, during the promotional meeting held on 02.04.2012.
4. It was further stated that the complainant again reasserted her position, by writing a letter, addressed to Opposite Party No.1, which was returned with the report œReturned to Sender-unclaimed? (Annexure C-12). It was further stated that the acts of the Opposite Parties of inducing the complainant and her husband for purchasing the membership of CCIL for huge sum of Rs.70,000/- by promising certain terms and conditions and, thereafter, not incorporating the same, in the written agreement, to be executed between the 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), seeking direction to the Opposite Parties to refund Rs.70,000/- alongwith interest @18% per annum; pay Rs.25,000/- on account of unfair trade practice; Rs.25,000/- on account of cheating/wrongful inducing the complainant to by the membership; Rs.10,000/- as compensation for physical harassment and mental agony besides Rs.11,000/- as cost of litigation, was filed.
5. Opposite Parties, in their joint written statement, took up the preliminary objections, to the effect, that since the registered office of the Opposite Parties, is situated at Hyderabad, therefore, the District Forum was not having the requisite territorial jurisdiction to entertain and try the complaint and as there was an arbitration clause in the terms and conditions of the membership agreement, and, as such, the complaint before the District Forum was not maintainable. On merits, it was stated that the Opposite Party is a Company registered under the Companies Act, 1956, and is one of the fastest growing entertainment and leisure conglomerates in India. It was further stated that the Opposite Parties have initiated the pioneer in concept of family clubbing in the Country and established 205 properties. It was further stated that the Opposite Parties presently have 172 affiliations approximately. It was further stated that CCIL has a global gateway via Country Vacations and RCI affiliation of 4000 resorts for its esteemed members. It was further stated that a member is approached by team for a response to advertisement via electronic and print media and he/she also approaches for membership through references from friends/relatives. It was further stated that once the proposed member express his willingness to be enrolled in the club, then, all the schemes and various facilities are explained and he is also advised/informed of the payment modes and the terms and conditions of complimentary offers attached to the membership scheme. It was further stated that an application form is made to fill, which highlights the offers and schemes alongwith the terms and conditions of the membership. It was further stated that the membership is non-refundable product, which was duly apprised to the member at the time of first presentation itself. It was further stated that the membership is a valid contract, therefore, once the parties to the contract accept the terms and conditions thereof, the same cannot be repudiated on unilateral whims of any of the parties. It was further stated that the complainant authorized the Opposite Parties to levy annual administration charges and only after verification of all the terms and conditions of membership, she had agreed to take membership. It was further stated that the complainant duly understood the terms and conditions stated in the application form and, thereafter, she decided to become a member of the Country Club India Pvt. Ltd. It was further stated that the complainant had paid the upfront amount of Rs.70,000/- and, hence, duty bound to perform the latter part of the contract. It was further stated that the complainant was aware about the terms and conditions and after executing the membership application. She had no right of asking for refund of the membership fees. It was further stated that the allegations made by the complainant, were without any proof, with the sole intention to wriggle out of her contractual obligations and to avoid payment of outstanding dues, related to annual maintenance charges. It was further stated that neither there was any deficiency, in rendering service, nor indulgence into unfair trade practice, on the part of Opposite Parties. The remaining averments, being wrong, were denied.
6. The complainant filed replication wherein, she reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version.
7. The Parties led evidence, in support of their case.
8. 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 above, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellants/Opposite Parties submitted that all features of the plan were explained to the respondent/complainant during the promotional meeting on 2.4.2012 and she signed the approval form and paid the membership cost of Rs.70,000/- on the same day. It was further submitted that there were no oral promises or commitments but the respondent/complainant after five days wanted the alleged oral promises incorporated in the agreement. It was further submitted that the respondent/complainant did not avail of any service. It was further submitted that the terms and conditions of the Membership Purchase Agreement (Annexure C-11) were signed by the respondent/complainant voluntarily. It was also submitted that the respondent/complainant was liable to pay all the taxes/services tax etc.
12. The Counsel for the respondent/complainant submitted that the facilities promised during the promotional meeting by the appellants/Opposite Parties were not incorporated in the agreement. It was further submitted that the agreement was not signed by the Country Club India but signed by the Country Club International. It was further submitted that the acts of the appellants/Opposite Parties amounted to unfair trade practice, which caused physical harassment and mental agony to the respondent/complainant.
13. Admittedly, the respondent/complainant attended the promotional meeting of the appellants/Opposite Parties on 02.04.2012. Undisputedly, she signed the Membership Purchase Agreement for vacation Membership (Annexure C-11). The payment of Rs.70,000/- by the respondent/complainant to the appellants/Opposite Parties, is also an admitted fact.
14. 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 she, admittedly, attended the promotional meeting at Chandigarh on 2.4.2012 and signed the approval form (Annexure C-1) on 2.4.2012 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.
15. 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.
16. It is evident that Membership Purchase Agreement (Exhibit C-11) is duly signed by the respondent/complainant. Her signatures thereon fortifies the fact that she accepted the terms and conditions of the Membership Purchase Agreement. In fact, Exhibit C-5 bearing No.8634 has been produced by the respondent/complainant, in incomplete form, as the portion, where the respondent/complainant appended her signatures, has been concealed. Exhibit C-11, which also bears No.8634 clearly bears the signatures of the respondent/complainant. When the complainant signed the agreement (Exhibit C-11), her contention that the appellants/Opposite Parties had assured her and her husband that all terms and conditions, as promised during the promotional meeting, shall be incorporated and they did not go through the terms and conditions mentioned in the draft agreement on 2.4.2012, is not sustainable and the same is rejected being devoid of merit. It seems that the respondent/complainant, after the promotional meeting on 2.4.2012, and after signing the agreement, changed her mind and in order to wriggle out of the agreement, wrote to the appellants/Opposite Parties, contending that certain terms and conditions, orally agreed to, needed to be included in the agreement. The signatures of the respondent/complainant on Exhibit C-11, clearly reveals that she signed the agreement on 2.4.2012 itself and the agreement became final when the same was signed by the appellants/Opposite Parties on 11.4.2012. The respondent/complainant signed the agreement with her eyes wide open and there is stipulation in Exhibits C-5 and C-11, under the heading 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.?
17. The contention of the respondent/complainant that Unit Type “ (A)Studio was ticked by the appellants/Opposite Parties, when the respondent/complainant has not produced copy of agreement (Exhibit C-5) in complete form, gets falsified from the fact that holiday gift vouchers (Exhibits C-6 and C-7) offered to them by the appellants/Opposite Parties on payment of nominal administrative fee of Rs.4,000/-, were in respect of Studio unit, which accommodates 02 adults and 02 kids below 9 years.
18. Insofar as the contention of the respondent/complainant that the agreement was signed by the Country Club International instead of Country Club India is concerned, the same is not relevant when Exhibit C-11 was duly signed by her and by signing the same, she accepted the terms and conditions thereof. The terms and conditions were binding upon the respondent/complainant, and she has failed to prove any deficiency on the part of the appellants/Opposite Parties. In these circumstances, the District Forum wrongly held the appellants/Opposite Parties deficient in rendering proper service to the respondent/complainant.
19. No other point, was urged, by the Counsel for the parties.
20. 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 and perversity, warranting the interference of this Commission.
21. For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, is accepted, with no order as to cost. 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.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.