Dev Raj, Member:
1. This appeal is directed against the order dated 28.10.2013 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant and his wife were called at Hotel Aroma, Sector 22, Chandigarh on 2.8.2012 by the Opposite Parties, for becoming a member of their club for 10 years vacations. It was stated that the complainant came back to his house as he wanted to study the concept. It was stated that the consultant of the Opposite Parties came to the house of the complainant at around 9.00 PM on 2.8.2012 and again explained the scheme and allured him with rosy picture of the club. It was further stated that as it was 11.00 P.M., the complainant showed his inability to pay Rs.70,000/-. It was further stated that on the asking of the said consultant, the complainant paid Rs.40,000/- through debit card vide receipt, Annexure C-1. It was further stated that the consultant of the Opposite Parties, namely Ms. Jyoti also gave some illustrations on a survey sheet and plain papers to the complainant (Annexure C-2 Colly.). It was further stated that the complainant again visited the booking desk of the Opposite Parties on 3.8.2012 and paid Rs.26,500/- by way of cheque and Rs.3,500/- in cash to them. It was further stated that the membership agreement (Annexure C-4) was got signed from the complainant and a free holiday voucher dated 2.8.2012 (Annexure C-3) was also given to him. It was further stated that the complainant received a letter dated 24.8.2012(Annexure C-5) alongwith the membership agreement signed by the Opposite Parties and was surprised to notice that the date was shown as 14.8.2012 and also the non judicial stamp was affixed afterwards and the seal of the Opposite Parties mentioned the name as Country Club International but the complainant still kept the same being a bonafide customer. It was further stated that the complainant contacted the Opposite Parties for availing of the vacations as per the membership agreement but every time, he was asked for a destination. It was further stated that the Opposite Parties showed their inability to provide the same, on the ground, that the destination was unavailable or they were not having tie-up at the preferred destination. It was further stated that it was informed by the Opposite Parties, that the administration charges of Rs.1,000/- per day were to be paid, in case, the facility was to be availed. It was further stated that the complainant was not provided the facility as promised and even his free voucher was valid, if Rs.4,000/- was paid to them. The complainant then asked for the refund of amount paid by him but to no avail. 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 to refund Rs.70,000/- alongwith interest @12% per annum from the date of deposit; pay Rs.50,000/- as compensation for mental agony and physical harassment and Rs.22,000/- as costs of litigation.
3. The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that since neither the Membership Agreement was executed at Chandigarh nor the any transaction/payment was made at Chandigarh to any representative of the Opposite Parties, therefore, no cause of action accrued to the complainant, at Chandigarh and, as such, the District Forum, Chandigarh had no territorial jurisdiction to entertain and decide the complaint; and that since there existed an arbitration Clause 12 in the membership/purchase agreement, the matter could be effectively decided by the sole arbitrator. However, on merits, it was denied that the complainant was allured with any rosy picture of the Club. It was stated that rather at the instance of the complainant, he was explained about all the features of the membership and all his queries were resolved. It was further stated that since the complainant went back to his house to study the concept, it could be concluded that he was well aware of the features and terms and conditions of the membership of the club. It was admitted that the complainant visited the hotel on 3.8.2011 for applying for the membership and filled the application form (proposal form), Annexure R-2. It was further stated that the complainant was advised to send the application form (proposal form) and Purchase Agreement, annexed by him as Annexure C-4 with his complaint, filled and signed by him alongwith the requisite documents to the dealing office of the Opposite Parties at #25, Community Centre, First Floor, East of Kailash, Near Sapna Theatre, New Delhi. It was further stated that the application form of the complainant and Purchase Agreement were accepted at the dealing office of the Opposite Parties at New Delhi. It was further stated that, thus, the contract was entered into at New Delhi where the acceptance of offer was made. The Opposite Parties admitted the receipt of payment of Rs.26,500/- and Rs.3,500/- and also issuance of free holiday voucher to the complainant. It was further stated that after the application was accepted, it was signed and got notarized by the Opposite Parties and, therefore, it was bound to have the date (14.08.2012) when the Opposite Parties signed the agreement and got it notarized. It was further stated that the complainant without any evidence alleged that he contacted the Opposite Parties for availing of vacations and he was refused the same every time. It was further stated that the procedure for availing the vacations was mentioned in Clause No.3 of the Membership benefits (Annexure 1) of Membership Purchase Agreement. It was further stated that tie up properties were clearly mentioned on the website of the Opposite Parties. It was further stated that the first line of the holiday gift voucher, Annexure C-3, clearly mentioned that the complainant may enjoy the gift by paying a nominal administration fee of Rs.4,000/- but he did not pay the same. It was further stated that the cancellation of membership was untenable in the eyes of law and the complainant did not reserve any right to terminate membership unilaterally as per his whims and fancies. 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.
4. The complainant filed replication wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version.
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, dismissed the complaint, as stated in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
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 appellant/complainant submitted that the agreement, on behalf of respondents/Opposite Parties, was signed by the Country Club International instead of Country Club India, which amounted to unfair trade practice. It was further submitted that the District Forum failed to appreciate the basic fact that the agreement was not complete as it was signed by the appellant/complainant at Chandigarh and date was not mentioned on the agreement. It was further submitted that the District Forum came to a wrong conclusion that the appellant/complainant had failed to produce any document to prove that he was denied the destinations. It was further submitted that the District Forum erroneously came to the conclusion that the appellant/complainant signed the undertaking that the membership fees was non refundable as the agreement had been signed by Country Club International.
10. The Counsel for the respondents/Opposite Parties submitted that the application form (proposal form), Annexure R-2, was filled in by the appellant/complainant. It was further submitted that the appellant/complainant, without any evidence, alleged that he contacted the respondents/Opposite Parties for availing of vacations, but he was refused the same every time. It was further submitted that the procedure for availing of vacations was mentioned in Clause 3 for availing benefits (Annexure-1). It was further submitted that the cancellation of membership was untenable as the appellant/complainant did not reserve any right to terminate the membership unilaterally.
11. It is evident that the appellant/complainant signed the agreement (Annexure C-4). His signatures thereon fortify the fact that he accepted the terms and conditions of the membership purchase agreement. Annexure C-6 is exactly the copy of agreement (Annexure C-4) and the only addition is that the same has been signed by the respondents/Opposite Parties. There is no difference between Annexure C-4 and Annexure C-6 except that Annexure C-6 is the complete agreement signed by both the parties. The payment of Rs.70,000/- (i.e. Rs.40,000/- through debit card vide receipt , Annexure C-1 + Rs.26,500/-, by way of cheque + Rs.3,500/- in cash) by the appellant/complainant to the respondents/Opposite Parties, is an admitted fact.
12. The respondents/Opposite Parties, in their written statement, took up the preliminary objections as regard 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, the District Forum rightly observed that a part of cause of action definitely arose to the complainant at Chandigarh as the Membership Purchase Agreement (Annexure C-4), as also admitted by the Opposite Parties, was signed at hotel on 3.8.2011 at Chandigarh, where the complainant visited for applying for the membership and filled the application form (Proposal form) and the said agreement was later on signed and notarized at Delhi by the representative of Country Club (India) Limited as was clear from Annexure C-6, which was the copy of Membership Purchase Agreement.
13. The next preliminary objection raised was as regard the existence of arbitration clause in the agreement. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under ;
œ3. Act not in derogation of any other law.”
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.?
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 respondents/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
14. On perusal of the agreement, it is observed that the procedure for holiday booking is mentioned in Clause 3 of the Membership Benefits and Membership Purchase Agreement, Annexure C-6), which reads as under:-
œ3. Holiday booking is to be done online (visit www.CountryClubIndia.com, click on Member login and select your location from the dropdown menu. Login with the username and password, which will be sent along with the welcome letter and the procedure for booking online, to book your holidays).?
15. There is force in the averment of the respondents/Opposite Parties that the appellant/complainant did not make any request to them as no cogent evidence was produced by the complainant in that regard. Even no evidence to this effect and also any evidence to the effect that the respondents/Opposite Parties expressed their inability to provide for destinations when asked, for by the appellant/complainant was produced by the latter. The appellant/complainant signed the agreement with his eyes wide open and there is stipulation in Annexures C-4 and C-6, 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.?
16. Insofar as the contention of the appellant/complainant that the agreement was signed by the Country Club International instead of Country Club India is concerned, the same is not relevant when Annexures C-4 and C-6 are duly signed by him and by signing the same, he accepted the terms and conditions thereof. The terms and conditions were binding upon the appellant/complainant and he has failed to prove any deficiency on the part of the respondents/Opposite Parties. In these circumstances, the District Forum was right in holding that in view of the aforesaid clear undertaking duly signed by the complainant, he could not unilaterally ask for refund of the membership fee. The District Forum, thus, rightly held that the Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice.
17. No other point, was urged, by the Counsel for the parties.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.