State Consumer Disputes Redressal Commission
Ramesh Chaudhary vs M/S Sterling Holidays Resorts (I) ... on 29 April, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.993 of 2006.
Date of Institution: 04.08.2006.
Date of Decision: 29.04.2011.
Ramesh Chaudhary son of Sh. Kesar Dass, Resident of H.M. 32, Anand
Avenue, Maqbool Road, Amritsar.
.....Appellant.
Versus
1. M/s Sterling Holidays Resorts (I) Limited, Registered Office 154, Eldms
Road, Teynampet, Chennai-600 016.
2. M/s Sterling Holidays Resorts (I) Limited, through its Branch Manager,
Queens Road, near Popular Bakery, Amritsar.
...Respondents.
First Appeal against the order dated
22.06.2006 of the District Consumer
Disputes Redressal Forum, Amritsar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Vikram Chaudhary, Advocate. For the respondents : Sh. Parminder Singh, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Ramesh Chaudhary, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 22.06.2006 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, pleading that the manager of the respondents approached the appellant for the purpose of selling Sterling Crown residential accommodation facility owned by respondent at various places and also represented that they are constructing Sterling Crown at Chahal (H.P.) which will be ready by the end of the year 1997 and on his representation, the First Appeal No.993 of 2006 2 appellant agreed to purchase the same for a sum of Rs.1.60,000/- and paid Rs.1,27,000/- and the facility started from 01.01.1998. The appellant purchased the Sterling Crown under which, he was entitled to demand accommodation at any time during the year, but got fixed the period from 23rd June to 30th June and the respondents have no right to refuse the accommodation in this week. The appellant came to know that even the land has not been purchased and no construction activity has yet started and the respondents are unable to provide accommodation as agreed. A notice dated 11.02.1998 was served upon the respondents to refund the amount, but no refund was made and the appellant was left with no other alternative, except to file the complaint which was allowed by the District Forum, Amritsar on 01.07.1998 and the appeal against the said order was accepted by the State Commission, Punjab, on the ground that the Consumer Forum has got no jurisdiction to entertain such like complaints.
3. Thereafter, the representative of the respondents namely Rajiv Shikarpuria along with one Rajesh Kumar again approached the appellant and assured that the arrangement has been made, the land has been purchased and the construction is going to start shortly and received the remaining consideration of Rs.33,000/- and gave the receipt against the aforesaid membership number without paying any interest and also some other facilities were provided which consisted of week's holiday every year along with voucher of Rs.5000/- every year. It was assured that the crown facility resort at Chahal is going to start within short time, but the appellant again came to know that the respondents have not purchased any property and the Himachal Pradesh Govt. has not allowed them to make any construction and they gave false assurances to trap the appellant and believing their mis-representation to be true, appellant paid Rs.1,60,000/-, but the respondents failed to provide the services and committed unfair trade First Appeal No.993 of 2006 3 practice and deficiency in service. Notice dated 15.04.2005 was served, but no reply was filed.
4. Recently, Hon'ble National Commission held that the Consumer Court has jurisdiction to decide such cases and prayed that the respondents be directed to refund Rs.1,60,000/- along with interest @ 18% p.a. and to pay Rs.50,000/- as compensation for harassment, Rs.50,000/- towards deficiency in service and Rs.11,000/- as litigation expenses.
5. In the reply filed on behalf of the respondents, the preliminary objections were taken that the complaint in the present form is not maintainable and the appellant is not a consumer within the meaning of the Act. There is no cause of action nor the appellant has any locus standi to file the complaint. On merits, it was submitted that the appellant himself approached the respondents for the purpose of purchasing the membership facility owned by the respondents at various places. Respondents never promised with the appellant regarding construction of Sterling Crown at Chahal (H.P.) to be ready at the end of the year 1997. It was denied that the appellant has paid Rs.1,60,000/- but interalia, it was pleaded that the appellant has enjoyed the facility from time to time and Holiday Confirmation Vouchers from 20.06.2000 to 28.06.2000, 07.07.2000 to 11.07.2000, 19.06.2000 to 22.06.2000, 01.07.2000 to 04.07.2000, 29.06.2000 to 01.07.2000, 26.06.2000 to 28.06.2000, 07.07.2000 to 11.07.2000, 18.06.2001 to 25.06.2001, 23.06.2002 to 30.06.2002 and 23.06.2004 to 20.06.2004 and there is no question of filing the complaint. As per the terms and conditions settled between the parties, the respondents always provided suitable accommodation to the appellant and the appellant is not entitled for any relief and has filed this false complaint. Rest all the allegations contained in the complaint were denied and it was prayed that the complaint may be dismissed with costs.
First Appeal No.993 of 2006 4
6. Parties led evidence in support of their respective contentions by way of affidavits and documents.
7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant did not file any appeal before the Hon'ble National Commission against the order of the State Commission and woke up suddenly to file the present complaint six years after passing of the order by the State Commission, and dismissed the complaint.
8. Aggrieved by the impugned order dated 22.06.2006, the appellant has come up in appeal.
9. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
10. Learned counsel for the appellant contended that earlier, the complaint was dismissed on the ground of jurisdiction by the District Forum and the appeal filed before the Hon'ble State Commission was also dismissed on the ground of jurisdiction, but now the law has been interpreted otherwise by the Hon'ble State Commissions and the Hon'ble National Commission and the earlier orders cannot operate as resjudicata. The appellant paid the amount of Rs.1,60,000/- for enjoying the facilities, but the same have not been provided and the appellant is entitled to refund of the amount along with compensation and litigation costs.
11. On the other hand, learned counsel for the respondents has contended that the facilities were provided to the appellant a large number of times and he has enjoyed those facilities and the complaint is not maintainable. Earlier, the complaint filed by the appellant was dismissed and the appeal was also dismissed and now, the complaint is not maintainable.
12. We have considered this submission of the learned counsel for the parties.
First Appeal No.993 of 2006 5
13. The District Forum while relying upon the decision of this Commission dated 24.08.1999 as well as of the Hon'ble National Commission in case "Dalmiya Resorts International (P) Limited Vs Dr. Ranjana Gupta & Anr.", 1997(1) CPC-649, dismissed the complaint on the ground of jurisdiction. But later on, different interpretation was given by the Hon'ble National Commission in the case of the same resort titled as "T.V. Sunderason & Anr. Vs Sterling Holiday Resorts (India) Limited", 2004(1)Judicial Reports Consumer-51(NC), wherein it was held that the dispute pertaining to 'property, time share', which is the subject matter of the sale deed between the Holiday Resorts and consumer, the complaint is maintainable.
14. Hon'ble Haryana State Commission in case "Dalmiya Resorts International (Hills) Pvt. Ltd. & Ors. Vs Kamla Wati", IV(2005)CPJ-316, held that the complaint qua the Time Share Property is maintainable and complainant could not stay in the resort and had to incur extra expenses which amounts to deficiency in service.
15. Hon'ble Supreme Court in case "Shakuntla Devi Vs Kamla & Others", 2005-3 (The Punjab Law Reporter)-351(SC), held in Para No.19 as follows:-
"19. From the above principles laid down by this Court, it is clear that if the earlier judgment which is sought to be made on the basis of res- judicata, is delivered by a court without jurisdiction or is contrary to the existing law at the time the issue comes up for reconsidering such earlier judgment cannot be held to be res-judicata in the subsequent case unless, of course, protected by any special enactment".
16. Thus, from the above preposition of law, it is clear that the law has changed and the present complaint has to be decided, taking into consideration the changed preposition of law and the complaint is maintainable and this Commission has the jurisdiction to decide the dispute. First Appeal No.993 of 2006 6
17. Certificate of membership Ex.C2 makes it clear that the appellant became member of the Sterling Crown and the membership period was from the year 1999 to 2031 and the week allotted to him was from 23/06 to 29/06. Vide Ex.C4 to Ex.C6, appellant paid Rs.1,60,000/-. Vide Ex.C15, appellant was asked to deposit the amount of Rs.33,000/- against the above membership number without paying any interest.
18. To rebut this evidence, the respondents have tendered the affidavit of Anand Pali Wal, Regional Manager, Sterling Holidays Resorts Limited as Ex.R1 and holiday confirmation vouchers Ex.R2 to Ex.R10 as per which, appellant was given holiday confirmation vouchers for Manali, Kerala, Kodiakanal, Goa, Chennai, Ooty, Manali and the last holiday confirmation voucher is dated 25.05.2004.
19. As per certificate of membership, the allotted holiday resort was Sterling Crown at Chail Blossom, but there is no document on record to prove that the appellant was ever given any holiday confirmation voucher for Chail Blossom. Although, the appellant was given holiday confirmation vouchers for other places as stated above, but the stipulated holiday resort for which the appellant opted for membership, was Sterling Crown at Chail Blossom and by not providing any accommodation at the said resort, respondents have definitely committed deficiency in service and the providing of holiday confirmation vouchers and accommodation at other places, cannot exonerate the respondents from fulfilling their commitment towards the appellant and in such a situation, cause of action is recurring and the appellant is entitled to refund of the amount which he has deposited with the respondents for availing the facilities at Chail Blossom Resort (Himachal Pradesh).
20. Accordingly, the appeal is accepted and the impugned order dated 22.06.2006 passed by the District Forum under appeal, is set aside. Resultantly, the complaint filed by the appellant is allowed and the respondents are directed to refund Rs.1,60,00/- along with interest @ 9% p.a. First Appeal No.993 of 2006 7 from the date of deposit till realization and to pay Rs.5000/- as litigation expenses to the appellant/complainant within two months from the receipt of copy of the order.
21. The arguments in this appeal were heard on 28.04.2011 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member April 29, 2011.
(Gurmeet Singh)