State Consumer Disputes Redressal Commission
Cabana Club vs Rajesh Gupta on 25 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.1124 of 2010
Date of institution : 28.06.2010
Date of decision : 25.11.2013
Cabana Club, G.T. Road, Village Sprod, Phagwara through its
Managing Director Anil Chodha.
.......Appellant- Opposite Party
Versus
Rajesh Gupta s/o Shri Jagdish Rai Gupta, R/o H.No.Fairdeal House,
Opposite All India Radio Station, Jalandhar (Presently residing at 92,
Green Park, Jalandhar).
......Respondent- Complainant
2. First Appeal No.2018 of 2010
Date of institution : 25.11.2010
Date of decision : 25.11.2013
Rajesh Gupta s/o Shri Jagdish Rai Gupta, R/o H.No.Fairdeal House,
Opposite All India Radio Station, Jalandhar (Presently residing at 92,
Green Park, Jalandhar).
.......Appellant-Complainant
Versus
M/s Club Cabana, G.T. Road, Village Sprod, Phagwara, District
Kapurthala through its Managing Director Anil Chodha.
......Respondent- Opposite Party
First Appeal against the order dated
17.5.2010 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
First Appeal No.1124 of 2010. 2Present:-
For the appellant : Shri Vishal Aggarwal, Advocate. For the respondent : Shri Rajiv Joshi, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The above noted appeals are directed against the order dated 17.5.2010 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, "District Forum"), vide which the complaint filed by Rajesh Gupta, complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed and the opposite party was directed to refund the membership fee of Rs.1,25,708/- and to pay a compensation and costs of Rs.10,000/-.
The first appeal (FA No.1124 of 2010) has been preferred by the opposite party for setting aside that order whereas the second appeal (FA No.2018 of 2010) has been preferred by the complainant for enhancement of the compensation to Rs.50,000/- and the litigation expenses to Rs.10,000/- and to allow him the interest at the rate of 18% per annum.
2. As per the averments made by the complainant, in his complaint, he got membership of the opposite party on 24.12.2006, vide Application Form No.070 after paying the membership fee of Rs.1,25,708/-, vide cheque dated 25.12.2006 drawn on the State Bank of India. At the time of selling that membership, the opposite party allured him that he and his family members would enjoy the facilities like swimming pool, gymnasium, steam & sauna and many other sports facilities; like, lawn tennis, badminton, squash, golf etc. In addition to that, the facilities like restaurant, guest room and the benefits of the associate clubs were also promised. It was as a First Appeal No.1124 of 2010. 3 result of that allurement that he became the Member. Since the date of membership 20 months have passed but the Club has not been made operational and he is unable to enjoy the promised facilities. He had been writing letters and sending e-mails to the opposite party in that regard but it never responded. One circular was issued by it on 25.5.2007 regretting the delay. Whenever he personally contacted the opposite party for the payment of money, it promised to start the club within next two months but the same never happened. This delay in starting the club amounts to deficiency in service and unfair trade practice on the part of the opposite party. It caused mental agony, tension and harassment to him. He served a legal notice dated 20.1.2009 through his counsel upon the opposite party and false and flimsy grounds were taken in the reply. On all these facts, he prayed for issuance of directions to the opposite party to refund the above said membership fee, along with interest at the rate of 18% per annum, to pay Rs.50,000/- as damages for the mental agony, harassment and deficiency in service and unfair trade practice and Rs.10,000/- as litigation expenses.
3. The opposite party filed the written reply before the District Forum in which it admitted that the complainant was enrolled as its Member and that there was delay in starting the club and providing the facilities to the Members. While denying the other averments made in the complaint, it pleaded that the complainant himself had approached it for enrolling himself as a Member and at that time he was having the knowledge of the facilities, which were to be provided to the Members. He had agreed to all the terms and conditions of First Appeal No.1124 of 2010. 4 the membership and no such allurement was given to him. The club started operating on 29.12.2007 with all the facilities, which were being availed and enjoyed by the complainant. On the day, the club was made operational, a large scale function was organized and the complainant, along with his family members was present. The club became fully operational in October 2008. There was no such deficiency in service or unfair trade practice on its part. Therefore, the District Forum has no jurisdiction to entertain and decide the complaint and the same is not maintainable under the law. The complainant is not a 'consumer' under the Act and the complaint has been filed by him on the basis of false and untrue facts, while concealing the true facts.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf partly allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite party that while ignoring the evidence produced on the record, it was wrongly concluded by the District Forum that the club was not operational and that the facilities were not provided to the members till December 2008. From the evidence produced on the record, it stands proved that the club had become fully operational in the month of December 2007 when the opening function was performed at large scale, which was attended by the complainant and his family First Appeal No.1124 of 2010. 5 members. Thereafter, he had been enjoying all the facilities, which were to be made available to the members. Therefore, it cannot be said that there was any deficiency in service or unfair trade practice on the part of the opposite party.
7. On the other hand, it was submitted by the learned counsel for the complainant that the opposite party failed to fulfil the promise that the club would be operational by April 2007. The same was not made operational and the facilities were not made available to the complainant till May 2007. Thereafter the complainant had written to the opposite party to return his money deposited by him as membership fee and had also been sending e-mails with the same request, which have been produced on the record. Once the complainant exercised his option to withdraw his membership on failure of the opposite party to make the club operational as agreed by the opposite party, he was entitled to the refund of the membership fee even if the club was made operational subsequently. Moreover, from the evidence produced on the record, it stands proved that it was made operational only in the year 2008 and it has been wrongly contended by the opposite party that it was made operational in December 2007. The opposite party is guilty of the unfair trade practice for having retained the membership fee of the complainant for such a long time without fulfilling its part of the promise. Non-providing of the facilities by the agreed date amounts to deficiency in service. For that act of the opposite party, the compensation and litigation costs allowed to the extent of First Appeal No.1124 of 2010. 6 Rs.10,000/- is very meagre and the same is liable to be enhanced and should be allowed as prayed in the complaint.
8. The first question to be decided is, as to from which particular date the opposite party was to start furnishing the club facilities to its members as per the promise extended by it? It was deposed by the complainant in his affidavit Ex.CA that it was promised by the opposite party that the club will be made operational by April 2007 and that he would be able to enjoy all the facilities from April 2007 onwards and that the same was not made operational by that time. That fact is also incorporated in the terms and conditions printed on the back of the membership form, which was got filled up from the complainant by the opposite party and which was proved on the record as Ex.C-3. The opposite party proved on record the affidavit of Anil Chodha Ex.OPA but the same is silent as to when the club was to be made operational and the promised facilities were to be made available to the members. Thus, the evidence of the complainant on that aspect of the case has remained unrebutted. We conclude from that evidence that the club was to be made operational with effect from April 2007 and the opposite party was duty bound to make available the promised facilities to its members with effect from that month.
9. The next question to be decided is, as to when the club was made operational? It has been deposed by the complainant in his affidavit Ex.CA that the opposite party itself issued the circular on 25.5.2007 regretting the delay and whenever he approached the opposite party, it promised to start the club in the next two months First Appeal No.1124 of 2010. 7 but failed to do so. The letter written by him to the opposite party for the refund of the membership fee was proved on the record as Ex.C7. That letter is dated 18.5.2007. He specifically mentioned therein that there was no sign of the club being made operational at least for another six months. That letter was replied by the opposite party, vide letter dated 25.5.2007 Ex.D-10. In that reply the opposite party admitted that there was delay in launching the schedule of the club. Anil Chodha tried to depose in his affidavit Ex.OPA that the club was made operational on 29.12.2007. No supporting document was proved on the record for proving that fact. In the appeal the opposite party placed on record the photographs, which appear to have been taken on the New Year eve celebrated in the month of December 2008 but from those photographs it cannot be concluded that the club was made operational from that date. It also placed on record the photostat copies of different newspapers carrying news regarding this club and from those newspapers, which are dated 29.12.2008. From that evidene, it can be concluded that this club was made fully operational in the month of December 2008.
10. The act of the opposite party in not fulfilling its promise to make the club operational with effect from April 2007 amounts to deficiency in service on its part as it collected huge amounts as membership fee from the members and failed to provide the facilities with effect from that month. The collecting of those huge amounts with the intention of not fulfilling the promise also amounts to unfair trade practice.
First Appeal No.1124 of 2010. 8
11. It was contended by the learned counsel for the opposite party that even if it is so, the District Forum was not justified in making an order for refunding the membership fee as the form filled up by the complainant at the time of obtaining the membership carried the rules and regulations and as per regulation 15 thereof, the membership fee was not refundable. No doubt, such a regulation is contained therein but the same was to apply if the opposite party had fulfilled the other terms and its promise to make the club operational in April 2007. As already said above, when it was not made operational, the complainant had written letter Ex.C-7 for the return of his membership fee. Even after that the club was not made operational till December 2008. Therefore, the complainant was entitled to the refund of his membership fee and a correct finding was recorded to that effect by the District Forum.
12. We do not find that the compensation and litigation costs so awarded by the District Forum to the tune of Rs.10,000/- is on the lower side; keeping in view the physical or the mental injury, which might have been resulted to the complainant on account of the said deficiency in service and unfair trade practice on the part of the opposite party, when the order for the refund of the membership fee has also been made. We do not find any ground for enhancing the same. Accordingly both the appeals are dismissed.
13. The sum of Rs.25,000/- deposited at the time of filing of the appeal (FA No.1124 of 2010) along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft First Appeal No.1124 of 2010. 9 after the expiry of 45 days under intimation to the District Forum and the appellant/opposite party.
14. The arguments in this case were heard on 15.11.2013 and the order was reserved. Now, the order be communicated to the parties.
15. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) November 25, 2013 MEMBER Bansal