National Consumer Disputes Redressal
M/S. Forest Fern Hospitality (P) Ltd. & ... vs Pramod Chaturvedi & Anr. on 15 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 700 OF 2017 (Against the Order dated 18/11/2016 in Appeal No. 1096/2016 of the State Commission Uttar Pradesh) 1. M/S. FOREST FERN HOSPITALITY (P) LTD. & ANR. B-204, ANSAL CHAMBER I, BHIKAJI CAMA PLACE, NEW DELHI-110066 2. COUNTRY INN PVT. LTD. TIMESHARE DIVISION B-204, ANSAL CHAMBER I, BHIKAJI CAMA PLACE, NEW DELHI-110066 ...........Petitioner(s) Versus 1. PRAMOD CHATURVEDI & ANR. S/O. RADHA RAMAN CHATURVEDI, R/O. HOUSE NO. B-185, A2, NIRALA NAGAR LUCKNOW UTTAR PRADESH 2. MS. BHAVANA CHATURVEDI W/O. SH. PRAMOD CHATURVEDI, R/O. HOUSE NO. B-185, A2, NIRALA NAGAR LUCKNOW UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : NEMO FOR THE RESPONDENT : NEMO
Dated : 15 November 2023 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioners against Respondents as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 18.11.2016 of the State Consumer Disputes Redressal Commission, Lucknow, U.P., (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No.1096/2016 in which order dated 03.03.2016, District Consumer Disputes Redressal Forum II, Lucknow (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 91/2013 was challenged, inter alia praying to set aside the orders passed by the State Commission and District Forum; and to remand back the matter to the District Forum for fresh adjudication.
2. While the Revision Petitioner(s) (hereinafter also referred to as OPs) were Appellants and the Respondent(s) (hereinafter also referred to as Complainants) were Respondents in the said FA/1096/2016 before the State Commission, the Revision Petitioner(s) were OPs and Respondent(s) were complainants before the District Commission in the CC no. 91/2013
3. Notice was issued to the Respondents. Parties filed Written Arguments/Synopsis on 11.08.2017 (Complainant/Respondent) and 20.09.2017 (Petitioners/OPs) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:
On 10.07.2010, the complainants received a phone call from an employee of the OP, who informed them that they had won a prize in a draw. They were told that the prize included the opportunity to reside free of cost in any resort around the world. The following day, on 11.07.2010, the complainants attended a program at Gomti Hotel, Lucknow, organized by the OP, M/s Forest Fern Hospitality Pvt. Ltd. During the program, the OP's employee asked the complainants to deposit Rs. 1,35,000/- for membership, which would grant them these privileges. Impressed by the offer, the complainants deposited Rs.1,35,000/- through cheques on various dates. Particularly, as soon as the complainants completed the full payment, the OP closed down its office without any prior notice, leaving the complainants unable to reach them. Despite their efforts to recover their deposited money, the OP took no action to address their concerns. Allegedly, this conduct by the OP constitutes a deficiency in service and reflects unfair trade practices. As a result, the aggrieved complainants have filed the complaint.
5. Vide Order dated 03.03.2016, in the CC no. 91.2013 the District Forum has allowed the complaint and directed OP to pay complainants a sum of Rs. 1,35,000/- together with pendent-lite and future interest @9% p.a.
6. Aggrieved by the said Order dated03.03.2016 of District Commission, Petitioner(s) appealed in State Commission and the State Commission vide order dated 18.11.2016 in FA No.1096/2016 has dismissed the appeal.
7. Petitioner(s) have challenged the said Order dated 18.11.2016 of the State Commission mainly on following grounds:
The State Commission and the District Forum erred in not recognizing that the complaint filed by the complainants was time-barred, as it was not submitted within the stipulated period from the date of executing the agreement. There was no deficiency in service on the part of the OPs, and the OPs did not breach any terms and conditions of the vacation resort timeshare agreement dated 11.07.2010, which remained valid for ten years from the date of execution. Unjustly, the State Commission and the District Forum ruled in favor of the complainants without any evidence of service deficiency or violations of the membership agreement's terms and conditions. Furthermore, the District Forum's ex-parte order lacked essential details, such as the date of notice sent, date of service, mode of service, and the recipient. This procedural deficiency should lead to the order's annulment.
The complainants failed to provide any documentary evidence to substantiate their claims. They willingly entered into a timeshare agreement, which bound both parties to its terms and conditions. The complaint against the OPs was baseless, as the complainants concealed essential facts and never made an effort to utilize their allotted timeshare week or request access to it. Consequently, no adverse inference should be made against the OPs for alleged service deficiencies or unfair trade practices. Both the State Commission and the District Forum issued their orders without acknowledging that there was no violation of the provisions of Section 2(g) or 2(r) of the Consumer Protection Act.
The complainants requested to avail their timeshare through emails dated 19.07.2011 and 20.07.2011. In response, they were informed that they could access their timeshare week through RCI. Therefore, there was no service deficiency on the part of the OPs. The complainants did not suffer due to the office's relocation from Lucknow; they were duly notified of this change via an email dated 20.07.2011 and provided with the mobile number and telephone number of customer care for service access. The complaint contradicted the executed documents in which the complainants were involved, indicating that it was false, frivolous, and malicious. The orders were mechanically issued without proper consideration of the submissions and transactions between the parties, rendering them subject to annulment and quashing.
8. Despite opportunities given for oral hearing on 18.08.2023 and 04.09.2023, none appeared on both the dates. Hence, the case has been taken up on merits based on available records. Contentions/pleas of the parties, on various issues raised in the RP and written arguments, are summed up below.
The counsel for the OP/petitioners argued that the OPs operate a time-share business in which accommodation is provided to members, customers, and guests on a time-share basis. They are affiliated with RCI, a company that offers resort exchange services, allowing customers to enjoy resort facilities worldwide. The complainants were impressed by the time-share scheme offered by the OPs and chose to become members of this scheme. They executed a "Vacation Resort Membership Agreement" on 11.07.2010, which detailed the terms and conditions of the membership. The complainants, after thoroughly understanding and appreciating the terms and conditions of the time-share scheme, agreed to make payments totaling Rs. 1,35,000/- in installments for membership and opted to purchase a 1-bedroom apartment with a "WHITE" season for one week of stay each year for a ten-year membership, beginning from the date of the agreement. A worksheet was prepared in the presence of the complainants, outlining the calculations and procedural requirements for availing the time-share scheme. The complainants executed the Vacation Resort Membership Agreement with a full understanding of its terms and conditions and paid a total of Rs. 1,20,000/-, as a cheque for Rs. 15,000/- was not encashed.
The agreement included clauses such as Clause 21, which allowed for rescission of the agreement in case of any discrepancies within 10 days of signing; Clause 13, in which the complainants agreed to pay annual maintenance charges; Clauses 8 and 9, which detailed the OPs' commitment to enroll the complainants with RCI for the first 5 years at no extra cost. Additionally, the complainants were given a gift coupon that provided them with the opportunity to experience the benefits of the time-share scheme and enjoy resort facilities. The counsel further argued that the complainants initially availed of their time-share week for the year 2011 and communicated their intent through an email dated 19.07.2011. However, there was no further communication or complaint from the complainants regarding a deficiency in the services provided by the OPs. In an astonishing move, the complainants filed a consumer complaint against the OPs, alleging that the OPs were liable for not letting out the time-share week on their behalf and not paying for it. This claim contradicts Clause 16 of the executed agreement, which explicitly states that the developer (OPs) does not rent or resell the vacation resort membership to members or third parties.
The complainants also claimed that they suffered due to the relocation of the OPs' office from Gomti Hotel, Lucknow, to a new address at Insaf Nagar, Sector-10, Indra Nagar, Lucknow. However, they were duly informed about this change via email on 20.07.2011. The complainants filed their consumer complaint for a refund of the membership fee more than three years after the alleged incident. The District Forum passed an ex-parte order on 03.03.2016, without giving the OPs a reasonable opportunity to present their side or appreciating the absence of a deficiency in service. Aggrieved by the District Forum's order, the OPs filed an appeal before the State Commission and deposited a sum of Rs. 1,35,000 as per the Commission's directions. However, due to an error in noting the date, the matter was decided in the absence of the OP's counsel, resulting in the dismissal of the appeal. The counsel for OPs further contend that the complainants' claims are baseless, as they have not made any payments for weeks not utilized, and the change of address was duly communicated to them. They argue that the orders of the State Commission and District Forum simply reiterate the complainants' complaints without referencing or appreciating the terms of the vacation resort time-share agreement. The counsel relied on following legal precedents to support their position; Bharathi Knitting Co. v. DHL Worldwide Express Courier, 1996 (4) SCC 704 and M/s. Kranti Associates Pvt. Ltd. v. Sh. Masood Ahmed Khan & Ors, 2010 (9) SCC 496.
The counsel for the complainants/Respondents argued that the OPs/petitioners, despite being fully aware of the case against them before the District Forum, neither sought any adjournments nor submitted any written replies or statements in their defense. Moreover, they preferred an appeal before the State Commission but did not appear on any of the dates. Eventually, on 18.11.2016, when no applications for adjournments or appearances were made, the complainants were heard, and an order was passed by the State Commission. Notably, there was no single adjournment or appearance of the OPs before the District Forum or State Appeal. OPs subsequently filed a revision before this commission, which is now being addressed.
The complainants entered into an unregistered, nonnotarized agreement on 11.07.2010 under coercive pressure by the OP at Hotel Gomti, Lucknow, providing ten years of membership until 10.07.2020. The authorized signatory of the OP made various commitments, such as utilizing the membership fee to lend, transfer, or rent their weeks to their references if the complainants did not avail of their entitlement week. This was presented as a return on investment. An amount of Rs. 15,000/- was paid by an account payee cheque dated 20.03.2011, against a receipt. No bank endorsement for non-encashment or any intimation was sent to the complainants. As a result, they have no knowledge of whether the cheque was presented to their banker or not. The remaining amount of the membership fee was Rs. 1,35,000/-. Since then, no return or assurance letter was sent, and when an attempt was made to inquire, the local representative informed the complainants that their Branch Manager or representative had already left the job, and the management had also left Lucknow.
The OPs compelled the complainants under coercive pressure into an agreement dated 11.07.2010, which was one-sided, unregistered, and un-notarized. The OPs deceived them with false promises and various commitments, such as the return on investment (ROI) from the membership fee paid. Despite being in the hotel industry and not requiring such a membership, the complainants paid a fee of Rs. 1,35,000/- based on the OPs' verbal counseling and assurances. The OPs did not respond to the complainants' attempts at communication, including emails and a legal notice sent by speed post, prior to the filing of the case with the District Forum, Lucknow. The OPs appeared once before the District Forum but subsequently did not seek adjournments or submit arguments in their favor. The OPs also went to the State Appeal and had an opportunity to defend their case but failed to attend their own appeal. The complainants have already received Rs. 1,10,000/- from the District Forum in the form of a cheque dated 30.01.2017, which constituted their own money.
The complainants further asserted that the OPs, instead of representing or protesting before the District Forum or the State, chose to route their case through the state appeal process. Subsequently, they filed a Revision Petition No. 700/2017 on 20.03.2017, before the National Commission. The execution proceeding, initiated to enforce the order dated 03.03.2016, is still pending before the District Forum, Lucknow.
9. We have carefully gone through the orders of State Commission, District Forum, other relevant records and rival contentions of parties as contained in their written arguments. There are concurrent findings of both the fora below against the Petitioner herein. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity."
10. The Hon'ble Supreme Court in Rajiv Shukla vs Gold Rush Sales And Services Ltd. Civil Appeal No. 5928 of 2022, decided on 8 September, 2022, held that:-
"13. As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.
14. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record. Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21(b) of the Consumer Protection Act."
11. We find no illegality or material irregularity or jurisdictional error in the orders of the State Commission or District Forum, hence the same are upheld. Accordingly, the Revision Petition is dismissed.
12. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER