State Consumer Disputes Redressal Commission
Mahindra Holidays & Resort India Ltd. vs Mahabir Aggarwal on 25 April, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 25.04.2013 First Appeal No.84/2009 (Arising out of the order dated 19.12.2008 passed by the District Consumer Dispute Redressal Forum-VII, Sheikh Sarai, New Delhi, in Complaint Case No.DF-VII/615/07) Mahindra Holidays & Resort India Ltd. Having its office at M-46, Ist floor, M-Block Market, Greater Kailash-II, New Delhi-48, .......Appellant VERSUS 1. Sh. Mahabir Aggarwal, S/o/Sh. Omprakash Aggarwal, R/o Z-13, A Rajouri Garden, New Delhi, 2. Sh. Jatin Vohra, 104, Swati Mitra Chambers Building No.6, Gulmohar X-Road, JVPD, JHU, Mumbai, .......Respondents CORAM S.A.Siddiqui, Member(Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes S.C.Jain ( Oral) Judgment
1) The present appeal has been filed by the appellant against the order of the District Consumer Dispute Redressal Forum VII, Sheikh Sarai, New Delhi passed in Complaint Case No.DF-VII/615/07.
2) Brief facts of the case are that the Complainant/Respondent-1 in the month of September, 2004 purchase Time Share Membership Certificate bearing no. 2001 7201 2983 under the Time Share Club Scheme from Mr. Jatin Vohra. The said certificate was sent to the OP/Appellant for transferring in his name and it was duly transferred in the name of the Complainant/Respondent-1. However, on account of the mistake of the OP/Appellant, the Pin No. Was wrongly mentioned, therefore, the said certificate was sent back by the Complainant/Respondent-1 to the OP/Appellant on 08.03.2005 to their Chennai office for correction in the Pin No./Residential address. The said certificate was not sent by the OP/Appellant and it was pointed out that the same will be issued a afresh in the name of the complainant/respondent only if the annual maintenance charges of the Rs. 5,000/- are paid.
3) In reply of the notice issued by the Complainant/Respondent-1, OP/Appellant pointed out that Mr. Jatin Vohra from whom the Complainant/Respondent-1 had purchased certificate has not paid EMI of the HDFC Bank which supplied loan and the transfer was affected in the name of the Complainant/Respondent-1 by oversight. The Complainant/Respondent-1 aggrieved by the conduct of OP/Appellant filed the complaint before District Forum and prayed for direction to OP/Appellant to issue fresh membership certificate to the Complainant/Respondent-1 in respect of Time Share Membership Certificate bearing number as above and Rs. 1,00,000/- as compensation mental agony, tension and harassment.
4) The District Forum after hearing the appellant/OP-1 and respondent/Complainant as respondent-2/OP-2 was proceeded ex-parte for none appearance, ordered OP/appellant-1 to pay Rs. 40,000/- as compensation to the Complainant/Respondent-1 and had also directed OP-1/appellant to issue a fresh membership to the Complainant/Respondent-1 in respect of time share membership certificate bearing no. 2001 7201 2983.
5) Aggrieved by the order of the District Forum the appellant filed the present Appeal before this commission. The main grounds of appeal taken by the appellant in their appeal are that:
i.
The District Forum ought to have held that the transfer of membership from the original membership holder i.e. OP-2/Respondent-2 by the appellant herein cannot be construed a stamp of approval to be relied on by the Complainant/Respondent-1 that all the previous payment had been made by the original member.
ii.
The other grounds taken by the appellant is that the District Forum ought to have held that as long as the membership amount have not been paid by the person holding the original membership, any other member to whom the original membership had been transferred cannot enjoy any of the benefits of such membership until and unless all outstanding payments are made.
iii.
Another ground taken in totality of the grounds mentioned under different numbers of the appeal is that the District Forum had not relied on any documentary evidence that the Complainant/Respondent-1 had paid/spend Rs. 1.5 lac on the purchase of the membership and further had erred in their finding on a insignificant typographically omission where they had (appellant) in advertently omitted writing the amount of Rs. 500/- received by them through demand draft alongwith transfer application of the original holder of the membership, and the District Forum has erred in reaching to the conclusion that this omission of not writing amount by them (appellant) was knowingly done by them just to extract money from the Complainant/Respondent-1. Whereas except Rs. 500/- the present appellant had not received any amount from Mr. Jatin Vohra that is the appellant no. 2 towards liquidation of their outstanding dues towards HDFC Bank from where Mr. Jatin Vohra raised a loan of Rs 1,35,150/-, and it was agreed under tripartite arrangement to be paid by the appellants in case of failure to pay the same by Mr. Jatin Vohra i.e. the original membership holder. The District Forum had not appreciated the submissions made by the OP-1/Appellant that the outstanding dues with interest amounting to Rs. 1,49,500/- were paid by the appellants to the bank as per the tripartite arrangement and not by Mr. Jatin Vohra. The appellant has further agitated that the District Forum ought to have held that the Complainant/Respondent-1 steps into the shoes of respondent-2 by having purchase the membership and accordingly the Complainant/Respondent-1 was bound to owner all the obligations of the original member that is respondent-2/OP-2 iv.
The appellant/OP-1 had prayed for allowing the appeal and setting aside the order of the District Forum dt. 19.12.2008 passed in Complaint Case No. DF-VII/615/07.
6) Registered AD notice were issued to both the Respondents.
Respondent No.-1 appeared, but none appeared on behalf of Respondent-2. Arguments heard. File perused. The ground of the appellant that the transfer of the membership from the original membership holder to the respondent-1/Complainant is not stamp of approval to be relied upon by the Complainant/Respondent-1that all previous payments had been made by erstwhile member and the Complainant/Respondent-1/respondent-1 is not entitled for the benefits of a membership unless and until all outstanding dues are paid. The appellants in its rules and regulations which he had narrated in Para 5 C of their affidavit filed in evidence before the District Forum had themselves admitted as per the policy and membership rules of the MHRIL, normally a membership can be transferred only when the entire membership fee has been paid by the member and in Para 5(E) of the affidavit filed before the District Forum appellants had stated that as per our records the transfer of membership was confirmed in the month of November, 2004 and the change in location from Mumbai to Kolkata was also done in the same month. Further in their affidavit the appellant in Para 5 (F) had further stated that the membership was transferred without enquiring the payments dues from Mr. Jatin Vohra by mistake.
7) It is astonishing to note that the appellant had transferred the membership in November, 2004 after receiving the request in September, 2004 and before transfer of any membership it is their pre-condition that the entire membership fee should have been paid. It is only after the receipt of the total outstanding dues the appellant would have transferred the membership and hiding the amount received by them at the time of request for transfer shows their malafide and now taking the shelter of typographical error does not seems to hold good and submitting that the District Forum have erred in arising at the various decisions is not a good on the part of appellant.
8) The appellant had further stated in the grounds that they had made the payments of Rs. 1,49,500/- towards the total outstanding loan amount and the interest from their own against the loan amount of Rs. 1,35,150/- advance by HDFC Bank to Mr. Jatin Vohra i.e. the respondent-2, also does not seems to be true because as per the admitted facts, Mr. Jatin Vohra had paid eleven instalments and total amount of these instalments, would have been reduced from the loan amount of Rs. 1,35,150/-. By any strech of imagination the submissions of the appellants cannot be considered to be favouring their case, as once they (appellant) have transferred the membership and the respondent-1 had availed the facilities to be provided under the card they cannot deny that, transfer was wrongly effected. It is only in the year March 2005 when the respondent-1 sent his card for correction in the Pin Code of the residential address at the Chennai Office of the appellants, that they hold back the card and informed respondent-1 that he is required to pay the balance outstanding dues of the bank as well as Rs. 5,000/- towards annual maintenance charges and it was by mistake that without receiving the outstanding dues from Mr. Jatin Vohra the membership was transferred in the name of respondent-1.
9) It is surprising that the appellant got about two months time before the transfer of the membership after receipt of the request and thereafter they got about four months time before the respondent-1 sent back the membership card for correction in the residential address, it is further surprising that inspite of so much time at their command they could not find out whether there are any outstanding dues or not and it is only when the respondent-1 sent his card for rectification the appellant raised these issues regarding which the District Forum had elaborately given their findings in their judgment and this Commission finds no infirmity and illegality in the order of the District Forum and according upheld the same and dismisses the appeal of the appellants being without any merit.
10) No order as to cost.
11) Copy of the order be supplied to both the parties as per law and FDR if any be returned to the appellants as per rules.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima