Dalmia Resorts International Hills Pvt Ltd vs KAMLA WATI

THE circumstances which impelled the complainants to file the complaint before the District Forum are that the opposite party through advertisement invited deposits from the general public for selling the Times Shares for accommodation at different places against payment at different rates for leasing out its premises for 99 years as vacation ownerships. The complainants purchased one time share for 99 years at Mussoorie and booked their one stay in a year for last week of the year. Accordingly, they were entitled to avail facility for a week relating to the period 24th December to 31st December of every year till the expiry of period of 99 years, so stipulated in the agreement. The demand draft of Rs. 42,750 drawn in favour of opposite party No. 1 was sent by the complainants. After completion of the necessary requirements, the opposite parties issued a confirmation letter dated 17.7.1995 vide which acceptance of the application of the complainants and allotment rights/privileges in period No. 52 at the Highness Heights, Mussoorie was communicated. The opposite parties further issued Identification Code 07052 EOO 03002376S to the complainants. In terms of the allotment so made, the complainants visited Mussoorie in the month of December, 1995, but to their surprise, they found that there was no construction at all. On being informed, the opposite party offered substituted accommodation which was not up to the mark and they had to incur extra expenses of Rs. 5,000 during the period of their stay. The complainants had to face similar difficulty during the vacation in December, 1996 when they visited Mussoorie, with the result they had to spent Rs. 15,000 during the period of their stay. In December, 1997 the complainants and their nominees visited the site at Mussoorie and found that the construction work was at the initial stage and in this manner the opposite party while adopting the unfair trade practice collected huge amount not only from the complainants but also from the general public without providing any services in terms of allotment made. On account of the harassment and deficient services of the opposite party, the complainants have to incur loss of Rs. 50,000. The complainants vide their letter dated 14.7.1996 informed the opposite party No. 1 about the treatment given to them and failure on its part to fulfil its commitment to them but no heed was paid to the same. Thereafter, the complainants invoked the jurisdiction of the District Forum, Yamuna Nagar seeking refund of Rs. 42750 paid to the opposite parties along with interest @ 18% per annum till the date of realisation. The complainants further claimed Rs. 70,000 on account of mental agony, Rs. 50,000 for harassment and Rs. 20,000 for extra expenses incurred during the period of their stay at Mussoorie and Rs. 2,000 as litigation expenses from the opposite party.

THE opposite party in the reply sent through post, admitted that the complainants were allotted time share in the Highness Heights resort at Mussoorie and in this manner they are acquired a Time Share in the immovable property. It was pleaded by it that the dispute raised by the complainants is not a consumer dispute and for that reason the complaint was liable to be dismissed being not maintainable before the District Forum. The District Forum while noticing the stand of the parties and documents placed on record, came to the conclusion that the opposite party had failed to provide facilities in terms of the allotment made which amounts to deficiency in service on its part. Accordingly, the opposite party was directed to refund Rs. 42,750 along with interest @ 12% per annum from the date of receipt of the draft till the date of payment within one month from the date of this order. The complainants were further awarded Rs. 1,000 as litigation expenses. It is against this order dated 12.11.2001 of the District Forum, the appellants have filed the present appeal.

WE have heard the learned Counsel for the parties at length. The learned Counsel representing the appellant, while assailing the order dated 12.11.2001 made two -fold sub -missions before us. Firstly, that the District Forum has misconstrued the documents placed on record and failed to appreciate that no consumer dispute was raised by the complainants and for that reason the complainants were not entitled to the relief granted to them. Secondly, that the District Forum, Yamuna Nagar has no territorial jurisdiction to try the complaint, as territorial jurisdiction of all the disputes was at Delhi, as per written agreement entered into between the parties. Opposing the submissions made, it has been strenuously argued by the learned Counsel representing the respondent that deficiency in service was committed by the opposite party -appellant and for that reason the District Forum was fully justified in awarding compensation to the complainants. In support thereto, reliance was placed on the case, Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243, K.N. Sharma v. Toshali Resorts International and Another; (2003) 9 SCC 288; and T.V. Sunderason & Another v. Sterling Holiday Resorts (India) Ltd., III (2003) CPJ 154 (NC). With regard to the plea of jurisdiction so alleged by other side of the appellant, it was pointedly urged that no such plea was raised in the written reply filed and the submissions so made at the time of arguments, deserves no notice at all. He further submitted that even on merits, jurisdiction of the District Forum, Yamuna Nagar could not be curtailed under the law even if there is a specific clause in the agreement entered into between the parties.

IN order to decide the issues raised, relevant clauses of Vacation Owners Agreement entered into between the parties have to be noticed at the first instance and the same is read as under: 1. Definitions - xxx xxx xxx (d) ''Specified Period'' shall mean the period of occupation in a unit beginning on a specified Saturday at 6.00 p.m. I.S.T. and ending on the following Saturday at 10.00 a.m. I.S.T. These period(s) are numbered 1 to 52 with the first period beginning on the first Saturday of each year and ending on the second Saturday of the year and so forth weekly thereafter. (e) ''Resort'' shall mean that Resort being built by the Company and situated at the said land. (f) ''Vacation Time Share'' shall mean the licensory rights granted to the Vacation Owner hereunder and in accordance with the terms hereof. (g) ''Unitweek'' shall mean the specified period which is allocated to the Vacation Owner, in accordance with the terms hereof. xxx xxx xxx (i) ''Amenities'' shall include food and beverage service, housekeeping service and supplies, utilities such as water, power, general lighting, fuel, telephone, etc., facilities for recreation and entertainment; upkeep/maintenance of Resort including the Unit, security and administrative services; replenishment of linen, kitchen implements and such other items.

Consideration (a) In consideration of the grant of rights by the Company to the Vacation Owner pursuant hereto, the Vacation Owner shall pay to the Company a sum of Rs. (sic.) as cost of every Unitweek in each year for 99 years which cost of the Unitweek shall accrue to the Company on the commencement of the first day of each Unitweek. The said cost of Rs. shall be appropriated by the Company in the respective year out of the total amount of Rs. (sic.) paid by the Vacation Owner as interest free advance whether the Unitweek is, subject to the Clause 7(b) hereof, utilised or not. (b) The Company shall refund to the Vacation Owner and the Vacation Owner shall be entitled to the refund of the said sum of Rs. (sic.) for each such Unitweek which is not utilized by the Vacation Owner in any given year, provided the Vacation Owner gives an advance written notice of clear 60 days prior to the commencement of the Unitweek to DRI of his intention not to utilise the Unitweek. In the event of any failure on the part of the Vacation Owner to give such a notice, the Vacation Owner shall not be entitled to the said refund. 26. Jurisdiction of Courts - This Agreement shall be deemed to have been made at New Delhi and it is specifically agreed that Courts/Forums/Tribunals, etc. at Delhi alone shall have jurisdiction.

It is manifest from the terms of the agreement that the complainants had purchased ''Vacation Time Shares'' for Highness Heights, Mussoorie which was to be constructed as a Holiday Resort. What is the meaning of Vacation Time Share, has to be spelt out from the definition Clause (1)(f) of the agreement which is as under: ''Vacation Time Share shall mean the licensory rights granted to the Vacation Owner hereunder and in accordance with the terms hereof''

This vacation period has been termed as specific period so incorporated in the agreement. In consideration of the payment of Rs. 42,750 by the complainants, who were vacation owners in terms of the agreement entered into between the parties, had acquired rights in the Highness Heights, Mussoorie to be constructed, for a period of 99 years for the specific period in each year from the date the resort commenced operation. In the present case, it is not disputed from the side of the appellant that they had received payments in consideration of the resort which was to be built by the Company. It was also not denied that the complainants could not avail facility of stay in the resort to be constructed and availed the facility so agreed to be provided to them, during the period of their stay in the year 1995, 1996 and 1997, with the result they had to incur extra expenses as noticed in the earlier part of this order.

WHAT amounts to deficiency in service has been elaborately discussed in the case Lucknow Development Authority v. M.K. Gupta (supra) wherein it has been clearly stated that the word service has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory, etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment. In this case, the Honble Supreme Court took the view that in respect of matter where immovable property is involved, the question is to be examined whether there is any service to be rendered in relation thereto and whether the complaint made was in respect of the same or not. Reading of the terms and conditions leaves no manner of doubt that the parties had stipulated only Time Share in the resort to be constructed by the appellant. The complainants have primarily raised dispute with regard to the non -user of the ''Time Share'' as stipulated between the parties and the amenities which were to be provided to them for consideration of the amount paid to them by the appellant. Therefore, a consumer dispute has been raised by the complainants before the District Forum. That being so, stand taken from the side of the appellant that the complainants acquired right in the ''immovable property'' by entering into the above stated agreement and for that reason the dispute raised by the complainants cannot be termed as consumer dispute, is not borne out from the record and from the terms of the agreement entered into between the parties. In view of these circumstances, observation of the case made in Dalmia Resort International (P) Ltd. v. Dr. Ranjana Gupta & Another, I (1997) CPJ 63 (NC) does not help the appellant because in that case a view was taken that transaction between the parties is one of ''Time Share'' in immovable property and any dispute between the parties cannot be termed as a consumer dispute. Other terms of the agreement have not been detailed in the above mentioned judgment. In the case of T.V. Sunderason & Another v. Sterling Holiday Resorts (India) Ltd. (supra), it has been laid down that right to stay in resort purchased by member, when denied, amounts to deficiency in service and the dispute relating to the Property Time Share which was subject matter of the sale -deed between holiday resorts and consumer was maintainable before the District Forum. In that case, delay in construction in the Time Share holiday resort has taken place. In the instant case, terms of the agreement do not envisage parting of ownership right in the complainants because only vacation Time Share'' have been allotted to the complainants which means that the licensory rights granted to the vacation owner during the period mentioned in the agreement. Therefore, the stand taken from the side of the appellant has to be rejected on this score.

COMING to the other submissions made, in the agreement it has been specifically agreed that Courts/Forums/Tribunals, etc. at Delhi alone shall have jurisdiction over the dispute arises out of the agreement. In case Bhandari Interstate Carriers and Another v. M/s. A.K. Shynthetics, 1997 (2) CPC 244, it was stipulated in G.R. that all disputes would be subject to Delhi jurisdiction. In that it was held that there was no proof that the condition relating to jurisdiction was the result of a negotiated contract and the complainant had not agreed to that contract. It was further found that the condition that ''all disputes subject to Delhi jurisdiction'' did not exclude the jurisdiction of the State Commission which otherwise it had under the law as a part of the cause of action had arisen within the jurisdiction of the State Commission. This finding was recorded on the basis of the law laid down by the Honble Apex Court in case of A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies Salem, reported as A.I.R. 1989 S.C. 1239. From the reading of the Clause 26 of the agreement, it would be seen that in the event of dispute between the parties, the jurisdiction of the Courts is restricted to Delhi Courts only. Understandably this limit of jurisdiction relates to the dispute raised before the Civil Courts and not to the Consumer Courts as the Consumer Courts having been constituted under the Consumer Protection Act, 1986 acts as a quasi -judicial authority. It is further spelt out from Section 3 of the Consumer Protection Act that 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. For the sake of arguments, even if the parties had agreed to Clause 26 of the agreement, still remedy under the Consumer Protection Act cannot be denied to the complainants, if they want redressal of their consumer dispute before the Forum. Thus, from whatever angle, the matter is examined, there is no force in the stand taken from the side of the appellant. Furthermore, this plea as such was never taken by the appellant in the written reply filed and for that reason also, it deserves to be rejected. For the aforesaid reasons, we find no merit in the appeal and the same is hereby dismissed. Appeal dismissed.