STERLING HOLIDAY RESORTS (I) LTD. vs V.P.GUPTA

THIS is an appeal filed against order dated 23.10.2002 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter to be referred as District Forum) in Complaint Case No. 626 of 1999, V.P. Gupta v. Sterling Holiday Resorts (India) Limited, through its Director at Chennai and the Office Incharge of Sterling Holiday Resorts (India) Limited and the respondents/O.Ps. were directed to pay an aggregate amount of Rs. 13,320/- alongwith interest @ 9% per annum till the payment. Undisputedly, the respondent/complainant made deposit of a sum of Rs. 59,000/- in 5 instalments each of Rs. 11,800/- with the appellants Company Sterling Holiday Resorts (India) Limited for which proper receipts were issued.

UNDER the scheme the respondent/complainant could avail holidays at a specified places in India where the resorts of the Company were available and subject to the availability of the resort during the period applied for by the respondent/complainant Sh. V.P. Gupta. Besides this certain other amenities were also to be provided at the holiday resorts. The respondent/complainant initially wanted to avail holiday resort at Lonavala (State of Maharashtra) which was allowed by the appellant Company on 30.9.1995 and the complainant was allowed to avail resort facility w.e.f. 1996. However, the resort at Lonavala had not come into existence, at all, and the respondent/complainant vide letter dated 4.5.1998 requested the appellant Company for booking two apartments at Nainital Resort as he wanted to avail holiday facility from 1.6.1998 to 7.6.1998. It appears that the appellant Company intimated to the complainant vide letter dated 9.5.1998 that the resort at Jim Corbett was not operational and the Company did not have any tie-up with other resorts at Jim Corbett and thus requested the complainant to take booking at any of the Sterling Resorts. This led the respondent/complainant to write letter dated 18.5.1998 to the appellant Company to take two holiday units of the Company at Manali (State of Himachal Pradesh) from 5.6.1998 to 9.6.1998 but the appellant Company was unable to accommodate the request of the respondent/complainant for giving any resorts and intimated this fact vide letter dated 18.5.1998. The appellant Company failed to provide any apartment at any resort, but still the complainant along with his family stayed at different hotels at Manali for the period 5.6.1998 to 9.6.1998 and spent a sum of Rs. 6,312/- for stay only. It was also contended that the apartment for which the complainant had deposited a sum of Rs. 59,000/- did not come into existence and the appellant Company failed to provide an alternative resort for availing holidays. The conduct of the appellant Company amounted to unfair trade practice. With these allegations the complaint was filed.

The appellants/O.Ps. appeared before the District Forum after receiving notice and filed written reply wherein it was admitted that the complainant had applied for holiday resort at Lonavala on 31.8.1995 and had deposited the amount, which he was required to do and the holiday facility was to start w.e.f. 19.8.1996. The request of the complainant for booking two apartments at Nainital from 1.6.1998 to 7.6.1998 was also admitted and the stand of the appellant Company was that the resort at Jim Corbett was not operational, hence the complainant was requested to took booking at any Sterling Resorts. It was also admitted that the complainant sought booking of apartments at Manali from 5.6.1998 to 9.6.1998 but at Manali also no apartment was available and this fact was duly informed to the complainant. The appellants alleged that the respondent was not a consumer vis-a-vis the appellant and the complaint was not maintainable before the District Forum.

THE complainant filed his own affidavit whereas the OPs/appellants filed affidavit of Sh. Selra Pandian, Deputy Manager, Accounts of the appellant Company. The District Forum noted that the complainant had deposited a sum of Rs, 59,000/- in 1995 by investing the same in "time share" scheme of the appellants which was still lying deposited with the appellant/O.P. Company and its benefit was not given to the complainant. The District Forum upheld the contentions of the complainant that on the one hand the complainant was not given accommodation whereas on the other hand the O.P./appellant was giving advertisement for holiday packages for some resorts which had not become operational and this amounted to unfair trade practice which made the complainant suffer harassment and incur expenditure on accommodation amounting to Rs. 6,320/-. It was held that the O.P./appellant had failed to provide promised service and the complainant deserves to be suitably compensated. The O.P. was directed to refund a sum of Rs. 6,320/- and also to pay a sum of Rs. 5,000/- as compensation as well as cost which was quantified at Rs. 2,000/-. Thus, a total sum of Rs. 13,320/- was directed to be paid within 2 months from the receipt of the copy of the order, failing which the appellant/O.P. was liable to pay interest @ 9% per annum on the said amount from the date till payment is made.

THE facts involved in the case are not much in dispute. THE complainant/respondent had deposited a substantial amount of a sum of Rs. 59,000/- for availing the holiday resorts of the Company with other facilities and it was in the form of time share. THE relevant documents showing deposits have been filed in the shape of photo-copies. THE holiday packages for 3 nights and 4 days for Rs. 6,200/- with food and beverages coupons worth Rs. 1,650/- free was published and a photo-copy thereof has been placed on record and it invited investments for such holiday packages. THE public was required to contact Sterling Holiday Resorts (India) Limited, Meeting Point SCO No. 487-488, Sector-35-C, Chandigarh. This scheme was effective from 1.9.1997 under the name of Sterling Happy Vistas Holiday Units Price List and Miscellaneous Terms. THE price of one Sterling Vistas Holiday Unit was shown as Rs. 4,000/-. THE terms of purchase showed 100% payment through a single instalment by way of Cheque/Demand Draft/Credit Card for all units purchased through a single application form. THE minimum quantity of initial purchase for enrolment was for 14 units meaning thereby that Rs. 5,600/- was to be deposited. Under the heading of Obligations of the Member, the annual amenities were charge by the Member of the Company towards provision of resort amenities. THEse charges were payable on a per unit owned basis and are payable annually irrespective of usage of these units. THEse charges were to be payable from the start date of the holiday period as mentioned in the unit certificate till the year 2050. THE charges were varied from time-to-time and was to be communicated to the members. THE utility charges were payable towards consumption of electricity and water at the resort during a holiday and were payable on a per day basis and varies with apartment type. THE details of the facilities were as under : (1) Two Bedroom Apartment Rs. 325/- per day. (2) One Bedroom Apartment Rs. 225/- per day. (3) Studio Apartment Rs. 150/- per day. Under the list of notified resorts at Serial No. 3 under the heading under Development is mentioned. The Sterling Resort, Lonavala under the heading notified resorts, it was mentioned that Sterling Happy Vistas resorts where a member can request for holiday accommodation against holiday units owned are in the left hand side column Operational Resorts as on 10th April, 1997 are shown while in the right hand side under development 9 resorts are shown, which as said earlier included Sterling Resort, Lonavala. The Sterling Resort, Manali is shown at No. 9 of the first list of Operational Resorts. The Sterling Resort, Corbett has been shown at Sr. No. 8 under the heading Under Development. In fact the resorts at places mentioned under development i.e. at Coorg, Yelagiri, Lonavala, Mahabaleshwar, Peermade, Gangtok, Bhimtal, Corbett and Goa were not operational and were not available. As mentioned above the first claim of the complainant was booking a Sterling Resort at Lonavala, which was declined by the appellant Company on the ground that it had not come up and was not operational. Regarding the second request for Sterling Resort, Corbett, the same reply was given and lastly when the complainant/respondent wanted to avail Sterling Resort at Manali, which is shown under Operational Resorts that too was not made available to him on the ground that it was not feasible during the period prayed for by the complainant. The respondent was, however, intimated by the appellant well in advance that accommodation in Sterling Holiday resort at Manali was unavailable on the dates mentioned by the complainant. The appellants had thus performed his part in rendering service to the complainant/respondent and it cannot be said that the appellant was deficient in rendering service or of adopting unfair trade practice. The learned Counsel for the appellants took preliminary objections regarding the maintainability of the complaint on the ground that the respondent/complainant could not be treated as a consumer. Some citations have also been given under preliminary objections Para-1. The first case mentioned is Punjab Tourism Development Corporation Ltd. & Anr. v. Kirti P. Doshi & Ors., Vol. I (1997) CPJ 26 (NC). The Hon''ble National Consumer Disputes Redressal Commission held that the transaction of purchase of time share in immovable property was not a consumer dispute. It was held that where a complainant purchased partnership of Holiday Home Club and complaints of service not being properly given, it did not amount to a consumer dispute. In another case Dalmia Resorts International (P) Ltd. v. Dr. Ranjana Gupta & Anr., Vol. I (1997) CPJ 63 (NC). The Hon''ble National Consumer Disputes Redressal Commission hold that where the complainant purchased the time share in holiday resorts it did not raise a consumer dispute. It was held that the complainant in a purchase of time share in immovable property was not a consumer. The case of the Punjab Tourism Development Corporation Ltd. & Anr. v. Kirti P. Doshi (supra), was applied in the case of Sh. Sukhpreet Singh Narula v. Sterling Resorts (India) Ltd. & Anr. The respondent on the other hand placed reliance on judgment of Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in Revision Petition No. 3 of 2002, decided on 13th May, 2002 in Sterling Holiday Resorts India Ltd. v. Sunila Malik, wherein it is held that a complaint filed by a complainant purchasing time share in a holiday resort was maintainable.

IT is significant to know that Hon''ble H.P. State Consumer Disputes Redressal Commission did not consider the judgments of Hon''ble National Consumer Disputes Redressal Commission referred to in the cases noted above.

THE District Forum did not take into consideration the legal submissions regarding the non-maintainability of the complaint. We find from the perusal of the judgments of the Hon''ble National Consumer Disputes Redressal Commission annexed as Ann.-A1 in the record of appeal which is in the case of Punjab Tourism Development Corporation Ltd. & Anr. v. Kirti P. Doshi & Ors., that the case of the complainant purchasing a time share in immovable property was not held to be a consumer dispute. Similar view was expressed in the case of Dalmia Resorts International (P) Ltd. v. Dr. Ranjana Gupta & Anr. (supra), wherein also the complainant had purchased a time share in a immoveable property. It was held by the Hon''ble National Consumer Disputes Redressal Commission that any dispute between the parties arising out of the said transaction cannot be regarded as a consumer dispute. The first question that require consideration is whether respondent/complainant purchased a time share in the immovable property of the Company and raised a dispute in respect of the same. We have referred to the material placed on record which clearly shows that the complainant had purchased a "time share" in a immovable property.

Following the law laid down by the Hon''ble Consumer Disputes Redressal Commission in the case of Punjab Tourism Development Corporation Ltd. & Anr. v. Kirti P. Doshi and Dalmia Resorts International (P) Ltd. v. Dr. Ranjana Gupta & Anr., we find that the complainant would not be a consumer and the averments made in the complaint did not amount to a consumer dispute. The respondent/complainant could avail the remedy of approaching a Civil Court of competent jurisdiction by filing appropriate civil suit. Resultantly, the appeal is allowed. The order of the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh impugned in this appeal is set aside. The complaint case is dismissed as being not maintainable as it did not raise a consumer dispute and the respondent/complainant was not a consumer and by relegating the complainant to his remedy of approaching Civil Court of competent jurisdiction, if so advised. The costs shall be paid by the parties themselves. Copies of this order be sent to the parties free of charges. Appeal allowed.