STERLING HOLIDAY RESORTS INDIA LTD. vs SUNILA MALIK

THIS may be read in continuation of our order dated 3.5.2002.

BRIEFLY, the facts are that Smt. Sunila Malik i.e. complainant was approached in the year 1995 by a gentleman who gave his name as Shri Parshant Bhardwaj and introduced himself as the authorised representative of the petitioner-Company i.e. Sterling Holiday Resorts (India) Limited, Madras. On his representation, she agreed to purchase a Happy Vistas Holiday Timeshare under the category ''Regular Apartment'' during ''Season'' week ''Corbett''. She opted for the 6th week commencing from 10th February as mentioned in the Week Classification Chart. The total cost of Rs. 65,000/- payable in standard instalments was duly paid by the complainant upto the last instalment which was due on 27.6.1996. Before the said instalment could be paid, she received from the Company an Allotment Advice whereby she was allotted Corbett IVTS of Regular Type in 14th week as against her opted demand of 6th week. This 14th week commenced from 7th April to 14th April which was not her option. She protested to the Company regarding this allotment which was totally against her requirement and convenience, but the representative of the Company continued putting her off on some pretext or the other. Despite having received a total amount of Rs. 51,900/-, nothing was done by the Company. Instead, on 31.5.1996, another representative by the name of Shri Sanjay Singh visited her residence at Shimla and represented that the Company is unable to allot the desired facility and instead she could be allotted 6th week in Goa Gold Crown which, according to him, had the best apartments. On his representation, she opted for Goa Gold Crown Apartments in the 6th week commencing from 10th February and paid another sum of Rs. 58,975/-. In this manner, she has till date paid a total amount of Rs. 1,10,875/-. Despite the above representation and payment by her towards Goa Gold Crown Apartments, to her astonishment, she was allotted Holiday Resort Megador Goa, Premium Compact Apartment for 3rd week, contrary to the offer made by her. She contacted the representative of the Company telephonically and pointed out the discrepancies between verbal commitments and written allotment advices to its Chandigarh, Delhi and Noida offices. However, she was put off on one pretext or the other with assurances intimating that the matter was being looked into. It has been specifically stated in the complaint that the Company, in question, has not provided the complainant with any service as represented/promised by them despite having obtained a total amount of Rs. 1,10,875/- from her. Hence, the complaint with the prayer for refund of the said amount together with interest of 18% per annum along with damages for harassment etc.

In the reply filed on behalf of the said Company, the basic facts are admitted. It has been admitted that she has made payment as stated by her in her complaint. The Company has tried to justify its silence in the matter, despite having received the above mentioned amount, by pleading that it will look into the matter and action can be taken accordingly. To say the least, this speaks volumes of the conduct of the Sterling Holiday Resorts-Company and its various representatives who contacted the complainant and on wrong/false representations, induced her to part with the above mentioned amount. Be it stated here that the complainant has supported the allegations in her complaint by filing her own affidavit as evidence

A perusal of the record of the proceedings before the District Forum, Shimla, where the complaint was originally filed, goes to show that the opposite party-Company took a number of adjournments obviously to delay the disposal of the complaint. For example, it is recorded in the order of the learned Forum below dated 25.7.2001 that evidence of the opposite party is ready and time prayed was allowed. Despite that, no evidence appears to have been filed before the learned Forum below till date. Instead, a direction for the presence of the parties issued on various dates of the proceedings there, were also flouted on one pretext or the other on behalf of the opposite party-Company. It is crystal clear from the above narration of the established facts on the record that the opposite party-Company has duped the complainant in parting with Rs. 1,10,875/- without rendering her any service for which the said amount was paid. Instead, it has been putting her off on one pretext or the other and has been intentionally delaying the proceedings before the learned Forum below, so much so that the complaint was filed as far back as 22.9.1997 and has remained pending for a period of almost five years.

IN view of the above narration of facts, we deem it appropriate, in the interest of justice, equity and fair play, to invoke jurisdiction vested in this Commission under Section 17(b) of the Consumer Protection Act, 1986, hereinafter to be called the ''Act''. The reasons for exercising this jurisdiction in the present case, by treating it as an exceptional case, are that the complaint was filed as far back as 22.9.1997 and is still pending insofar as the District Forum, Shimla, is concerned, obviously due to the contumacious conduct of the opposite party, petitioner herein. At the cost of repetition, be it stated that the record of the before case the learned Forum below clearly shows that a number of adjournments have been granted solely at the instance of the opposite party-petitioner-Company, (sic.) can at best be described as most unfortunate, by resorting to dilatory tactics. Not only that, it even refused to comply with the directions of the learned Forum below for the presence of the party. It is in these circumstances, the object and purpose for which the Act has been enacted, has clearly been defeated in the present case, rousing our judicial conscience to do substantial justice to the complainant, a hapless lady who appears to have been completely duped by the false representations made on behalf of the petitioner-Company by its various representatives who contacted her from time to time and made her to part with the above mentioned amount. For the reasons recorded above, we accept the complaint and direct as follows : (i) the opposite party-Sterling Holiday Resorts (INdia) Ltd., Madras through its Managing Director shall refund the amount of Rs. 1,10,875/- to the complainant within one month; (ii) it shall also pay 18% interest on the above amount of Rs. 1,10,875/- from the date of the complaint i.e. 22.9.1997 till realisation; and (iii) for the harassment and the subterfuge caused to and practised on the complainant by the opposite party-Company, it shall pay damages/compensation of Rs. 10,000/- in addition to the above amount. The entire amount as awarded above shall be paid by the opposite party-Company to the complainant within one month of the date of receipt of copy of this order, failing which, liberty is reserved to the complainant to take out execution in the matter. The complaint is disposed of accordingly. Complaint disposed of.