VIJAY HANSARIA vs STERLING HOLIDAYS RESORTS (INDIA) LTD.

MR. Vijay Hansaria, the complainant, has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') averring that the opposite parties in the year 1995 floated a Scheme known as ''Happy Vistas Holiday Time Share'' and gave wide publicity regarding the same by means of advertisements. It is averred that under the above said Scheme, launched by the opposite parties, the members were entitled to one week holiday every year for 99 years at various Resorts of opposite party No. 1. It is stated that as per the brochure issued by opposite party No. 1 the apartments were to be fully equipped with kitchenette, air conditioner, colour T.V., telephone, geyser, fridge, etc. It was advertised that the opposite parties would also provide to-and-fro air/rail ticket reservations, pick-up/drops from the airport/railway station. The ''Time Share'' in the immovable property, as per the time could be splitted or accumulated depending upon the requirement/convenience of the members. It was also represented that the ''Time Share'' of opposite party No. 1 appreciated in value by more than hundred per cent in the past few years. Under the scheme the members were also free to choose type of apartment and the period as per their requirement. It was represented that opposite party No. 1 had arrangement with Resort Condominium International (RCI), world''s largest holiday exchange network, involving more than 2800 locations world-wide. As per the case of the complainant, a person who became member of opposite party No. 1 by applying for Time Share, was also entitled to exchange his Resort with R.C.I. and avail of Time Share at the network of R.C.I. throughout the world.

IT is alleged that allured by the above representations, made by the opposite parties, the complainant booked Time Share in immovable property with opposite party No. 1 under the above said Scheme and opted for a regular apartment in a premium week (21st week, commencing from 25th May of every year) at Corbette, near Nainital in Uttranchal. The total amount for the Time Share payable under the Scheme was Rs. 83,780.00, payable in 5 bi-monthly instalments. IT is stated that the complainant gave post-dated cheques for the instalments and all the cheques were encashed in time by opposite party No. 1. It is stated that opposite party No. 1 confirmed the booking by issuing acknowledgement slip dated 21.12.1995. A certificate of membership was also issued by opposite party No. 1 in favour of the complainant. The grievance of the complainant in the present complaint in nutshell is that the complainant is not able to avail of even a single week despite the fact that the complainant had paid all the instalments in time. It is stated that the Resorts at Corbette was not ready and till the filing of the complaint even the construction had not begin. The above fact was brought to the notice of opposite party No. 1 by the complainant and opposite party No. 2 vide letter dated 8.1.1999 informed the complainant that the opposite parties were not in a position to give the holiday Time Share at any of their other Resorts. It is stated that opposite party No. 2 vide subsequent letter dated 8.3.1999 offered the complainant an alternate Time Share ownership at a ready Sterling Holiday Resort at Ooty. It is stated that as against the booking of the Time Share in premium week, the complainant was offered Time Share in non-premium week and, therefore, the complainant informed the opposite party No. 2 vide letter dated 5.7.2000 that the complainant was not interested in a white season (non-premises week).

It is further stated that in another Scheme launched by opposite party No. 1, known as ''Heritage India'' the complainant booked one unit of Royal Apartment and the total amount paid by the complainant for the above said booking was Rs. 31,000/-. In respect of the above said Scheme too a membership certificate was issued. It is stated that despite repeated requests by the complainant for providing Time Share to the complainant under the above said Scheme no response was received from the opposite party No. 1. It is alleged that failure on the part of the opposite parties to provide Time Share in the immovable propery to the complainant as per their Scheme on payment of consideration, amounts to deficiency in service. Alleging deficiency in service on the part of the opposite parties the complainant has prayed that the opposite parties be directed to return the principal amount paid by the complainant to the opposite parties together with interest, compensation and cost of litigation.

WE have heard the learned Counsel for the complainant at length on the question of admission of the present complaint and have also carefully gone through the documents/material on record. During the course of arguments, the learned Counsel for the appellant had placed reliance on a decision of the Hon''ble Supreme Court in case Lucknow Development Authority v. M.K. Gupta, reported as III (1993) CPJ 7 (SC)=1986-95 Consumer 278 (NS). On the basis of material on record, it is apparent that the alleged transaction between the parties is one of purchase Time Share in immovable property. In the presence of the above facts, the question requiring consideration at the very threshold is as to whether the ''dispute'' being raised by the complainant in the present complaint is a ''Consumer dispute'' within the meaning of Section 2(1)(e) of the Act. This very question came up for consideration before the Hon''ble National Commission in case Dalmia Resorts International (P) Ltd. v. Dr. Ranjana Gupta & Anr., I (1997) CPJ 63 (NC), and the National Commission has held : "After hearing the Counsel appearing on both sides we are clearly of opinion that the approach made by the respondents herein who are the complainants before the State Commission, Delhi for the grant of relief under the Consumer Protection Act was clearly misconceived because the transaction between the parties is one of purchase of Time Share in immovable property and any dispute between the parties arising out of the said transaction cannot be regarded as a consumer dispute. Further one of the principal pleas raised by the petitioner is regarding the alleged unconscionable nature of one of the conditions of the agreement entered into between the parties which entitles that the person who has purchased the Time Share in the holiday resort should give a prior notice of at least three weeks before he deputes a guest of his to stay in the particular apartment in the Time Share unit. This question also can be agitated only before a Civil Court and not before the Consumer Forum."

(Emphasis supplied) The above decision of the Apex Commission virtually clinches the issue finally. As regards, the decision of the Hon''ble Supreme Court in case Lucknow Development Authority (supra), the position is that there can be no two opinions insofar as the proposition of law laid down by the Hon''ble Supreme Court in the above said decision is concerned but the same is distinguishable even on facts and in no way helps the case of the complainant. For the above reasons, following the decision of the Hon''ble National Commission in the above said case of Dalmia Resorts, we have no hesitation in holding that the ''dispute'' being raised by the complainant in the present complaint is not a ''consumer dispute'' within the meaning of Section 2(1)(e) of the Act and, therefore, the present complaint, filed by the complainant, is not maintainable before a Redressal Agency established under the Act. The present complaint, filed by the complainant, is therefore, rejected being not maintainable before this Commission. However, the complainant is given the liberty to approach the appropriate Forum for redressal of his grievances, being raised by him in the present complaint, if so advised. The present complaint, filed by the complainant, stands disposed of in above terms. Complaint dismissed.