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Concept Hospitality Ltd., Regd. Office at Ocrhid Hotel Basement v/s Mr. Omprakash O. Gokarn & Another

    First Appeal No.1314 of 2008 @ misc.Appl.No.1840 of 2008 (In Consumer Complaint No.308 of 2004)
    Decided On, 11 May 2009
    At, Maharashtra State Consumer Disputes Redressal Commission Mumbai
    Mr. U.B. Wavikar, Advocate for the Appellant.

Judgment Text
Per Shri S.R. Khanzode, Hon?ble Presiding Judicial Member

This appeal arises out of order/award dated 06/08/2008 passed in consumer complaint No.308/2004 Mr.Omprakash O. Gokarn & Anr. V/s. Concept Hospitality Ltd. passed by Addl. Mumbai Suburban District Consumer Forum (Forum below in short). Upholding the contention of the complainants for deficiency of service since construction of the Club House was not completed upto October 2002 and failure on the part of the O.P. to refund money paid, the complaint was allowed and O.P. was directed to refund amount of Rs.46,500/- with interest @ 9% p.a. w.e.f. 27/10/2003, pay a compensation of Rs.1,000/- and Rs.500/- towards costs. Feeling aggrieved by said award, org. O.P. has preferred this appeal.

We heard Mr.U.B. Wavikar, Advocate for the appellant/org. O.P. Respondents/org. complainants are remaining absent though served. Proof of service i.e. postal acknowledgement is taken on record.

It is the contention of appellant that the impugned order suffers from perverse appreciation of the evidence i.e. facts on record. The Club House was to be completed in the year 2004 as per construction schedule. In the meantime, alternate facilities at Kamats Club, Goregaon were made available to the Members availing the scheme subject to certain conditions e.g. making payment of 50% of Membership fee. Admission fee of Rs.10,500/- was non-refundable. Thus, there is no deficiency in service on their part, as alleged by the complainants.

We have carefully gone through the Lotus Suites, Mumbai Membership application and the terms & conditions thereof. Relationship between the parties is squarely governed by it. Clause No.(8) of terms and conditions of the said Agreement stipulates that once the agreement is executed, applicant cannot terminate or reverse or cancel the same after expiry of ten days from the date of agreement. Clause No.(9) of the same provided that administration fee of Rs.10,500/- does not form part of membership fee and is non-refundable even in case of eventuality mentioned in paragraph 8.

Clause-s of ?Acknowledgement of Representations? particularly clause 17 reads as under:

?17. I/We understand that The Lotus Suites Club will be ready by October 2002 and prior to the opening of The Lotus Suites Club upon, and my/our payments of 50% of the Membership fee are made to Holiday Investment Exchange, I/We may use the club facilities temporarily at Kamats Club Goregaon (subject to caluse 14 b of Terms & conditions). The extension of this facility will cease once The Lotus Suites Club becomes operational.?

Claim of the complainants is principally based upon this clause. In the instant case, since the said clause provides alternate facilities subject to certain conditions of payment if The Lotus Suites Club was not ready by October 2002. It could be seen that the parties took care to meet the contingencies in case The Lotus Suites Club is not ready by October 2002. It is not the case of the complainants that alternate arrangements at Kamats Club Goregaon were not made available to them, but they themselves, perhaps, did not avail the same branding them as sub-standard facilities. It is also not made clear as to how the alternate facilities were not of the standard as promised per clause No.17, supra. In a letter dated 04/12/2003 addressed to Consumer Activist Ms.Asha Idnani, O.P. also made all these aspects very clear pointing out as to how the grievance complained to them was not proper.

Considering all these aspects, we find the Forum below did not consider the complaint properly, considered it one sidedly ignoring all the material placed before it. Thus, we find that the appreciation of evidence or the material placed before it made by the Forum below was perverse and not proper. Under the circumstances, the complainants failed to establish any deficiency in service on the part of org. O.P. Therefore, impugned order/award, per se cannot be supported in the eyes of law. We hold accordingly and pass the following order:-

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br /> Order: 1. Appeal is allowed. The impugned order/award dated 06/08/2008 is set aside and in the result, complaint stands dismissed. 2. In the given circumstances, respondents to bear their own costs and pay Rs.2,000/- as cost to the appellant/org. O.P. 3. Misc. Appl. No.1840/2008, which is for stay stands disposed of as infructuous. 4. Copies of the order be furnished to the parties.