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Thursday, February 7, 2013

Avalon Resorts (P) Ltd. and Holiday Solutions = Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year. - It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. -The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years. Accordingly, both the revision petitions are disposed of.


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

REVISION PETITION NO.  4318 OF  2012

 (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the
Punjab State Consumer Disputes Redressal Commission, Chandigarh)
                                    
Shri Harwinder Singh Randhawa
S/o Shri Sohan Singh
R/o E/293, Ranjit Avenue
Amritsar (Punjab)                                              ... Petitioner
Versus
1. Avalon Resorts (P) Ltd.
    Empire Estate, Mehrauli-Gurgaon Road
    Sultanpur, New Delhi-110030

2. Holiday Solutions,
    GH-14/34, Ist Floor, Pashchim Vihar
    New Delhi-110063                                         ... Respondents

 

REVISION PETITION NO.  4624 OF  2012

 (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the
Punjab State Consumer Disputes Redressal Commission, Chandigarh)
                                    
Avlon Resorts (P) Ltd.
Empire Estate, Sultanpur Mehrauli-
Gurgaon Road,
Sultanpur, New Delhi-110060                             ... Petitioner

Versus

Shri Harwinder Singh Randhawa
R/o E/293, Ranjit Avenue
Amritsar (Punjab)                                             

BEFORE:
  HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
  HON’BLE MR. VINAY KUMAR, MEMBER

       

For the Petitioner              :  Mr. Sumit Sharma, Advocate


For the Respondent         : Mr. M. K. Shah, Advocate with

                                              Mr. Nimmi Sharma, Advocate

                                           


Pronounced on :   1st February, 2013


ORDER


JUSTICE J. M. MALIK, PRESIDING MEMBER
1.      This order shall decide the above said two revision petitions which arise out of the same order dated 31.8.2012 rendered by the State Commission. 
2.      Mr. Harvinder Singh Randhawa, the complainant met the representative of Avalon Resorts (P) Ltd., opposite party No. 1 at its local office at Ritz Plaza, 45, The Mall, Amritsar.  
They represented that the complainant would be made member of the respondent-Avalon Resorts (P) Ltd. and Holiday Solutions, petitioners No. 1 and 2, respectively.  
The complainant was informed that he would get the best facilities for a continuous period of 33 years and occupation of one bedroom apartment during summer vacation every year under the category of ‘Red’.  
Orally, he was also informed that in case, he did not avail the facility during summer vacation, he would get the rent for one week. 
On 16.9.2000, the complainant became the member of petitioners.  He was informed that he will have to cuff out Rs.1,62,000/-.  
The complainant deposited the initial amount of Rs.74,000/- and the balance amount of Rs.88,000/- was paid through chequeon 17.9.2000, which was duly encashed by opposite party No. 1.  It is alleged that respondent No. 1 closed its office at Amritsar secretly and silently.  
The complainant could not contact any official at Amritsar.  The grouse of the complainant is that since 2001, no facility of reservation of the apartment was granted in his favour and whenever, he approached the official of respondent No. 1, the respondent No. 1 displayed their inability to provide their reservation during summer season.
3.      In June, 2005, and again in June, 2006, the complainant approached opposite party No. 1 at Delhi and requested him to give reservation for the last week of June, 2006 but the respondent No. 1 was unable to provide accommodation and informed the complainant to wait till the month of July, 2006.  

The opposite party No. 1 could not do the needful till the month of July, 2006.  This is an admitted fact that the complainant paid the maintenance charges without availing the facility for first two years.  
The respondent No. 1 wrote letters dated 29.11.2004, 14.3.2005, 10.5.2005 and sent the final reminder dated 25.11.2005 for the payment of due annual maintenance charges and threaten to terminate the membership on account of non-payment of annual maintenance contract.  
Even after termination of the tenancy, the respondent No. 1 again issued letter dated 13.5.2006 and demanded Rs.21,635/-.
4.      In May, 2003, the complainant again met respondent No. 1 and made the request that the company was not giving reservation during summer, nor the rent was being paid.  An official of respondent No. 1 told the complainant to become a member of its concern, namely, Holiday Solutions, respondent No. 2.   
The respondent No. 2 asked the complainant to pay a sum of Rs.5500/- in lump sum and the respondent No. 1 shall provide the facility in the shape of giving on rent their apartment every year to third person and the rent will be paid to the complainant.  
The complainant paid Rs.5500/- to respondent No. 2 against receipt No. 1500 dated 24.05.2003.  Despite the payment, the respondent did not give facilities to him. 
5.      Thereafter, the complainant lodged a complaint under Section 12 of the Consumer Protection Act, with the prayer that the respondents be directed to return Rs.1,62,000, Rs.7320/- and Rs.5500/- and Rs.1500/- alongwith interest @18% from the date of deposit till payment because the appellant is not interested to continue as a member of the respondents and pay a sum of Rs.1 lakh as compensation and Rs.17,000/- as costs of litigation.
6.      The respondent No. 1 set up the following defences.  The respondent No. 1 did not open any office at Red Plaza and only part time business was carried out in Ritz Hotel for enrolling new numbers.  The complainant was explained full terms and conditions.  The petitioner entered into an agreement.  The agreement entered into between the parties is placed on record. 
 The relevant portion of the agreement is reproduced as follows
B) MEMBERSHIP CERTIFICATE: The Owner shall issue to    the Purchaser(s) a Holiday Certificate specifying the details of Timeshare ownership and such Certificate shall be conclusive evidence of legal right for the specified week of occupation.  Such certificate shall be issued by the Owner within 90 days of the Purchaser(s) paying the total amount of Ownership
C) GUARANTED OCCUPANY : In the event of Apartment   Occupancy not being available on the occupancy date (Time being the essence) for the entitled week.  The Owner will make available an equivalent or larger apartment at the Resort for the week owned for his right of occupancy without any extra charges.”
Both parties can enforce their authority:
A)  In the event of Purchaser(s) failing to make payment due thereunder on the specified date (time being of the essence) the Company shall be entitled to serve Notice requiring such payment to be made within seven days.  If the Purchaser(s) fails to make such payment, the Company at its option shall forfeit the amount paid by the Purchaser(s) and resell the week to any person.”

7.      The opposite party No. 1 has also placed on record membership certificate annexure R-5, which goes to show that 33rd weekly period was earmarked for the complainant.  The relevant portion is reproduced as follows:-
       “2. APARTMENT :ONE BEDROOM   APARTMENT No. 3A
   Max. occupany :4(four)                 No. of Weeks    :01

 3. WEEKLY PERIOD(S)               SEASON   :RED
  Commencement & Termination day    : Saturday

4. MEMBERSHIP PERIOD(S)       :2001-2033 (33 YEARS)
5. DATE OF CERTIFICATE          : JANUARY 2, 2001”

8.      Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year.  
It was stated that as the petitioner has opted for Red, therefore, he was granted the Red category.  
The opposite party No. 2 did not contest the case and was proceeded ex parte against the District Forum.
9.      We have heard the learned counsel for the parties.  
The District Forum dismissed the complaint but the State Commission accepted the appeal as well as the complaint and directed that amount of Rs.88,000/-, Rs.74,000/-, Rs.7350/- and Rs.5500/- be paid by the opposite party.
10.    Learned counsel for the opposite parties argued that their case is fully covered by the documentary evidence.  
The complainant did not avail the above said facility on 33rd week of every year.  It was for the complainant to apply for the said facility but he did not take any direction in this context.  
He contended that his membership was terminated as he did not pay the maintenance allowance.
11.    It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility.  
One is supposed to pay the allowance when the thing is utilized by him.  
The termination of the notice on this ground is illegal.  
33rd week will come to an end in the year 2033.  
The complainant has signed the document with open eyes.  He should have opted for the availment of such facility.  
This is not the duty of the opposite parties to send the notice to avail the facility.  33rd  week is earmarked for him.  
He cannot wriggle out of the contract at this stage.  
The contract entered into between the parties is binding one.  
None of the parties is authorized to cancel it for invalid reasons. 
12.    For the years which have elapsed, the opposite parties must have utilized it and earned profits.  
 No record saw the light of the day.  It was bounden duty of the opposite parties to approach the Commission with clean hands.  
They must show to the Commission to whom and for what amount the room was given. 
They have suppressed the record to the detriment of the complainant.  
The opposite parties are entitled to get the rent @10000/-  per year from 2001 to 2012. The total comes to Rs.1,10,000/-.  
It is made clear that the complainant can avail the facility for the next 21 years from today.  
Before availing the opportunity, he can inform the opposite parties.  
The complainant is also entitled to rent out  the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance.  
The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance.  
We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/-  with interest at the rate of 9% from the date of filing of this complaint till its realization.  
The complainant can avail the facility for the next 21 years.  
Accordingly, both the revision petitions are disposed of.

………………Sd/-…..………..
     (J. M. MALIK, J)
   PRESIDING MEMBER


………………Sd/-.……………
                                                        (VINAY KUMAR)
                                                                            MEMBER
                    
Naresh/             


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