The complaint petition is filed by one Sri Tonmoy Mukherjee, S/o Giridhari Mukherjee of N.V. Lane, Mulikapur, PO: Rajpur, PS :Sonarpur, Kolkata 700149 under the Consumer Protection Act, 2019 for deficiency of services and wrong trade practices on the part of the Opposite Party namely M/s Swagatam, Ramkrishna Mission Pally, near Sonarpur Mahavidyalaya, PO+PS- Sonarpur, Kolkata 700150, West Bengal in a consumer dispute about booking of a banquet hall.

The gist of the case of the complainant as averred in complaint petition is that the OP is engaged in the business providing marriage hall services for formal parties, marriages etc. and the complainant was looking for a suitable venue for performing bride feast programme scheduled to be held on 06.05.2020 and accordingly booked hall on 23.01.2020 by paying Rs.40,000/- in 2 parts by cheques.

In the month of March, ­2020 a lockdown was imposed and the complainant was forced to postpone the bride feast program to 29.07.2020 to which the OP agreed over phone but not provided any receipt to that effect due to statutory restrictions. Thereafter as the restriction on social gatherings was extended due to Covid19, the said programme had to be cancelled even for 29.07.2020.  The complainant having no other  alternative had to send messages to cancel the programme to which the OP agreed and promised to return the deposited amount. Thereafter, the Complainant kept on chasing the OP for the refund amount and sent several messages but the OP started harassing the complainant by deferring the date of payment. The Complainant again sent reminders to the OP via messages as regards the refund of the deposited amount but the OP paid no heed to the requests of the Complainant. The complainant approached CA & FBP dept. where also the mediation process failed.  Hence, the consumer complaint is filed for recovery of deposited amount of Rs. 40,000/-­ together with 10% interest and compensation to the tune of Rs.40,000/- in favour of the complainant.

Service of notice on OP was completed when the OP filed WV. Evidences were adduced by both sides alongwith Questionnaire and Replies. Both the Ld. Advocates advanced their arguments and filed BNA during final hearing.

During the arguments, Ld. Counsel for complainant adverted to the booking form and bank statements about the payments of booking. He further relied upon the message trails between the parties. The Ld. Counsel for the complainant argued in favour of the evidence of the complainant along with the corroborative evidences on record. Following documents were exhibited by complainant during the course of adjudication :-

i) Photocopy of Booking form dated 23.01.2020 signed by both parties – 2 pages

  ii) Photocopy of SBI passbook and UBI transaction slip – 1 page

  iii) Message transcriptions exchanged between parties – 3 pages

  iv) Some typed materials

The OP filed Written Version contesting the contention of the complainant stating that the complaint is misconceived, speculative and harassing with false and fabricated allegation and with malafide intention. It was also contested by the OP that the complainant is not a consumer under the meaning of Consumer Protection Act 2019 and this complaint is not maintainable in law. The OPs also claimed that Rs. 40,000/- was received by them for giving service, which they never refused to give to complainant and it is the complainant who could not avail the service and cancelled the booking. The OP also contended that the logic being cited by the complainant that refunds being extended by the Airlines or Railways due to the pandemic situation of Covid-19 cannot be equated with instant case, since this OP has never refused to extend the same unlike Railways or Airlines. If the restriction of assembly of guests been imposed by the statutory authorities due to declaration of lockdown from March, 2020 then OP should not be held responsible. Inspite of that, considering veracity of the situation, the OP has rescheduled the date once, as per request of the complainant and agreed to reschedule further, once more, on compassionate ground, although as per general terms and conditions of the signed booking form,the advance payment is not refundable.  The OP contended that they had also to incur costs on actuals for arrangement to make the booking hall available for the complainant. All the complaints were vehemently denied and disputed by the OP on aforesaid grounds.

We have gone through the case thread bare. Upon perusal of the records and documents along with exhibits annexed by the parties it appears that there is no dispute in respect of the proposed booking of hall and monetary transaction between the parties. As the advance payments have been accepted by the OP for providing service,the complainant is very much covered as a consumer under the scopes and meaning of Section 7(ii) of the Consumer Protection Act 2019. The value of the complaint and the geographical jurisdiction of the same is also duly covered under the pecuniary jurisdiction of this District Commission as per said Act. Hence the OP is undoubtedly a consumer as per definition of the C.P.Act’ 2019.

The moot point of the Complainant is that there is deficiency of service as the OP refused to refund the advanced amount in full inspite of the pandemic situation of Covid-19. On the other hand, the contention of the OP is that they have never refused to extend the service and rather deferred the date once to accommodate the complainant and offered to extend once more although as per condition enumerated in Sl(11) of the exhibited booking form, jointly signed by both parties, there is no refund policy of the booking/advance amount.

On appreciation of evidence on record, prima facie it appears that the event was in fact initially rescheduled and thereafter cancelled by the complainant on account of Covid19 restriction and complainant is unable to show any cogent evidence / contract / agreement to the effect that the OP had any liability of returning the advance payment made or has failed to provide the facilities on any future alternate date.

In our opinion, the relief sought regarding full refund on the ground of deficiency in service has to be considered in accordance with law and specific finding is to be recorded as to whether the OP committed deficiency in service within the meaning of Consumer Protection Act, 2019. Considering the facts and circumstances of the case, deposits were accepted by the OP for booking of venue. Such account of venue certainly includes some elements of allied arrangements, as argued by the Ld. Counsel of the OP during final hearing. Some amount was accepted by the OP for the booking date which was rescheduled and again cancelled for Covid 19. It may be noted that the documents prepared on account of booking form has also printed terms and conditions readily present to the complainant.  In the present case, we find from the booking form whereby the complainant had signed and endorsed that in case of booking is cancelled, he would not get refund of the booking amount. However, that was not final word given by the complainant as he had allowed the OP to assign the date to others by initially deferring and thereafter cancelling the booked dates. Since such changes were made by complainant well in advance, it was possible for the OP for giving bookings to others, as per restricted norms of Covid 19 with limited guests, but no such step was taken in the present case. In our view, the OP should not have refused the refund of entire amount, though in our view, complainant is also not entitled for 100% refund of amount advanced.

It is quite apparent that the COVID 19 pandemic has devastated the normal pace of life. There have been many businesses and one such business which have got commonly affected is the booking of marriage halls.Marriages (in this case post marriage bride feast) are conducted in great pomp and splendour in the country being once-in-a-lifetime event when marriage dates may not be deferrable every time.  Such contracts for the letting out of the marriage halls get frustrated due to imposed regulations on such functions. During these uncalled for sufferings many marriage halls contend not to refund the paid amount as there was no frustration caused by the marriage halls and there has been equal impact on their business due to the pandemic. Now by delving into the legal position, an agreement to do an impossible act is declared void u/s 56 of the Indian Contract Act 1824. Thus the contract, valid in the inception, becomes void due to the reason when the agreement cannot be performed. So the contract was not absolute, and subject to an implied condition. Now, there is a clash of two contentions. The contractees claim the principle of absolute liability in relation to the sanctity of the contract. The contractors take shelter of the principle, that the shared contractual assumption has been destroyed under the changed circumstances. It should be remembered that law is dependent on social dynamics and needs to see to it that neither side is in a dominant position or in a subservient position.Nevertheless, all the above circumstances are based on contracts read in isolation. If a marriage hall refuses to refund the advance paid and the said refusal subsists for a number of contracts, it would be catastrophic for the contractor unless there is a formulation of common method of settlement. So it would on the whole be advisable to work out a win-win settlement mechanism to solve any such future disputes.

Considering the reasons for cancellation of booking mentioned by the complainant and the fact that booking was cancelled well in advance upon giving sufficient liberty for the OP to look for alternative customers and considering that such opportunity was available for the OP since deferment / cancellation date, we are persuaded to consider the either side for the larger interest of justice allowing the opponent to retain 50% amount of the amount deposited and refund the rest of the amount to the complainant.

Therefore, this complaint petition is partly allowed.

And it is ordered that :-

The OP will retain 50% of the amount advanced by way of deposits by the complainant and will refund the balance 50% of the said amount to the complainant within 45 days from the date of this order. There shall be no interest or compensation payable. There shall be no order as to costs.

 In case of failure on the part of the OP to comply with above order within stipulated period, a penal interest @ 12% will be payable by  the OP to the complainant from the date of this order till actual payment. 

In case of non-compliance by OP, the complainant should be at liberty to file execution case for a decree. 

Copy of this order may be provided to either side free of cost.

That the final order will be available in the following website: www.confonet.nic.in.