Haryana

Panchkula

CC/51/2017

BRIJESH GUPTA - Complainant(s)

Versus

HOLIDAY INN CHANDIGARH PANCHKULA - Opp.Party(s)

SHIV KUMAR

15 Feb 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                       

Consumer Complaint No	:	51 of 2017
Date of Institution	:	08.03.2017
Date of Decision	:	15.02.2019

 

 

Brijesh Gupta son of Sh. Shree Bhagwan Gupta, Shop No.3, First Floor, Raghushree Market, Ajmeri Gate, Delhi 110006.

                                                                                ….Complainant

Versus

1. Holiday Inn Chandigarh Panchkula through its General Manager, City Centre, Sector 3, Panchkula.

 

2. Ashwani Kumar, Catering Sales Manager, Holiday Inn Chandigarh Panchkula City Centre, Sector 3, Panchkula.                                                                        

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Mr.Jagmohan Singh, Member.

Ms. Ruby Sharma, Member.

 

For the Parties:   Mr. Shivam Grover, Advocate for the complainant. 

                        None for the OPs.

ORDER

(Satpal, President)

1.     The brief facts of the present complaint as alleged are that the complainant had got booked Holiday Inn Chandigarh Panchkula at Sector 3, Panchkula for the marriage of his daughter by giving the tentative schedule of marriage in the month of April, 2016. Accordingly, the complainant had also given an initial deposit of Rs.4 lacs (Rs.1 lac on 11.02.2016 and Rs.3 lacs on 05.03.2016) for holding the space on a tentative basis which was acknowledged by the OPs. However, due to some unavoidable circumstances which were beyond the control of the complainant the said tentative schedule of marriage was cancelled and accordingly holding of space for the said marriage on the tentative basis was also cancelled which was duly communicated by the complainant to the OPs. It is the practice of the hotel that after the booking on the tentative basis, in order to have confirmed booking, the hotel used to ask the confirmation from the customers regarding the event and ask them to deposit amount of money by a designated date, failing which the hotel has the liberty to release the space in favour of any other customer. Further stated that due to cancellation of event, the complainant did not give the OPs the final confirmation for the booking in writing as requested by the OPs nor deposited the requisite amount within the designated period which was required for confirmed reservation. Since no confirmation of the final booking was given by the complainant, the complainant did not sign the ‘agreement for confirmation’ as sent by the OPs. Therefore, the tentative booking stood cancelled and the OPs were apprised of the same on 22.03.2016 over telephone to OP No.2 (wrongly written as OP No.3), which was also communicated in writing on 25.03.2016. It is further alleged that since the booking was on tentative basis, which was got cancelled by the complainant due to unavoidable circumstances, which were beyond the control of the complainant, the complainant is entitled to the refund of Rs.4 lacs as deposited by the complainant with the OPs and that the hotel had reserved its right to release the space booked on tentative basis in the absence of the requisite deposit and in the absence of confirmation within the designated period and thus no prejudice has been caused to the OPs. The complainant requested the OPs to refund the deposited amount of Rs.4.00 lacs. Initially the OPs assured the complainant to return the amount shortly, but, later on, the OPs refused to refund the amount without any sufficient reasons; when no action was taken by the OPs to refund the amount as deposited by the complainant, the complainant served a legal notice through registered post on 01.06.2016, which was received back with the remarks as refused. The said legal notice was sent again through e-mail on 16.06.2016 for doing the needful by the OPs. The OPs instead of returning the amount of Rs.4.00 lacs sent a false and frivolous reply in response to the said legal notice though the OPs have admitted that said amount of Rs.4.00 lacs was duly deposited by the complainant at the time of tentative booking. Further stated that the OPs by way of the said reply, on the false and frivolous grounds, tried to wriggle out of their liability to refund the amount of Rs.4.00 lacs as deposited by the complainant. Since the complainant did not confirm the said booking so complainant is entitled to refund Rs.4.00 lacs which he had deposited at the time of tentative booking; this act and conduct of the Ops amounts to deficiency in service on their part; hence, this complaint.

2.     Upon notice, the OPs appeared and contested the complaint by filing the written statement wherein several preliminary objections have been taken i.e. that the complainant has not approached this Forum with clean hands and has misconstrued the entire facts to invoke the jurisdiction of this Forum and that the facts of the cases and documents on record completely belies the story put forward by the complainant on the following grounds:-

        a.     Firstly, the complainant is misconstruing the facts and wrongly alleging that the booking made by the complainant was “Tentative” which is vehemently wrong and denied as except the complainant’s own version of saying the confirmed booking as tentative, there is not even a single document on record, which says that the said booking was tentative.

        b.     Secondly, the complainant has misled this Forum by misreading the documents as annexed with the complaint; the plain reading of the agreement of the said booking on its very first page clearly states that “We are pleased to submit the enclosed agreement for your Confirmation. Please note that these rates are applicable only for this event. This agreement supersedes all our proposals and quotations addressed to you for this event.”

        It is further stated that the complainant had duly signed the agreement dated 21.02.2016 confirming the event of social function for 23 to 26 April 2016 and total amount to be paid was Rs.26,000,00/- and after the payment of Rs.4.00 lacs in advance rest of the money was still due, but as admitted by the complainant himself, just before 28 days of the function, complainant asked for the cancellation but as per the duly agreed and signed agreement the cancellation charges were/are leviable to the extent of 100% charges of the total estimated events charges. It is further stated that the averment of the complainant that non-signing of agreement or confirmation entitles the complainant for refund of booking amount being wrong is denied; firstly the agreement (Annexure C-1) was duly signed by complainant; secondly, non-action or delayed communication on the part of complainant caused loss to the OPs for not having sufficient time to get any other booking for the said date, on the basis of which the OPs reserve their right to recover the balance amount of Rs.22 lacs along with other damages from the complainant.

        Further, the complainant has not disclosed any cause of action to proceed against the OPs and also failed to raise any consumer dispute as provided under Consumer Protection Act in absence of the same the present complaint is liable to be dismissed.

        Further, the present complaint is not maintainable in the present form. The complainant had confirmed the booking and signed the Agreement Annexure C-1. The complainant has no right to approach this Forum, firstly the complainant himself never honoured the terms and conditions of the agreement which governs the relationship between complainant and OP and secondly, the complainant has tried to misled this Forum by concealing and misconstruing the facts. Further stated that the complainant is neither a consumer nor there is any cause of action nor there is any deficiency in service on the part of OPs.

On merits, it has been stated that the complainant neither disclosed any contents of deficiency in service nor disclosed as to how this Forum has the jurisdiction; thus, there is no deficiency in service on the part of OPs and prayed for dismissal of complaint.

3.     To prove the case of complainant, the ld. counsel for the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the Ops did not adduce any evidence despite availing several opportunities including the last opportunity. Therefore, the evidence of the Ops was closed by this Forum vide its order dated 11.01.2019.  

4.     We have heard the learned counsel for complainant and gone through the record carefully and minutely.

5.     After perusing the contents of the complaint as also the other supported/accompanying documents as also the reply filed by the OPs, it has been found that the complainant got booked the space in the hotel, namely, Holiday Inn, Chandigarh situated at Sector 3, Panchkula for the solemnization of the marriage of his daughter w.e.f 23^rd April to 26^th April 2016 by depositing a sum of Rs.1 lac on 11.2.2016 and Rs.3 lacs on 5.3.2016 total amounting to Rs.4 lacs with the OPs. It is not in dispute that the complainant got cancelled the said booking 28 days prior to the scheduled event i.e. w.e.f 23^rd April to 26^th April 2016.  The complainant has claimed the refund of said deposited amount of Rs. 4.00 lacs stating that the booking was made on tentative basis and the same was never confirmed by him and as such he is entitled to the refund of said deposited amount prior to confirmation of booking.

        On the other hand, the OPs have denied the claim of the complainant stating that the booking was confirmed and as per the terms and conditions of the agreement Annexure C-1, which was duly signed by the complainant on 21.02.2016, the complainant was not entitled to the refund of the deposited amount as the complainant had sought the refund just 28 days before the day of booking i.e. w.e.f 23^rd April to 26^th April 2016. The OPs have relied upon the forwarding letter dated 21.01.2016 (Annexure C-1) sent to the complainant claiming that the said forwarding letter accompanied by the agreement clearly proves the fact that the booking was confirmed. It has also been contended by the ld. counsel for the OPs that as per the cancellation policy which finds mentioned in the alleged agreement dated 21.02.2016 which is appended with forwarding letter Annexure C-1, no refund is permissible within 30 days of the date of event.

6.     The controversy in this case revolves around the issue as to whether the booking of the said hotel w.e.f. 23^rd April to 26^th April 2016 was confirmed or not. In this regard the forwarding letter Annexure C-1 as also annexed agreement with the said letter Annexure C-1 clears the dust of doubt with regard to the nature of the booking. We deem it expedient to discuss the said letter and hence, the same is reproduced as under:-

“21th January 2016

Mr. Rajesh Gupta

E:

SUBJECT:   Agreement for Social Function 23^rd April to 26^th April 2016.

Dear Sir,

Thank you for considering ‘Holiday Inn Chandigarh Panchkula’ ‘A fresh solution to the needs of the global business traveler’ scheduled on 23^rd to 26^th April 2016.

We are pleased to submit the enclosed agreement for your confirmation. Please note that these rates are applicable only for this event. This agreement supersedes all our earlier proposals and quotations address to you for this event.

Looking forward to a mutually beneficial business relationship and welcoming you and your guests to ‘Holiday Inn Chandigarh Panchkula’.”

        In the above stated letter, we clearly find a recital of the fact that the enclosed agreement was forwarded to the complainant for his confirmation and thus, the nature of booking was tentative till enclosed agreement was signed by the complainant.

7.     Further, the enclosed agreement also speaks with regard to nature of the booking, the relevant part of which is reproduced as under:-

“Holiday Inn Chandigarh Panchkula agrees to hold the space listed below on a tentative basis until in case hotel receive no confirmation by and the hotel reserves the right to release the space. In the event the hotel receives a request for space during the same period, Holiday Inn Chandigarh, Panchkula will notify you in writing and extend 24 hours (1 day) to advise confirmation of the reservation. In the absence of a written confirmation to the letter of agreement, the hotel reserves the right to release the space. “

From a bare perusal of the above, it is crystal clear that booking was on tentative basis as the hotel was at liberty to utilize the booked space, in case, confirmation was not received by them from the complainant. Moreover, the cancellation policy as relied upon by the OPs is not applicable to the facts and circumstances of the present case as the cancellation policy comes into operation only when booking was confirmed. As stated above, booking was never confirmed by the complainant.

It is well settled proposition of law that mere bald assertions not corroborated by credible and cogent evidence carries no evidentiary value and thus, the plea of the Ops that the booking was confirmed is rejected. The OPs have not adduced any evidence on record controverting and falsifying the version of the complainant with regard to the nature of the booking. We do not come across any document adduced on behalf of OPs whereby it could be inferred by us that booking of the hotel was ever confirmed by the complainant. It is also not the case of the OPs that the booked site remained vacant during 23^rd April to 26^th April 2016 on account of cancellation of the booking by the complainant. In case, the said site remained vacant on the said dates then it was incumbent upon the OPs to show that they could not utilize the site during said dates. However, we do not find any such record on the file. Therefore, we have no hesitation to conclude that the OPs have no right to retain the amount of Rs.4.00 lacs as deposited by the complainant with them; thus, we conclude that there has been lapse and deficiency on the part of the Ops while delivering services to the complainant; hence, the complainant is entitled to relief.

8.     As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs:-

1. That the Ops shall refund the deposited amount of Rs.4.00 lacs to the complainant along with interest @ 9% per annum from the date of filing of the complaint till realization.

 

2. The Ops shall pay lump sum amount of Rs.10,000/-  to the complainant on account of mental agony, harassment and cost of litigation charges.

9.     The OPs shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

15.02.2019      RUBY SHARMA      JAGMOHAN SINGH                   SATPAL

                           MEMBER              MEMBER               PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                         SATPAL

                                         PRESIDENT