Haryana

Panchkula

CC/480/2021

ABHAY GARG,ADV. - Complainant(s)

Versus

HOTEL NORTH PARK. - Opp.Party(s)

IN PERSON.

31 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                       

Consumer Complaint No	:	480 of 2021
Date of Institution	:	24.11.2021
Date of Decision	:	31.05.2022

 

Abhay Garg, Advocate, A-5, GH-80, Sector-20, Panchkula, Haryana-134117

                                                                ….Complainant.

Versus

1.     Hotel North Park, Village Chowki, Sector-32, Near Ghaggar Bridge,     Panchkula, Haryana-134109.

2.     The Booking In-charge, Mr.Sheebu Khan, North Park Hotel, Village     Chowki, Sector-32, Near Ghaggar Bridge, Panchkula, Haryana-      134109.

3.     The Manager, Mr. Chauhan, North Park Hotel, Village       Chowki,     Sector - 32, Near Ghaggar Bridge, Panchkula, Haryana-134109.

4.     Polo Hotels Limited, At Registered Office: North Park Hotel, Village     Chowki, Sector-32, Near Ghaggar Bridge, Panchkula, Haryana-      134109.

5.     The Managing Director, Amardeep Singh Dahiya, Managing       Director, North Park Hotel, Village Chowki, Sector-32, Near Ghaggar       Bridge, Panchkula, Haryana-134109.                                                                                                         ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:   Complainant in person.

                        OPs No.1 to 5 already proceeded ex-parte vide order dated 12.01.2022.  

                        Sh. Tarun Gupta, Advocate for OPs No.1,2,4 & 5.

ORDER

(Dr. Pawan Kumar Saini, Member)

1.                The brief facts of the present complaint are that the complainant was searching for a suitable venue for the marriage and came in contact with OP No.2 who showed the venue to him. After seeing the property, the complainant liked the Pool Side Venue and same was booked vide receipt no.838 on 02.02.2020 for 04.04.2020 and 05.04.2020 after discussing the Food Menu, Decoration and also the costing for the same. The Ops gave the estimate cost of Rs.1,080/- per plate for 200 guests for food, Rs.1,50,000/- as Pool Side rent, Rs.80,000/- for decoration, Rs.2,500/- rent per day for each guest room and Rs.18,000/- for DJ. Eventually, Ops No.2 & 3 gave a rough estimate of Rs.6,45,000/- for two days function. The complainant made a payment of Rs.1,50,000/-. In the month of March an unfortunate Covid-19 pandemic occurred worldwide and lockdown imposed at National level in India from 23.03.2020 for 21 days. Subsequently, the complainant contacted and discussed the same with OP No.2 as his marriage functions got affected due to the unforeseen pandemic. The OP No.2 asked the complainant to message to the postponement of the functions. The complainant on the insistence of OP no.2 on 02.04.2020, messaged from his whatsapp number 9569486156 to OP no.2 by writing “Hello Sir as due to lockdown we are postponing the function which is on 4^th and 5^th April….. date is not decided yet as we don’t  know about the exact opening of lockdown and asked for their confirmation on the same. After receiving message from the complainant for postponement OPs did not revert on the same. After this incident, Ops No.2 & 3 started avoiding the phone calls of the complainant and also  denied giving any service to the complainant for functions  and also denied giving back the booking amount of Rs.1,50,000/- stating it to be non-refundable. The complainant visited the office of the Ops but they did not pay any heed to him and was not to allow to enter the premises. The complainant has served a legal notice dated 31.08.2020 upon the Ops but no response was received from the Ops. On non-response of the notice, the complainant sent a second legal notice dated 06.10.2021 but all in vain.  Due to the acts and conduct of the OPs, the complainant has suffered a great mental agony, harassment and financial loss; hence, the present complaint.

2.             Notices were issued to the OPs No.1 to 5 through process server received back served but none has appeared on behalf of the Ops No.1 to 5. Thus, due to non appearance of OPs No.1 to 5, they were proceeded ex-parte by this Commission vide its order dated 12.01.2022.

3.             To prove the case, the ld. counsel for the complainant has tendered his affidavit as Annexure C-A along with documents Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement.

4.             We have heard the complainant and the ld. counsel for the OPs No.1,2,4 & 5 and gone through the entire record available on the file including written arguments filed  by the complainant and the ld. counsel for the Ops No.1,2,4 & 5, minutely and carefully.

5.             Admittedly, a sum of Rs.1,50,000/- was paid by the complainant on 02.02.2020 to OP No.2, against the receipt no.838 (Annexure C-4) for booking  the Hotel North Park i.e. OP no.1 for 04.04.2020 and 05.04.2020 in connection with his marriage function. Evidently, as per marriage invitation card(Annexure C-2), the marriage  of the complainant was to be solemnized on 05.04.2020 in Hotel North Park(OP No.1). Pertinently,  the said marriage function  could not be held on 04.05.2020 and 05.04.2020 in Hotel North Park(OP No.1) on account of lockdown imposed at National Level due to situation arising out of Covid-19, whereby the celebration of all types of function etc were prohibited alongwith severe restrictions on the movements of the vehicular traffic. Therefore, no liability can be fastened upon either of the parties i.e. the complainant or the OPs on account of non holding of the function during the lockdown period.

                The grievances of the complainant are that he approached the Ops several times, after the relaxation in the restriction imposed on account of Covid-19, requesting them to permit him to hold a function in Hotel North Park(OP No.1) but his request was not accepted by the OPs. It is contended that the complainant accompanied by his wife was not even permitted to enter the Hotel North Park, even though the restrictions imposed on account of Covid-19 situation had been relaxed. It is contended that a legal notice dated 31.08.2020(Annexure C-7) followed by another legal notice dated 06.10.2020(Annexure C-8) was sent by the complainant through Arunoday Legal Consultants but the same also failed to bring any positive results. Concluding the arguments, the complainant has prayed that the OPs be directed to refund the deposited amount i.e. Rs.1,50,000/- alongwith compensation and litigations charges due to lapse and deficiency on the part of the Ops.

6.             There is no defence version in the shape of written statement supported with documentary evidence on behalf of the OPs controverting and disputing the contentions of the complainant as the OPs were ordered to be proceeded ex-parte vide order dated 12.01.2022. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

7.             However, at the stage of arguments, the written arguments were placed on record on behalf of the OPs No.1, 2, 4 & 5. The OP No.3 as stated by the learned counsel for the OPs No.1,2,4 & 5 have left the services of the OP no.1. As per written arguments, the claim of the complainant has been contested on several grounds. First of all, it is vehemently contended that the amount of Rs.1,50,000/- as received vide receipt no.838(Annexure C-4) is non-refundable. It is contended that the said receipt contains a clear recital to the effect that the said amount was “non refundable”.

                The aforementioned contention is not tenable in view of the findings recorded by the Hon’ble Maharashtra State Commission in the case of Mrs.Angela Fonseca Vs. Coral Lawns & Anr. wherein it was held that mere mention of words advance once  paid  will not be refunded on the receipt is an exploitation of a needy and helpless consumer and the imposition of such a condition amounts to unfair trade practice. Pertinently, the aforesaid case was also the case of booking of a marriage palace. Undoubtedly, in the present case, the complainant had no meaningful choice while making payment of Rs.1,50,000/- vide receipt no.838 (Annexure C-4) wherein  the words “non-refundable” was already printed on it. In fact, the complainant had no option except to make the payment. The term mentioned as non-refundable vide receipt Annexure C-4 was one sided unfair & unreasonable and therefore, the OPs have not justified in denying the refund of sum of Rs. 1,50,000/- to the complainant.

                It is now well settled law that the complainant is not bound by the agreement, which is one-sided and almost unilateral and where consumers are coerced/compelled to sign the same on account of the dominant position of the other party i.e. service provider.

                The next ground taken by the learned counsel is that the complainant had himself postponed the marriage function. This contention is also of no avail to the case of the OPs in view of the lockdown imposed at National Level due to Covid-19 situation.

                The next submission of the learned counsel is that the Ops has paid some amount to the vendors for flower decoration, grocery, catering services etc. from the proposed marriage function. And thus, the alleged amount of Rs.1,50,000/- is not liable to be refunded. This contention is also not tenable being baseless and meritless. There is no documentary evidence on record in support of the contentions that OP had made the payment to vendor for flower decoration. And thus, in the absence of any such evidence in support of the contentions of the OPs, the objection is rejected.

                The last submission made by the learned counsel for OPs are that the OPs are still ready and willing to give credit note of Rs.1,50,000/- to the complainant, which can be availed by him in another six months for any function. This offer is not acceptable to the complainant on the ground that the OPs were specifically requested vide legal notice dated 31.08.2020(Annexure C-7) to permit him to arrange a function on any date. In this regard, the relevant part of the Para No.10 of the legal notice for the sake of clarity and convenience is reproduced as under:-

                   “That our client  apprised you  notice No.2 that the marriage  of our     client   took place on 05.04.2020,  the mahurat already fixed  by the priest as per the Hindu Rituals  in his residence  and also asked you notice no.2 to     suggest any date so that our client can at least  throw  a reception party for his  guests. That our client further apprised you notice no.2 that the bride/girl is     from Bangalore, therefore, her family and guests would come  from Bangalore  and if you notice no.2 suggests  a specific  date then they will book the flight  tickets in advance  but you notice no.2 did not  pay any heed  to our Client’s requests  and denied giving any services  or refund the booking amount paid by  our client to you notices. That after the above said conversation our client tried    reaching you notice various times and also visited you notice place but the Hotel is closed due to Coronavirus Pandemic”.  

8.             The OPs did not response to request made by the complainant vide aforesaid legal notice dated 31.08.2020(Annexure C-7) and thus, the offer made by the OPs, at this stage, is rejected.

9.             Apart from above discussion, it is relevant to mention here that there is no documentary evidence on record substantiating and corroborating on the assertions and contentions of the OPs.

10.            It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

11.            In view of the aforesaid discussion, we have no hesitation to conclude that there has been lapse and deficiency on the part of the OPs No.1,2, 4 & 5 while rendering services to the complainant; hence, the complainant is entitled to relief. The present complaint is dismissed qua OP No.2 and 3.

12.    As a sequel to the above discussion, we partly allow the present complaint with the following directions against OPs No.1,4 & 5 jointly and severally:-

1. The OPs No.1,4 & 5 are directed to pay a sum of Rs.1,50,000/- alongwith interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization
2. The Ops No.1,4 & 5 are also directed to pay a lump sum amount of Rs.10,000/- to the complainant on account of mental agony, harassment and litigation expenses.

 

13.            The OPs No.1,4 & 5 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1,4 & 5 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1,4 & 5. 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 on:31.05.2022

 

                Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                    Member                  Member                           President

 

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

 

                                        Dr. Pawan Kumar Saini

                                                Member