DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.176/19
Ishwar Singh Sangwan
S/o Sh. Desh Raj
R/o H. No.1305, Sector-31,
Gurugram, Haryana
….Complainant
Versus
Lutyens ( a Unit of Unique Innovation Pvt. Ltd.)
Having its office at Mehrauli-Gurugram Road, New Delhi-110030
Through its Director/Authorized Representative
….Opposite Party
Date of Institution : 12.06.2019
Date of Order : 23.12.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K Tyagi
1. Complainant has requested to pass an award directing the Lutyens (hereinafter referred to as OP) to refund the amount of Rs.1,00,00/- with the interest of 15% p.a w.e.f 19.08.2017 till its actual realization and also grant Rs.20,000/- towards litigation expenses.
2. Brief facts of the case are as under-
The Complainant booked Senate + Garden of OP for dinner in the marriage function of his daughter to be solemnized on 17.02.2008 and paid rs.1,00,000/- vide cheque No.098530 dated 19.08.2017 drawn on State Bank of India. The Complainant further maintained that specific query was made pertaining to hygienic condition of the garden as well as food quality. On 20.10.2017, the Complainant visited the site i.e Senate + Garden to see the operational condition as well as hygienic condition in garden at night. The Complainant was shocked to find a lot of insects & bees were found hovering in the garden. The same was beyond his imagination. The Complainant visited the office of OP on the very next day i.e 21.10.2017 and reported the matter to representative of OP and further requested to provide the license and approval etc. Again on 27.10.2017, the Complainant contacted the OP & requested for requisite documents.
3. The Complainant felt that he had been cheated and they did not possess these documents. In such circumstances, the Complainant was constrained to cancel the agreement. Again on 28.10.2017, the Complainant sent e-mail for confirmation of cancellation of the booking for 17.02.2018. The OP confirmed the cancellation vide e-mail 19.10.2017. On 09.08.2018, the Complainant sent e-mail for refund of booking amount but of no avail, copies of e-mail are attached. The Complainant also gave certificate u/s 65B of Indian Evidence Act, 1872 to this effect.
4. OP, on the other hand filed written statement inter-alia raised some preliminary objections. It was stated that the Complainant and OP had entered into an agreement dated 19.08.2019 according to which the advance received for events are non-refundable and non-transferable. OP also stated that due to cancellation of booking, he had suffered loss. The plaint does not disclose any cause of action. As per Clause 4 of said Agreement, which is re-produced here for sake of reference.
“Reservation Amount: 25% advance for the function. 25% to be paid at least one month before the event. The advance received for all the events are non-refundable and non-transferable,”
Clause 5 further states-
“In case of cancellation, amount will not be refunded or adjusted against another event.”
5. In respect of insects/bees in the garden area, the OP vide its mail dated 27.10.2017 stated that fumigation would be done. The same is annexed as Annexure-D-2. It is also denied that the Complainant had never asked for these documents and OP is in possession of all licences required for such function. OP had suffered as the date of booking was kept vacant. The OP also alleged that there was no deficiency of service on the part of OP. There is no violation of any law for the time being in force including that of Contract Act. He further prayed to dismiss the complaint and cost of Rs.25,000/- may be allowed in favour of OP.
6. Both the parties have filed written statement and evidence-in-affidavit. Oral arguments were heard and concluded. It is also seen that the OP or its counsel had not been appeared on 09.02.2022 and 30.08.2022, when the case was meant for final arguments. Hence, it was decided to conclude the case as it being old and moreover the written submissions of the OP are on record.
7. This Commission has gone into entire material placed before this. Due consideration was given to arguments. It is noticed that the amount so deposited on 19.08.2017, whereas the function was to be held on 17.02.2018 around six months before the date of actual function to be held. As per Clause 4 of the Agreement, 25% advance for the function was to be paid at least one month before the event. The Cancellation of function was confirmed 29.10.2017 by the OP himself. Cancellation also took place more than three month before the event date. The OP maintained that no cause of action arose but it is a fact that there were insects and bees. This fact was confirmed from the bills attached here for pest-control. The contention of the OP is found non-sustainable on this score.
8. The Complainant, at time of argument placed the judgments of Vibes Health Care Ltd & Ors Vs M/s Dakshina Illangovan 07.01.2015, where Hon’ble National Commission had categorically stated that “this is a fact that petitioner did not provide any service…….The facts of all these authorities are altogether different. The Consumer Commission will not allow the service provider to grab money like this”.
9. The ratio of above-mentioned case applies here in instant case as well. Moreover, the cancellation of booking was done much before, more than 03 months, whereas the requirement of reservation is only one month before the event date.
10. In nutshell, after having considered the facts and circumstances, of the case and respectfully following the ratio of above judgment of Hon’ble National Commission, this Commission is of the considered opinion that OP is short of obligation required to compensate the Complainant. Accordingly, OP is directed to refund the amount of Rs. 1,00,000/- alongwith interest @6% p.a within two months from the date of receipt of this order failing which rate of interest shall be levied @9% p.a till its realization.
File be consigned to the record room and order be uploaded on the website.
