IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 30^th day of November,  2023

Present:  Sri. Manulal V.S. President

Sri. K.M. Anto, Member

C C No. 108/2021  (Filed on 12/07/2021)

Petitioner                                 :         Anil N.

                                                          S/o. V.K. Nanappan,

                                                          Padanilathu House,

                                                          Kumarakom P.O.

                                                          Kumarakom village,

                                                          Kottayam  Taluk,

                                                          Kottayam – 686563

                                                          (Adv. V. Jayaprakash and

Adv. Blessan G. Mathews)

                                                                   Vs.   

Opposite party                         :    1. Mohanan Namboothiri,

                                                          Pazhayidom House,

                                                          Kurichithanam P.O.

                                                          Uzhavoor,

                                                          Kottyam – 686634

                                                          (Adv. Avaneesh V.N.)

Additional opposite party                   :         Pazhayidom Food Ventures Pvt. Ltd

(impleaded as per IA Order in            3/402, Vadakkedathu Building,

168/2022 dtd.22-06-2022)                Kurichithanam P.O

                                                          Uzhavoor, Kottyaam,

                                                          Kerala – 686634.

O  R  D  E  R

Sri. Manulal V.S. President

The case is filed under Section 35 of Consumer Protection Act, 2019

Case of the complainant is as follows:

The complainant being desirous of serving quality food at the marriage function of his daughter proposed to be held on 5-4-2020 had approached the first opposite party and entrusted him the contract of catering service. The first opposite party is conducting business of catering services under the name and style of Pazhyidom Food Ventures private limited, the second opposite party.                              In furtherance of the agreement the complainant had under the instruction of the first opposite party on 17-2-2020 paid Rs.50,000/- as advance at the Thiruvanthapuram office of the second opposite party towards the payment of the order. The marriage function had to be postponed indefinitely due to the covid 19 pandemic and the intimation of which was made to the first opposite party on                    23-3-2020. The first opposite party had reverted back stating that the amount received as advance on the agreement will be returned back within a month.                     The first opposite party has not returned the amount and is evading the complainant by stating lame excuses. The first and second opposite party has made unlawful enrichment by withholding the advance amount paid and are indulging into unfair practice by evading the request for payment of advance money received from the complainant. A notice dated 12-2-2021 was issued to the first opposite party stating the entire state of facts for which a reply was made. There are absolutely no bonafides to state that the first opposite party is unrelated to Pazhayidam Food Ventures Private Limited. The second opposite party was founded by the first opposite party and the said company does not have an independent existence other than the first opposite party and he is the person responsible for all the activities of the second opposite party. The first opposite party is the founder and partner of the second opposite party venture and he is popularly known and associated with the name and status of his venture and he has explicitly and by necessary implications allowed himself to be represented through the name of his venture. Hence this complaint is filed by the complainant praying for an order to direct the first opposite party to pay Rs.50,000/- which is the amount  advanced by the complainant along with interest and Rs.5000/- towards the cost of this litigation.

Up on notice from this Commission, the first opposite party appeared before the Commission and filed a version. The second opposite party is impleaded in the party array vide order in IA 168 of 2022. Though the notice was served to the second opposite party through paper publication in Janayugam dated 16-7-2023, the second opposite party failed to appear before the Commission and to file version hence the second opposite party is declared as ex party.

 Version of the first opposite party is as follows.

This Commission has no jurisdiction to deal with this complaint as the cause of action took place entirely at Thiruvananthapuram which was outside the limits of this commission. The complaint is barred by limitation.

          The first opposite party has been wrongly implemented in the case.                       The complainant has not entered into any agreement with the 1^st opposite party but only with Pazhayidam Food Ventures Pvt Ltd. The first opposite party does not know the complainant personally. First opposite party is unacquainted about the marriage of complainant’s daughter to be held on 5-4-2020. The first opposite party was not approached by the complainant or anyone on that behalf, and therefore have never entered any contract of catering service with him. The first opposite party was not associated with the firm Pazhayidom food ventures Pvt Ltd. The said firm has an independent existence apart from that of the first opposite party. There has neither been any communication between the complainant and the first opposite party on 17-2-2020 regarding the advance amount nor any information that the complainant approached the Thiruvananthapuram Office on that date. The first opposite party does not know whether the complainant entrusted Pazhayidom food ventures private limited to deliver meals to the marriage and to pay any advance amount to their staff. The first opposite party is not aware about the cancellation of marriage and there was not any sort of information from the complainant on 23-3-2020. A legal notice dated12-2-2021 was received from the complainant. However it was clearly stated in the said notice that the complainant entered into an agreement with Pazhayidom Food Ventures Private Limited and  made an advance payment on 17-2-2020. There exists no legal relationship between the first opposite party and Pazhayidom food ventures private limited on 17-2-2020 and therefore all allegations made by the complainant were denied in reply notice dated 20-3-2021. According to the first opposite party the complainant distorted the facts and made this complaint with the sole aim of tarnishing the reputation of the first opposite party as well as the goodwill of his brand name Pazhyidam. If anyone is liable for the loss incurred by the complainant it is only Pazhyidom food pvt limited that can be held responsible. The complainant is not entitled to get any compensation from the first opposite party.

Complainant filed proof affidavit in Lieu of chief examination and marked exhibit A1 to A4 documents from the side of the complainant. First opposite party filed a proof affidavit in lieu of chief examination and marked exhibit B-1 from the side of the first opposite party.

On evaluation of complaint, version and evidence on record we would like to consider the following points.

1. Whether the complainant had succeeded to prove any deficiency in service or unfair trade practice on the part of the opposite parties?
2.  If so, what are the reliefs and cost?

Point No.1 and 2

 The specific case of the complainant is that with the aim of ensuring quality food at his daughter’s marriage scheduled on April 5, 2020, the complainant engaged the first opposite party to cater for the event. As part of this arrangement, following the first opposite party’s instructions, the complainant made an advance payment  of Rs. 50,000/- to the Thiruvananthapuram office of the second opposite party on February 17, 2020. However, due to the Covid-19 pandemic, the marriage had to be indefinitely postponed. Subsequently, the first opposite party assured the return of the advance payment within a month. Despite setting multiple repayment deadlines, the first opposite party failed to fulfill his commitment as previously agreed upon.

It is proved by exhibit A1that the complainant had paid Rs.50,000/- to Pazhayidom  Food Ventures Private Limited on 17-2-2020. The opposite party resisted the complaint on two grounds. The first contention raised  by the opposite party is that this commission has no territorial jurisdiction to entertain the complaint.

The Consumer Protection Act, 2019 now provides that the consumers can register their complaints at a place where all or one of the opposite parties resides or carries on business, or the place of cause of action or where the complainant is residing or works for gain . Here in case on hand the complainant is residing at Kumarakom and the first opposite party is residing at Kuruchithanam which is within the territorial jurisdiction of this Commission. Therefore we are of the opinion that this commission has ample jurisdiction to entertain this complaint. The first opposite party’s primary assertion is their unawareness of the complainant’s  daughter’;s marriage and the absence of any agreement for catering services with the complainant. Furthermore, they claimed no affiliation with Pazhayidam Food Ventures Private Limited during that specific period.

 In order to prove his case the complainant produced exhibit A4 which is the print outs containing the photos and screenshot from the official social media account of the second  opposite party in Instagram. On going through exhibit A 4 series we can see that there is some advertisement like “meet our patron Pazhayidom Mohanan Namboothiri our celebrity chef, who has taken over the Mantle for catering for the massive kitchen for the prestigious schools Arts festival of Kerala over the last 15 years and every year he wins laurels for his brilliance in  serving nothing but the best for almost 2 crore children at the youth festival.                     The legend behaves food ventures doing what he is best at.!Other than exhibit A4, the complainant did not successfully prove that the second opposite party received the advance amount under the direction of the first opposite party. The specific case of the first opposite party is their lack of association with the second opposite party at the time when the complainant paid the advance. The complainant also failed to establish the existence of a contract between the first opposite party and themselves for catering services at his daughter’s wedding event. It is crucial to note that Ext.A1 was issued by the second opposite party and not by the first opposite party. If an agreement had been established between the complainant and the first opposite party, receipts for the received amounts would be issued by the first opposite party, not the second opposite party. Furthermore, exhibit B1 is the Judgment of the honorable High Court of Kerala in WP(c) 14275 of 2020 H. Upon reviewing this judgment, it is evident that the petitioner in the mentioned writ petition was Pazhayidom Food Ventures Private Limited, represented by its director Satheesh Mohan. This unequivocally establishes that the first opposite party has no connection with the second opposite party, Pazhayidom Food Ventures Private Limited. Based on the above discussed evidence we are of the opinion that the complainant had entered into an agreement between the second opposite party for catering the food at the event of the marriage of the complainant’s daughter. There is no dispute on the fact that the marriage was postponed due to the pandemic situation and the second opposite party did not return the advance amount received by them. The second opposite party remains absent during the proceedings of the case and in the absence of any contradictory evidence we are of the opinion that the second opposite party had committed deficiency in service by not refunding the advance amount to the complainant.                   

In the result the complaint is allowed against the second opposite party and we pass the following order:

1. We hereby direct the second opposite party to pay Rs.50,000/- (Rupees Fifty thousand only) to the complainant with an interest @9% from 12-7-2021 that is the date on which this complaint  is filed till realisation.
2. We hereby direct the second opposite party to pay Rs.2000/- (Rupees Two thousand only) as cost of this litigation.

The Order shall be complied within 30 days from the date of receipt of copy of this Order. 

Sri. Manulal V.S. President             Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Cash voucher dtd.17/02/2020 for Rs.50,000/-

A2 – Copy of lawyers notice by Adv. V. Jayaprakash to Adv. Mohanan

          Namboothiri

A2(a) - Postal receipt

A2(b) – Postal acknowledgement card

A3 – Lawyers notice dtd.23/03/2021

A4 series – Printout of photo’s screen shot from Instagram account maintained by

       2^nd opposite party along with certificate (68 nos.)

Exhibits marked from the side of opposite party

B1 – Copy of Judgment of the honorable High Court of Kerala in WP(c) 14275 of

          2020 H.

                                                                                                          By Order

                                                                                     Assistant Registrar