Tamil Nadu

North Chennai

CC/79/2021

K.Narayanan.S,/o.late Kailasam iyer - Complainant(s)

Versus

M/s.Balaji Shreemahal,Rep by its Proprietor - Opp.Party(s)

A.A.v Partners

17 Nov 2023

ORDER

                                                                     Complaint presented on : 12.03.2020

                                                                    Date of disposal            : 17.11.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G. VINOBHA, M.A., B.L.           : PRESIDENT

                                         TMT. KAVITHA KANNAN, M.E.,         : MEMBER-I

                                        

 

C.C. No.79/2021

 

DATED THIS FRIDAY THE 17^TH   DAY OF NOVEMBER 2023

                                

K.Narayanan, M/70 years

S/o (Late) Kailasam Iyer,

31/25, Aani Street, Chinmayanagar,

Chennai-600 092

                                                                                               …..Complainant

 ..Vs..

1.M/s.Balaji Shreemahal,

Rep by its Proprietor Mr.Nalliappan Kailasam,

Head Office,

W-99, Second Avenue,

Anna Nagar, Chennai-600 040.

 

1.  

Authorised Signatory,

P1/1, 3^rd Floor, Third Avenue

Anna Nagar,Chennai-600 040

.....

 

 

Counsel for Complainant                        : M/s.AAV Partners

Counsel for  1^st opposite party                  : Mr.Srinivasan

Counsel for  2^nd  opposite party                 : Exparte

 

 

 

ORDER

 

TMT. KAVITHA KANNAN, M.E., MEMBER-I

          This complaint has been filed by the complainant under section 35 of the Consumer Protection Act 2019 as against the opposite parties praying to direct the opposite parties to jointly and severally pay a sum of Rs.2,54,400/- towards refund of the amount paid by the complainant to the opposite parties with 24% interest from date of payment till date of realization, to pay a compensation of Rs.12,00,000/- towards mental agony and Rs.50,000/- as costs.

 

1.THE COMPLAINT IN BRIEF:

The complainant submits that he approached the opposite parties hall for booking for his daughter's marriage to be held on 11-09-2018 and 12-09-2018  and entered into a contract on 30-05-2018 paying  Rs.94,400 for hall rent and paid Rs.1,60,000/- by way of cash for other miscellaneous expenses like flower decoration, electrical illumination, catering, etc and thus totally paid Rs.2,54,400/-. But due to unavoidable circumstances the marriage was called off by the complainant due to various reasons and, the opposite parties issued a cancellation letter dated 07-07-2018  but refused to refund the total cost of Rs.2,54,400/-. The complainant's wife  attempted to reach  out to the opposite parties on 25-07-2018, 04-08-2018, 03-09-2018 and 16-09-2018 and also filed a police complaint on 18-12-2019 but no response and hence prayed this commission to direct the opposite parties to jointly and severally pay a sum of Rs.2,54,400/- towards refund of the amount paid by the  complainant to the opposite parties towards booking the mandapam, electrical illumination, flower decoration, etc with interest of 24% from the date of payment till the date of realization and compensation of Rs.12,00,000/- towards mental agony and Rs.50,000/-as costs.

 

 

2.THE 1ST OPPOSITE PARTY'S VERSION IN BRIEF:

The 1st opposite party had stated that the complainant booked their hall and has paid only hall Rent of Rs.94,400/- and has not paid any amount towards Security Deposits and had falsely alleged about payment of Rs.1,60,000/-. And stated that as per clause No.3 of the Rules and Regulations termed as contract "The money paid as rent and service tax for the hall will not be refunded in case of cancellation of the booking" which was duly accepted and signed by the complainant while paying the Hall rent on 30-05-2018. And the  complainant had not paid any miscellaneous expenses of Rs.1,60,000/- .The 1st opposite party had submitted that Mr.K.Nalliappan is the Proprietor of the 1st opposite party and the 2nd opposite party was only the booking clerk and Authorized Signatory of the 1st opposite party and the total capacity of the 1st opposite party hall was 800 persons and not 250 persons as mentioned in complaint. The complainant issued a Cheque for Rs.94,400/- which amount is made up of Rs.80,000/- towards rent and Rs.14,400/- towards GST @ 18%. As per clause no.22 of the Rules and Regulations the applicant (customer) will have to pay security Deposit only 15 days prior to the date of function. The arrears of rent (if any) electricity consumption charges, gas consumption charges, water charges, rent for generator, cost of diesel consumed, costs of bags, wages for labor, conservancy charges, costs of items falling short, etc will be deducted from such security deposit and the balance shall be paid to the Applicant/Customer. But, the said booking was cancelled by the complainant on 06.07.2018. As such, no security deposit was paid by the complainant. In his letter dated 06.07.2018, the complainant has not stated that he paid additional amount and that he is cancelling the booking for the reason that the Hall can (allegedly) accommodate only 250 persons. The first opposite party issued a reply dated 07.07.2018 by registered post, quoting clause no.3 of the rules and regulations and stating that money paid towards rent and GST cannot be refunded in view of the said clause but was reminded about the option for re-booking the hall, within two months as mentioned in clause no.3 The Hall remained vacant for 11.9.2018 and 12.9.2018 and the same is found in booking registers for the marriage hall ‘Balaji Shree Mahal’ English Calendar Diary is used as Booking Register. Once the Hall is booked for a particular days, the said booking will be mentioned in the said Booking Register at the page corresponding to that date. All the payments made by the concerned customer will be mentioned in that page. Relevant pages of the Booking Register of the year 2018 are filed herewith as First opposite party’s document. The opposite party referred to the page for 05.09.2018 of the booking register for the year 2018, one Mr.L.Kandasamy had booked the hall on 6.5.2018 for his daughter’s wedding proposed to be celebrated on 5.9.2018 and 6.9.2018 The said Mr.L.Kandasamy paid Rs.94,400/- on 6.5.2018 towards rent and GST. Later on 18.8.2018 the said Mr.L.Kandasamy paid the security deposit amount of Rs.1,50,000/- by Cheque Both the payments are mentioned at the pages for 5.9.2018 and 6.9.2018 but no proof about payment of security deposit in the pages for 11.9.2018 and 12.9.2018. Only ‘Cancellation’ is mentioned this proves that the hall remained vacant on 11.9.2018 and 12.9.2018. For the complainant lawyer’s notice dated 11.12.2019 the 1^st opposite party issued a reply dated 18.2.2019 mentioning that it is reply for the complainant’s lawyer’s notice dated 11.2.2019 but was not filed by the complainant. The opposite parties that the complainant has created a lawyer’s notice dated 6.2.2019 and filed the same as his document no.7 is a fabricated notice where it is mentioned that it has five annexures but was not finished. No rejoinder has been sent by the complainant or his lawyer stating that they have sent notice dated 06.02.2019 and not 11.2.2019. The 1^st opposite party finally state that the above complaint is not maintainable in Law and on the facts of the case and that the same is devoid of any merits.

POINTS FOR CONSIDERATIONS

1.Whether there is Deficiency of Service or Unfair Trade Practice on the Opposite parties?

2.Whether the complainant is entitled for the Refund of Rs.2,54,000/- ,and other compensations as prayed for, If so, to what extent?

The Complainant has filed proof affidavit, written arguments and Ex.A1 to A11, were marked on the side of complainant. The 1^st Opposite party has filed written version, proof affidavit and Ex.B1 to B7 and the 2^nd opposite party set ex-parte.

 

POINT NO.1

As per complaint, the complainant had booked the opposite party's marriage hall to solemnize his daughter's marriage and reception to be held on 11-09-2018 and 12-09-2018 was provided with all details of the hall usage. On signing a contract application dated 30-05-2018 and paying Rs.94,400/- towards mandapam rent  he received an acknowledgement vide receipt no.2223 ,bill no-217 dated 30-05-2018,  further the complainant is said to have paid Rs.1,60,000/- in the form of cash for expenditures including pandhal, flower decorations, electricity bill and other maintenance charges which was also paid on the same day,  however the complainant was denied receipt for Rs.1,60,000/-by the opposite parties for the payment even after the complainant requested for the same  and accepted to give bills after the commencement of marriage.

He had further averred that the opposite parties had encashed the cheque on 04-06-2018 and the same was an admitted fact by the opposite party as observed in his reply notice dated 18-02-2019.  The complainant has submitted that he had to cancel the booking due to some unforeseen occurrences and  on 06-07-2018 with a cancellation form requested the opposite parties to refund the total sum paid by him. But the same is said to have been refused by the opposite parties , instead the opposite parties offered to rebook the hall within 2 months from date of cancellation failing of which would lead to cancellation of the contract with no further recourse .

The complainant averred that he had canceled the booking 2 months prior to the dates booked by him later on he gets a knowledge that the hall was booked by some other party for the same dates 11-09-2018 & 12-09-2018 followed by the cancellation request of the complainant, Hence no business loss was caused to the opposite parties and further averred that there was no necessity for the complainant to use the hall further no rebooking needed in future  and explained his situation of illness and hospitalization which demanded financial support and further representation for the refund which all went in vain. While the complainant is said to have fallen sick during which the complainant did not able to meet the opposite parties and hence wrote a letter dated 25-07-2018 to the opposite parties. Inspite of several representations made by the complainant on 25-07-2018, 04-08-2018, 03-09-2018 and 16-09-2018 made for the request of refund which were also evaded by the opposite parties, followed by which the complainant filed a police complaint dated 11-07-2019 with the K-7 ICF police station (Crime) which was initially refused while the complainant is said to have been threatened to withdraw the complaint and later issued a CSR No.46/2019 dated 27-09-2018 on 28-09-2018. The complainant further averred that the opposite party was callous in responding to the complaint and his wife though they  were senior citizens and the complainant had undergone heart surgery.  Hence the filing of the complaint stating the unfair trade practice of the opposite parties.

On the other hand the opposite parties had defended the complaint stating that all the complainant’s averments except ones admitted were false .The 1st opposite party has submitted that the complainant paid only rent of and had not paid any amount towards any of the services and had not availed any service from the opposite party and further particularly stated that he had not paid anything towards Security Deposit  except the hall rent of  Rs94,400/- which included GST for the rent. Further also defended that the complainant had duly signed in the contract after going through the Rules and Regulations of the Marriage hall which was termed as ‘contract’ which contained clause no.3 stating that the “The money paid as rent and service tax for the hall will not be refunded in case of cancellation of the booking” and also submitted that the complainant was not maintainable as it was filed against a proprietary concern. The 1st opposite party submitted that the 2nd opposite party was  only a Booking clerk with 1st opposite party and was not employed with them presently. The complainant had visited the hall prior to booking the hall and had signed the Rules and regulations and there by booking the hall willingly and voluntarily and his booking application was 2223 for which Rs.94,400/-  which included GST @18%  vide cheque and he did not pay any other amount in any mode other than Rs.94,400/-. The 1st opposite party also submitted that the complainant in his letter dated 06-07-2018  has not mentioned about the additional charges paid by cash but only about the requested for cancellation of the booking made for 11-09-2018 and 12-09-2018 and sought for refund of ADVANCE as he was unable to celebrate his daughter’s wedding for some reasons and not for the reason that the hall could accommodate only 250 persons, based on which the 1st opposite party had replied  stating clause no.3 of the Rules and Regulations and the complainant was further reminded about the option for re-booking within 2 months .

The 1st opposite party further added to his version that the said hall remained vacant on 11-09-2018 and 12-09-2018 which was evident in Booking Register of the 1st opposite party which was maintained in an english calendar diary where the corresponding bookings were entered on the calendar dates .The 1st opposite party had referred to one booking made by a customer who booked the hall on 06-05-2018 for his daughter’s wedding on 05-09-2018 and 06-09-2018 for which he had paid Rs.94,400/- towards rent and GST, followed by which the said customer paid a security deposit of Rs.1,50,000/-by cheque both the payments were mentioned in calendar dates 05-09-2018 and 06-09-2018.

The 1st opposite party further submitted that if a booking was canceled and if a 3rd party booked the hall for the same date a white paper would be pasted in the relevant page and details about new booking would be written which was not the case in the present complaint and hence there was only a cancellation of the previous booking noted hence submitted the 1st opposite party hall was vacant on the said dates of 11-09-2018 and 12-09-2018. The 1st opposite party has further defended that the document no.7 filed by the complainant was fabricated and no such document was received by the 1st opposite party and only one letter dated 11-02-2019 was filed by the complainant’s wife and also that the whatsapp message dated 25-07-2018 was not sent by her and hence prayed for dismissal of the complaint.

Perused documents and averments the undisputed facts of the complaint are that the complainant in order to solemnize his daughter’s wedding to be held on 11-09-208 and 12-09-2018 booked the 1st opposite party’s hall vide payment of Rs.94,400/- which included the 18% GST for a rent of Rs.80,000/-vide application dated 30-05-2018 found in ExA1, while the Rules and Regulations of the 1st opposite party in the form of contract is available in ExB2, and the payment for booking for 11-09-2018 and 12-09-2018 vide bill no.217 dated 30-05-2018 found in ExA2, and the complainant due to unavoidable situations was forced to cancel the booking of the marriage as the wedding ceremony was called off and thereby filed a cancellation request with the opposite parties vide letter dated 06-07-2018 found in ExB3, the reply by  the opposite party was filed on 07-07-2018 quoting clause 3 in the Contract duly signed by the complainant which read The money paid as rent and GST for the hall will not be refunded in case of cancellation of the booking. The applicant however , will have the option to re-book the hall only for his use on any subsequent day/days according to his choice with in two months from the date of cancellation of booking subject to availability of the hall, No such option shall be exercised if the cancellation with in one month prior to the date of function. The use of the hall cannot be transferred by the applicant at any circumstance. The Option for re-booking can be exercised only once. Hence cancelled the booking but refused to  refund  the amount paid by the complainant for availing the opposite parties marriage hall. The matters in dispute is that when the complainant states that he paid Rs.2,54,000/-totally out of which  Rs.94,400/- in the form of Cheque and Rs.1,60,000/- in the form of cash for miscellaneous expenses like pandal and flower decoration etc., and was denied receipt ,the 1st opposite party denies the same and submits that complainant paid only Rs.94,400/- as hall rent which included GST and no other payment was paid by the complainant and the same is evident in the reply letter which is marked  as Ex.B6 and the complainant has not submitted any documents for proof of payment of Rs.1,60,000/- which was said to be paid in cash and it is further found that in Ex.B3 which is dated 06.07.2018 there is no mention about the exact amount to be refunded by the opposite party but this document has been convenitly omitted to be filed by the complainant and hence it was filed by the opposite party, and in Ex.B4 which is  booking register it is found that in a similar cancellation request by 1.L.Kandhasamy there is entries by the opposite parties regarding the receipt of rent for the marriage hall and for receipt of miscellaneous charges which were mentioned separately and it is further found that in respect of the present complainant there is entry in respect of only Rs.94,400/- and there was no other entries with regard to miscellaneous charges which will go to show that the complainant has paid only  Rs.94,400 towards hall rent and has not paid any other amount towards miscellaneous charges

However though the 1st opposite party had given options to rebook the hall within 2 months from the date of cancellation imposing such a condition is found to be unilateral and arbitrary on the part of opposite party. The complainant had booked the hall in the month of May 2018 for the wedding to be commenced in September 2018 and had cancelled in the month of July, 2 month prior to marriage dates and hence no miscellaneous arrangements were made by the 1st opposite party for the said marriage and hence no expenses incurred by the 1st opposite party for the marriage and the GST bills not submitted to prove that the GST for the said Rs.94,400/- was paid to the government and hence , the 1st opposite party cannot wash  his hands by taking the consumer’s money for no service rendered by it. Since the cancellation was made 2 months prior to the marriage date the opposite parties had ample opportunity to advertise about the cancellation and seek for fresh booking from public on the cancelled dates which was not done by the opposite parties and hence it is found that the refusal on the part of the 1st opposite party to refund the amount of Rs.94,400/- amounts to Unfair Trade Practice on the opposite parties. Since the 2nd opposite party is only an employee in the 1^st opposite party marriage hall employed by the 1^st opposite party the complaint against 2^nd opposite party is not maintainable and hence liable to be dismissed against her. The complainant counsel relied upon a order passed by this commission in CC.201/2014 dated 27.04.2016 and based on the said order prayed for refund of the alleged miscellaneous charges of Rs.1,60,000/- paid by him but in the present complaint differ from the facts of the above said complaint and here there is no prove for payment of miscellaneous charges by the complainant and the opposite party also denied such payment towards miscellaneous charges. The opposite party relaid upon a decision reported in CDJ 1994 (Cons) Case No.198 NCDRC dated 16.06.94 and another decision reported in 1996 1 CPR page 489 and contended that the dispute in respect of refund of rental amount does not fall within scope of consumer protection act and the petitioner has to approach only to civil court and further contended that failure to refund booking amount will not fall under the head unfair trade practice. But as per the decisions reported in (1) FA No. A/16/3013 SCDRC, Maharashtra, Mumbai, Ram Mangal Sanskrutic Bhavan Vs. Anand Annasaheb Koli, (2) RP No.729, 730 & 731 of 2008 in Appeal No.1639 of 2007, NCDRC, Prasad Homes Private Limited V/s. E. Mahender Reddy & Others, the conditions imposed in the printed booking application “Clause 4 (i) in the event of request for any change as to the date of booking made within 10 days of booking refund less 10% & tax will be made. (b) in the event of request for any changes as to the date of booking made after 10 days of booking refund less 80% & less tax paid will be made” is not binding upon the parties and such condition is found to be unilateral and not valid especially when the cancellation was made well in advance before the scheduled date of marriage and hence the opposite party is having opportunity to utilize the marriage hall by booking to any third person and hence it is found that the refusal on the part of 1^st opposite party to refund the  amount paid by the complainant is unfair trade practice and deficiency in service on the part of 1^st opposite party. Further as per the decisions reported in I(1998) CPJ 242 SCDRC, Pondicherry Dr.M.K.Sebastian Vs. Dr.N.Jagadeesan & Anr in Appeal No. 54/1997, SCDRC in F.A.No.362/2014 dated 12.11.2021 Vijay Shreemahal Vs. K.S.Kasi the conditions imposed in the printed receipt stating advance will not be refunded is not binding upon the parties and such condition is found to be unilateral and not valid especially when the cancellation was made well in advance before the scheduled date of marriage and hence the opposite party is having opportunity to utilize the marriage hall by booking the hall to any third person and hence it is found that the refusal on the part of 1^st opposite party to refund the  amount paid by the complainant is unfair. There is no force in the contention of the opposite party that the complainant has to approach only civil court and cannot approach the consumer commission since it has been held in the above said decisions that merely because civil court will have jurisdiction to beside the civil dispute does not mean that a consumer is barred from approaching the consumer for a so as to complaint against the opponent on account of deficiency in service or unfair trade practice and it provides an additional or supplementary remedy for the consumer. Hence the refusal to refund Rs.94,400/- by the 1^st opposite party by relying upon clause no.3 of the contract is found to be unfair trade practice and deficiency in service on the part of 1^st opposite party. Point No.1 answered accordingly.

Point No.2

Based on the findings in Point No.1 there is Unfair Trade Practice and deficiency in service on the part of the 1st opposite party and considering the age and mental agony undergone by the complainant the 1st opposite party is directed to pay the complainant the rental amount of Rs.94,400/- along with an interest of 6%p.a. from 04.06.2018 to till date of payment and to pay Rs.30,000/- towards compensation towards Unfair Trade Practice and deficiency in service in respect of mental agony suffered the complainant and to pay Rs.5000/- towards cost of complaint . Point No. 2  answered accordingly.

In the result, the complaint is partly allowed. The 1^st opposite party is directed to refund the Rental amount of Rs.94,400/- along with interest at 6%p.a from 04.06.2018 to till date of payment and to pay Rs.30,000/- towards compensation towards unfair trade practice and mental agony to the complainant and Rs.5000/- towards cost of the complaint. The above amount shall be paid to the complainant within 2 months from the date of receipt of the copy of this order, failing of which the above said amount shall carry 9% interest from the date of order to till date of payment. The complaint against 2^nd opposite party is dismissed.

Dictated  by the Member-I to the Steno-Typist taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 17^th day of  November 2023

 

MEMBER – I                                             PRESIDENT

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT:

Ex.A1	30.05.2018	Application for booking marriage hall
Ex.A2	30.05.2018	Invoice Bill no.217
Ex.A3	30.05.2018	Payment Receipt 2223
Ex.A4	07.07.2018	Cancellation letter from Balaji Shree Mahal
Ex.A5	25.07.2018	Requisition letter for refund of payment made
Ex.A6	25.07.2018	Whatsapp message to Mr.Nalliappan by complainant and his wife
Ex.A7	06.02.2019	Legal Notice issued to the opposite parties
Ex.A8	18.02.2019	Reply Notice
Ex.A9	15.07.2019	Police complaint
Ex.A10	27.09.2019	CSR.No 46/2019 on the file of the K-7,Police station,ICF
Ex.A11	28.09.2019	Letter given by the complainant

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE 1^st OPPOSITE PARTY:

Ex.B1	30.05.2018	Complainant’s application
Ex.B2	30.05.2018	Rules and Regulations (termed as contract) signed by complainant
Ex.B3	06.07.2018	Complainant letter requesting cancellation
Ex.B4	31.08, 05.09, 06.09,11.09 &12.09.2018	Relevant pages of Marriage Hall’s Booking Register
Ex.B5	11.02.2019	Complainant lawyer notice to opposite parties
Ex.B6	18.02.2019	1st opposite party lawyer reply to complainant lawyer and complainant with postal receipts and postal acknowledgements
Ex.B7	26.09.2019	1st opposite party reply for police complaint given by complainant

 

 

 

MEMBER – I                                            PRESIDENT

 

 

 

 

 

CC.NO.79/2021 dated 17.11.2023

                                                                                    Order Pronounced,

      In the result, the complaint is partly allowed. The 1^st opposite party is directed to refund the Rental amount of Rs.94,400/- along with interest at 6%p.a from 04.06.2018 to till date of payment and to pay Rs.30,000/- towards compensation towards unfair trade practice and mental agony to the complainant and Rs.5000/- towards cost of the complaint. The above amount shall be paid to the complainant within 2 months from the date of receipt of the copy of this order, failing of which the above said amount shall carry 9% interest from the date of order to till date of payment. The complaint against 2^nd opposite party is dismissed.

 

                                                                                    MEMBER-I                    PRESIDENT