This is an application u/s.12 of the C.P. Act, 1986.

          The complainant by filing this complaint states that he paid a sum of Rs.32,000/- as an advance for booking six rooms at N.D. Guest House (242 Ratan Sarkar Garden Street, Kolkata-7) on 07-04-2013 vide receipt no.91 towards hiring rooms for the period of 04-06-2014 to 08-06-2014.  In the meantime, he came to know that the place was unsafe for the guests for whom the rooms were hired and the booking was cancelled over telephone on the very next day, i.e. on 08-04-2014.  On 13^th April, 2014, the complainant visited the guest house and by referring the conversation of 08-04-2014, he wanted the advanced amount back.  The complainant, Mr. Sadani was told that he would get the full amount back on the next day, i.e. on 14^th April.  The complainant again went to the guest house on 15-04-2014 because 14^th was holiday.  This time, the guest house officials assured him of the refund of Rs.32,000/- by two or three days.  On the same day, the complainant also sent an e-mail to the OP, Guest House and the OP sent a reply through e-mail assuring him of refunding his money.  After several persuasions, the complainant realized that he was given fake assurances and they keep on buying time of 2/3 days under the pretext that the amount will come from Head Office.  Again on 26-05-2014 the complainant sent a letter requesting for refund of the advanced amount, but this time he was informed through a letter dated 28-05-2014 that no refund would be made possible by them.  Before approaching for legal assistance, the complainant wrote them on 31^st May to recover the advanced deposit, but they turned down the complainant’s request.  Lastly, on 22-07-2014 the complainant complainetoby Consumer Affairs & Fair Business Practice where both the parties were called to appear.  But the manager Mr. Anil Jha of the Guest House denied to refund the money on instruction from the director, Mr. Ram Gopal Soni.  During meeting OP tried to mislead the CA& FBP officials by saying that he was not aware of the cancellation of booking, because the cancellation was done over telephone, but they could not deny that they had received the mail from the complainant regarding cancellation of booking on 15^th April, 2014.  After discussion and mediation of CA&FBP, the dispute has not been settled, and the complainant came to the Forum for redressal.

          The complainant prays for refund of the advance money of Rs.32,000/-.  He also prays for compensation of Rs.32,000/- and he wants the deposited money back with an interest  at the rate18percent p.a.  He also prays for Rs.50,000/- for mental agony and pain.

          Notice was served upon the OPs but they failed to turn up.  No written version has been filed by them.  But the complainant files E-chief on 29-09-2014 and the E-chief was also sent to the OPs, yet no step is taken by them.  Accordingly, the case is fixed for ex-parte hearing and we proceeded for judgment.

Decision with Reasons

On proper study of the complaint and Evidence in Chief, it is evident that the complainant made an advance payment of Rs.32,000/- to N.D. Guest House for hiring six rooms for a period of 5 days (4^th June, 2014 to 8^th June, 2014) on 7^th April, 2014.  Though he cancelled the booking on the next day over telephone on 8^th April, 2014, the Guest House Authorities informed on 28^th May that the amount of Rs.32,000/- paid in advance is not refundable and it is written on the advance receipt of N.D. Guest House, which was received by the complainant and the complainant knows very well that the advance payment is not refundable.

In fact, on overall evaluation of the only reply granted by the OP being receipt No.91 dated 07-14-2014 it is very much clear that complainant paid an advance sum of Rs.32,000/- for booking 6 rooms for 4 days and total rent charge was fixed Rs.33,480/- and that was paid on 07-04-2014 but after considering the deficiency in respect of the said rooms and regarding safety of the guest of the complainant, complainant          cancelled the same over the telephone on the next date that is on 08-04-2014.  Thereafter, complainant no doubt met the OPs with a prayer for refund of the same.  but OP did not pay any heed and ultimately complainant sent a letter by speed post on 28-05-2014 and on receipt of the same OP disclosed that it is not refundable so no amount shall be refunded but most peculiar fact is that there is no terms and condition only by pen it was written “not refundable” but question is whether complainant enjoyed the service of the said 6 rooms for the period from 04-06-2014 to 08-06-2014 but in this regard there is no answer on the part of the OP.  So, it is clear that the complainant did not enjoy the service or enjoyed the said rooms from 04-06-2014 to 08-06-2014.  On the contrary, it is proved that on 08-04-2014 complainant reported that the said rooms are not safe for the complainant’s guest for which it was cancelled on 08-04-2014.  Fact remains that there is a word ‘not refundable’ which is written in clause but that clause cannot be taken as a clause for contract because no contract form was signed by the complainant and the OP regarding booking of room by the complainant on 07-04-2014 on payment of advance of Rs.32,000/-.  Now, the question is whether OP can grab the entire amount as because it was cancelled.  In this regard we have gathered several legal position wherefrom we have gathered that where there is no agreement in between the customer and the service provider in that case if any advance is paid and forthwith it is cancelled without any delay in that case the service provider mat deduct a simple amount of Rs.1,000/- out of Rs.32,000/- but not more than that but in the present case from the letter of the OP as issued by the OP to the complainant dated 28-05-2014 we have gathered that OP as a trader or service provider without giving any service to the complainant tried to grab entire advance amount and that cannot be a principle of law under law of equity and another factor is that booking was for the period from 04-06-2014 to 08-06-2014 but actually advance was paid on 07-04-2013 and it was cancelled on 08-04-2013 over phone and invariably for cancellation of that booking on the next date i.e. within 24 by no means OP had not been deceived or his interest of business has not been hampered and in view of the fact long before prior to date of check in on 04-06-2014 that cancellation was made and fact remains OP has not stated in his reply whether any such cancellation of 6 rooms for the period 04-06-2014 to 08-06-2013 was vacant for that period and no one was  placed in the said room.  Further it is clear from the general principle of law considering the receipt that it is the duty of the OP to refund the entire amount after deducting Rs.1,000/- as service charges or etc but OP has not produced the check in or check out register of the OP for the period 04-06-2014 to 08-06-2014 to prove it was kept vacant but fact remains long prior to that OP get such information that it was cancelled and OP replied that same are not refunded.  Complainant is not entitled to get back it but it is completely illegal practice as adopted by the OP and no doubt such an act on the part of the OPs is regarded as unfair trade practice because the complainant did not use that room for the period from 04-06-2014 to 08-06-2014 not only that cancellation was made within 24 hours of the advance amount and it is the principle of law if any advance payment is made in respect of any matter for hiring service and it is cancelled forthwith in that case service provider OP is bound to return the amount at best the service charge may be deducted i.e. here Rs.1,000/- as per law of equity so OP is bound to refund Rs.31,000/- beyond any manner of doubt but virtually denied to pay it by letter dated 28-05-2014 and it is no doubt an illegal attempt on the part of the OP to grab the entire advance amount even after not providing any service to the complainant’s guest and fact remains complainant’s guest did not go there to enjoy the said room and entire matter practically expired on 08-04-2014 just after 1 day from the date of booking.  So, it is clear that in the meantime that OPs enjoyed heavy profit but the very expression of the OP simply proves principle that they are running a business for cheating the customer in such a manner who has advanced huge amount and cancelled it forthwith and when there is no actual contract in between the parties and there is no terms or agreement between the parties only advance was received and “non-refundable” is noted but same is not binding upon the complainant in view of the fact the complainant has not signed or agreed for term “not refundable” and that receipt is an unilateral and that word “not refundable” is not binding upon the complainant.

          In the light of the above observation and also considering the above principle of law we are convinced to hold that the word “not refundable” as only in the receipt is not binding upon the complainant and fact remains complainant only got receipt on payment of advance amount of Rs.32,000/- but no agreement was               received of accepted by the complainant.  In view of the above we are convinced to hold that complainant is entitled to get entire amount of Rs.32,000/- from the OP and OP is legally bound to pay Rs.5,000/- for harassment and for an unfair trade practice to deceive the customer in such a manner.

          In the light of the above finding and observations we are inclined to allow this complaint with cost compensation by directing the OP for refunding the entire advance amount at once within 15 days failing which further order shall be passed against the OP.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.5,000/- against the OPs.

          OPs are directed to refund of Rs.32,000/-(advance payment made by the complainant to the OPs on 07-04-2014) within 15 days from the date of this order along with a compensation of Rs.5,000/- for harassing the complainant in such a manner and for enjoying the amount for investing the same in business for about many months i.e. since 07-04-20134 and that amount shall also be along with the amount of Rs.32,000/- and also along with the cost as awarded to the extent of Rs.5,000/- that means the total sum of Rs.42,000/- shall be paid by the OPs jointly and severally to the complainant within 13 days from the date of this order failing which for non-compliance and disobeyance of the Forum’s order OP shall have to pay the penal interest  at the rateRs.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum again by the OPs.

          Even if it is found that OP is reluctant to comply this order in that case further penal proceeding u/s.27 of the C.P. Act for which they shall be liable to pay further penalty and fine also.