By Jayasree Kallat, Member:

            The petitioner, Velayudhan.N. has filed this complaint on behalf of Santhi Gurukulam Charitable Trust, Beypore North, Calicut.  The complaint is filed for the payment of Rs.10,000/- for the loss and mental agony sustained due to the deficiency of service committed by opposite party.  The complainant had booked for staging a drama “Viswaguru” of Cochin Mudra Communications at 7 P.M. on 28-11-04 at Kozhikode Town hall.  Complainant had given a cheque No.5385209 dated 15-11-04 for an amount of Rs.1000/- as advance.  Opposite party had accepted the order.  Accordingly all arrangements for staging the drama were made including publicity and sale of tickets.  The drama was to be played on 28-11-04.  But on the previous date ie. on 27-11-04 complainant received a telegram from the opposite party intimating that it was impossible to conduct the programme.  The last minute cancellation caused heavy monitory loss, mental agony and humiliation before the public for the complainant.  Hence the complainant has filed this petition seeking a compensation of Rs.10,000/- for the loss sustained and for the mental agony.

            Opposite party filed a version denying all the averments in the complaint.  The complainant is not a consumer as defined under the Consumer Protection Act, as there was no payment towards the services to be rendered.  Opposite party admits the fact that a drama (Viswaguru) of Cochin Mudra Communications was booked.  The opposite party also admits that a cheque for Rs.1000/- was given towards a token advance.  At the time of giving the cheque the complainant had specifically requested that the cheque should not be presented, and that after selling some of the tickets the complainant would pay the entire charges of the drama troupe.  In normal circumstances no outstation drama or musical troupe would venture forth from their hometown to a distant town unless the entire payments have been made.  The Artists spend a lot of time and money on rehearsals, dress etc.  One of the most important conditions was that the entire payment agreed upon must be received either by the opposite party or the troupe well before the programme.  It was clearly mentioned and agreed mutually that unless the entire payments were received before hand, Cochin Mudra Communications would not leave from Cochin to Calicut.  As the opposite party was asked not to present the cheque in the bank opposite party requested for payment.  The complainant did not make any advance payment.  Hence the opposite party approached the bank and made enquiries.  On enquiry the opposite party found that there was no sufficient funds in the account of the complainant’s trust even to honour the cheque given as advance for an amount of Rs.1000/-.  The complainant being a society can only have a current account which must have a minimum balance of Rs.3000/-.  Opposite party waited till the previous day of the scheduled date of programme but complainant did not make any payments.  In that circumstances opposite party sent a telegram intimating the complainant that as payment had not been received it was impossible to perform.  As a goodwill gesture opposite party had mentioned that complainant could arrange another date for the programme.  There was no negligence on the part of the opposite party.  The drama troupe waited till the last moment rehearsing and refusing other bookings whereby the troupe has lost their time and money.  Hence the complaint deserves to be dismissed with cost to the opposite party.

            The points for consideration is whether there was any deficiency on the part of opposite party ?  Whether the complainant is entitled for any relief sought in the complaint.

            PW1 was examined and Ext.A1 to A8 were marked on complainant’s side.  No oral evidence adduced and Ext.B1 to B3 were marked on opposite party’s side.

Point No.1:

            The case of the complainant is that on behalf of Charitable Trust he had booked for staging a drama Viswaguru of Cochin Mudra Communications at 7 P.M. on 28-11-04 at Kozhikode Town Hall.  Complainant had given a cheque for Rs.1000/- as advance.  While giving the cheque the complainant had requested the opposite party not to present the cheque in the bank but they will make payments directly.  Opposite party believing the complainant did not present the cheque till 27-11-04 the previous day of staging the drama.  But on 27-11-04 as no payment was forthcoming the opposite party approached Dhanalakshmi Bank of which was the cheque given by the complainant.  On enquiry the opposite party understood that as it was a trust they were having a current account, which needs a minimum balance of Rs.3000/-.  But in the case of the account in which the cheque was given to opposite party it did not have the minimum balance.  Knowing this fact the opposite party immediately sent a telegram to the complainant stating that “ advance not received 28^th programme impossible arranged another date.”  Complainant himself has produced photocopy of the telegram, which is marked as Ext.A2.  In Ext.A2 it is mentioned that the advance is not received.  Opposite party’s case also is that as the opposite party did not receive any money they cancelled the programme.  But opposite party had mentioned that as a goodwill gesture they are ready to stage the programme for another date.  Complainant’s case is that after receiving the advance amount opposite party did not stage drama.  But during the course of hearing it was revealed that no money was given to the opposite party, only a promise to pay.  Opposite party vehemently argued that a drama troupe, which consists artist who has taken great pain, time, energy and money for rehearsal etc. cannot stage the programme without receiving any money.  Transportation from Cochin to Calicut itself will come to considerable amount.  Hence the opposite party did not comply with the order fearing that they will be at a huge loss if money is not paid after the drama is played.  Forum has considered both sides and reached at a conclusion that the argument of opposite party is well founded.  For this reason we are of the opinion that there was no negligence on the part of the opposite party.  Point No.1 is thus proved.

Point No.2:

            As the Forum finds no deficiency on the part of the opposite party the petition is liable to be dismissed.

            In the result the petition is dismissed.  No order as to cost.

Pronounced in the open court this the  4th day of May 2009.

                                           Sd/-                                               Sd/-

                                    PRESIDENT                                      MEMBER

APPENDIX

Documents exhibited for the complainant:

A1.  Photocopy of letter.

A2.  Photocopy of Telegram dt. 27-11-04.

A3.  Photocopy of letter dt. 3-3-05.

A4.  Photocopy of letter dt. 14-3-05.

A5.  Receipt book for the ticket of the drama Viswaguru.

A6.  Receipt book for the ticket of the drama Viswaguru

A7.  Complimentary pass issued by Shanthi Gurukulam Charitable Trust.

A8.  Notice of Drama Viswaguru.

Documents exhibited for the opposite party.

B1 series – Certified extract of Account No.1283 produced by Dhanalakshmi Bank.

B2.  Magazine.

B3.  Cheque dated 15-11-04 issued by Shanithi Gurukulam Charitable Trust.

Witness examined for the complainant.

PW1.  N. Velayudhan (Complainant)

Witness examined for the opposite party.

                        None.  

                                                                                    Sd/- President

                                    // True copy //

                                    (Forwarded/By order)

                                                                                    SENIOR SUPERINTENDENT.