FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

The   Instant claim application has been filed by the complainant U/s 35 of the Consumer Protection Act,   2019.

The fact of the case in brief is that the complainant Deo Narayan
Rathi has booked   a banquet/party hall at west side Pavilion, at Necco Park,  Salt Lake to organize the “Sangit Ceremony” even for his nephew on 23.05.2020 and made an advance payment of Rs.  3,54,000/- vide cheque No. 000182 dated 22.01.2020 drawn on HDFC bank, Barabazar branch, Kolkata, but the same could not be organise due to lock down and/or restrictions  imposed by the Govt.  on account of Covid-19, as such the event be aforementioned could not be organized and thus, cancelled.  The photocopy of bank statement and encashment of advance payment of   Rs. 3,54,000/- is annexed herewith as “annexure-A” and the money receipt  issued by the OP/respondent is annexed as “Annexure-B”.  

The   complainant   stated   that   he made payment of booking amount on good faith to the OP without  signing  any contract form or agreement made in between the complainant and the OP.

Due to pandemic situation, the complainant was compelled to cancel the Sangit Ceremony of  his nephew on 23.05.2020 in the subject banquet or party hall on the date fixed and requested the OP to  provide its service on or alternative date after pandemic restriction but the OP failed  and neglected to provide the same. The complainant requested the OP  through email for cancelation of event proposed to be held on 23.05.2020 and sought refund of the advance money,  on  25.04.2020.  The print copy of email conversation dated 25.04.2020 are annexed as “Annexure C and d”.

            On 22.06.2020,  the complainant was seeking for refund of advance payment  from the OP through email.

            The OP replied on the same day and  showing their regret not to refund the advance payment or adjust of the same for cancellation due to any unforeseen circumstances including force majeure (Annexure-E).  It is alleged by the complainant that the OP withhold the booking amount  following cancelation  of booking for their unlawful gain even on repeated request made by  the complainant to the OP to refund the booking amount.  The email conversation between the parties to this case dated 23.07.2020 is annexed as Annexure- F.

            Thereafter, on 01.11.2021 the complainant sent the demand notice to the OP seeking refund of Rs. 3,54,000/-  with interest from the date of receipt of the same till  the date of realization  by speed post and that was received by the OP on 02.11.2021. The photocopy of the demand  is marked as “Annexure-G” and postal track report  is marked as “Annexure-H”  but the OP did not take any effective majeure to refund   the  booking amount.

 Hence,  without having any other alternative,   the  complainant  has filed the case with a prayer to give direction  to the OP  to refund  the advance booking of payment of Rs.  3,54,000/-  to the complainant  along with interest @  9 % from  the date of payment till the date of realization.  The complainant further  prayed  for giving direction  to the OP to pay  the compensation  of a sum for  Rs. 2,00,000/-   to the complainant  for harassment,   mental pain and agony along with litigation  cost of  Rs. 10,000/-.

            The OP has contested the claim application by filing a WV denying all the material allegations leveled against them.

            The OP stated that the petition of complaint is vexatious, motivated, malafide, mis-conceived and harassing one. The complainant has got no cause of action to file this case. because the complainant  is not the consumer within the ambit of CP Act, 1986.

It is the case of the OP that in business of event and function organization in the name of “West Side Pavilion” and the OP provides best of his service and business to their valuation customers and client.

It is further stated by the OP that prior to accept the advance money the OP entered into agreement or contract with the complainant. The said agreement was signed by the complainant approved by mail. The OP will take advance money, if their customer or client agreed with the terms and conditions for organization   of any event and function of the OPs policy, If they do not agreed with the terms and conditions the OP cannot accept their booking for events and functions. In the instant case, the complainants agreed with the terms and conditions of the agreement.

 In the first Para of agreement, it is stated that  “Conformation for any function/event,  they are must be deposit of minimum 50 % of the estimated amount as  non-refundable/non-adjustable amount  against  which  money receipt will be issued. The balance 50 % must be paid within 7-10 days before the event/function date”. In the instant case, the complainant is not aggrieved  person to file this complaint.

 It is alleged by the OP that the complainant did not book the said West Side Pavilion for the events/function because the Annexure- B as annexed with the petition of complaint have enclosed the money receipt  issued by the OP in the name one “Narayan Rathi”. So, question of deficiency in service on the part of the OP does not arise at all.

On the contrary,   the petition of complaint is baseless and the complainant is not entitled to get any relief as prayed for.

In view of the above stated facts and circumstances, the points of consideration are as follows:-

1. Is the case maintainable within the ambit of law?

2. Is complainant a consumer?

3. Has the complainant cause of action to file this case?

4. Is there any deficiency in service on the part of the OP?

5. Is the complainant entitled to get relief as prayed for?

Decision with reasons

All the points of considerations are taken up together for convenience of discussion and to avoid unnecessary repetition.

On a close scrutiny of material as well as evidence on record, and position of law,  it appears that it is the claim of the complainant  Deo Narayan Rathi booked the banquet West Side Pavilion at Necco Park for the “Sangit Ceremony” of his nephew on 23.05.2020 and made advance  payment of  Rs. 3,54,000/- vide  cheque No. 000182 dated 22.01.2020 drawn on HDFC Bank, Barabazar Branch, Kolkata towards the said building  which is annexed as Annexure-B  by the complainant  with the  petition of complaint.

But on a close scrutiny of Annexure-B,  it appears that the money receipt issued by the OP in favour of one Narayan Rathi who is not the complainant of this case. The complainant of this case is Deo Narayan Rahti in that event the Narayan Rathi who paid advance money to the OP for space booking at the premises of West Side Pavilion  at Necco Park did not  make any complaint before this commission. In this case as per provision of CP Act 2019, Deo Narayan Rathi,  the complainant of this case  cannot be considered as consumer if that be so then on the basis of the position of law,   the instant case cannot be maintainable in the eye of law.

Under such circumstances, on the basis of discussion made above, this  commission do not feel any urge to discuss other points in details when the case is not maintainable in eye of law.

In view of discussion made above, it is held by this commission that   the complainant is not a consumer and not entitled to get any relief as prayed for.

 All the points are considered and decided accordingly.

 The case is properly stamped.

Hence,

Ordered

That the case be and the same is dismissed  against the OP on contest without any cost.

Copy of the judgment be uploaded forthwith on the website of the commission for perusal.