HON’BLE MR. AYAN SINHA MEMBER This is a complaint u/s 35 of the CP Act, 2019 made by Suresh Kumar Goenka alleging deficiency in service and also unfair trade practice on the part of the OPs i.e. Symbol Merchants Pvt. Ltd. (Westside Pavilion) (OP No.1), Shailja Pandey (OP No.2) and The General Manager, Symbol Merchants Pvt. Ltd. (Westside Pavilion) (OP No.3) and accordingly prays for a direction to refund the Rs.2,36,000/- along with compensation cost of Rs.30,000/- for harassment and mental agony along with litigation cost of Rs.15,000/-. FACTS IN BRIEF The Complainant booked one banquet hall on 12.11.2019 for marriage reception which was to be held on 18.04.2020 and the same was confirmed by OP No.1 & 2 against which the Complainant paid Rs.2,36,000/- in two lots @ Rs.1,18,000/- on 19.12.2019 and 11.02.2020 out of the total consideration of Rs.6,00,000/-. Thereafter, nation-wide lockdown was declared for Covid-19 pandemic situation on and from 24.03.2020 due to which OPs sent an email on 03.04.2020 cancelling the said booking and it was accepted by the Complainant. As alleged in the complaint petition, the OPs offered if the marriage reception may be fixed within December, 2020 adjusting the booking money. Complainant further stated in his petition, the marriage reception did not take place due to Government rules and restrictions for Covid – 19 pandemic situation and finally he was compelled to cancel the booking of the banquet hall by email dated 23.11.2020 and 10.12.2020 with a prayer to the OPs for refunding the booking amount to which OPs refused to refund the booking amount of Rs.2,36,000/-, even after legal notice was sent on 15.09.2021. Thus, having suffered a loss with mental harassment and agony, Complainant filed this instant case before this Commission seeking certain reliefs as discussed above. Notices were served upon all the OPs but despite being the notices served, OP No.2, & 3 did not contest this case by filing written version and finally the matter was heard ex parte against them vide order dated 05.09.2022. However, OP No.1 filed written version stating, inter alia, denying all the allegations made against them. On the contrary, their averment is that as per the agreement’s terms and conditions the First Para clearly states “For the Confirmation of any function/event there must be a minimum deposit of 50% of the estimated amount as a non-refundable /non-adjustable advance against which a money receipt will be issued. The balance 50% must be paid 7 to 10 days before the event/function date.” But at the same time they have also admitted that the said booking was cancelled due to lockdown declared by the Central Government. So, OP No.1 denied to refund the booking amount and prayed for dismissal of the complaint with cost as the same had been filed with motivated & mala fide intention. Complainant adduced evidence where he has reiterated the facts as stated in the complaint petition to which OPs filed questionnaire against which Complainant filed reply. Similarly, OPs also filed evidence to which Complainant by filing a petition prayed that they will not file questionnaire and accordingly the matter was fixed for argument. Complainant filed Brief Notes of Argument, but the OPs did not file Brief Notes of Argument even on the day of final hearing. Both parties were heard. POINTS FOR DETERMINATION - Whether the Complainant is a ‘Consumer’ under the purview of CP Act, 2019?
- Whether there was any deficiency in service on the part of the OPs as alleged?
- Whether the Complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS We have carefully perused all the documents annexed therein with the record. Point No. (i): - On perusal of the HDFC bank statement it is clearly understood that the Complainant paid Rs.2,36,000/- toOP No.1 Symbol Merchants Pvt. Ltd. (Westside Pavilion) i.e. on 19.12.2019 and 11.02.2020 through the Bank transfer. On further scrutiny of the agreement, it is noticed that the Complainant had booked a banquet hall for reception on 18.04.2020 for 600 heads at a consideration of Rs.6,00,000/- + GST which includes the service of food, decoration etc. Therefore, there is no dispute that the Complainant is a ‘Consumer’ under the purview of the CP Act, 2019. Accordingly, Point No.(i) is answered. Point Nos. (ii) & (iii): - It is admitted fact that the Complainant had booked the venue of the OPs for holding the marriage reception on 18.04.2020, but the said booking was cancelled due to the ongoing Covid – 19 pandemic situations from March, 2020 which had shook whole world. We are all know, the whole world due to the alarming pandemic situation was under lockdown as per various circulars/notification issued by the State Government and the Central Government from time to time up to the end of the year 2021. On further perusal of the agreement it is found, that there is a Clause for Cancellation/Amendment which states “In case of cancellation or amendment in the date of the event/function, a letter is a must to be acknowledged by the marketing/events department of Westside Pavilion. No verbal intimation will be taken into consideration. Any payment as an advance for any event/function is Non- Refundable or Non- Adjustable due to its cancellation or amendment. However, it is needless to mention that the aforesaid “Right” is absolutely the discretion of Westside Pavilion and does not in any manner supersede the clause of cancellation/amendment. However, Westside Pavilion at its sole discretion reserves its right: - - To charge 75% of the total amount toward the event/function in case of cancellation within 3 months prior to the commencement of the event/function.
- To charge 100% of the total amount toward the event/function in case of cancellation within 1 month prior to the commencement of the event/function. Westside Pavilion will not be responsible in case any event/function is forced to be cancelled due to Force Majeure. The performance of the agreement is subject to termination without liability upon the occurrence of any circumstances beyond the control of either party such as war, invasion, terrorist attack, strike, lock out, riot, government order, fire, natural calamity or disaster like storm, rain, flood, earthquake etc. or any such other cause to the extent that such circumstances make it impossible to provide or use the venue facilities.”
We also find several email communications were exchanged between the Complainant and the OPs for claiming the refund amount against which the OPs denied to refund the same citing the force majeure Clause as noticed in one of the emails. Moreover, we find that the banquet hall was booked for marriage function to be held on 18.04.2020 which was booked on 12.11.2019 and at that time, no one knew that the entire country would be suffering from alarming Covid – 19 pandemic situations for which the whole country would come under lockdown with restricted movement for the citizens. Therefore, we find that this is very much unfair trade practice by the OPs denying the legitimate claim of the Complainant, when the Complainant had no fault for the said cancellation, as the OPs have cancelled the booking of the banquet hall from their end keeping in view of the guidelines/notifications as issued by the Central Government. The OPs have also not challenged by mentioning anywhere that there was a peak season for holding several events and due to such cancellations, they incurred a loss. Neither any documents have been produced before us that the banquet hall had incurred huge loss for cancellation especially when the Government restrictions were going on for restricted movements of the citizens and holding parties/events. As such we opined the OPs cannot hold the money of the Complainant as there were no activities of parties and events during the initial stage of Covid- 19 pandemic situation. In this matter, we relied upon the judgment of Pravasi Legal Cell & Ors. Vs. Union of India & Ors in Diary No.10966 of 2020 WP (c) No.570, 545 & 952 of 2020 In the said case, the dispute was related for not refunding the money by the airlines for the tickets purchased by the passengers during Covid – 19 pandemic situations from 25.03.2020 citing force majeure clauses as per the refund policies of the airlines. But the flight operations were cancelled as per the circular of Government of India for the awake of the Covid – 19 pandemic situations. There Hon’ble Apex Court was pleased to hold. - If a passenger has booked a ticket during the lock down period (from 25th March, 2020 to 24th May, 2020), for travel during lock down period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.”
Therefore, considering the facts and circumstances as stated above and following the observations of the Hon’ble Apex Court in the decision cited above, we are of the considered view that there was certainly a deficiency in service and unfair trade practice on the part of the OPs and the Complainant is entitled to get refund of Rs.2,36,000/- from the OPs which he paid for the said booking along with interest @7% and also cost of litigation of Rs.5,000/-. Accordingly, Point Nos. (ii) & (iii) are answered. Since, the interest is allowed, we are not inclined to pass any separate order for compensation. Accordingly it is, ORDERED That the instant case be and the same is allowed on contest against OP No.1 and ex parte against OP No.2 & 3. OPs are directed to pay Rs.2,36,000/- (Rupees Two Lakh Thirty-Six Thousand Only) along with compensation for mental harassment and agony in the form of simple interest @7% from the date of cancellation from OPs end, i.e. 03.04.2020 until realization in full and also Rs.5,000/- (Rupees Five Thousand Only) for cost of litigation to the Complainant. OPs are jointly and severally liable to pay the aforesaid amount to the Complainant within 45 days from the date of this order. If the aforesaid order is not complied with by the OPs within the stipulated period, the Complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me | 
