BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 19^th DAY OF MARCH 2022

Order on IA under Section 69(2) of C.P.Act, 2019 on main matter

SRI.K.S.BILAGI, PRESIDENT

1. The complainant by filing the complaint seeks the reliefs against the OP:-

(a) Direct the OP to refund the security/advance amount of Rs.1,65,200/-.

(b) Direct the OP to pay total compensation of Rs.80,000/-.

(c) Cost of litigation and

(d)Any other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant with an intention to perform the marriage of his daughter on 20^th and 21^st November, 2018 booked the convention hall of the OP on 14.06.2018 by paying Rs.1,65,200/- as advance.  But, due to unavoidable circumstances, the marriage of daughter was cancelled.  On 16.09.2018 he telephonically conveyed the Manager of OP for cancellation of booking and Manager asked him to approach on next day.

3. On 17.09.2018, he met the Manager for cancellation of booking, but the Manager refused to accept the letter and refused the cancel the booking.

4. On 25.10.2018, once again he had submitted written application for cancellation of booking and for refund of the amount.  Despite receipt of letter dated 25.10.2018, the OP neither cancelled the booking nor refunded the amount.  Accordingly, by issuing legal notice dated 18.11.2020 he called upon the OP to refund advance money.  But, OP issued untenable reply.  The refusal to refund the money, amounts to deficiency of service.  The act of the OP has caused inconvenience and mental agony to the complainant.  Hence, this complaint.

5. The complainant also filed an application under Section 69(2) of C.P.Act, 2019 to condone the delay if any.  It is stated in the application that he made a request on 17.09.2018 and on 25.10.2018 for cancellation of booking and refund of amount.  He had approached the Manager on 16.09.2018 and 17.09.2018 for refund of the amount.  In the month of February 2019, the Manager refused the refund the amount.  Subsequently, he called upon the OP to refund money by serving legal notice.  Therefore, there is a delay in filing this complaint.  He requests to condone the delay.

6. After receipt of notice, the OP appears and files version and objection to I.A.

7. The OP admits booking of convention hall and payment of Rs.1,65,200/- as advance.  As per the terms and conditions, in case of cancellation of booking 60 days prior to the date of function, 50% advance amount will be refunded and intimation of cancellation must be in writing by the person who has booked.  The complainant has not submitted any requests for cancellation as per the terms and conditions.  Therefore, complainant is not entitled to refund of the amount.

8. The OP denies that on 16.09.2018, the complainant met the Manager of the OP and on 17.09.2018 he try to gave a letter in writing for cancellation and Manager refused to receive the same. 

9. The OP admits receipt of letter dated 25.10.2018.  But, written request was not within 60 days prior to the date of function.  Therefore, complainant is not entitled for refund of amount.

10. The complainant has not shown any cause, sufficient cause to condone the delay.  Therefore, requests to dismiss the complaint and I.A.

11. The complainant has filed affidavit evidence and relies on 7 documents.  Affidavit evidence of Manager of OP has been filed and one document has been marked.  Heard the arguments of both sides and we also perused the written arguments.     

12. The following points arise for our consideration:-

1. Whether complainant shows sufficient cause to condone the delay?
2. Whether the complainant proves deficiency of service on the part of OP?
3. Whether the complainant is entitled to relief mentioned in the complaint?
4. What order?

13. Our answers to the above points are as under:

       Point No.1:  In the affirmative.

      Point Nos.2 and 3:- Negative.

      Point No.3: As per final orders

REASONS

14. Point Nos.1 to 3:  These three points are co-related to each other.  Therefore, these points have been taken for common discussion.
15.  At the first instance, we would like to refer the admitted facts.  It is proved from the evidence and admission of the file and Ex.A.1 indicates that on 14.06.2018, the complainant by paying Rs.1,65,200/- by means of a cheque booked convention hall of the OP to perform the marriage of his daughter on 20.11.2018 to 21.11.2018.  According to the complainant on 17.09.2018, he tried to gave a written application for cancellation of booking and Manager refused to do so.  This fact has been denied by the OP.  However, it is proved from the evidence and admitted by both the sides that on 25.10.2018, the complainant gave written application as per Ex.A.3. which has been served on the Manager of the OP.  By issuing this letter dated 25.10.2018, the complainant requested the OP to cancel the convention hall and refund his amount of Rs.1,65,200/-.  It is relevant to note that there is no reference of first letter dated 17.09.2018 in the letter dated 25.10.2018 that the complainant tried to submit written letter on 17.09.2018 to the Manager and Manager refused to take letter.  If really the complainant made a request try to serve written letter dated 17.09.2018 for cancellation of booking.  But, he has not made any reference of this letter in Ex.A.3 dated 25.10.2018.  The non-reference of letter dated 17.09.2018 in the letter dated 25.10.2018 is the clear indication that the complainant got created letter dated 17.09.2018 in order to bring his claim that he had submitted written application 60 days prior to the date of function.  Admittedly, date of function was 20^th and 21^st November, 2018.  Even after service of letter dated 25.10.2018 and complainant issued legal notice only on 18.11.2020.  After receipt of the notice, the OP issued reply as per Ex.A.6 dated 12.01.2021.
16. This complaint and with I.A. came to be filed on 21.06.2021 after expiry of more than two years from 25.10.2018.   
17. It is relevant to refer Section 69(2) of C.P.Act, 2019. As per above Section, the complaint shall have to be filed within two years from the date of cause of action.  The theory set up by the complainant that on 17.09.2018, the Manager of the OP refused to receive the letter of cancellation is not accepted. The letter dated 25.10.2018 which is received by the Manager of the OP shall have to be taken into consideration.  If this date is taken into consideration, complainant was supposed to be filed complaint by 25.10.2020.  But, complaint came to be filed only on 21.06.2021 after more than 8 months from 25.10.2020.  However, the complainant contends that in the month of February 2019, the Manager of OP refused to receive the advance amount of Rs.1,65,200/-.  Even this date is taken into consideration, the complainant was supposed to file the complaint on or before February 2021.
18. Admittedly, the complaint came to be filed at belated stage.  The complainant has filed application to condone the delay if any.  But, the circulars of Hon’ble National Commission issued from time to time and Circular No.7/2022 comes to help of complainant.  The Circulars issued by the Hon’ble National Commission clearly indicates that the limitation to file the complaint is extended from 23.03.2020 till 29.05.2022.  This circular saves the limitation.  Therefore, the complaint is not barred by limitation.
19. This complaint has filed for refund of entire amount.  The notices were exchanged between parties before filing this complaint.  The complainant alleged in his legal notice dated 18.11.2020 that the Manager of OP refused to refund the entire security amount on the ground that the complainant would have cancelled in writing before 60 days prior to performing the event.  It is the case of the OP that the complainant failed to issue a letter in writing for cancellation of booking 60 days prior to the date of the function.  The OP has produced terms and conditions signed by the complainant.  It is relevant to refer condition Nos.1 to 3 of terms and conditions which read thus:-

1. In the event of cancellation 60 days prior to the date of function 50% of the advance amount paid will be refunded.
2. Intimation of cancellation should be in writing by the person who has booked, no telephonic or oral intimation will be accepted.
3. IN case cancellation is not done within 60 days, advance amount paid will not be refunded.

20. Only in case of cancellation 60 days prior to the date of function, 50% of the advance amount paid will be refunded subject to submitting of cancellation application in writing.  The cancellation is done within 60 days of advance amount paid will not be refunded.
21. Even though, complainant contends that the Manager of the OP refused to receive his letter dated 17.09.2018.  But, this fact is no where referred in the next notice of the complainant dated 25.10.2018.  It clearly indicates that the letter dated 17.09.2018 is the only an after thought theory set up by the complainants.  Even presuming for the sake of argument that the Manager of the OP refused to receive the letter on 17.09.2018, we failed to understand that why the complainant immediately send the such letter of cancellation either by registered post or by speed post to get atleast 50% of the advance amount.  The non-communication by the complainant in this regard goes against him. There is no written application for cancellation of booking 60 days prior to the date of function i.e. 20^th November, 2018.  The terms and conditions are binding on both the parties. When the complainant failed to fulfill the terms and conditions, he cannot blame the OP.  There is no deficiency of service on the part of OP in not refunding Rs.1,65,200/-.  Accordingly, the complainant is not entitled to any of the relief.
22. Point No.3:- Having regard to discussion made above and after considering the records, we are of the opinion that the complaint requires to be dismissed.   We proceed to pass the following 

  O R D E R

1. The application under Section 69(2) of C.P.Act, 2019 is allowed.
2. The complaint is dismissed.
3. Parties are directed to bear their own costs.
4. Furnish the copy of this order to both the parties.

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^th March, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP which are as follows:-