Punjab

Ludhiana

CC/22/338

Rajesh chander sharma - Complainant(s)

Versus

Mundota fort & palace - Opp.Party(s)

23 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

 

Consumer Complaint No. 338 of  26.08.2022.

Date of Decision            :   23.09.2022.

 

Rajesh Chander Sharma aged about 66 years s/o Sh.Gyasar Nath Sharma, resident of House No.3059, Street No.13, Gurdev Nagar, Ludhiana, Punjab-141001.

….. Complainant

                                                         Versus

 

1. Mundota Fort and Palace, Village Mundota Via Kalwar, Khatipura Road, Jaipur, 303706, Through its Owner.

2. Alka Tej Singh, Co-owner, Mundota Fort and Palace, Village Mundota Via Kalwar, Khatipura Road, Jaipur, 303706.

3. Vikram Rathore, Co-owner, Mundota Fort and Palace, Village Mundota Via Kalwar, Khatipura Road, Jaipur, 303706.

4. Digvijaya Singh, Co-owner-Operator, Mundota Fort and Palace, Village Mundota Via Kalwar, Khatipura Road, Jaipur, 303706.

…..Opposite parties

 

 

                    Complaint U/s 35 of the Consumer Protection Act, 2019

 

 

QUORUM:

SH.K.K.KAREER, PRESIDENT

MS.JYOTSNA THATAI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant            :         Sh. Jagpal Singh Dhupar, Advocate

For OPs                          :         Sh. Ritesh Mohindra, Advocate.

 

PER K.K.KAREER, PRESIDENT

 

1.                Shorn of the unnecessary details, the case of the complainant is that the marriage of the daughter of the complainant was scheduled to be held on 08.12.2019. In this regard, the complainant approached Mr. Dinesh Sharma, an agent of the OPs, for booking the resort of the OPs known as Mundota Fort and Palace situated at village Mundota, Via Kalwar, Jaipur (Rajasthan). The complainant visited the OPs at their resort at village Mundota in May 2019 and booked the resort and palace for 07.12.2019 to 09.12.2019 for a total estimated cost of Rs.31,10,800/-. The complainant paid an advance sum of Rs.1,00,000/- to the OPs on 30.05.2019 against which a receipt was also issued by the OPs. Thereafter, as per the demand of the OPs, the complainant paid Rs.9,00,000/- on 03.06.2019 and another sum of Rs.6,00,000/- in the month of August 2019. However, due to certain unforeseen circumstances, the marriage of daughter of the complainant was called off in the month of October 2019. As a result, the complainant informed the OP4 on 10.10.2019 about cancellation of the marriage and requested that advance payment of Rs.16,00,000/- be refunded to him. However, the OP4 did not bother to refund the advance amount of Rs.16,00,000/- received by them. On 04.11.2019, the complainant sent an email to the OPs requesting for refund as the intimation regarding cancellation of the marriage was made two months prior to the scheduled date. Moreover, the complainant has not availed any service from the OPs. Instead of refunding the advance received from the complainant, the OPs stopped taking calls of the complainant. Eventually on 30.01.2020, the OP4 sent a text message to the complainant calling upon him for a meeting to close the matter but later on, no communication was sent to the complainant with regard to the proposed meeting. The daughter of the complainant also sent a message to the OP4 on 08.03.2020 regarding refund of the advance amount which was replied to by the OPs and in the said reply, it was mentioned that as a goodwill gesture, a part payment would be refunded based on the sales picked up within two months when the booking was made. Thereafter, it was discussed between the complainant and the OP4 that a meeting would be held between them on 29.03.2020 to settle the issue of refund, but due to Nationwide Covid-19 lockdown, the meeting was postponed. In the month of June 2020, the daughter of the complainant sent a message to the OP4 requesting to settle the issue of refund but no response was given by the OP4. Eventually, the OP4 sent a message to the complainant on 01.08.2020 stating that as a courtesy, an amount of Rs.1,00,000/- would be refunded. In this manner, the OPs have illegally and unlawfully forfeited a sum of Rs.15,00,000/- given as advance to them by the complainant though no service has been availed and intimation regarding cancellation of marriage was also given to the OPs two months prior to the scheduled date of the event. This amounts to unfair trade practice as well as deficiency in service on the part of the OPs. The complainant got sent a legal notice dated 28.09.2020 requesting the OPs to refund the amount of Rs.16,00,000/- but neither the notice has been replied to nor the advance money of Rs.16,00,000/- has been refunded. In the end, it has been requested that the OPs be directed to refund the amount of Rs.16,00,000/- along with interest @18% p.a. In addition to this, the OPs be also made to pay Rs.10,00,000/- on account of compensation for having caused mental pain and agony and Rs.1,00,000/- on account of cost of litigation.

2.                Upon notice, initially the OPs were proceeded against exparte and the complaint was allowed exparte vide order dated 29.07.2021 passed by this Commission. However, an appeal was preferred by the OPs before the Hon’ble State Consumer Disputes Redressal Commission and vide order dated 06.07.2022, the exparte order dated 29.07.2021 was set aside and the case was remanded to this Commission for with an order to decide the same afresh on merits after affording adequate opportunity to the OPs to file written statement and to lead evidence in support of their contentions.

3.                The OPs filed written statement claiming that the complaint is false and frivolous and case is not maintainable at all and the complainant has suppressed the material facts while filing the complaint. According to the OPs, the complainant was fully aware about the cancellation policy of the OPs. The OPs have further pleaded that when the complainant visited the property of the OPs in the month of May 2019 along with Mr. Dinesh Sharma, it was conveyed to the complainant that the booking can be cancelled only in terms of cancellation policy of the OPs and not otherwise and in the event of cancellation, the complainant would be given the refund as per terms of the cancellation policy only. The complainant made a booking after fully understanding the terms and conditions of the booking and that of the cancellation policy and paid an advance of Rs.16,00,000/- to the OPs. However, suddenly on 10.10.2018, the complainant called OP4 and requested for cancellation of the booking and OP4 informed the complainant that he would not be in position to accept the cancellation as the proposed cancellation was against the policy of the OPs. As a goodwill gesture, the OPs also informed the complainant that in case they get bookings for the same dates, they will consider the request for cancellation and refund. However, the OPs did not get any booking for the said dates i.e. from 06.12.2019 to 08.12.2019. In fact, the OPs made sales of Rs.16,610.17 on 07.12.2019 and zero sales on 08.12.2019 as reflected in the sales register and also the bank account statement which clearly indicates that the OPs were acting within settled terms and conditions. However, as a goodwill gesture, the OPs offered to refund a sum of Rs.1,00,000/- to the complainant although  no refund was due as per cancellation policy in case of cancellation is requested within 75 days of the booked event. On merits, it has been admitted that the complainant had booked the resort of the OPs 06.12.2019, 07.12.2019 and 08.12.2019 and the total package was of Rs.31,10,800/-. The other averments made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.    

4.                The complainant filed rejoinder reiterating the submissions made in the complaint and controverting those made in the written statement. The complainant has further specifically pleaded in the rejoinder that the complainant was never made aware about any cancellation policy of the OPs nor the signatures of the complainant were taken on any cancellation policy and the defence raised by the OPs in the written statement with regard to the cancellation policy is just an afterthought.     

5.                In evidence, the complainant has submitted his affidavit Ex. CA and affidavit of his daughter Ms. Karuna Sharma as Ex. CA/2 along with documents Ex. C1 to Ex. C9, Ex. C9/A, Ex. C9/B, Ex. C10, Ex. DY/1 and Ex. DY and closed the evidence.

6.                On the other hand, the OPs submitted joint affidavit Ex. RA of Ms. Alka Tej Singh, Sh. Vikram Rathore and Sh. Digvijaya Singh of the OPs along with documents Annexure-R1 to Annexure-R5.

7.                We have heard the learned counsel for the complainant and have also gone through the record.

8.                During the course of arguments, the counsel for the complainant has argued that it has been admitted by the OPs that a sum of  Rs.16,00,000/- was given in advance as booking amount for the marriage of daughter of the complainant in the resort of the OPs which was slated for 07.12.2019, 08.12.2019 and 09.12.2019. The counsel for the complainant has further contended that due to some unforeseen circumstances, the marriage had to be cancelled and intimation with regard to the cancellation of the marriage was given to the OPs on 10.10.2019 i.e. 58 days prior to the event. However, the OPs did not refund the booking amount despite the fact that the event was got cancelled and intimation to the OPs was also given about two months prior to the event. The counsel for the complainant has further contended that the defence taken by the OPs in the written statement with regard to the cancellation policy is nothing but an afterthought. No such cancellation policy was shown to the complainant at the time of booking nor signatures of the complainant were ever obtained on any cancellation policy. The counsel for the complainant has further contended that the so called contract and the cancellation policy placed on record by the OPs as Annexure-R5 do not bear the signatures of the complainant and the same has been forged and fabricated by the OPs. In this regard, it has also been pointed by the counsel for the complainant that the complainant only signs in the manner in which his signatures have been appended on the Ex. C4. The counsel for the complainant has further referred to Ex. C2, Ex. C3 and more particularly Ex. C4 wherein the correct and usual signatures of the complainants have been appended which do not at all match with the signatures of the complainant shown to have been made on Annexure-R5. Thus, the OPs have resorted to a malpractice to defeat the genuine claim of the complainant. In support of his contentions, the counsel for the complainant has relied upon an Appeal case No.148 of 2017 decided on 10.02.2018 in Ramgarhia Bhawan Vs Ravati Raman Sharma by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission (U.T.) whereby it has been held that if the information for cancellation was conveyed seven weeks prior to the date of marriage, the OP was not entitled to retain 50% of the amount of rent as the complainant had informed the OP at the earliest and the cancellation of the marriage was due to unavoidable circumstances.     

9.                On the other hand, the counsel for the OPs has argued that the complainant cannot wriggle out the terms and conditions of the contract and as per the wedding contract and cancellation policy, the complainant is not entitled to any refund of pre-booked value of the event, which as per the policy, is liable to be forfeited in case the cancellation is done less than 75 days prior to the event. The counsel for the OPs has further contended that it does not lie in the mouth of the complainant to deny the signatures on the wedding contract Annexure-R5 and if that is the case of the complainant, then the complainant can have his remedy before the Civil Court only. The counsel for the OPs has further pointed out that as per the record, especially Annexure-R2 and Annexure-R3, the OPs did not do any business on the dates reserved for the marriage event of the complainant i.e. 07.12.2019 to 09.12.2019 and it is evident from Anenxure-R3 that the OPs did a business of only Rs.16,610.17 on 07.12.2019 while no business was transacted on 08.12.2019. This shows that the OPs did not get any business on the appointed dates resulting in loss to them and, therefore, the OPs cannot be made to refund the booking amount.

9.                We have weighed the contentions raised by the counsel for the parties and have gone through the record.

10.              In this case, there is no dispute with regard to the facts of the case. It is not disputed that the resort of the OPs was booked by the complainant for 07.12.2019 to 09.12.2019. It is also not disputed that the marriage of the daughter of the complainant was cancelled and intimation regarding cancellation was given to the OPs on 10.10.2019 exactly 58 days prior to the booked event. It is also not disputed that the complainant had paid a sum of Rs.16,00,000/- as advance money to the OPs which is evident from the receipt Ex. C4. The complainant has placed on record a receipt Ex. C2 which is signed by the complainant as well as some authorized signatory of the OPs namely Swapnil Singhvi. Another document Ex. C3 which carries the details of the services to be provided during the marriage event along with the relevant rates of food and accommodation is also counter signed by the parties. Another receipt Ex. C4 placed on record by the complainant is signed by some authorized signatory of the OPs as well as by the complainant.

11.              Primarily, the defence raised by the OPs is that the complainant had agreed to cancellation policy Annexure-R1 as well as wedding contract Annexure-R5. However, the cancellation policy Annexure-R1 is not signed by the complainant. It is signed by one Digvijaya Singh, Director of Operations of the OPs and one authorized signatory of the OPs. Therefore, the cancellation policy Annexure-R1 is of no consequence. The OPs have placed on record the photocopy of the wedding contract which is purported to have been signed by the complainant on all the pages. The original of Annexure-R5 has not been placed on record. There is no date under the signatures of the complainant or that of Mr. Swapnil Singhvi, Assistant Operation Manager of the OPs. As stated in the foregoing para of this order, the complainant has vehemently and emphatically denied his signatures on Annexure-R5. If the signatures of the complainant on the complaint and the admitted documents Ex. C2 and Ex. C4 are compared with his signatures on Annexure-R5 with naked eye, the same do not appear to match. Therefore, the possibility of cancellation policy in the shape of Anenxure-R5 as an afterthought defence cannot be ruled out. In this context, it is further pertinent to mention that after the event was cancelled by the complainant in October 2019, the complainant has been sending SMSs (Ex. C6) to the OPs to press for refund of the booking amount. A perusal of said messages from 31.10.2019 onwards revealed that the OPs have not been responding properly to the messages of the complainant and it is repeatedly stated in the messages of the complainant that no response is being received from the OPs nor the OPs have been picking the calls of the OPs. Interestingly, the OPs sent SMS Ex. C7 to the complainant stating that the OPs have been busy with a packed wedding season due to which they could not get back to the complainant. It is further mentioned in the message Ex. C7  that as a goodwill gesture, the OPs would be refunding a part of the payment and the amount was to be determined by the OPs post December 31.12.2019 based on the sales they managed to pick up within 2 months of time of the dates the complainant had booked and confirmed for and also cancelled less than two months prior to the event due to personal reasons. Surprisingly, there is no mention of any cancellation policy in the SMSs Ex. C7. Thereafter, the OPs sent another message dated 02.08.2020 to the complainant stating that as a courtesy the OPs would refund Rs.1,00,000/- to the complainant and also asked the complainant to email his account details. Again, there is no reference in the said message to the cancellation policy having been agreed between the parties. It is further pertinent to point out that the complainant sent emails 04.11.2019 to the OPs regarding cancellation and the said emails were also not responded to by the OPs nor any such response or reply to the emails has been referred to in the written statement filed by the OPs. In our considered view, had there been any wedding contract or cancellation policy got signed or agreed upon from the complainant, the prompt response after the receipt of cancellation request on 10.10.2019 and 04.11.2019 of the OPs would have been by referring to the cancellation policy alone. All these circumstances clearly and unequivocally  go on to prove that no such cancellation policy, much less Annexure-R5 relied upon by the OPs, was got signed from the complainant and the defence raised in the written statement placed on record as Annezure-R5 is nothing but an afterthought.

12.              The case can be looked at from the other angle as well. Even if for the sake of arguments, it is presumed that there was a contract between the parties of which the cancellation policy was part and parcel even then the defence raised by the OPs cannot be said to be accepted. The so called wedding contract cum cancellation policy will definitely fall within the definition of unfair contract as defined under Section 2(46) of the Consumer Protection Act, 2019. Under the said section, the unfair contract is defined as contract which inter alia imposes any penalty on the consumer for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract and imposes on the consumer any unreasonable charge, obligation or condition which puts the consumer to acute disadvantage. In the instant case also, the unfair nature of the contract is writ large from the fact that the booking of the resort was cancelled about 2 months prior to the event and no expenses are shown to have been incurred by the OPs on the booked event as it was still two months away when it was cancelled. It is not the case of the OPs that they refused some other requests for the same dates at any point of time.   Therefore, the forfeiture of the entire advance booking amount of Rs.16,00,000/- on the basis of so called cancellation policy which has not been even validly  proved on record could definitely be termed not only an unfair contract but an unfair trade practice on the part of the OPs. In this regard, reference can also be made to Prem Singh Mahnot and another Vs Resort Rio Unit of Riverside Resort and Holiday Homes Pvt. Ltd. and another in II(2020) CPJ 101 (Goa) passed by Hon’ble Goa State Consumer Disputes Redressal Commission Panaji wherein it was held that non refund of advance money in the absence of any contract or specific terms and conditions to the effect would mount to deficiency of services on the part of the OPs.  In this regard, a further reference can further be made to case law relied upon  Ramgarhia Bhawan Vs Ravati Raman Sharma (Supra) by the counsel for the complainant wherein also it was held that if the cancellation was made seven weeks prior to the marriage, the OP was not entitled to forfeit any part of the advance money and the complainant was entitled to the total refund of  booking amount. In the instant case also, the booking was cancelled more than seven weeks prior to the event. In these circumstances, the forfeiture of the entire booking amount by the OPs cannot be justified under any circumstances and in the given set of facts, it would be just and proper if the OPs are directed to refund the advance money of Rs.16,00,000/- to the complainant with interest @6% per annum from 04.11.2019.

13.           As a result of the above discussion, the complaint is allowed with an order that the OPs shall refund the amount of Rs.16,00,000/- to the complainant along with interest @6% per annum from 04.11.2019 when the information of cancellation of function was sent to the OPs till date of actual payment. The OPs shall further pay a composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.  File be indexed and consigned to record room.

 

    (Jaswinder Singh)                       (K.K. Kareer)

             Member                                         President

 

Announced in Open Commission

Dated:23.09.2022.

Gobind Ram.

 

 

 

Rajesh Chander Vs Mundota Fort                                   CC/22/338

 

Present:       Sh. Jagpal Singh Dhupar, Advocate for complainant.

Sh. Ritesh Mohindra, Advocate for OPs.

                                               

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with an order that the OPs shall refund the amount of Rs.16,00,000/- to the complainant along with interest @6% per annum from 04.11.2019 when the information of cancellation of function was sent to the OPs till date of actual payment. The OPs shall further pay a composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.  File be indexed and consigned to record room.

 

  (Jaswinder Singh)                         (K.K. Kareer)

             Member                                         President

 

Announced in Open Commission

Dated:23.09.2022.

Gobind Ram.