MAMTA CHAUDHARY vs RAMSWAROOPDAS NIRANJANDAS CHARITABLE TRUST

THIS appeal, uner Section 15, of the Consumer Protection Act, 1986, is directed against the order dated 16.11.2006 in Complaint No. 173/2006 by the District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''District Forum'' for short) dismissing the appellant''s complaint.

INDISPUTABLY, the O.P./respondent is a trust and has a building which is made available for marriage ceremonies etc. It is also not in dispute that the said building was booked for 8.6.2005 and 9.6.2005 in connection with marriage ceremony of the daughter of the complainant/appellant. An amount of Rs. 11,000 was deposited by the appellant with the respondent trust, in connection with the said booking. It was averred by the complainant that since the marriage of the daughter of the complainant No. 1 was postponed, they desired the booking to be adjusted accordingly. However, the complainant''s request was not accepted by the respondent, as the Hall was not available for the subsequent date, to which the marriage was postponed. Therefore, the complainant requested the respondent to refund the amount of Rs. 11,000 deposited by them. It was further averred that the respondent assured that the amount would be refunded but only Rs. 5,500 were refunded on 17.5.2005. Aggrieved, the complainant prayed that the balance of advance amounting to Rs. 5,500 with compensation etc. be awarded in their favour.

The complaint was resisted by the respondent. It was averred that as per rules of the respondent, which were explained to the complainant No. 2 who came to book the Hall, the advance amount was not refundable. However, on humanitarian ground, 50% of the security deposit was refunded to the complainant. Therefore, non-refund of the balance amount could not be termed as deficiency in service and the complaint deserves to be dismissed.

THE District Forum by the impugned order held that there was no deficiency in service by the respondent. THE complaint was accordingly dismissed. We have heard the learned Counsel for the parties. Perused the record.

AS noticed earlier, indisputably Rs. 11,000 were paid by the complainant to the respondent, copy of application dated 3.5.2005 is on record which indicates that the booking of the respondent''s premises was for 8.6.2005 and 9.6.2005. It appears that in the said application, it was stated that the applicants have read and understood the rules and conditions for booking of the Hall. Copy of the said rules and conditions is also placed on record, which states that the security deposit would be @ Rs. 11,000 per day. One of the terms and conditions was that the security deposit would not be refundable. In condition No. 3, it was provided that if the cancellation is made 45 days before the due day, only 50% of the security deposit would be refundable. As against the above, the complainant averred that the respondent had assured that only electric charges and sanitary charges would be deducted from the security deposit and balance amount would be refunded to the complainant. It appears that in view of condition Nos. 2 and 3 the respondent had refunded 50% of the deposited amount. Learned Counsel for the appellant submitted that the complainant was entitled to refund of the whole amount deposited and the complainant could forfeit the security deposit only on showing that loss was caused to him, because of the cancellation of booking of the Marriage Hall. It was submitted that the respondent neither alleged nor proved that loss was caused on account of cancellation of booking of Hall for 8th and 9th June, 2005. District Forum has referred to the decision of the National Commission in Mukta Kalyan Mandapam v. N. Radhakrishna & Anr., III (1994) CPJ 54 (NC), in which it was held that the grievance of the complainant that he paid hiring charges for the booking and subsequently he cancelled the booking. It was observed therein that the petitioner was not entitled to refund. As the refusal to refund would not amount to deficiency in service and the petitioner should seek redressal of his grievance in the Civil Court.

LEARNED Counsel for the appellant however, submitted that security amount was not liable to be forfeited, unless, it was shown that loss was caused to the respondent. LEARNED Counsel in the above context relied upon the decision of the Hon''ble Supreme Court in Union of India v. Rampur Distillery & Chemical Co. Ltd., AIR 1973 Supreme Court 1098. In that case, it was observed that the party to a contract taking security deposit from the other party to ensure due performance of contract, is not entitled to forfeit the deposit on ground of default when no loss is caused to him in consequence of such default. Aforesaid case was referred to in a decision by the Division Bench Hon''ble High Court of M.P. in Haji Abdul Sattar v. M.P. State Minor Forest Produce (Trading and Development Co-operative Marketing Federation Ltd.), Bhopal & Ors., and it was held therein that since petitioner failed to prove that they suffered loss on account of brech of conditions, accordingly appeal was dismissed.

MAHARASHTRA State Consumer Disputes Redressal Commission, Bombay in The Manager, Maheshwari Bhakt Niwas & Anr. v. Bhagwanrao Haribhau, V-VI-1995 (2) CPR 101, held that the amount which was received as donation, in lieu of reservation charges for a Hall cannot be forfeited, and the order of District Forum directing the refund of the said amount was upheld. Similar view was taken by the State Consumer Commission, Pondicherry in Dr. M.K. Sebastian v. Dr. N. Jagadeesan & Anr., I (1998) CPJ 242. It was held therein that if the advance was paid in connection with booking of Marriage Hall and refund of the advance was subsequently sought, after cancellation of booking. It was held that the amount accepted as advance was liable to be refunded, in spite of conditions printed on receipt that ''advance will not be refunded''. Similar view was taken by Union Territory Consumer Commission, Chandigarh in Ramgarhia Bhawan v. Ravati Raman Verma, II (1998) CPJ 9. Similar view was also taken by Maharashtra State Consumer Commission in Mrs. Angela Fonseca v. Coral Lawns & Anr., II (1991) CPJ 670, which was also a case of Marriage Premises booked for the marriage. Advance of Rs. 2,500 was paid against the receipt in which it was mentioned that ''advance once paid will not be refunded''. The date of marriage changed, therefore, request for booking of Marriage Hall for changed date was made, which has however not conceded. Request for refund of advance was refused. It was observed in the case by the State Commission, that mere mention of the words ''advance once paid will not be refunded'' on the receipt is an exploitation of a needy and helpless consumer and imposition of said condition amounts to unfair trade practice.

In the instant case also, we find that it is printed in the application form, that the terms and conditions of booking of Marriage Hall were read and understood by the complainant. However, it is not clear as to whether the conditions were actually furnished to the complainant. Secondly the complainant has cancelled the booking of the Marriage Hall, much prior to the fixed date of marriage i.e., 8th and 9th June, 2005. In fact, in view of the postponement of the marriage on account of unavoidable causes they wanted to extend the date of booking to a subsequent date. However, booking of the Hall for the subsequent date was not accepted by the respondent on account of pre-booking of the Marriage Premises. It is a matter of common knowledge that in marriage seasons, demands for the suitable Marriage Premises are very high. The respondent''s premises being one of the well known premises for marriage, presumably the respondent must have been in a position to get booking for 8.6.2005 also. It is also clear that the respondent has not placed any material on record to show that they suffered any loss due to cancellation of booking of Marriage Hall. In the circumstances, no loss appears to have been caused to the respondent.

THE complainant''s learned Counsel has also submitted that the complainant No. 2 is a heart patient who requires extensive and expensive medical treatment and that the complainants are in a difficult financial state. Considering the above aspects of the matter, the appeal is allowed. The impugned order, dismissing the complaint is set aside. It is directed that the respondent shall refund the balance of advance of Rs. 5,500 (Rupees five thousand five hundred) to the complainant. In the circumstances of the case, the parties shall bear their own cost of this litigation including that of the complaint as well of this appeal. Appeal allowed.