M.K.SEBASTIAN vs N.JAGADEESAN

THE opposite party appeals.

THE facts of the case are as follows : THE complainants booked the marriage hall belonging to the opposite party for two days from 4.12.1996 noon to 6.12.1996 noon and paid an amount of Rs. 16,001/- on 11.9.1996. THE marriage had to be cancelled and the complainants informed the opposite party of the same and cancelled the reservation. After cancellation the complainants asked the opposite party to refund the amount of advance paid by him. Upon the refusal of the opposite party they approached the District Forum with the following prayers : (1) to refund the entire amount of Rs. 16,001 /- due to the complainants with interest @ 24% interest per annum from 26.10.1996 till the actual date of payment of the entire amount; (2) to pay a compensation of Rs. 10,000/- for suffering the hardship and mental agony.

The District Forum after holding that the printed entries in the receipt to the effect that the advance will not be refunded have to be ignored and after observing that the hall was booked after cancellation by some other party, directed the opposite party to refund the entire amount paid by complainants with interest @ 12% p.a. from 26.10.1996 till the payment by order dated 30.6.1997.

Aggrieved by that order the opposite party has filed this present appeal.

THE learned Counsel for the appellant would contend that the complainants are not consumers, that there is no deficiency in service and that the phrase "advance will not be refunded" is immediately before the signature of the complainants in the receipt for the advance amount issued by the opposite party, that there- fore the complainants have accepted to forgo the advance in case of cancellation. The learned Counsel for the appellant also brought to our notice that the District Forum held that the hall was booked after cancellation by the complainants by some other party and pointed out that such booking by another party was for only one day, whereas the booking by the complainants was for two days.

THE first ground of appeal is one relating to jurisdiction. THE contention is that the prayer is one for return of advance amount and that there is no deficiency in service. THE fact of leasing out a marriage hall to people would obviously constitute a service. In that connection the opposite party has received some amount of money. That money can be appropriated only in accordance with law. Otherwise there would be a deficiency in service. As this point was not pressed much we need not elaborate further. The main contention of the appellant is that the complainants have relinquished their right to recover the advance by their signature under the printed mention in the receipt "advance will not be refunded". This raises the question as to the value to be attached to printed entries in documents issued by the seller of goods and producer of services. It is now settled law that printed entries on such document will not be binding on the parties and they will also not be altogether ignored. Entries will be taken into account to the extent that any prudent man would have given a consent thereto in the circumstances of the case. In this connection the first consideration which would be relevant is the fraction of the total dues paid as advance. If a reasonable fraction of the amount due has been paid as advance agreed to by both parties, the amount so paid may be retained in case of cancellation. In this case, the rental for a day is Rs. 15.500/- all inclusive. The amount paid is Rs. 16,001/- viz., roughly half of the total amount. When one pays half of the amount due it cannot be considered as an advance which he has accepted to forgo in case of cancellation. This is clearly a part payment. Therefore, the opposite party cannot claim that he has got the right to retain, the totality of the amount paid. The second consideration which would be relevant is the time at which the cancellation was made. In fact at the time of booking, even the totality of the amount could be paid, as in the case for tickets for train journey or flights. In such a case, the rate of deduction of the money paid is dependent upon the time the reservation is cancelled. Thus the whole amount may be refunded if the cancellation is made sufficiently in advance, or the whole amount will be forfeited if the cancellation takes place in the last minute. Therefore the printed receipt may contain the rates of deduction according to the time of cancellation viz., the number of days left before the scheduled date, taking into account the chance of letting the hall to another party. When the booking was made three months in advance, half of the total dues cannot be appropriated by the owner of the hall, if for instance the cancellation is made in the next week. The complainants are not deemed to have given consent thereto. Therefore the printed entries regarding total non entitlement of refund, irrespective of the time of cancellation cannot be given effect to.

NOW it is necessary to determine whether the complainants are entitled to any refund and if so to what extent. The booking was made on 11.9.1996 for a marriage to be held on 4.12.1996 to 6.12.1996. The cancellation is according to the complainants on 26.10.1996, but there is no conclusive proof and according to the opposite party it was in the first week of November, 1996. The cancellation was therefore made approximately before one month in advance. There was possibility for the owner of the hall to get a booking by some other party because there would be still time enough to distribute invitations and make all the preparations for marriage. In fact, the owner got a booking for one of the days. Taking into account the span of time left between the cancellation and the scheduled date we consider that the opposite party would be entitled to withhold 15% of the total amount agreed to be paid. In this case the total agreed amount to be paid is Rs. 15.500/- x 2 that is Rs. 31,000/-.

ILL the result, the appeal is allowed in part. The order of the District Forum is set aside. The opposite party is entitled to detain Rs. 4,650/- (15% of Rs. 31,000/-). He is directed to pay the balance to the complainants with interest at 12% p.a. from the 1st of November, 1996 till the date of payment. The cost awarded by the District Forum will stand. No cost in appeal. Appeal partly allowed. ____________