Surinder Kumar vs BABA MAKHAN SHAH LOBANA FOUNDATION

-THIS is an appeal filed against order dated 4.9.2003 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 1016 of 2002, Surinder Kumar v. Baba Makhan Shah Lobana Foundation, Chandigarh.

THE complainant who is the appellant before us got booking of Baba Makhan Shah Lobana Foundation Hall for celebration of reception on the eve of marriage of his son. THE date for which the booking was got done was 10.12.2001. THE appellant paid a sum of Rs. 10,000/- in cash as an advance for booking purposes against receipt (Annexure C-1) dated 29.8.2001. THE appellant, somehow, decided to cancel the booking as his mother was ill and sent a letter in this regard in the month of October 2001. THE appellant also sought refund of the advance amount of Rs. 10,000/- which was, however, declined by the respondent on the ground that Condition No. 11 of the terms and conditions of booking did not permit the refund of the advance money in case the booking was got cancelled. The respondent, on the other hand, permitted the appellant to use the hall against earlier booking up to 31.1.2003 but the appellant requested for the refund of the amount as he did not require the hall for the purpose aforesaid. Since the respondent failed to refund the advance amount, the complaint was filed seeking refund of the advance amount of Rs. 10,000/-.

The respondent/O.P. filed written statement and admitted about the booking of the hall in connection with the solemnization of the function relating to the marriage of his son for 10.12.2001. The respondent took a plea that the advance amount was deposited by the appellant on reading the terms and conditions including the Condition No. 11. The allegations of deficiency in service on the part of respondent were denied.

THE complainant filed his affidavit while respondent filed affidavit of Shri Jagat Singh Multai, General Secretary of the respondent. THE District Forum dismissed the complaint holding that it could not declare Condition No. 11 of the terms and conditions as ultra vires and, consequently, no relief could be given to the complainant. However, the complainant was left to seek his remedy before the Competent Authority for redressal of his grievances. Feeling aggrieved against the impugned order of the District Forum, this appeal has been filed. The notice of appeal was served on the respondent who put in appearance through Mr. Balwant Singh Malhi, Advocate. Record of the case was also summoned. We have heard the learned Counsel for the appellant and the learned Counsel for the respondent and perused the impugned order and the record of the case carefully.

A perusal of the impugned order will go to show that the District Forum was of the view that when the hall was not used by the complainant and prior intimation was given for cancellation of the booking, the complainant was required not to be charged for the services which were not utilised. The District Forum, however, held that in view of Condition No. 11 of the terms and conditions, the District Forum could not declare it ultra vires and no relief could be granted by it. Resultantly, the complaint was dismissed. As mentioned above, the complainant was relegated to his remedy of approaching a competent authority/Court for redressal of his grievance. The Hon''ble Supreme Court has recently in the case of CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., III (2003) CPJ 9 (SC)=V (2003) SLT 185, held that merely because recording of evidence is required or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the C.P. Act to the person aggrieved. The Hon''ble Apex Court further held that it is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary entry that a Forum under the C.P. Act may relegate the complainant to a Civil Court.

IN view of the law laid down by the Hon''ble Supreme Court in the case of CCI Chambers Co-op. Hsg. Society Ltd. (supra), the District Forum could not relegate the complainant/appellant to approach a Civil Court of competent jurisdiction for redressal of his grievance. Once the District Forum was considering the complaint filed on the allegations of deficiency in service and/or unfair trade practice on the part of the respondent, it was required to consider and adjudicate the dispute regarding deficiency in service on unfair trade practice according to law. The District Forum did not consider and decide the submission made on behalf of the appellant/complainant that Condition No. 11 aforesaid was unjust, illegal and not in accordance with the standard terms and conditions of the Contract Act/Registration Act and other relevant law on the subject. The question of striking down the condition was not before the District Forum but the District Forum could decide and decide whether there was deficiency on the part of the respondent as defined under Section 2(1)(g) of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] or the respondent was guilty of unfair trade practice as defined in Section 2(1)(r) of the C.P. Act.

THE expression ''service'' was to be considered in accordance with the definition of the term ''service'' as defined in Section (2)(1)(o) of Consumer Protection Act. THE Hon''ble Apex Court examined the definition of ''service'' as given in Section 2(1)(o) of Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] and also considered the definition of ''deficiency'' under Section 2(1)(g) of the C.P. Act and held in para 6 as under: "(6) THE deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. THE burden of proving the deficiency in service is upon the person who alleges it. THE complainant has, on facts, been found to have not established any wilful fault, imperfection, short-coming or inadequacy in the service of the respondent. THE deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bona fide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service and taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. THE rendering of the deficiency in service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service."

We find that the reasons given in the impugned order for dismissing the complaint are self-contradictory. On one hand, the District Forum felt about the genuineness the grievance of the complainant but on the other hand, the District Forum refused to enter into that aspect on the ground that it could not declare Condition No. 11 as ultra vires. It may be pointed out that it was not the prayer of the complainant made in the complaint that Condition No. 11 be declared to be ultra vires. The complainant sought relief regarding the refund of the advance amount of Rs. 10,000/- on the ground of deficiency in service and the same had to be considered in accordance with law and a specific finding is to be recorded as to whether the respondent committed deficiency in service within the meaning of Sections 2(1)(g) and 2(1)(h) of the C.P. Act and in case the deficiency in service was found to be proved, the District Forum was required to grant appropriate relief to the appellant. While considering the deficiency in service, the submission of the appellant has to be considered and decided as to the Condition No. 11 being unjust, illegal and opposed to public policy and unconscionable under the Indian Contract Act. In case the District Forum found that the appellant failed to prove the allegation of deficiency in service on the part of the respondent of any act of unfair trade practice, the complaint could be disposed of, accordingly. Since the District Forum has failed to decide the complaint case in accordance with the law as laid down by the Hon''ble Apex Court, the impugned order deserves to be set aside and the complaint case deserves to be sent back for decision afresh according to law.

Resultantly, the appeal is allowed. The impugned order is set aside. The complaint case is remanded to the District Forum-I, U.T., Chandigarh for decision afresh according to law. The District Forum shall proceed to decide the complaint case expeditiously and preferably within one month from the date the parties appear before it. The parties are directed to appear before the District Forum-I, U.T., Chandigarh on 8.1.2004. Appeal allowed.