Kalidas Mukherjee, President:
This appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in case no.CC 265 of 2010 allowing the complaint with cost and directing the OPs jointly and severally to return the cheque amounting to Rs.2,81,810/- to the complainant since it has not been encashed and lying in custody of the OPs within 45 days from the date of communication of the order. The OPs were further directed to pay compensation of Rs.30,000/- for harassment and mental agony and litigation cost of Rs.5,000/- within 45 days from the date of communication of the order, in default the amount will carry interest @ 9% p.a. till realisation.
The case of the Complainant/Respondent, in short, is that the Complainant for solemnization of marriage celebration hired the services of the OPs and the banquet function was held on 12/12/08. The complainant deposited total amount of Rs.13,65,000/-. In terms of the discussion held by and between the parties it was decided that the total number of guests would be 550 and the Complainant would be liable to pay extra amount in case of number of guests exceeding 550. On 12/12/08 after completion of banquet function the Complainants were ready to leave the hotel, but one representative of OPs, namely, Mr. Animesh handed over a bill of Rs.2,81,810/- to the complainant and asked for payment of the said amount on the ground that the total number of guests were 666 instead of 550. But as per counting of the number of guests the total number was less than 550 and, therefore, the said bill of Rs.2,81,810/- was arbitrary, illegal and liable to be cancelled. Furthermore, on 12/12/08 the personnel of the OPs forcibly restrained family members of the Complainants from leaving the hotel and pressurized the complainant to pay the amount of Rs.2,81,810/-. On that date at night the complainant having no other alternative and under compelling circumstances handed over a cheque amounting to Rs.2,81,810/- to the representative of the OPs as security deposit and the representative of the OPs assured and agreed that the said cheque shall not be presented to the bank for encashment unless the dispute in regard to the number of guests was resolved by and between the parties. But most surprisingly without settling the dispute with regard to the number of guests, the OPs presented the cheque to the Bank. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for Appellant has submitted that the complainant agreed that the total number of guests would be 550, but on the scheduled date after counting it was found that the total number of guests present being 666 a bill amounting to Rs.2,81,810/- was presented to the Complainant and, accordingly, the cheque was issued. It is submitted that under instruction from the Complainant for âstop payment instruction the encashment could not be made. It is contended that a Money Suit bearing no.277 of 2009 was filed before the Learned Civil Judge, 1st Court (Senior Division) at Alipore which is still pending and this fact has been suppressed in the petition of complaint. It is contended that after the filing of the Money Suit the petition of complaint was filed before the Learned District Forum. It is contended that no complaint was made with the police that the guests on the scheduled date were restrained from leaving the hotel. It is contended that the cheque was issued by another person who has not been impleaded in the petition of complaint. It is submitted that the petition of complaint is not maintainable. The Learned Counsel has referred to the terms and conditions of the agreement. The Learned Counsel has referred to the decisions reported in I (1991) CPJ 330 (NC) [M/s Oswal Fine Arts Vs. M/s H.M.T., Madras]; I (1994) CPJ 174 (NC) [S. James Vincent Vs. Greater Cochin Development Authority and Anr.].
The Learned Counsel for the Respondent has submitted that it was stipulated in terms of the agreement that both sides will hold joint inspection with regard to the number of guests present, but the joint inspection report is not forthcoming. It is submitted that after completion of the banquet function the appellant restrained the guests of the complainant from leaving the hotel and under compelling circumstances a cheque was issued by a relative of the complainant. It is submitted that the said relative lives outside Kolkata. It is contended that the issuance of the bill amounting to Rs.2,81,810/- was unfair trade practice on the part of the appellant. The Learned Counsel has referred to the decision reported in 2010 (2) CPR 85 [Hindustan Motors Ltd. Vs. Amardeep Singh Wirk and Ors.] wherein it has been held that the proceedings under the C. P. Act and a Civil Court can simultaneously go on even if issues involved therein are substantially similar.
We have heard the submission made by both sides and perused the papers on record. The dispute relates to the alleged extra number of 116 guests present at the banquet hall on the scheduled date. The appellant issued a bill of Rs.2,81,810/- for the alleged extra number of guests. It also appears that the complainants issued a cheque in favour of the OP amounting to Rs.2,81,810/-. It appears from the letter dated 29/01/09 written by the Learned Counsel for the appellant that the complainant issued instruction to the Bank that âpayment stopped by drawer. The Appellant filed the Money Suit claiming the said amount against the respondent/complainant.
It appears from the terms and conditions of the agreement that the representatives of Taj Bengal Hotel and the client would jointly count the number of guests and/or the quantity of food and beverages served at the function and the said number will be binding on the client for the purpose of the bill settlement. Under the circumstances aforesaid, the said joint inspection report as to the number of guests present assumes importance. It is the specific contention of the complainant/respondent that the total number of guests was less than 550 and that the appellant prevented the guests of the complainant from leaving the hotel until the bill amount was paid. It is the contention of the complainants/respondents that to save the prestige and dignity of the guests a relative of the complainant had to issue a cheque with the assurance of the Appellant that the said cheque would not be presented to the bank until and unless the dispute regarding the said billed amount was settled by and between the parties. In absence of the inspection report, we are unable to accept the contention of the appellant.
The Learned District Forum has directed the OP/ Appellant to return the cheque. It has been submitted by the Learned Counsel for the Appellant that the Appellant will have to prove the cheque before the Learned Civil Court in connection with the Money Suit filed by the Appellant against the Respondent. Since the cheque has not been encashed under the instruction of âstop payment from the complainant, we are of the considered view that the return of the said cheque to the complainant is not necessary. We, therefore, modify the impugned judgment as hereunder.
The appeal is allowed in part. The direction of the Learned District Forum regarding the return of the cheque amounting to Rs.2,81,810/- to the complainant is hereby set aside. The other directions passed by the Learned District Forum are affirmed. The impugned judgment stands modified accordingly.