Delhi District Court
Lt. Col Dr. Kalpeshkumar S Panchal vs M/S Fortune Park Land Inn And Suits Pvt ... on 29 August, 2023
Page no. 1 of 23
THE COURT OF CIVIL JUDGE-01: SOUTH WEST
DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: CSSCJ/ 81/22
CNR NO. DLSW030001462022
IN THE MATTER OF :
Lt. Col (Dr.) Kalpesh Kumar S Panchal
R/o Y-215, Vivekanand Apartment Plot No-2,
Sector -5, Dwarka, New Delhi-110075. ............... Plaintiff
Versus
M/s Fortune Park Land Inn & Suites Pvt. Ltd,
Shop No.202/203, 2nd Floor, City Center Mall,
Dwarka Sector-12, Dwarka, New Delhi -78.
Registered & Corporate Office at:
At N-22, LGF, Kalkaji, New Delhi-110019 .......... Defendant
Date of filing : 22.01.2022
Date of Institution : 24.01.2022
Date of pronouncing judgment : 29.08.2023
SUIT FOR RECOVERY AND DAMAGES
JUDGMENT
1. Present suit was initially filed for recovery of money and damages. However, the plaint was allowed to be amended at later stage. The plaintiff has now filed the suit for declaration, recovery of money and damages against the defendant.
ASHISH Digitally by ASHISH signed KUMAR KUMAR Civil Suit No. 81/22 MEENA Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. Date: 2023.08.29 MEENA 16:40:25 +05'30' Page no. 2 of 23
2. Briefly put, it is the case of plaintiff that defendant runs business under the unit of "FORTUNE PARK LAND INN & SUITES PVT LTD" and incorporated under the Companies Act and engaged in Hospitality Business operating Clubs, Hotels, Resorts and Marketing Vacations having branch office in Dwarka and Regd. Office in Kalkaji, Delhi.
3. Defendant explained and demonstrated the services, hospitality provided during vacation packages in 4/5 Star Hotels to plaintiff in its branch office in Sector-12, Dwarka, New Delhi. On assurance of defendant, plaintiff agreed to purchase the Vacation Package of 06 Nights and 07 Days per year for 10 years for Studio Room facility from defendant and Vacation Purchase Agreement was executed between defendant and plaintiff on 04.10.2020. As per agreement, plaintiff paid Rs.1,40,000/- to defendant through Credit card for Vacation Package in branch office of defendant in Dwarka.
4. On 13.03.2021, plaintiff sent an e-mail to defendant for vacation trip of 06 days at Shimla and Manali from 28.03.2021 to 02.04.2021 with breakfast at discounted rates. Defendant sent the confirmation e-mail to plaintiff for the booking for Shimla at Larisa Resort from 28.03.2021 to 30.03.2021 and Manali at Hill Country Resort from 30.03.2021 to 02.04.2021. Defendant requested plaintiff to transfer (a) Annual Maintenance Charges Rs.7000/- and (b) Breakfast Charges Rs.400/- (per person per day) = Rs.4000/-, amounting to Rs.12,980/- (inclusive of all taxes) before confirmation of the booking. Plaintiff paid Rs. 12,980/- to defendant on 13.03.2021. On 15.03.2021, plaintiff again sent an e-
Civil Suit No. 81/22 ASHISH Digitally signed by ASHISH Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:40:34 +05'30'
Page no. 3 of 23
mail to defendant for confirmation of booking and defendant replied to plaintiff by e-mail that booking is confirmed and details will be shared shortly on 16.03.2021.
5. It is further averred that as per above schedule the plaintiff went on vacation trip of 06 days. However, on 30.03.2021 plaintiff informed the defendant via email that plaintiff had the worst experience in first long trip booking due to poor quality of rooms and services. Thereafter, defendant again promised to give booking in 4/5-star hotels to plaintiff. The standard of rooms given in both hotels to plaintiff were of lowest quality rooms. Moreover, plaintiff was charged Rs.400/- per person for breakfast whereas at Hill County Resort Manali buffet breakfast was costing Rs.250/- per person. Therefore, the defendant has cheated the plaintiff.
6. Thereafter, defendant sent an e-mail to plaintiff on 31.03.2021 and apologized for the inconvenience caused to plaintiff and requested to meet in person. The plaintiff sent reply of e-mail to defendant on 31.03.2021 and refused to meet the defendant as he was not satisfied with the services. Plaintiff requested defendant to initiate refund process as per defendant refund policy.
7. It is averred that plaintiff sent one more e-mail to defendant on 01.04.2021 that due to worst service, plaintiff has shortened his vacation trip and shifted his family to army guest rooms. Plaintiff sent photos of poor quality of 4-star hotel services at Manali given by defendant. The defendant sent e-mail to plaintiff on 01.04.2021 and again apologized for the inconvenience caused to plaintiff. The plaintiff again sent e-mail to defendant on 02.04.2021 and Civil Suit No. 81/22 ASHISH Digitally signed by ASHISH Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:40:43 +05'30'
Page no. 4 of 23
03.04.2021 that plaintiff don't want any meeting and gave request to defendant to refund the money paid Rs.1,52,890/- (Rs.1,40,000/-+Rs.12,890/-) as per defendant refund policy and also gave his accounts details to defendant.
8. It is further averred that defendant via email dated 07.04.2021 promised plaintiff that 3-night stay of Hill Country Manali will not be deducted and the same will be credited in plaintiff's account. Defendant also promised to refund the amount of breakfast had at Manali. Apart from this, defendant also offered one night Pride Plaza/Fortune Park as complimentary stay to plaintiff. However, plaintiff refused to accept the offer of plaintiff and requested for refund. Defendant via email dt. 08.04.2021, informed the plaintiff that Membership is non-cancellable & non- refundable.
9. Plaintiff has contended that the defendant induced plaintiff and made false promises for best quality of hospitality during vacation trips and due to the aforesaid callous attitude and negligent acts, plaintiff had suffered physical, mental and financial loss which is irreparable. Resultantly, plaintiff served a Legal Demand Notice vide dated 15.12.2021 to defendant on 16.12.2021. However, the defendant replied the legal demand notice vide dated 20.12.2021, sent by the plaintiff, but defendant is not interested to resolve the issue. Hence the present suit lies before this Court.
10. By this suit, plaintiff seeking the following reliefs:
a) Pass an order to declare the vacation package agreement Civil Suit No. 81/22 ASHISH Digitally signed by ASHISH KUMAR Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR MEENA
Date: 2023.08.29
MEENA 16:40:53 +05'30'
Page no. 5 of 23
dated 04.10.2020 as null and void and pass a decree of recovery of Rs.1,52,890/- (Rs.1,40,000/- for package + Rs.7,000/- for AMC + Rs.5,980/- for breakfast) in favour of plaintiff and against defendant along with interest 18% p.a. pendente lite and future interest.
b) Pass a decree for damages of Rs.1,00,000/-(Rupees One Lakh Only) in favour of the plaintiff and against the defendant thereby directing the defendants to pay a sum of Rs.1 Lakh on account of damages/compensation caused to the plaintiff due to the willful, negligent and malafide acts of the defendant.
c) Grant costs of litigation in favour of the plaintiff and against the defendants.
11. Summons of the suit were served upon the defendant by way of affixation and also through email dt. 26.4.2022 and 11.5.2022. Defendant has filed Written Statement on 21.7.2022.
12. In the Written Statement, defendant has denied all the allegations and contentions of the plaint of the plaintiff. It is submitted the Plaintiff has suppressed the material facts and manipulated the whole facts and to cause numerous sufferings to the Defendant in false or vexatious petition, with the intention to harass and to make out a false ground to avoid legitimate dues to the Defendant. It is further submitted that the present suit has been filed against the Defendant with the mala-fide intentions to extort money and to avoid legitimate dues payable to the Defendant.
13. It is submitted that the cause of action as alleged by the ASHISH Digitally by ASHISH signed KUMAR KUMAR Civil Suit No. 81/22 MEENA Date:
Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. 2023.08.29 MEENA 16:41:08 +05'30' Page no. 6 of 23 Plaintiff is false and concocted one. The Defendant was not apprehending of the malafide intentions of the Plaintiff, otherwise the Defendant would neither provide the Holiday package. The Plaintiff had pre-planned intrigue to harm an irreparable loss to the goodwill of the Defendant. It is further submitted that the Plaintiff did not make any annual maintenance fees against maintenance charges and only made payments against the AMC on one occasion, which in contrary to all the assurances and vast commitments at the time of signing the Agreement.
14. Defendant has admitted that plaintiff made the payment of Rs. 1,40,000/- for membership. The terms and conditions of the agreement between plaintiff and defendant clearly stated that the above vacation charges were non-refundable in any circumstances. The package included stay for a period of 6 nights and 7 days per year for the next 10 years from the date of the agreement. The agreement clearly forbids the plaintiff to demand anything that is not mentioned in the agreement. As per the said agreement entered into between both the parties which clearly stated that the amount was non-refundable.
15. It is further submitted that it is totally false to state that the defendant has fraudulently or under inducement received any money. The plaintiff has made a totally cooked up story in order to make out a false allegation of cheating and inducement against the defendant by concealing the true facts before the Court. It is submitted that in contrast to all the support and services provided by the defendant. Therefore, the harassment was committed by the plaintiff by holding the monthly dues but wanting and enjoying the Civil Suit No. 81/22 ASHISH Digitally signed by ASHISH Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:41:21 +05'30'
Page no. 7 of 23
monthly recurring services and support.
16. Replication to the Written Statement filed on behalf of defendant no.1 is filed. Plaintiff reiterated the contents of the plaint in the replication.
17. On completion of pleadings, the following issues were framed on 12.05.2023 by this Court: -
ISSSUE NO.1: - Whether the plaintiff is entitled to a decree of declaration thereby declaring the vacation package agreement dt. 04.10.2020 as null and void? ...OPP.
ISSSUE NO.2: - Whether the plaintiff is entitled to money decree of Rs.1,52,890/- alongwith pendente-lite and future interest @ 18% per annum? ........ OPP.
ISSSUE NO.3: - Plaintiff is entitled to a decree of damages of Rs.1,00,000/- against the defendant on account of willful, negligent and malafide acts of defendant? ....... OPP.
ISSSUE NO.4: - Relief.
18. The plaintiff only examined one witness on his behalf i.e., the plaintiff himself who stepped into the witness box and examined as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/1 and he reiterated the contents of the plaint and also relied upon the following documents:
1) Adhar card Ex. PW1/A (OSR).
2)Copy of agreement dated 04.10.2020 Ex. PW1/B Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR Date: 2023.08.29 KUMAR MEENA MEENA 16:41:31 +05'30' Page no. 8 of 23 (colly.) (OSR)
3) Copy of payment confirmation dated 04.10.2023 Ex.
PW1/C (colly.).
4) Copy of payment transaction of Rs. 12,980/- dated 13.03.2021 Ex. PW1/D.
5)Copy of email dated 30.03.2021 Ex. PW1/E.
6)Copy of email dated 31.03.2021 Ex. PW1/F.
7)Copy of email dated 31.03.2021 Ex. PW1/G.
8) Copy of email dated 01.04.2021 & photos Ex. PW1/H (colly.).
9)Copy of email dated 01.04.2021 Ex. PW1/I.
10)Copy of email dated 02.04.2021 & 03.04.2021 Ex. PW1/J (colly.).
11)Copy of email dated 07.04.2021 Ex. PW1/K.
12)Copy of email dated 08.04.2021 Ex. PW1/L.
13)Copy of email dated 07.04.2021 Ex. PW1/M.
14)Legal notice dated 15.12.2021 Ex. PW1/N.
15)Reply of legal notice dated 20.12.2021 Ex. PW1/O.
19. As none has appeared on behalf of defendant, opportunity to cross examine the witness was closed and PE was closed on 13.07.2023. Thereafter, defendant was given an opportunity to lead defence evidence. However, despite opportunity, defendant failed to lead any evidence. Accordingly, D.E. was closed on 08.08.2023 and final arguments were heard.
ASHISH Digitally signed Civil Suit No. 81/22 by ASHISH Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:41:41 +05'30'
Page no. 9 of 23
20. Ld. Counsel for plaintiff reiterated the pleadings mentioned in the plaint. It is submitted that the defendant has deliberately not cross-examined the plaintiff. It is also submitted that the defendant has not led any evidence to prove their defence. It is submitted that the evidence led by plaintiff has remained unrebutted and proved. Therefore, the present suit be decreed. It is pertinent to mention that defendant, despite opportunity, has not addressed final arguments. It is needless to mention that present suit is being decided on the basis of merits, pleadings and evidence led by parties. This Court will now proceed to give its issue wise findings in following paragraph of the Judgment.
FINDINGS ON ISSUE NO.1 & 221. Both issue no.1 and 2 are being taken up together as they are inter-connected and in order to avoid repetition of fact, the same are being decided together.
22. The burden to prove issue no.1 & 2 is upon plaintiff. It is imperative for plaintiff to prove that he is entitled to a decree of declaration thereby declaring the vacation package agreement dt. 04.10.2020 as null and void and he is also entitled to recover Rs. 1,52,890/- alongwith pendentelite and future interest @ 18% P.A from the defendant.
23. Plaintiff has filed and exhibited the contract executed between both parties, which is Ex. PW1/B. Both parties have admitted the content and existence of Ex. PW1/B. Admittedly, plaintiff paid Rs. 1,40,000/- to defendant for becoming a member of the defendant package, which provides the services of Vacation Civil Suit No. 81/22 ASHISH Digitally signed by ASHISH Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.
KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:41:57 +05'30'
Page no. 10 of 23
Package of 06 Nights and 07 Days per year for 10 years for Studio Room facility. Dispute arose when plaintiff availed the facility/services of defendant. Plaintiff booked vacation trip of 06 days at Shimla and Manali from 28.03.2021 to 02.04.2021. At request of plaintiff, the defendant confirmed the booking for Shimla at La Risa Resort from 28.03.2021 to 30.03.2021 and Manali at Hill Country Resort from 30.03.2021 to 02.04.2021. At instance of defendant, the plaintiff also paid total amount of Rs. 12,980/- including annual maintenance charges and charges for breakfast. The said payment was made prior to confirmation of booking. Further, it is admitted by plaintiff that he visited Shimla and stayed at the hotel La Risa till 30.03.2021. Thereafter, Plaintiff visited Hotel Winter Hill, Manali. He informed defendant via e- mail dated 30.03.2023 that he has been allotted below-par room at Manali hotel and the services provided by defendant is not in accordance with the agreement. It is also contended that the charges paid for breakfast were higher than the actual charges of the hotel at Manali. Plaintiff has also claimed that he shortened the trip and was compelled to shift to Army Guest House for remaining period of his Vacation.
24. Ld. Counsel for plaintiff has submitted that defendant has acted fraudulently, therefore, the said agreement must be declared as null and void. Although, plaintiff has not mentioned in his plaint that his consent was caused by fraud, but the plaint has repeatedly submitted that defendant has cheated and played fraud with the plaintiff. Therefore, it is contended by Ld. Counsel for plaintiff that the consent given by plaintiff was not free.
Civil Suit No. 81/22
ASHISH Digitally signed
by ASHISH
Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA
Date: 2023.08.29
MEENA 16:42:06 +05'30'
Page no. 11 of 23
25. At this stage, it is relevant to discuss relevant law. The existing law governing law of contract is Indian Contract Act,1872 ("ACT"). As per Section 2 (h) of Act, any agreement enforceable by law is a contract. Section 10 of Act provides that "all agreements are contract if they are made by the free consent of parties competent to contract, for a lawful consideration and with a law object, and are not hereby expressly declared to be void".
26. It is pertinent to mention that term "Consent" has been discussed under Section 13 of Act, which states that when "two or more persons are said to consent when they agree upon the same thing in the same sense.". The consent is said to be free when it is not caused by coercion, undue influence, fraud, and misrepresentation. It is to be noted plaintiff has contended that his consent to an agreement was caused by fraudulent act of defendant. The related provision to the ground raised by plaintiff is Section 17 of the Act, which reads as under: -
Section 17: - 'Fraud' defined. - Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: -
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:42:21 +05'30' Page no. 12 of 23 performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation: - Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence, is, in itself, equivalent to speech.
27. It is further to be noted that as per Section 19 of the act, if the consent to an agreement caused by fraud, coercion or misrepresentation, then such agreement is a voidable contract at the option of whose consent was so caused. Section 19 of the Act states as follow: -
Section 19: - When consent to an agreement is caused by coercion, ***, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to a contract whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
Exception: - If such consent was caused by misrepresentation or by silence, fraudulent within the Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR Date:
MEENA 2023.08.29 MEENA 16:42:34 +05'30' Page no. 13 of 23 meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence.
Explanation: - A fraud or misrepresentation which did not cause the consent to a contract of the party on whom such fraud was practiced, or to whom such misrepresentation was made, does not render a contract voidable.
28. In present case, this Court has to determine if the consent to an agreement of plaintiff was caused by fraud, misrepresentation or coercion. The agreement Ex. PW1/B was executed between both parties. As per Ex. PW1/B, plaintiff opted for vacation package for a stay for a period of 6 nights and 7 days per year for the next 10 years for the room type "Studio". As per agreement, description of room type "Studio" is not provided but the same is allotted for 2 adults and 2 children under 6 years. It is admitted by both parties that plaintiff paid Rs. 1,40,000/- for vacation package agreement. As per terms and agreement of Ex. PW1/B, plaintiff was required to pay Rs. 7,000/- for Annual Subscription Fees. Failure to adhere with the terms will result in forfeiture of all paid amounts and vacation period cannot be utilized. It is pertinent to mention that any payment made in furtherance of agreement was non-refundable. The relevant clause of vacation agreements are as follows (for easy reference it is made clear that that in Ex. PW1/B the term "First Party" refers to defendant and "Second Party" is referring the plaintiff):
Digitally signedCivil Suit No. 81/22 ASHISH byKUMAR
ASHISH
MEENA
Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR Date:
2023.08.29 MEENA 16:42:45 +05'30' Page no. 14 of 23 Clause 2: - the Second Party understands that the VACATION CHARGES ARE NON-REFUNDABLE UNDER ANY CIRCUMSTANCES.
Clause 4. IT IS UNDERSTOOD THAT THE ANNUAL SUBSCRIPTION FEES (ASF) is Rs. 7,000/- (RUPEES SEVEN THOUSAND ONLY) FOR STUDIO AND RS. 10500 (RUPEES TEN THOUSAND FIVE HUNDRED ONLY) FOR 1BR WHICH WILL BE TOWARDS MAINTENANCE OF PROPERTIES. The ASF may be amended from time to time without prior notice. The Annual Subscription Fees are payable online for every unit of 6N/7D before usage and are excluding GST and are payable irrespective of usage of the vacations/facilities/amenities. The same shall be applicable from the date of this Agreement and is payable yearly. The ASF needs to be paid on time Clause 5: - Failure to clear dues by second party shall be considered as default and vacation cannot be utilized until all dues are cleared and failure to clear dues will result in forfeiture of all paid amount. International holidays will only be allowed after full payment. Domestic holidays for 6 Nights only can be availed till full payment.
Clause 7: - FOODING/PICK UP/SIGHTSEEING CAN BE ARRANGED ON REQUEST ONLY AT AN ADDITIONAL CHARGE. ASHISH Digitally by ASHISH signed Civil Suit No. 81/22 KUMAR KUMAR Date:
MEENA 2023.08.29 Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. MEENA 16:42:55 +05'30' Page no. 15 of 23
29. In view of this Court, Ex. PW1/B fulfils the requirement of Section 10 of the Act. Bare perusal of plaint and evidence of plaintiff reflects that defendant did perform his obligation as per agreement. Defendant booked the desired hotels for plaintiff and plaintiff stayed at Hotel in Shimla for whole booking period, but chose to check out from the Hotel situated at Manali before the period it was booked for. On 30.03.2021 at 08:17 PM, plaintiff sent an e-mail to defendant explaining that he had the worst experience in his first long trip. The hotel room provided to him is not 4/5-star Hotel. He apprised defendant that he has been allotted with lowest quality room in both hotels. He also informed the defendant that charges for breakfast at Hotel at Manali is lower rate than charges quoted by defendant. Similarly, on 31.03.2021, plaintiff again sent an e-mail to defendant explaining that he is not satisfied with services provided by defendant and requested defendant to initiate the refund process. It is pertinent to mention that defendant has replied to both dated email and asked him to meet in person to resolve the issue. It is also to be noted that the reply sent to aforementioned dated e-mail seems to be an automated reply. Further, on 01.04.2021, plaintiff via email informed the defendant that he has decided to shorten the trip and is now shifting to Army Guest House. On 02.04.2021, plaintiff sent the bank account details to defendant for the purpose of refund, to which defendant sent another e-mail on 07.04.2021 and apologized for the issues faced by plaintiff. The defendant also informed him that 3-night stay at Hill Country, Manali will be not deducted and it remain credited to the account of plaintiff. The defendant also assured that it will refund the amount charged for breakfast for the hotel situated at Manali. Defendant also provided 1-night Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:43:06 +05'30' Page no. 16 of 23 complementary stay at Pride Plaza/ Fortune Park to plaintiff. However, plaintiff specifically refused to accept the subsequent offer of defendant and made another request to refund the money.
30. In view of communication exchanged between parties via e- mail, it is clear that the plaintiff stayed at both the hotels but decided to shortened the trip and opted to check out from hotel situated at Manali. On receipt of complaint of plaintiff, the defendant immediately responded to plaintiff seeking to resolve the issue. The defendant also informed the plaintiff that trip for Manali will not be deducted from his account due discomfort caused to plaintiff and also assured that the charges for breakfast will be refunded back to him. The defendant also offered one-night complimentary stay to plaintiff so as compensate for the alleged discomfort. The said act of defendant only reflects that the defendant is looking after the best interest of plaintiff. Therefore, it is clear defendant did perform his part of contract by successfully booking the hotels and by providing the services to plaintiff as per agreement Ex. PW1/B. However, it is not the case where defendant had no intention of performing the contract or defendant has misrepresented itself. It is not the case where defendant has concealed any fact or suggested any false facts to plaintiff. Further, the act of booking of hotels in terms of agreement only shows that defendant always had intention of performing its duties. Hence, it cannot be assumed that defendant acted fraudulently to deceive the plaintiff.
31. In view of this Court, consent of plaintiff while entering into an agreement with defendant was free consent. The consent of Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:43:18 +05'30' Page no. 17 of 23 plaintiff to an agreement was not caused by fraud, misrepresentation or coercion. The plaintiff has voluntarily entered into an agreement after going through the policy of defendant company. Ex. PW1/B also mentions the terms and conditions of an agreement to which plaintiff is a signatory. Plaintiff is an educated person, thus, like any other prudent person, it can safely be assumed that the plaintiff has read the agreement before signing the same. Hence, agreement Ex. PW1/B is a valid agreement and the same is enforceable by law as it fulfills the criteria laid down in Section 10 of the Act. Moreover, plaintiff is aggrieved by the services of defendant. Therefore, it may be a case of deficiency in service but same cannot be attributed to cheating or fraud. At maximum, plaintiff can seek the relief of damages against the defendant, but it is not the case of agreement executed without free consent. It is not the case, where the contract has subsequently become void or inexecutable or both parties have not rescinded from the contract by way of subsequent agreement.
32. Furthermore, the plaintiff in his plaint has submitted that defendant assured that it will provide vacation packages to him in 4/5 Star Hotels. Whereas, Ex. PW1/B mentions no such stipulation. As per Ex. PW1/B, plaintiff was allotted with the facility of "Studio Room". The said agreement is silent regarding the type of hotels. Therefore, the plaintiff himself has not stated correct facts. Further, plaintiff has paid Rs. 7000/- to defendant as annual maintenance charge in terms of their contract. Plaintiff has also paid Rs. 4000/- for breakfast charges for the said period of booking to defendant. It is contended that defendant has charged more for breakfast than the actual charges of the hotel. However, Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:43:30 +05'30' Page no. 18 of 23 said contention is also not tenable as the Clause 7 of the agreement clearly states that the additional charges will applicable for Food etc. Plaintiff was independent to utilize the services of hotels and to pay for breakfast charges directly to the hotel. Instead, plaintiff availed the facilities of defendant at the prices quoted by defendant. As per Ex. PW1/B, it is nowhere in mentioned in the agreement that defendant will have to provide discounted rates for additional services. It only mentions that additional payment will be charged for the services mentioned in Clause 7 of the agreement. In view of this Court, defendant is running a tour and travel company and acting as intermediary between hotels and consumers. Therefore, defendant, for saving its own business interest, is rightful to quote charges for additional services availed or to be availed by its consumer. Further, as per e-mail exchanged between the parties, it is nowhere mentioned by the defendant that charges for breakfast will be lower than the actual charges. Plaintiff had the option of rejecting the offer of additional charges quoted by defendant, but plaintiff accepted the offer without confirming or comparing the said price directly from the concerned Hotel. Moreover, for the sake of argument, even if it is assumed that the defendant promised to get discounted rates for additional charges, then also the plaintiff has not filed any evidence to show that concerned hotel were charging Rs.250/- for the breakfast. Furthermore, the defendant vide email dated 07.04.2021 had inform the plaintiff that charges for breakfast will be refunded to plaintiff, but the same offer was rejected by the plaintiff, which only reflects that the defendant is looking after interest of plaintiff.
Digitally signed
ASHISH byKUMAR
ASHISH
MEENA
Civil Suit No. 81/22 KUMAR Date:
2023.08.29
Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. MEENA 16:43:45 +05'30' Page no. 19 of 23
33. In view of the same, Ex. PW1/B is a valid Contract. The same is proved to be entered with free consent of parties competent to enter into an agreement for a lawful consideration and for lawful object. The plaintiff paid Rs. 1,40,000/- as one-time payment for Vacation package/ Agreement alongwith annual maintenance charges of Rs. 7000/-. The said payment was paid to defendant as per terms and conditions of Contract. Ex. PW1/B clearly states that any payment made for vacation charges are non-refundable. Therefore, the plaintiff not entitled for recovery money of Rs. 1,52,890/-. The plaintiff is also not entitled to relief of declaration thereby declaring Ex. PW1/B as null and void. Thus, plaintiff has failed to prove issue no.1 and 2 in his favour.
In view of above discussion, Issue no.1 and 2 are decided against plaintiff and in favour of defendant.
FINDINGS ON ISSUE NO. 334. Burden to prove issue no.3 is also upon plaintiff. It imperative for plaintiff to lead cogent evidence to prove that he is entitled to a decree of damages of Rs.1,00,000/- against the defendant on account of willful, negligent and malafide acts of defendant.
35. According Section 73 of the Act, any party who suffers due to breach of contract by other party is entitled to compensation for loss or damage caused by breach of contract, where the loss has naturally arisen in the usual course of things or which loss was within the contemplation of the parties when they made the contract. Section 74 of Act stipulates compensation of breach of Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:43:57 +05'30' Page no. 20 of 23 contract where penalty is stipulated in the contract itself upon breach of such contract, whether or not actual damage or loss is proved by the party.
36. In the present case plaintiff has claimed compensation or damage of Rs.1,00,000/ from defendant for breach of contract on account physical, mental and financial harassment caused to plaintiff. The said damages were not stipulated in the vacation packaged agreement executed between the parties on 04.10.2020. Therefore, present matter falls within the scope of unliquidated damages and the same is governed by Section 73 of the Act, which reads as under
Section 73: - "Compensation for loss or damage caused by breach of contract. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach.
Compensation for failure to discharge obligation resembling those created by contract: - XXXXXX Explanation: - In estimating the loss or damage Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:44:07 +05'30' Page no. 21 of 23 arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.
37. Section 73 of Act stipulates loss or compensation arising out of breach of such contract or any special damage arising upon breach of such contract, which was within contemplation of the parties at the time of execution of such contract. Further, it is a proposition of law that under Section 73 of the Act, compensation is not to be given for any remote or any indirect loss or damage sustained by reason of breach of contract until and unless the damage is actually suffered. Further damage which a party alleges to suffer must be affirmatively proved. Therefore, it is duty of plaintiff to prove that he has suffered actual damages due to the act of defendant.
38. In present case, at the instance of plaintiff, defendant booked Larisa Resort at Shimla from 28.03.2021 to 30.03.2021 and Manali at Hill Country Resort from 30.03.2021 to 02.04.2021. Plaintiff visited both the hotels but decided check out from hotel situated at Manali on 01.04.2021 and decided to stay at Army Guest for the rest of period of vacation i.e 01.04.2021 to 02.04.201. In support of his evidence, plaintiff has filed e-mail communication exchange between both parties, which only reflects that the plaintiff opted out from using the services of Hotel at Manali. It is contended by the plaintiff that he spent rest of his vacation period by staying in `Army Guest House. However, in order to ascertain actual damage caused, the plaintiff has not filed Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:44:17 +05'30' Page no. 22 of 23 any evidence regarding the expenses of lodging at Army Guest House. Plaintiff has not placed on record any documentary proof of expenses incurred for alleged accommodation at Army Guest House to support his averments or any receipts showing traveling expenses incurred by him. It is further to be noted that defendant has not led evidence, but plaintiff is not permissible to take advantage of the weakness of defendant. The burden to prove the said issue is upon plaintiff, therefore, plaintiff is ought to prove that he is entitled to the damages of Rs. 1,00,000/-. However, plaintiff has failed to show the actual damages caused to him on account of alleged willful act of defendant.
39. In order to claim compensation U/s. 73 of the Indian Evidence Act, plaintiff is required to prove the loss and damage suffered by him by way of affirmative evidence and mere averments and allegations without supporting proof does not give rise to successful claim of compensation or damages U/s. 73 of the Act. Evidently, plaintiff has failed to lead affirmative evidences in support of his claim for compensation/damages of Rs.1,00,000/ from defendant for physical harassment and discomfort and expenses incurred by him.
40. In view of the same, plaintiff has failed to lead affirmative evidence to show that actual damage caused to him. Therefore, plaintiff has failed to prove issue no.3 due to lack of evidence.
In view of above discussion, Issue No.3 is decided against plaintiff and in favour of defendant.
41. RELIEF: As discussed above, Issue No.1, 2 & 3 are Civil Suit No. 81/22 ASHISH Digitally by ASHISH signed Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd. KUMAR KUMAR Date:
MEENA MEENA 2023.08.29 16:44:27 +05'30' Page no. 23 of 23 decided against the plaintiff and in favour of defendant. Therefore, no relief or costs of the suit can be granted to plaintiff against the defendant.
42. In view of the findings given on issues no.1, 2 & 3, documents placed on record, pleadings of the parties and evidence available on record, the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed.
43. Decree sheet be prepared accordingly. Parties to bear their own cost.
44. File be consigned to Record Room after compliance with due formalities.
Announced in the open court on 29.08.2023 ASHISH Digitally signed by ASHISH KUMAR KUMAR MEENA Date: 2023.08.29 MEENA 16:44:38 +05'30' (Ashish Kumar Meena) Civil Judge-01(SW) Dwarka Courts, New Delhi 29.08.2023 It is certified that the present judgment runs into Twenty- Three pages and each page bears my signature.
ASHISH Digitally signed by
ASHISH KUMAR MEENA
KUMAR Date: 2023.08.29
MEENA 16:44:48 +05'30'
(Ashish Kumar Meena)
Civil Judge-01(SW)
Dwarka Courts, New Delhi
29.08.2023
Civil Suit No. 81/22
Lt. Col. Dr. Kalpesh Kumar Vs. M/s. Fortune Park Land Inn and suits Pvt. Ltd.