TC – 44R

INTRA DEPARTMENT MOOT COURT COMPETITION-2022

BEFORE THE HON’BLE SCINDIA DISTRICT CONSUMER DISPUTE

REDRESSAL COMMISSION

IN THE MATTER OF:

SECOND INNINGS OLD AGE CHARITABLE TRUST… . COMPLAINANT

VERSUS
TRIP MAKERS PVT. LTD. .................................................RESPONDENT

Complaint Case No.____of 2022

CC/___/2022

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 INTRA DEPARTMENT MOOT COURT COMPETITION-2022

TABLE OF CONTENTS

S. NO. TABLE OF PG. NO.

CONTENTS
1. LIST OF ABBREVIATIONS 2
2. INDEX OF AUTHORITIES 4
3. STATEMENT OF JURISDICTION 8
4. STATEMENT OF FACTS 9
5. STATEMENT OF ISSUES 10
6. SUMMARY OF ARGUMENTS 11
7. ARGUMENTS ADVANCED 12
7(A). ISSUE I: WHETHER THE PRESENT COMPLAINT BEFORE THE 12
SCINDIA DISTRICT COMMISSION IS MAINTAINABLE?
1.1. The trust is not a legal entity
1.2. The trust is not a consumer in the present case

7(B). ISSUE II: WHETHER THE ACT OF TRIP MAKERS 14

CHARGING AN ADDITIONAL INR 500/- PER PERSON FOR VIP
ENTRY AMOUNTS TO UNFAIR TRADE PRACTICE?
2.1 Compliance with the police order
2.2 Honest intention on part of the respondent

7(C). ISSUE III: WHETHER THE ACT OF TRIP MAKERS TO 16

PROVIDE PILGRIMS ACCOMMODATION IN A SUBSIDIARY
HOTEL RATHER THAN A 3-STAR HOTEL AND
DISTURBANCE CAUSED DUE TO THE PARTYING AND LOUD
MUSIC MAKES THE TRIP MAKERS LIABLE FOR
DEFICIENCY IN SERVICE?
3.1. Advertisement is not an offer
3.2. Sensitive complainant

8. PRAYER 20

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LIST OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSION

1. ¶ Paragraph

2. @ At

3. & And

4. A.I.R. All India Reporter

5. Anr. Another

6. Art. Article

7. Assoc. Association

8. CCJ Consumer Claims Journal

9. Cl. Clause

10. CLT Consumer Law Today

11. Corp. Corporation

12. CPC Consumer Protection Cases

13. CPJ Consumer Protection Judgement

14. CPR Consumer Protection Reporter

15. DCDRC District Consumer Dispute Redressal

Commission
16. Ed. Edition

17. Govt. Government

18. HC High Court

19. Hon‟ble Honorable

20. INR Indian Rupee

21. Ltd. Limited

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22. NCDRC National Consumer Dispute Redressal

Commission
23. Ors. Others

24. Pg. Page

25. Pvt. Private

26. r/w Read with

27. S.C. Supreme Court

28. S.C.C. Supreme Court Cases

29. SCDRC State Consumer Dispute Redressal

Commission
30. Sec. Section

31. u/s Under section

32. u/ss Under sections

33. UOI Union of India

34. vs. Versus

35. Vol. Volume

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INDEX OF AUTHORITIES

S. NO. CASES PG. NO.

1. Arti Katoch vs. Edu, Smart Services Pvt. Ltd. 2018 SCC OnLine 14
NCDRC 1290, ¶ 8

2. Carlill vs. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256, ¶ 27 18

3. Chairman Christ Nagar vs. General Manager, Otis Elevators, C.C. No. 13
108/15 of 2019 (Kerala SCDRC), ¶ 6

4. Consumer Unity & Trust Society Jaipur vs. The State of Rajasthan 13
LNIND 1989 NCDRC 38, ¶ 6

5. Fon-Ess (P) Ltd. vs. Kerala State Consumer D.R. AIR 2006 Ker 319, 12
¶2

6. Govindan Kutty C.P. vs. Indus Motors, Case No. CC/15/84, (CDRF, 15
Kasaragod, Kerala), ¶ 13

7. Heath vs. Mayor of Brighton, (1908) 98 L.T. 718, ¶ 30 18

8. Icici Bank Limited And Others vs Consumer Guidance Society, F.A. 13

No. 870 of 2009 against C.C. No. 83 of 2007 District Forum-II
Vijayawada (A.P. SCDRC), ¶ 6

9. Jain Jagruti Centre-Juhu vs M/S. Gem Tours And Travels, Complaint 13

Case No. CC/02/399 (Maharasthra SCDRC), ¶ 7

10. Kunhan Nair vs. The Manager, KSBC Case No. CC/4/2013 (CDRF, 15
Kozhikode, Kerala), ¶ 14

11. L. Shivalingiah vs. Anand Social and Educational Trust, ILR 1985 13
KAR 1950, ¶ 5

12. Ludhiana Improvement Trust v. Shakti Coop House Building Society

15
Ltd. 2009 12 SCC 369, ¶ 16

13. M/S Tata Engineering, Mumbai And ... vs 1. Rural Development 13

Trust, F.A. No. 1703 of 2007 against C.C. No. 62 of 2005 District
Forum Ananthapur (A.P. SCDRC), ¶ 6

14. Mylappa Chettiar v. Aga Mirza AIR 1920 Mad 177, ¶ 27 18

15. Patridge Vs Crittenden (1968) 1 WLR 1204, ¶ 27 18

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16. Pratibha Pratisthan & Ors. vs Manager, Canara Bank & Ors., (2017) 3 13
SCC 712, ¶ 6

17. Sri Subir Dutta vs Rai Bahadur Bissessurlal Motilal, F.A. No. 322 of 13
2010 against C.C. No. 259 of 2007 District Forum Kolkata (W.B.
SCDRC), ¶ 6

18. Vijay Sports Club vs The State Of West Bengal & Ors, 2019 SCC 13
OnLine Cal 2331, ¶ 5

S. NO. JOURNALS/ PG. NO.

ARTICLES/
REPORTS
1. Law Commission of India, 103rd Report on Unfair Terms in Contract 17
(May 1984)

2. Law Commission of India, 199th Report on Unfair (Procedural and 15

Substantive) Terms in Contract, (August 2006)

3. Manoj Kumar, Ram Manohar Lohia National Law University, Emerging 13

Dimensions of Consumer Protection Law in India {12 RMLNLUJ (2020)
133}

4. Prof. (Dr.) Ashok R. Patil, Landmark Judgements on Consumer Law and 14

Practice 2008-2020, Published by : Ministry of Consumer Affairs, Food
& Public Distribution, Government of India, New Delhi & Chair on
Consumer Law and Practice, National Law School of India University,
Bengaluru, Karnataka (2021)

5. Rajiv Khare and Pratima Singh Parihar, Ram Manohar Lohia National 15
Law University, Misleading Advertisements and Exploitation of
Consumers: Is the Law Silent? {3-5 RMLNLUJ (2011-2013) 48}

S. NO. BOOKS

1. AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF (12th Edition 2017,

Reprint 2021, EBC Publishing Pvt. Ltd.)

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2. G.B. REDDY, BAGLEKAR AKASH KUMAR, CONSUMER PROTECTION

ACT: A COMMENTARY (1st Edition 2021, Reprint 2022, EBC Publishing Pvt. Ltd.

3. J.N. BAROWALIA, COMMENTARY ON THE CONSUMER PROTECTION

ACT, 2019 (7th Edition, December 2021, LexisNexis)

4. MAJUMDAR, LAW OF CONSUMER PROTECTION IN INDIA (7th Edition

Reprint 2017, Orient Publishing Company ).

5. NARENDER KUMAR, THE INDIAN CONTRACT ACT, 1872 (1st Edition 2015,
Allahabad Law Agency).

6. POLLOCK AND MULLA, THE INDIAN CONTRACT ACT, 1872 (16th Edition,
2022, Lexis Nexis)

7. Y.P. BHAGAT, KUMAR KESHAV, COMMENTARY ON THE CONSUMER

PROTECTION ACT, 2019 (Edition 2021, Reprint 2022 Whitesmann Publishing
Co.)

8. T.T. ARVIND, CONTRACT LAW, Oxford Publication (2016)

9. ANSON’S LAW OF CONTRACT, 31st Edition, Oxford Publication (2020)

S. NO. STATUTES

1. The Consumer Protection Act, 2019

2. The Indian Contract Act, 1872

S. NO. ONLINE DATABASE

1. AIR Online (All Indian Reporter)

2. EBC

3. Jstor

4. Live law

5. Manupatra

6. SCC Online

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S. NO. DICTIONARIES

1. BRYAN. A. GARNER, BLACK’S LAW DICTIONARY, (8th ed. West

Thompson 2004)

2. DR. A. R. LAKSHMANA J, WHARTON’S LAW LEXICON (15th ed. Universal

Law Publishing Co., 2011)

3. P. RAMANATHA IYER, THE LAW LEXICON (2nd ed. 2002)

4. SHORTER OXFORD ENGLISH DICTIONARY (5th ed. Oxford University Press

2002)

5. THE CHAMBERS DICTIONARY, DELUXE EDITION (15th ed. Allied Chambers

(India) Pvt Ltd. 2011)

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STATEMENT OF JURISDICTION

The complainant has endorsed their pleading before this Hon’ble Commission under Section
34(1)1 of the Consumer Protection Act, 2019. The respondent submits to the jurisdiction
invoked.

1
Section 34(1), Consumer Protection Act, 2019

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STATEMENT OF FACTS

BACKDROP

Bindia, a country had Bindoo religion followers in majority. Every year, they go to the
Prathnath Yatra in February to worship their Supreme God. The bookings for the yatra begin
in the first week of December and usually the spots are filled within a few days of the
opening.

LAUNCH OF PACKAGE AND PRICE HIKE

Trip Makers Pvt. Ltd. launched the official package on 1st December 2021 with a cap of 30
tourists which got filled till 15th of December, 2021. The entire package was purchased by
Second Innings Old Age Charitable Trust. On the 16th of January, 2022, the VIP entry rates
were increased by District Police by INR 1000/- out of which 50% amount was paid by the
Trip Makers and the other 50% by the Trust.

COMMENCEMENT OF PILGRIMAGE

The tour commenced on 1st February, 2022. During their stay at Maddison Hotel, pilgrims
complained of late-night parties organized in the hotel. The hotel manager told that they have
recently started organizing parties to cover the losses because of Covid-19 lockdowns and
curfews.

FILING OF COMPLAINT

The Second Innings Old Charitable Trust filed a complaint in the Scindia District Consumer
Redressal Commission against the Trip Makers on 25th March, 2022 and has asked for an
amount of INR 15000/- as a refund pertaining to extra VIP tickets charges and INR 5,00,000
as compensation for deficiency in service. Trip Makers in their written reply at the Scindia
District Consumer Redressal Commission on 21st April, 2022 has challenged the
maintainability of the complaint on the grounds that Second Innings Old Age Charitable Trust
does not fall within the definition of a ‘consumer’ and had contended that the price hike was
as per the government regulations and thus not amounting to unfair trade practice.

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STATEMENT OF ISSUES

ISSUE I:
WHETHER THE COMPLAINT FILED BY SECOND INNINGS OLD AGE CHARITABLE
TRUST IS MAINTAINABLE OR NOT?

ISSUE II:

WHETHER THE ACT OF TRIP MAKERS CHARGING AN ADDITIONAL INR

500/- PER PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR TRADE
PRACTICE?

ISSUE III:
WHETHER THE ACT OF TRIP MAKERS TO PROVIDE PILGRIMS
ACCOMMODATION IN A SUBSIDIARY HOTEL RATHER THAN A 3-STAR
HOTEL AND DISTURBANCE CAUSED DUE TO THE PARTYING AND LOUD
MUSIC MAKES THE TRIP MAKERS LIABLE FOR DEFICIENCY IN SERVICE?

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE COMPLAINT FILED BY SECOND INNINGS OLD AGE

CHARITABLE TRUST IS MAINTAINABLE OR NOT?
It is humbly submitted that the complaint filed by the complainant before the Hon’ble Scindia
District Consumer Dispute Redressal Commission is not maintainable as the trust does not come
under the definition of consumer as per the provisions of the Consumer Protection Act, 2019 and
therefore, it cannot file a complaint.

ISSUE II: WHETHER THE ACT OF TRIP MAKERS CHARGING AN AMOUNT OF

ADDITIONAL INR 500/- PER PERSON FOR VIP ENTRY AMOUNTS TO UNFAIR
TRADE PRACTICE?
It is humbly submitted that the act of Trip Makers charging an amount of additional INR
500/- per person for VIP entry does not amount to unfair trade practice as the price hike was
in adherence to the government rules and regulations. The terms and conditions of the tour
package explicitly stated that the travel agency reserves the right to make necessary changes
as per the changes in government rules and regulations

ISSUE III: WHETHER THE ACT OF TRIP MAKERS TO PROVIDE PILGRIMS

ACCOMMODATION IN A SUBSIDIARY HOTEL RATHER THAN A 3-STAR
HOTEL AND DISTURBANCE CAUSED DUE TO THE PARTYING AND LOUD
MUSIC MAKES THE TRIP MAKERS LIABLE FOR DEFICIENCY IN SERVICE?
It is humbly submitted that there was no deficiency in service on the part of the respondent.
The trip makers provided the topmost facilities in every aspect. Advertisement is a mere
invitation to offer and the pilgrims, being elderly citizens, were extra sensitive to the music on
the premises on the hotel and this does not bring into question the quality of services provided
to them.

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ARGUMENTS ADVANCED

ISSUE I: WHETHER THE COMPLAINT FILED BY SECOND INNINGS OLD

AGE CHARITABLE TRUST IS MAINTAINABLE OR NOT?

(¶1.) The Counsel for the Respondent respectfully submits that the complaint filed by the
complainant under Section 34(1) of the Consumer Protection Act, 2019 is not maintainable.

(¶2.) In order to maintain a complaint before the consumer forums, three ingredients are
necessary:

(i) There must be a complaint

(ii) Complaint must be by a complainant
(iii) There must be a consumer dispute2

(¶3.) In the present case, the second ingredient is in contention. The respondent humbly
submits that the Second Innings Old Age Charitable Trust neither constitutes a person nor a
consumer as per the provisions of the Consumer Protection Act, 2019, and therefore does not
have the locus standi to appear before the Hon’ble Commission.

1.1 The trust is not a legal entity

(¶4.) Section 2(31) of the Consumer Protection Act, 2019 states that:
"person" includes— (i) an individual;
(ii) a firm whether registered or not;
(iii) a Hindu undivided family;
(iv) a co-operative society;
(v) an association of persons whether registered under the Societies Registration Act, 1860 or
not;
(vi) any corporation, company or a body of individuals whether incorporated or not;
(vii) any artificial juridical person, not falling within any of the preceding sub-clauses; 3
A bare reading of the section clearly evinces that a trust does not fall within any of the
aforementioned categories of persons. Trust is not an association, firm, body of individuals,
corporation, and therefore, not a juristic person.4

2
Fon-Ess India (P) Ltd. vs Kerala State Consumer D.R., AIR 2006 Ker 319
3
Section 2(31) Consumer Protection Act, 2019
4
N.M. Nabeesa vs. State of Kerala, Crl. MC 3799/2018

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(¶5.) In the case of Pratibha Pratisthan vs The Manager, Allahabad Bank on 6 September,
2007, the NCDRC made the following observation regarding the issue of trust being a
consumer or not : “in DJ Hayton, Hayton & Marshall - Commentary and Cases on The Law
of Trusts and Equitable Remedies, has observed that ‘A trust, unlike a company, has no legal
personality; thus, it cannot own property for entering into contracts, sue or are sued. It is the
trustees who own the trust property, enter into contracts, sue or are sued. A trustee as such
has no distinct legal personality in his representative capacity separate from himself in his
personal capacity.’ Considering the aforesaid definition of the word, person, a public trust is
not person which can be considered to be a consumer entitled to file complaint before the
Consumer Forum. The reasons are:
1. Trust is not included in the definition of the word person. The Legislature included
cooperative society under the definition person but not public trust;
2. Secondly, trust is not a legal entity.5

(¶6.) The same precedent that trust is not a consumer has been reiterated and relied upon by
the Apex Court in the case of Pratibha Pratisthan & Ors. vs Manager, Canara Bank &
Ors.6 as well as the Consumer Forums in a plethora of cases.7

1.2. The trust is not a consumer in the present case

(¶7.) Now, it has been irrefutably established that trust is neither a legal entity nor a consumer.
It is submitted that even in the present factual matrix, the trust has not availed the benefits of
the services provided by the respondent and therefore it cannot file a complaint. In the case of
Jain Jagruti Centre-Juhu vs M/S. Gem Tours and Travels8, whose facts are quite similar
to the case at hand, the Mumbai SCDRC observed that “The members themselves should have
come forward to make complaint of deficient service against the tour operators, but, none of
the members nor passengers who had undertaken journey had sworn affidavit in support of the

5
Vijay Sports Club vs The State Of West Bengal & Ors, 2019 SCC OnLine Cal 2331, L. Shivalingiah vs. Anand
Social and Educational Trust, ILR 1985 KAR 1950
6
Pratibha Pratisthan & Ors. vs Manager, Canara Bank & Ors., (2017) 3 SCC 712
7
Icici Bank Limited And Others vs Consumer Guidance Society, F.A. No. 870 of 2009 against C.C. No. 83 of
2007 District Forum-II Vijayawada (A.P. SCDRC), M/S Tata Engineering, Mumbai And ... vs 1. Rural Development
Trust, F.A. No. 1703 of 2007 against C.C. No. 62 of 2005 District Forum Ananthapur (A.P. SCDRC), Sri Subir Dutta
vs Rai Bahadur Bissessurlal Motilal, F.A. No. 322 of 2010 against C.C. No. 259 of 2007 District Forum Kolkata (W.B.
SCDRC), Chairman Christ Nagar vs. General Manager, Otis Elevators, C.C. No. 108/15 of 2019 (Kerala SCDRC),
Consumer Unity & Trust Society Jaipur vs. The State of Rajasthan LNIND 1989 NCDRC 38, South Indian Education
Society vs UCO Bank and Others
8
Jain Jagruti Centre-Juhu vs M/S. Gem Tours And Travels, Complaint Case No. CC/02/399 (Maharasthra
SCDRC)

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Complainants claim and therefore, we are not inclined to allow this complaint.”

(¶8.) Therefore, it is submitted that the complaint filed by the complainant is not maintainable
before any consumer forum and, if desired, the complainant has to seek remedy only in a civil
court.9

ISSUE II: WHETHER THE ACT OF TRIP MAKERS CHARGING AN AMOUNT

OF ADDITIONAL INR 500/- PER PERSON FOR VIP ENTRY AMOUNTS TO
UNFAIR TRADE PRACTICE?

(¶9.) Section 2(47) of the Consumer Protection Act, 2019 defines unfair trade practice as:
“a trade practice which, for the purpose of promoting the sale, use or supply of any goods or
for the provision of any service, adopts any unfair method or unfair or deceptive
practice….including any of the following practices, namely:—
(i) making any statement, whether orally or in writing or by visible representation including
by means of electronic record, which—

(a) falsely represents that the goods are of a particular standard, quality, quantity, grade,
composition, style or model;

(b) falsely represents that the services are of a particular standard, quality or grade;

(c) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new
goods;10

(¶10.) It is humbly submitted that in the case at hand, the act of the respondent does not
amount to unfair trade practice as per the provisions of the statute.

2.1. Compliance with the Police order

(¶11.) It is clear from the bare reading of the section that the act of the respondent does not
come under the purview of any unfair or deceptive practice in section 2(47) as the act of
increasing VIP entry rates was mere compliance with the District Police who had revised the
VIP entry rates from INR 500/- to INR 1500/-.

9
Arti Katoch vs. Edu, Smart Services Pvt. Ltd. 2018 SCC OnLine NCDRC 1290
10
Section 2(47), Consumer Protection Act, 2019

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(¶12.) Point e. of the Tour Package (Annexure 1) states that “The package is subject to
government guidelines and regulations pertaining to the Prathnath Yatra. The travel agency
reserves the right to make necessary changes as per the changes in government rules and
regulations.”11 The complainant had already acceded to the terms and conditions of the
package, which explicitly informs the purchaser about the possible change in the package
according to the government guidelines.

(¶13.) In the case of Govindan Kutty. C.P. v. Indus Motors12, it was held that the difference
between quotation price and price on the bill was because of the hike of tax of the vehicle
increased from 6% to 8%. And thus, the price of the vehicle was increased and even though
the complainant was constrained to arrange 15000/- extra amount towards tax is the amount
which he must pay to the Government.

(¶14.) Also, in the case of Kunhan Nair v. the Manager, KSBC13, it was held that keeping
the collection of excess amount for the liquor bottles sold to the petitioner by the opposite
party keeping the old MRP label on the bottles was because of the increase in cess by the
Government and is perfectly within the legal framework and keeping the norms followed in
the earlier years and so no unfair trade practice or any deficiency in service can be attributed
on the opposite party in this case.

(¶15.) It is submitted that the precedent established in the aforementioned cases clearly
evinces that the individual/agency cannot be held liable for unfair trade practice for complying
by the government rules. Similarly, in the instant case too, the act of the respondent does not
amount to any kind of unfair trade practice.

1.
2.2. Honest Intention on part of the respondent

(¶16.) Moreover, it is submitted that the Apex Court in the case of Ludhiana Improvement
Trust v. Shakti Coop House Building Society Ltd.14 it was held that to support the finding
of unfair trade practice, there has to be some cogent material before the commission and
inferential finding is not sufficient to attract section 2(1)(r) of the act.

(¶17.) In the instant case, there was an increase of INR 1000/- on VIP entry rates out of

11
Point e., Annexure 1, Moot Proposition
12
Govindan Kutty C.P. vs. Indus Motors, Case No. CC/15/84, (CDRF, Kasaragod, Kerala)
13
Kunhan Nair vs. The Manager, KSBC Case No. CC/4/2013 (CDRF, Kozhikode, Kerala)
14
Ludhiana Improvement Trust v. Shakti Coop House Building Society Ltd. 2009 12 SCC 369

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which the respondent has paid 50% of the increase.15 This shows the good and honest
intentions of the respondent and hence there were no unfair trade practices on the respondent’s
part. Moreover, there was no query raised by the package buyers at the time of the payment of
the increase. They had gone on the tour and had availed of the VIP entrance to the temple.
This rather shows the dishonest intention on the part of package buyers and the Second
Innings Old Age Charitable Trust.

(¶18.) Therefore, it is humbly submitted that the acts of the respondent charging an additional
INR 500/- per person does not amounts to unfair trade practice.

ISSUE III: WHETHER THE ACT OF TRIP MAKERS TO PROVIDE PILGRIMS

ACCOMMODATION IN A SUBSIDIARY HOTEL RATHER THAN A 3-STAR HOTEL
AND DISTURBANCE CAUSED DUE TO THE PARTYING AND LOUD MUSIC MAKES
THE TRIP MAKERS LIABLE FOR DEFICIENCY IN SERVICE?

(¶19.) Section 2 (11) of Consumer Protection Act, 2019 defines deficiency of service as
“ any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by a person in pursuance of a contract or
otherwise in relation to any service and includes:
(a) any act of negligence or omission or commission by such person to the consumer and
(b) deliberate withholding of relevant information by such person to the consumer.”16

(¶20.) The essential ingredients to constitute a deficient service are:

(a) The quality and manner of performance of service that should have been required to be
maintained by or under any law for the time being in force or undertaken to be
performed by a person in pursuance of a contract or otherwise.
(b) The deficiency must be in relation to a service

(¶21.) In the present case, it is contended that a bare reading of the section as well as the
essentials that there has been no deficiency in service on the behalf of the respondent.

1.
3.1. Advertisement is not an offer

(¶22.) Under the first issue about the accommodation of the hotel, it is submitted that that the

15
Moot Proposition, Para No. 4
16
Section 2(11) of Consumer Protection Act, 2019

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complainant ‘expected’ a stay in Le Maddison. It was neither guaranteed nor promised by the
agency. The travel agency provided an advertisement which is not a binding contract in itself.
It is merely an invitation to offer. The terms and conditions of the contract are decided after
negotiation. This was laid down in the landmark judgement in the English case of Carlill vs.
Carbolic Smoke Ball Co17., which has been relied upon by the Apex Court in a multitude of
cases. Thus, providing the name of hotel in the advertisement does not lead to any deficiency
in service and nothing was misled.

(¶23.) A proposal (or offer) must also be distinguished from an “invitation to offer”. A person
may supply some information and invite the other to make an offer or make a definite offer. In
order to ascertain whether a particular statement amounts to an offer or an invitation to offer,
the test would be the intention with which such statement is made. Does the person making
the statement intent to be bound by it as soon as it is accepted by the other or he intends to do
some further act, before he becomes bound by it? In the former case, it amounts to a proposal
or offer and in the latter case, it amounts to an invitation to offer.18

(¶24.) It is submitted that in the instant case, the advertisement issued by the respondent
(Annexure A2) is not an offer but rather an invitation to offer. Therefore, although in
advertisement it was claimed that the pilgrims will be taken to Le Maddison, the respondent
was not bound by it as an advertisement is not an agreement.

(¶25.) ‘Offer’ has a meaning specific to law. The fact that parties call something an offer does
not mean it is an offer in legal sense. In law, an act or statement must have three essential
characteristics to be considered an offer:
a) it must set out or refer to terms on the basis of which offeror is willing to contract with one
or more other persons (the ‘offerees’)
b) these terms must be sufficiently certain – that is, they must be clear enough and broad
enough in their scope to form the basis of an enforceable contract.
c) And finally, the offer must give an indication that the offeror intends to be bound without
further negotiation as soon as his offer is accepted by the offeree.19

(¶26.) In the instant case, none of the ingredients are getting satisfied because no terms or
conditions were displayed in the advertisement and there was no indication on the part of
offeror of being bounded by the advertisement. An offer is constituted when the offeror
17
Carlill vs. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256
18
Anson’s Law of Contract, 31st Edition 2020, Oxford Publication; Bank of India vs. O.P. Swaranakar, AIR 2003
SC 858
19
T.T. Arvind, Contract Law, 2016, Oxford Publication

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intends to be bound by the offer without further negotiations and in the present case, the
advertisement was put out as a means of promoting and publicizing the respondent’s package,
not to enter into an offer on those terms.

(¶27.) In Mylappa Chettiar v. Aga Mirza20, it was held that an invitation to offer should not
be confused with the offer itself and that quotations given indicating the values of articles to
be supplied should not be regarded as an offer. They are not definite proposals though it is
meant to attract offers.21 Therefore, the advertisement published by the respondent was an
invitation to offer and not an offer, and therefore, respondent is not bound by the
advertisement.

(¶28.) Furthermore, on the contentions raised by the complainant on the stay, it is submitted
that the tour company made sure to provide the best services to the pilgrims. All facilities
were provided such as AC rooms with TV, internet facility and clean rooms etc. Also, the
company provided a soothing trip to the pilgrims. The area around the hotel was situated near
hill top which provided a calm and de-stressing environment. It took utmost care of the
elderly pilgrims on the yatra.

1.
3.2. Sensitive complainant

(¶29.) Moreover, it is submitted that every other tourist enjoyed their stay in the hotel and
was satisfied with the facilities provided but it’s just the complainant who found it not up to
the mark. The reason for this is due to the sensitive nature of the elderly citizens, but that does
not bring into question the facilities provided by the respondent, which were nothing less than
the best.

(¶30.) In Heath vs. Mayor of Brighton22, the court refused to grant injunction in favour of
the incumbent and trustees of a Brighton Church to restrain a buzzing noise from the
defendant’s power station. It was found in this case that the noise did not cause annoyance to
any other person but the incumbent, nor was the noise such as could district the attention of
ordinary persons attending the church.

20
Mylappa Chettiar v. Aga Mirza AIR 1920 Mad 177
21
Patridge Vs Crittenden (1968) 1 WLR 1204
22
Heath vs. Mayor of Brighton, (1908) 98 L.T. 718 : 24 T.L.R. 414

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(¶31.) If some noises which do not disturb or annoy an ordinary person but disturb only the
complainant in his work or sleep due to his over sensitiveness, no action can be taken.23
Therefore, it is submitted that there was no deficiency of service on part of the respondent and
no action arises in the present case due to the principle of sensitive plaintiff.

23
Halsey vs. Esso Petroleum Co. Ltd. (1961) 2 All ER 145

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PRAYER

Wherefore, in light of facts stated, issues raised, arguments advanced and authorities cited, it is
humbly requested that the Hon’ble Commission may be pleased to hold, adjudge and declare,

1. That the present complaint be dismissed

AND/OR
Pass any other order it may deem fit in the interest of Justice, Equity, and Good Conscience.

All of which is most respectfully prayed and humbly submitted.

(Signed)
Place:
Date:
Counsel for the Respondent.

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