Delhi District Court
Effortz Enterprises Pvt Ltd vs India Trade Promotion Organization on 19 December, 2024
Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc.
IN THE COURT OF MS. VASUNDHARA AZAD : SENIOR CIVIL
JUDGE CUM RC, PATIALA HOUSE COURTS, NEW DELHI.
CS SCJ No. 226/19
DLND030005472019
In the matter of :-
EFFORTZ ENTERPRISES PVT LTD
Through its Partner
Namely Mr. Greesh Parakash
Office at D-178, Vivek Vihar,
Delhi-110094.
Also at: D-718, Laxmi Garden,
Loni, District Ghazibad, U.P.
.... Plaintiff
VERSUS
1. INDIA TRADE PROMOTION ORGANIZATION
Through its Chairman & Managing Director
A Govt of India Enterprises,
Pragati Bhawan, Pragati Maiden, New Delhi-110001.
2. Sh. D.K. Jain
The General Manager
India Trade Promotion Organization
A Govt. of India Enterprises
Pragati Bhawan, Pragati Maiden, New Delhi-110001.
....Defendants
CS No. 226/19 Page 1 of 17
Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc.
Date of Institution : 15:02.2019
Date of reserving the judgment : Not reserved
Date of Judgment : 19.12.2024
Final Judgment : Dismissed
JUDGMENT
(On Suit for Recovery of Rs. 2,86,000/-) PLAINTIFF'S VERSION
1. The present suit has been filed by the plaintiff through its Partner Sh. Greesh Prakash. As per the plaint, the plaintiff is a private limited company engaged in the business of Indian handicraft items, garments and jewellery and their export by participation in exhibitions in India as well as abroad.
2. It is the case of the plaintiff that the plaintiff company was to participate through Sh. Greesh Prakash in an exhibition at Bari, Italy to be held from 09.09.2017 to 17.09.2017 for which the plaintiff had booked a stall through ITPO, New Delhi/defendant no. 1 and that for this the plaintiff had deposited a sum of Rs. 1,98,000/- through RTGS. It is stated in the plaint that the plaintiff was allotted stand no. 84 in the said exhibition and that Sh. D.K. Jain, General Manager of ITPO/defendant no. 2 wrote to the Visa Counseller, Embassy of Italy on 02.08.2017 for grant of visa facility in favour of Sh. Greesh Prakash and his associate Sh.
CS No. 226/19 Page 2 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. Narender Singh, to enable them to attend the said fair.
3. It is further stated that on 08.08.2017, Sh. Greesh Prakash had also applied for visa for himself and his associate for participation in the aforesaid exhibition to be held at Bari, Italy and deposited requisite fees amounting to Rs. 13,000/ through VFS to Embassy of Italy. Sh. Greesh Prakash also booked a hotel for himself and his associate for stay at Bari, Italy for the exhibition.
4. It is the grievance of the plaintiff that the Embassy of Italy denied visa to Sh. Greesh Prakash and his associate on the ground that during the last three years, Sh. Greesh Prakash had taken multiple people to Italy, none of whom presented themselves to the Embassy upon their return to India. Sh. Greesh Prakash wrote to the Embassy to review its decision for denial of visa, but on 25.08.2017, the Embassy of Italy again denied visa on the ground that justification for the purpose of visit and condition of intended stay was not reliable. It is further stated that on 30.08.2017, upon request, the General Manager, ITPO sent a request letter to the Embassy of Italy for review of its decision and on 01.09.2017, Sh. Greesh Prakash also wrote to the Embassy, requesting it to review its decision for denial of visa, but no response was received from the Embassy of Italy.
5. It is the case of plaintiff that the plaintiff was deprived from CS No. 226/19 Page 3 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. participating in the exhibition scheduled to be held from 09.09.2017 to 17.09.2017 at Bari, Italy due to deficiency/inaction on the part of defendants, as a result of which the plaintiff had suffered huge losses and Sh. Greesh Prakash, one of its Partner, has also suffered mental and physical agony and pain. Hence, by way of present suit, the plaintiff is praying for recovery of Rs. 2,86,000/- along with interest @ 18 % per annum from the defendants.
WRITTEN STATEMENT
6. Summons of the suit were issued to the defendants. Written statement/W.S was filed on behalf of the defendants, wherein the defendants denied the averments made in the plaint and mainly took the stand that as per terms and conditions stipulated, the plaintiff is not entitled to refund the participation charges and hence, the present suit is liable to be rejected on account of suppression of material facts by the defendants. It is further stated in the written statement that the visa fees was not deposited by the plaintiff with the defendants, but was deposited with the Embassy of Italy.
REPLICATION
7. The plaintiff filed the replication to the written statement of defendants wherein the plaintiff has denied the averments made in the written statement filed by defendants and reiterated the averments in the plaint.
CS No. 226/19 Page 4 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. ISSUES
8. After the completion of pleadings, the following issues were framed vide order dated 22.10.2019 :-
1. Whether plaintiff is entitled for recovery of Rs.
2,86,000/- from the defendant. If so, at what rate and for what period? OPP.
2. Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD
3. Whether the plaintiff has not approached the court with clean hands and concealed the true and material facts from the court ? OPD
4. Relief.
PLAINTIFF'S EVIDENCE
9. In support of his case, the plaintiff examined Sh. Greesh Prakash, AR as PW-1 who tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents :
S.No. Documents Exhibits
1 Original Authorization Letter dated Ex. PW1/1
04.02.2019
2 Copy of Certification of Incorporation Mark A
CS No. 226/19 Page 5 of 17
Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. 3 Copy of application for participation Mark B dated 17.07.2007 4 Copy of the stand Mark C 5 Copy of packing list dated 10.08.2017 Mark D
6. Copy of invoice dated 10.08.2017 Mark E 7 Copy of letter dated 02.08.2017 written Mark F by defendant no. 2 8 Copy of passport of Sh. Greesh Prakash, Ex. PW1/2 deponent one of the partners of the (OSR) plaintiff 9 Copy of passport of Sh. Narinder Singh Mark G 10 Copies of e-mails dated 30.08.2017 and Mark H 31.08.2017 11 Copy of letter dated 01.09.2017 Mark I 12 Copies of Hotel Bookings Mark J 13 Copy of payment dated 17.07.2017 Mark K 14 Copy of appeal Mark L 15 Legal notice dated 22.11.2017 Ex. PW1/3 16 Original postal receipts dated 27.11.2017 Ex. PW1/4 17 Reply dated 06.12.2017 Ex. PW1/5 CS No. 226/19 Page 6 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. 18 Copy of standard form for motivating Mark M refusal annulment or revocation of a visa.
10. PW1 was duly cross examined by ld. counsel for defendant and thereafter discharged. The plaintiff thereafter did not examine any other witness and closed its evidence.
DEFENDANT'S EVIDENCE
11. On the other hand, defendant examined Sh. Sanjay Vashistha, Senior Manager from ITPO as DW1 who tendered his evidence by way of affidavit/Ex. DW1/A and relied upon the following documents :-
S.No. Documents Exhibits
1 Copy of Rules and Regulations for Ex. DW1/1
participation in FIERA DEL LEVATE, (OSR)
BARI (ITALY), September, 09-17,
2017
2 Copy of letter dated 11.02.2016 Mark A
3 Reply dated 06.12.2017 of defendant Ex. PW1/7
12. Thereafter, DW1 was cross examined by ld. counsel for the plaintiff and discharged. Since, the defendants did not examine any other witnesses, defence evidence was closed vide separate statement of the AR of the defendant on 27.08.2024 and the CS No. 226/19 Page 7 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. matter was listed for final arguments.
DECISION WITH REASONS
13. I have heard the arguments advanced by Counsels for the plaintiff and defendant and have carefully gone through the record. My issue wise finding is as follows:
ISSUE NO. 2: Whether the plaintiff has no cause of action to file the present suit against the defendant? OPD
14. Issue no.2 is being taken up first since it challenges the maintainability of the present suit. The onus of proving this issue was on the defendant. However, the defendant has not led any evidence in support of issue no. 2.
15. Hon'ble Supreme Court of India in 'Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust' (2012) 8 SCC 706, held that the cause of action is a bundle of facts which gives the plaintiff the right to relief against the defendant and a cause of action must include the some act done by the defendant since in absence of such an act no cause of action can possibly accrue.
16. Further, in 'ABC Laminart (P) vs. A.P.Agencies' (1989) 2 SCC 163, Hon'ble Apex Court while explaining the meaning of 'cause of action' has held that a cause of action means every fact, which CS No. 226/19 Page 8 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court and in other words, it is a bundle of facts. The relevant paragraph 12 of the said judgment reads as under:
"12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the l aw applicable to them gives the plaintiff a fight to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the fight sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
17. It is essentially the case of the plaintiff that it suffered loss in the sum of Rs. 2,86,000/-as it was unable to participate in the exhibition held at Bari between 09.09.2017 to 17.09.2017 due to negligence and in action on the part of the defendant/ ITPO as visa was denied to it by the Italian embassy. In light of the law highlighted above, it is clear that undoubtedly a cause of action exists in favour of the plaintiff with respect to the present suit.
CS No. 226/19 Page 9 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. Hence, issue no. 2 is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 1: Whether plaintiff is entitled for recovery of Rs. 2,86,000/- from the defendant. If so, at what rate and for what pe- riod? OPP.
18. The onus to prove this issue was upon plaintiff. As per the plaint, a total amount of Rs. 2,86,000/- is claimed by the plaintiff, such that; (i) a sum of Rs.1,98,000 is claimed by the plaintiff as amount paid towards stand booking, (ii) a sum of Rs. 13,000 is claimed as visa fees paid through VFS to the Italian Embassy; and
(iii) a sum of Rs. 75,000 is claimed by the plaintiff towards men- tal/physical pain as well as expenses incurred in purchase of goods to be exhibited and deprivation of expected profits.
19. As has already been stated before, it is essentially the case of the plaintiff that it suffered the aforestated loss in the sum of Rs. 2,86,000/-as it was unable to participate in the exhibition held at Bari between 09.09.2017 to 17.09.2017 due to negligence and in action on the part of the defendant/ ITPO as visa was denied to it by the Italian embassy.
20. Before venturing forth, I would like to refer to the judgment 'Postgraduate Institute of Medical Education and Research v. Jas- pal Singh', (2009) 7 SCC 330 , where Hon'ble Supreme Court of India observed:
CS No. 226/19 Page 10 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. "17. ...In civil proceedings, a mere preponder-
ance of probability is sufficient, and the defen- dant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceed- ings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reason- able doubt".
21. Therefore, it is trite law that the issues in civil cases are to be de-
cided on the scale of preponderance of probabilities. In Dr. N.G. Dastane vs. Mrs. S.Dastane on 19th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under:-
"24. The normal rule which governs civil pro- ceedings is that a fact can be said to be estab- lished if it proved by a preponderance of proba- bilities. This is for the reason that under the Evi- dence Act, Section 3, a fact is said to be proved when the court either believes it to exist or con- siders its existence so probably that a prudent man ought, under the circumstances of the par- ticular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of proba- bilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the sec- ond to weigh them, though the two may often in- termingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has of- ten a difficult choice to make but it is this choice which ultimately determines where the prepon- derance of probabilities lies. ..."CS No. 226/19 Page 11 of 17
Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc.
22. On the basis of relief sought by the plaintiff and with reference to the judgments as noted above, it was imperative upon the plaintiff to establish that it had suffered loss in the amount of Rs. 2,86,000/- on account of violation of a contractual liability by the defendant and consequently, the defendant was liable for making good the same to the plaintiff.
23. In light of this contextual background of the present lis under con-
sideration, it is important to examine the testimony of PW-1 in or- der to ascertain if the plaintiff has been able to prove its case on a balance of probability. In order to prove its case, the plaintiff ex- amined its AR Sh. Greesh Prakash as PW-1 who tendered his evi- dence by way of affidavit (Ex.PW1/A) and placed on record, inter alia, original authorization letter dated 04.02.2019 (Ex.PW1/1).
24. It is important, at this stage, to refer to the argument advanced by ld. counsel for the defendant that the AR of the plaintiff, i.e. PW1 Sh. Greesh Prakash, has no legal authority to institute the present suit on behalf of the plaintiff as the authorization letter dated 04.02.2019 issued in favour of Sh. Greesh Prakash (Ex. PW1/1) is without any legal foundation, it not being a board resolution au- thorizing Sh. Greesh Prakash to file the instant suit against the de- fendant. Per contra, it is submitted by ld. counsel for the plaintiff that the above stated argument of defence counsel is devoid of any merit as no issue has been framed on this aspect.
CS No. 226/19 Page 12 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc.
25. I am in respectful disagreement with the argument of ld. counsel for the plaintiff as in my considered opinion, the aspect of whether the AR of the plaintiff is entitled to institute the present suit is encompassed within issue no.1 framed in the present mat- ter.
26. Hon'ble High Court of Delhi in 'M/S. Nibro Limited vs National Insurance Co. Ltd.' (AIR 1991 DELHI 25) observed:
"23. On the analysis of the judgments, it is clear that Order 29, Rule 1 of the Code of Civil Proce- dure does not authorise persons mentioned therein to institute suits on behalf of the corpora- tion. It only authorises them to sign and verify the pleadings on behalf of the corporation.......25..It is true that ordinarily the court will not unsuit a person on account of tech- nicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far-reaching effects. It of- ten affects policy and finances of the company. Thus, unless a power to institute a suit is specifi- cally conferred on a particular director, he has no authority to institute a suit on behalf of the com- pany. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard."
27. Hon'ble Supreme Court of India in 'State Bank Of Travancore vs M/S Kingston Computers(I) P. Ltd' (2011 (11) SCC 524) while upholding the aforestated judgment of Hon'ble High Court of Delhi in 'M/S. Nibro Limited vs National Insurance Co. Ltd.' ob- served:
"In our view, the judgment under challenge is liable to be set aside because the respondent had CS No. 226/19 Page 13 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company."
28. Therefore, in light of the above, I am in agreement with the sub-
missions of ld. defence counsel that, in the absence of any docu- ment proved on record that AR of the plaintiff was authorised by the Board of the plaintiff to institute the present suit, it can be said that the AR of the plaintiff has no locus to file the present suit.
29. Further, it is observed that PW 1 has admitted in his testimony as per Ex PW1/A that on 30.08. 2017, General Manager of defen- dant no.1 wrote a letter to Visa Counsellor, Embassy of Italy to re- view its decision of refusal of grant of visa to PW1 and his asso- ciate and that one more opportunity be given to prove their bona fide. This clearly reflects that defendant no.1/ITPO was well per- forming the duties undertaken by it as per its mandate with the plaintiff.
30. With respect to the relief of recovery of sum of Rs. 1,98,000 claimed by the plaintiff from the defendant, the same being the amount paid by the plaintiff to the defendant for stand booking at the exhibition at Bari, Italy between 09.09.2017 to 17.09.2017, it CS No. 226/19 Page 14 of 17 Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. is imperative to look at clause 4 (c) of the terms and conditions of defendant no.1 specified in Mark PW1/D4 (Ex.DW1/1). The aforestated clause clearly specifies the contingencies where in re- fund of participation fees will be considered by defendant no.1 and it provides as follows:
"4. Refund of Participation Fee:
Refund of participation fee will be considered in case where:-
a) The space rent contribution paid by the participant is in excess of the actual amount due to ITPO.
b) The participant after approval withdraws from the participation but space is subsequently let out to some other participant who pays for the space. In such cases the participant can be al-
lowed the refund after deducting 20% of the total amount payable.
c) There is a change in the venue and date of an event and due to this the participant is un- able to participate.
d) ITPO is not able to participate in the Fair on account of non-availability of space, rejection of application or in the event of cancellation of participation due to unforseen circumstances."
31. Further, clause 5 (b) of Mark PW1/D4 (Ex.DW1/1) also states that 'ITPO shall not be liable, in case the concerned Mission of the host/transit country denies visa to any/all representative (s) of the participating Company for any reason'. Although, PW 1 in his cross examination has denied that he was shown PW1/D4 at the time of filing up of application, detailed perusal of cross examina-
CS No. 226/19 Page 15 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc. tion of PW1 reveals that he has admitted PW1/D3 as the applica- tion of the plaintiff to the defendant for participation in the fair. Clause 16 of PW1/D3 specifically states the applicant (being the plaintiff in the instant case) has read the rules and regulations of participation framed by defendant no.1/ITPO and fair organiser and the applicant/plaintiff agrees to abide by the same. The stance of PW1 with respect to not being shown of the terms and condi- tions of defendant no.1 does not hold merit as it is difficult to fathom as to why the plaintiff would go ahead and sign the appli- cation form Ex PW1/D3 which expressly states that the plaintiff is aware of the terms and conditions of the defendant and agrees to abide by the same, if it had not been shown the concerned terms and conditions.
32. Further, admittedly, as per evidence affidavit Ex PW1/A, the plaintiff is claiming inter alia, from the defendant, a sum of Rs. 13,000/-i.e. the amount paid by the plaintiff through VSF to the Embassy of Italy. It has nowhere been established by the plaintiff through its evidence, how the liability for payment of the aforestated sum of Rs. 13,000 rests on the shoulder of the defen- dant, when neither the money was paid to it, nor was there any agreement to that effect with respect to repayment of such money by the defendant to the plaintiff in the event of refusal of visa by the Embassy of Italy.
CS No. 226/19 Page 16 of 17Efforts Enterprises Pvt. Ltd. vs. India Trade Promotion Organization etc.
33. Accordingly, the plaintiff has, in my considered opinion, failed to prove that there was any deficiency of services on the part of the defendant and that defendant is liable to pay the suit amount. Hence, in view of these facts and reasons, it can be said that the plaintiff has miserably failed to prove its case against the defen- dant and hence, this issue is decided against the plaintiff and in favour of the defendants.
ISSUE NO. 3: Whether the plaintiff has not approached the court with clean hands and concealed the true and material facts from the court ? OPD
34. The onus of proving this issue was on the defendant. However, since the defendant has not led any evidence in support of their case, issue no. 3 is decided against the defendant and in favour of the plaintiff.
Relief.
35. In view of the given facts and reasons, it is held that the plaintiff is not entitled to any relief and therefore, the suit of the plaintiff is dismissed accordingly. No order as to costs.
36. Decree-sheet be prepared accordingly. File be consigned to Digitally signed record room after due compliance.
by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2024.12.19 15:51:30 +0530 [VASUNDHARA AZAD] Announced in the open court SCJ-CUM-RC on 19.12.2024. New Delhi Distt, PHC, Delhi CS No. 226/19 Page 17 of 17