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Delhi District Court

Shashank Lakhotia vs Ezeego One Travel & Tours Limited on 5 July, 2023

     IN THE COURT OF DISTRICT JUDGE (COMMERCIAL
      COURT) NORTH WEST DISTRICT, ROHINI COURTS,
                        DELHI

                                CNR No. DLNW01-006506-2020
                                    CS (COMM) No. 155/2020

SHASHANK LAKHOTIA
S/o Sh. S.S. Lakhotia,
House No. 94, 3rd Floor,
Block-RP, Pitampura,
Delhi-110034.
                                                   ---- Plaintiff

Versus

1.     EZEEGO ONE TRAVEL & TOURS LIMITED
       Through its Directors/Authorised Representatives,
       1st Floor, Cecil Court, Lansdowne Road,
       Colaba Mumbai - 400039.
                                            ---- Defendant No.1

2.     Mr. ARUP SEN,
       R/o Flat No.10, Manhar Oak,
       Little Gibbs Rd, Malabar Hill,
       Mumbai - 400006.

       Also at:
       1st Floor, Cecil Court, Lansdowne Road,
       Colaba Mumbai - 400039.
                                            ---- Defendant No.2

3.     Ms. NEELU SINGH,
       R/o K/1804, Reheja Vista,
       Building No.-39, Near Chandivali Studios,
       Raheja Vihar, Powai, Mumbai-400072.

       Also at:
       1st Floor, Cecil Court, Lansdowne Road,
       Colaba Mumbai - 400039.
                                            ---- Defendant No.3


CS (COMM) No. 155/2020                             Page 1 of 10
 4.    Mr. SADHAN KUMAR DUTTA,
      Office at:
      1st Floor, Cecil Court, Lansdowne Road,
      Colaba Mumbai - 400039.
                                           ---- Defendant No.4


5.    Ms. MANISHA NARAYAN AMARAPURKAR,
      R/o D-401, Ameya Society,
      New Prabhadevi Rd, Near Marathe
      Udyog Bhavan, Prabhadevi,
      Mumbai- 400072.

      Also at:
      1st Floor, Cecil Court, Lansdowne Road,
      Colaba Mumbai - 400039.
                                           ---- Defendant No.5


      Date of institution :     25.09.2020
      Date of arguments :       20.04.2023
      Date of judgement :       05.07.2023

JUDGEMENT

1. Vide this judgement, I shall dispose off the present suit for recovery of Rs. 18,98,253/- alongwith pendente-lite and future interest @18% per annum.

2. The relevant facts of the case are that the plaintiff is a Travel Agent and is engaged in supporting and auxiliary transport activities. The defendant no.1 is a Travel Agency and is engaged in supporting and auxiliary transport activities while the defendants no. 2 to 5 are the Directors of the defendant no.1 company. Defendant no.1 approached the plaintiff to engage in business dealings together in the year 2019 and assured the CS (COMM) No. 155/2020 Page 2 of 10 plaintiff that they would maintain healthy business relations and would duly clear the payments and dues of the plaintiff without any unwarranted hassle. Relying upon the assurances given by the defendants, the plaintiff agreed to accept the offer made by the defendants and to engage in business dealings with defendants.

3. It is further stated that it was mutually agreed between the parties that the plaintiff would create an ID with the defendants and then use the portal provided by defendants to routinely book tickets for the clients of plaintiff. It is further stated that since the defendants operated on the lines of a prepaid system, in as much as in order to book a ticket, the plaintiff was required to credit the consideration amount of the tickets in advance to the defendants and then proceed to book the tickets through the Portal of the defendants by 'Logging-in'.

4. It is further stated that the plaintiff and the defendants were engaged in the business dealings thereon wherein, the plaintiff used to book travel tickets using the portal provided by the defendants for the customers of the plaintiff by prepaying the defendants for the same. The plaintiff over the period booked multiple flight tickets for his Customers through the defendants. The plaintiff continued to work with the defendants by placing t he trust in the defendants and believing the assurances given by the defendants to the plaintiff.

5. It is further stated that following the aforesaid, on 22.04.2019, the plaintiff was surprised upon receiving a mail from the defendant company, seeking instructions regarding action to be taken/cancellation vis-a-vis 40 tickets that the CS (COMM) No. 155/2020 Page 3 of 10 plaintiff had previously booked for the date of the flight tickets being inter-alia that on 22.04.2019. The plaintiff categorically replied that no coercive action should be taken against the aforesaid 40 tickets and under no circumstances should be cancelled as the same would cause grave monetary as well as reputation loss to the plaintiff. Following which, the plaintiff did not hear anything from the representatives of the defendant company.

6. It is also stated that defendants no. 2 to 5, through the defendant company, despite the categorical instructions from the plaintiff, cancelled the 40 tickets of the customers of the plaintiff, booked by the plaintiff without any intimation to the plaintiff. It is further stated that the plaintiff had duly booked and subsequently confirmed the 40 tickets to the concerned passengers.

7. It is further stated that upon receiving the information of the unauthorized cancellation while at the Airport, the concerned passengers immediately reached out to the plaintiff in a state of panic and informed the plaintiff of the same. The plaintiff immediately made inquiries and to his utter shock found out that the defendants had cancelled the tickets of the aforesaid concerned passengers without consulting, seeking consent or even intimating the plaintiff or the concerned passengers. It is stated that the defendants miserably failed to inform via Message, e-mail, telephonically or through any other mode of communication, any of the affected parties, being either the plaintiff or the concerned customers of the plaintiff to whom the travel tickets were confirmed.

8. It is stated that the plaintiff was absolutely shaken by the aforesaid occurrence as the plaintiff was answerable to his customers and the defendants had misappropriated the money deposited by the plaintiff and further incredulously cancelled the tickets of the concerned customers of the plaintiff.

9. It is stated that the plaintiff was accordingly, cheated by the defendants for over a sum of Rs.18,48,253/-. It is stated that the illegal acts of the defendants did not cease here as on 22.04.2019 the plaintiff, not being aware of the previous cancellation due to no intimation by the defendants, had credited an amount of Rs. 50,000/- to the defendants through the Portal of the defendants, in order to book tickets for a client of the plaintiff. However, the defendants after having received the aforesaid amount of Rs. 50,000/- and issuing a receipt for the same, closed the account of the client of the plaintiff in an utterly unwarranted fashion. Consequently, the plaintiff lost a total amount of Rs. 18,98,253/- at the hands of the defendants.

10. It is further submitted that the plaintiff further attempted to address the aforesaid issue with the defendants, but the defendants failed to address any issue regarding the losses caused to the plaintiff. Plaintiff further visited the office of the defendants in order to speak with the representatives of the defendants regarding their unlawful activities, but the same was to no avail. Finding no other option, the plaintiff issued a legal notice dated 24.01.2020 to the defendants, but the same was not replied. Hence, the present suit for recovery of Rs. 18,98,253/- alongwith interest pendente-lite and future @18% per annum from the date the payment became due and till the time actual CS (COMM) No. 155/2020 Page 5 of 10 payment is made by the defendants.

11. Summons of the suit were issued to defendants. As per record, Ld. Counsels Sh. Shaswat Jain and Sh. Akash Joshi on behalf of defendant no.1 and 3 appeared through VC on 05.12.2020 while vide order dated 16.02.2021 it was observed that:

"...... Ld. Counsel for plaintiff has filed affidavit of service. As per this affidavit, these defendants were served through e-mai on 09.11.2020. Further, the defendants were served through registered post and receipt and tracking report have been annexed. I deem it due service upon defendant no.2, 4 and 5."

12. However, despite service none of the defendants had appeared and vide order dated 02.12.2021 it was observed that:

"On 05.04.2021, defendant no.3 had filed an application for deletion of his name and had also filed written statement but none is appearing on his behalf. WS is filed beyond limitation period. Therefore, the same cannot be taken on record. So far as application under Order 1 rule 10 CPC praying for deletion of name is concerned, same is dismissed in default for non appearance of defendant no.3.

On 03.08.2021 and 27.09.2021, Ld. Counsel for defendant no.1 had stated that in the present case, IRP has been appointed by NCLT, New Delhi and submitted that she will file the proof of the same.

However, none has appeared on behalf of defendants. Accordingly, I allow the application under Order 8 Rule 10 CPC of the plaintiff and strike off the defence of the defendants, who have not filed written statements though they were served on 09.11.2020 even though the limitation of 30 days extendable up to 120 days for filing of WS has lapsed.

Since none is appearing for defendants, defendants are proceeded exparte."

Accordingly, vide order dated 02.12.2021 all the defendants were proceeded against exparte and the matter was listed for exparte evidence.

13. I have heard Ms. Swadha Gupta, Ld. Counsel for plaintiff and have perused the record carefully.

LIMITATION:

14. The present suit was filed on 25.09.2020. The receipt regarding receiving the amount of Rs.50,000/- in order to book tickets for a client of the plaintiff is dated 22.04.2019 whereafter, the defendants had closed the account of the client of the plaintiff. The legal notice sent to the defendants is dated 24.01.2020. Accordingly, I am of the view that the present suit is within limitation.

ENTITLEMENT:

15. The plaintiff examined himself as PW-1 and led evidence on affidavit Ex. PW1/A and proved the following documents:

1 The downloaded copy of details of tickets purchased by him from the defendants as Ex. PW1/1,

2. E-mail dated 22.04.2019 received by him from defendants as Ex. PW1/2, (however, inadvertently this documents was mentioned in his affidavit as sent by him to defendants),

3. E-mail dated 22.04.2019 sent by defendant to him acknowledging the receipt of money from the portal as Ex. PW1/3,

4. E-mail dated 22.04.2019 sent by defendants to him approving payment as Ex. PW1/4,

5. E-mail dated 22.04.2019 sent by him to defendants informing them about his inability to log in to the portal as Ex. PW1/5,

6. E-mail dated 19.12.2018 (three e-

mails) exchanged between him and the defendants at the time of opening of the portal as Ex. PW1/6 colly,

7. Certificate u/s 65B of Indian Evidence Act as Ex. PW1/7.

16. Plaintiff has miserably failed to prove its case in the absence of the documents regarding cancellation of tickets by the defendants or the advance payment being made with respect to the said 40 tickets by plaintiff to defendants, which are necessary for fair adjudication of the present suit such as payment receipts or tickets etc. Plaintiff has proved on record the three lists as Ex. PW1/1 showing the Book status as confirmed, supplier name, booking channel, carrier, journey date, sector, party name, amount and company etc. but there is not even a single document showing the cancellation of the tickets or the advance payment made by plaintiff to defendants in respect of booking of the said 40 tickets.

The plaintiff has further relied upon the document Ex.PW1/2 i.e. e-mail received by him from the defendants dated 22.04.2019 vide which the defendants had sought advise of the plaintiff as under:

"As discussed with you please advise us action to be taken against attached 40 booking.

Also note for further assistance please contact sale parson."

Further, the plaintiff has relied upon the document Ex.PW1/3 which is the e-mail dated 22.04.2019 sent by defendant to plaintiff acknowledging the receipt of money from the portal of Rs. 50,000/- only and the document Ex. PW1/4 is the e-mail dated 22.04.2019 mentioning that your payment CS (COMM) No. 155/2020 Page 8 of 10 request has been approved, amount of Rs.50,000/- has been credited to your account. Receipt Number is : RT2204FNC161.

The document Ex. PW1/5 is the e-mail dated 22.04.2019 sent by plaintiff to defendants informing them about his inability to log in to the portal and the document Ex. PW1/6 are the e- mails dated 19.12.2018 (three e-mails) exchanged between the plaintiff and the defendants at the time of opening of the portal.

The plaintiff has also failed to produce any of his clients in order to prove unauthorized cancellation of tickets while at the Airport or any action taken by plaintiff to help the customers or the action taken by customers against the plaintiff due to inconvenience and monetary loss faced by them.

17. In view of above discussions, I am of the opinion that though the evidence led by plaintiff has gone unrebutted, the defendant being proceeded exparte, the plaintiff does not deserves the right of recovery of the suit amount. The plaintiff remained unable to prove its case for recovery of Rs. 18,98,253/- , however, as per document Ex.PW1/3 which is the e- mail dated 22.04.2019 sent by defendant to plaintiff shows acknowledging the receipt of money from the portal of Rs. 50,000/- on behalf of the plaintiff. Accordingly, the plaintiff is entitled to recover a sum of Rs.50,000/- from the defendant alongwith interest @ 12% per annum from 22.04.2019 i.e. the date of receipt regarding receiving the amount of Rs.50,000/- by defendant, till realization.

RELIEF:

18. As per discussions above, suit of the plaintiff is accordingly decreed in favour of the plaintiff and against the CS (COMM) No. 155/2020 Page 9 of 10 defendant with costs of the suit. Fee of the advocate is assessed to Rs.22,000/-.

Decree sheet be drawn accordingly. Original documents, if any be returned to plaintiff, as per rules. File be consigned to record room. Digitally signed GURDEEP by GURDEEP SINGH Announced in the open SINGH Date: 2023.07.05 16:17:45 +0530 court on 05.07.2023 (GURDEEP SINGH) District Judge (Commercial Court) North West District Rohini Courts, Delhi CS (COMM) No. 155/2020 Page 10 of 10