Delhi District Court
Alpine Travels & Tours Pvt. Ltd vs Indian Holiday Pvt. Ltd on 30 September, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided by : Mr Jay Thareja, DJS
Civil Suit No: 228/10
Unique Case ID No. 02403C0311372010
Alpine Travels & Tours Pvt. Ltd.
42, Zamrudpur Community Centre,
Kailash Colony Extension, New Delhi
Through its Authorized Representative
Sh. Surinder Kumar Sharma ... Plaintiff
Versus
Indian Holiday Pvt. Ltd.
70, LGF World Trade Centre,
Barakhamba Lane, New Delhi
Through its Director/ Principal Officer ... Defendant
SUIT FOR RECOVERY OF RS.88,824/-
(RUPEES EIGHTY EIGHT THOUSAND EIGHT
HUNDRED AND TWENTY FOUR ONLY)
ALONGWITH PENDENTE - LITE AND
FUTURE INTEREST UNDER ORDER XXXVII,
CODE OF CIVIL PROCEDURE , 1908
DATE OF INSTITUTION : 01.12.2009
DATE OF ARGUMENTS : 27.09.2011
DATE OF DECISION : 30.09.2011
JUDGMENT
1. This suit has been filed by the plaintiff against the defendant for recovery of Rs.88,824/- alongwith costs and pendente-lite and future interest at the reasonable rate.
2. In this suit, both the plaintiff and the defendant are companies incorporated under the Companies Act, 1956. The plaintiff is an accredited IATA (International Air Transport Civil Suit No.228/10 :2: Association) approved agent and is engaged in the business of issuing both domestic and international air tickets of various airlines on the basis of Ticket Stock Quota and Utilization which is fixed by IATA BSP (Billing Settlement Plan). The IATA code of the plaintiff is 14300624. The defendant is a company engaged in the business of reservation of air tickets only. The plaintiff has claimed that the defendant does not have the authority to issue air tickets on its own. Therefore, it gets air tickets issued through approved IATA agents like the plaintiff.
3. The cause of action pleaded in the plaint is that on 24.8.2009, the defendant had sent an Exchange Order ("47740") to the plaintiff vide fax no. 011-23413121, for issuance of air tickets in favour of Ms. Ruchi Khandelwal, Ms. Reema Khandelwal and Mrs. Manju Kandelwal for Delhi/Bankok/ Melbourne/ Bankok/ Delhi and another air ticket in favour of Mr. Ebid Mahmoud for Sectors Delhi/Shanghai/Delhi. In pursuance of the Exchange Order ("47740"), the plaintiff had generated the tickets in favour of the aforesaid persons on the 'Amadeus Reservation System', used by a number of travel agencies including the plaintiff and the defendant. Thereafter, the defendant had generated the PNR numbers for the airlines involved i.e. Thai Airways and China Eastern Airlines using its Amadeus ID DELVS 3835 and transferred the same to the plaintiff's Amadeus ID DELVS 322L for issuance of the E-tickets. Upon issuance of the E-tickets, the plaintiff had raised two invoices on the defendant viz. invoice no. IS/1768 dated 24.8.2009 of Rs.1,13,348/- and invoice no. IS/1715 dated 25.8.2009 of Rs.25,476/-. The defendant had honoured the said invoices by paying a sum of Rs.50,000/- by way of cash on Civil Suit No.228/10 :3: 19.9.2009 and by handing over a cheque ("458179") dated 22.9.2009 of Rs.88,824/-, to the plaintiff. On 3.10.2009, the plaintiff had presented the said cheque for encashment, through its banker, Canara Bank, South Ex, Part-I, New Delhi-48. But, it was returned unpaid by Axis Bank Ltd., Barakhamba Road, New Delhi due to insufficiency of funds in the account of the drawer, Sh. Tarun Rastogi.
4. On the strength of the aforesaid cause of action, the plaintiff has claimed that it is entitled to receive the amount of Rs. 88,824/- alongwith reasonable interest, from the defendant.
5. Upon service of summons, the defendant has contested this suit by filing a written statement. In the written statement filed on behalf of the defendant, the relevant preliminary objections taken are that there was no privity of contract between the plaintiff and the defendant regarding the impugned transaction(s) and that the suit is bad for non-joinder of necessary party, Sh. Tarun Rastogi, former employee of the defendant. In reply on merits, the defendant has stated that it had never issued the Exchange Order ("47740") dated 24.8.2009 to the plaintiff; the Exchange Order ("47740") bears forged signatures and was misused by Sh. Tarun Rastogi, former employee of the defendant; that the payment of Rs.50,000/- was made by Sh. Tarun Rastogi out of his own pocket, instead of the funds of the defendant and that the defendant had/has no concern with the cheque ("458179") dated 22.9.2009 of Rs.88,824/-, issued by Sh. Tarun Rastogi. Further, the defendant has stated that upon receiving knowledge of the fraud committed by Sh. Tarun Rastogi with IATA Civil Suit No.228/10 :4: agents like the plaintiff, it had made complaints at PS Barakhamba Road, which culminated into registration of FIR no. 182/09 under Section 420/406/468/471 IPC against Sh. Tarun Rastogi. Lastly, the defendant has claimed that it had not done any transaction with the plaintiff in 2009 and the original Exchange Order ("47740") was issued by the defendant to M/s Riya Travels for issuance of two tickets in favour of Ms. Marie Karen Brady for DXB-DEL-TRV-DXB sectors.
6. In the replication, the plaintiff has traversed the contents of the written statement filed by the defendant and reiterated and reaffirmed the contents of the plaint. Also, the plaintiff has alleged that by registration of the FIR no. 182/09 under Section 420/406/468/471 IPC, the defendant has admitted that Sh. Tarun Rastogi was not acting in his personal capacity. Instead, he was acting on behalf of the defendant.
7. On the pleadings of the parties, the following issues were framed on 20.12.2010 :-
"1. Whether the suit is bad for non joinder of necessary party, Sh. Tarun Rastogi? OPD.
2. Whether there was any privity of contract between the plaintiff and the defendant? OPP/OPD.
3. Whether the plaintiff is entitled to the amount of Rs.88,824/-? OPP.
4. Whether the plaintiff is entitled to interest ? If so, at what rate and for which period? OPP.
5. Relief."
8. In support of its case, the plaintiff examined PW-1 Sh. Surender Sharma. During examination in chief, PW-1 Sh. Surender Civil Suit No.228/10 :5: Sharma deposed in line with the plaint and tendered in evidence, the following documents :-
(i) True Copy of Resolution dated 14.11.2009 (Ex.PW1/1).
(ii) True Copy of Certificate of Incorporation (Ex.PW1/2).
(iii) Certificate issued by IATA (Ex.PW1/3).
(iv) Exchange Order ("47740") dated 24.8.2009 (Ex.PW1/4).
(v) Computer generated E-Tickets (Ex.PW1/5 Colly).
(vi) Computer generated copy of PNRs (Ex.PW1/6).
(vii) Computerized Office copies of Bills (Ex.PW1/7 and Ex.PW1/8).
(viii) Copies of the Receipts (Ex.PW1/9 and Ex.PW1/10).
(ix) Copy of Statement of Account (Ex.PW1/11).
(x) Original Cheque and Return Memo (Ex.PW1/12 and Ex.PW1/13).
(xi) FIR no. 182/09 dated 17.12.2009 (Ex.PW1/14).
(xii) E-mail dated 4.11.2009 (Ex.PW1/15).
9. During cross examination, PW-1 Sh. Surender Sharma stated that he had been working with the plaintiff since 2005 as Manager (Accounts and Finance) and the impugned booking/transactions were done on behalf of the plaintiff by Sh. Vishal Dhamija, who had left the plaintiff and joined Aman Travels. PW-1 Sh. Surender Sharma admitted that the parties used to settle their accounts, fortnightly and thereafter, the defendant used to make the payments to the plaintiff. Also, PW-1 Sh. Surender Sharma admitted that during the period 25.9.2008 till 25.12.2008, the defendant had made all the payments by way of cheques drawn on ABN Amro Bank, Barakhamba Road, New Delhi and there was no dispute between the plaintiff and the defendant during the said period. PW-1 Sh. Surender Sharma Civil Suit No.228/10 :6: denied that the Exchange Order ("47740") dated 24.8.2009 was a forged and fabricated document; that Sh. Tarun Rastogi had no authority to send the Exchange Order ("47740") dated 24.8.2009 on behalf of the defendant and that the said Exchange Order ("47740") dated 24.8.2009 was sent by Sh. Tarun Rastogi, in his personal capacity without any knowledge, consent, instructions and authorization of the defendant. Also, PW-1 Sh. Surender Sharma denied that the original Exchange Order ("47740") was issued by the defendant to M/s Riya Travels; that Sh. Harvinder Singh Kalra, alone was authorized to place Exchange Orders on behalf of the defendant and that the statement of account filed by the plaintiff contained false entries. After cross examination of PW-1 Sh. Surender Sharma, the plaintiff evidence was closed.
10. In support of its case, the defendant examined DW-1 Sh. Harvinder Singh Kalra. In his examination in chief, DW-1 Sh. Harvinder Singh Kalra deposed in line with the written statement and tendered in evidence, the following documents :-
(i) Certified Copy of Board Resolution dated 13.10.2009 (Ex.DW1/A OSR).
(ii) Statement of Account (EX.DW1/B).
(iii) Certificate under Section 65-B of the Indian Evidence Act (Ex.DW1/C).
(iv) Exchange Order ("47740") dated 12.8.2009 (Ex.DW1/D OSR).
(v) Copy of FIR No. 182/09 PS Barakhamba Road (EX.DW1/E).
11. During cross examination, DW-1 Sh. Harvinder Singh Kalra stated that Sh. Tarun Rastogi had worked for the defendant for a period of 18 months and his job profile included the task of Civil Suit No.228/10 :7: ticketing for the defendant. However, he clarified that Sh. Tarun Rastogi was not authorized to issue any exchange order on behalf of the defendant. Further, DW-1 Sh. Harvinder Singh Kalra stated that all the Exchange Orders of the defendant are issued by him, on behalf of the defendant. Upon being questioned whether the plaintiff had been informed that only the Exchange Orders issued by him were to be honoured, DW-1 Sh. Harvinder Singh Kalra stated that he had not given any written instructions to the plaintiff to the effect that it is not required to honour the exchange orders that did not bear his signatures. Also, DW-1 Sh. Harvinder Singh Kalra stated that he had not given any specimen signatures to the plaintiff for comparison while receiving Exchange Orders on behalf of the defendant. DW-1 Sh. Harvinder Singh Kalra denied that the defendant had transacted with the plaintiff during 2009; that Sh. Tarun Rastogi was authorized to issue Exchange Orders on behalf of the defendant; that the FIR registered against Sh. Tarun Rastogi was an afterthought on the part of the defendant and that the statement of account, Ex.DW1/D filed by the defendant was based on false entries and is not a true statement of account, reflecting the transactions between the parties. After cross examination of DW-1 Sh. Harvinder Singh Kalra, the defendant evidence was closed.
12. I had heard Sh. Deepak Vohra, Ld. Advocate for the plaintiff and Sh. Chandan Malik, Advocate for the defendant on 27.9.2011. The issue wise findings, in this case are as follows:
Civil Suit No.228/10 :8: ISSUE NO.1 & 213. The onus of proving issue no.1 was placed on the defendant and the onus of proving issue no.2 was placed on both the parties. In respect of these issues, the case of the plaintiff is that Sh. Tarun Rastogi is not a necessary party to this suit as the plaintiff had privity of contract with the defendant and not Sh.
Tarun Rastogi, in his personal capacity. Per contra, the case of the defendant is that Sh. Tarun Rastogi is a necessary party to this suit as the plaintiff had privity of contract with Sh. Tarun Rastogi, who had sent the Exchange Order ("47740") dated 24.8.2009 in his personal capacity and not on behalf of the defendant.
14. In support of the case of the plaintiff on these issues, the Ld. Advocate for the plaintiff had drawn reference to the judgment of the Hon'ble High Court of Delhi in Niranjan Kaur v New Delhi Hotels Ltd. & Ors, AIR 1988 Delhi 332 and the cross examination of DW-1 Sh. Harvinder Singh Kalra. In the aforesaid judgment, the Ld. Advocate had pointed out that the Hon'ble High Court of Delhi, after referring to various judgments of English Courts, including the judgment of the House of Lords in Lloyd v Grace, Smith & Co. (1912) AC 7161 has recapitulated the law regarding civil liability of a company on account of fraud committed by its employees, in the following manner :-
"33. A servant may be defined as any person employed by another to do work for him on the terms that he, the servant is to be subject 1 The judgment has been followed in The Secretary, Naguneri Peace Memorial Cooperative Urban Bank Ltd. Naguneri v Alamelu Ammal, AIR 1961 Mad 419 and National Bank of Lahore Ltd., Delhi, Appellant v Sohan Lal Saigal and others, AIR 1962 Punjab 534.Civil Suit No.228/10 :9:
to the control and directions of his employer in respect of the manner in which his work is to be done.
34. A master is not responsible for the wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master (vide Poland v. Parr (John) and Sons, (1927) 1 KB 236, 240; Warren v. Henlys Ltd., (1948) 2 All ER 935, 937; Ilkiw v. Samuels, (1963) 1 WLR 991, 997, 1002, 1004). A master is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If a servant does negligently that which he was authorised to do carefully, or if he does fraudulently that which he was authorised to do honestly, or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud or mistake (vide Barwick v. English Joint Stock Bank, (1867) 2 Ex 259,
266). On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible for in such a case the servant is not acting in the course of his employment, but has gone outside of it (vide Canadian Pacific Rly. Co. v. Leonard Lockhart, AIR 1943 PC 63.
35. In Barwick v. English Joint Stock Bank's case (1967) 2 Ex 259 (supra), the defendant-
bank was held liable for a fraudulent representation made to the plaintiff by the manager of one of the bank's branches in relation to the business under his control. It Civil Suit No.228/10 :10: was long supposed that where the fraud or other wilful wrong doing of the servant was committed for his own benefit and not on his master's behalf, his master was not responsible. It was, however, decided by the House of Lords in Lloyd v. Grace, Smith and Co., 1912 AC 716, distinguishing Barwick v.
English Joint Stock Bank (Supra) that this was not so. The facts in Lloyd's case were that in the office of Grace, Smith and Co., a firm of solicitors in Liverpool of long standing and good repute, the appellant, Emily Lloyd a widow woman in humble circumstances, was robbed of her property by the solicitor's managing clerk who had induced Mrs. Lloyd, a client of the firm to transfer to him a mortgage by fraudulently misrepresenting the nature of the deed of assignment, and thereupon obtained and misappropriated the mortgage moneys. The solicitor was held liable to his client for the fraud although it was committed solely for the benefit of the fraudulent servant himself. The House held that so long as a servant is acting within the scope of the employment entrusted to him, his employer is liable for all frauds committed by that servant, whether for the benefit of the employer or for his own profit.
35 (a)."Seeing somebody must be a loser by this deceit, it is more reason that he, that employs and puts a trust and confidence in the deceiver, should be a loser than a stranger" (Vide British Rly. Traffic Co. v. Roper, (1939) 162 LT 217, 221 and Rose v. Plenty, (1976) 1 WLR 141). So even if the fraud committed by the employee is not for the benefit of the employer but is only for himself, the employer would nevertheless be held liable vicariously for the fraudulent act of the employee if it is committed during the course of his employment."
15. In the cross examination of DW-1 Sh. Harvinder Singh Civil Suit No.228/10 :11: Kalra, the Ld. Advocate had pointed out that the said witness had admitted that Sh. Tarun Rastogi was an employee of the defendant for 18 months and his job profile included the task of ticketing for the defendant. Also, the Ld. Advocate had pointed out that DW-1 Sh. Harvinder Singh Kalra had admitted that he had not given his specimen signatures to the plaintiff and that he had not given any written instructions to the plaintiff to the effect that the plaintiff was not required to honour the Exchange Orders that did not bear his signatures.
16. On the strength of the aforesaid statement of law and the cross examination of DW-1 Sh. Harvinder Singh Kalra, the Ld. Advocate for the plaintiff had submitted that the defendant, being the employer of Sh. Tarun Rastogi, is liable for the fraud committed by Sh. Tarun Rastogi, while dealing with the plaintiff. Therefore, it is not open for the defendant to contend that there was no privity of contract between the plaintiff and the defendant arising from the Exchange Order ("47740") dated 24.8.2009.
17. In support of the case of the defendant on these issues, the Ld. Advocate for the defendant had drawn reference to the written statement and the deposition of DW-1 Sh. Harvinder Singh Kalra and submitted that the defendant has consistently stood by its stand that it had not done any transaction with the plaintiff in 2009 and the Exchange Order ("47740") dated 24.8.2009 was executed by Sh. Tarun Rastogi, while acting beyond the scope of his authority. Also, the Ld. Advocate had submitted that despite the disclosure made by the defendant in the written statement that Sh. Tarun Rastogi is facing trial in respect of FIR no.182/09 PS Civil Suit No.228/10 :12: Barakhamba Road, the plaintiff has deliberately not impleaded Sh. Tarun Rastogi as a party in the present suit.
18. After perusing the record of the Court file, hearing the Ld. Advocates for the parties and studying the judgment of the Hon'ble High Court of Delhi in Niranjan Kaur v New Delhi Hotels Ltd. & Ors (supra), I find that the decision on the present issues depend upon the following aspects:-
(i) Whether a master servant relationship existed between the defendant and Sh. Tarun Rastogi?
(ii) Whether the Exchange Order ("47740") dated 24.8.2009, Ex.PW1/4 was issued by Sh. Tarun Rastogi while acting within his authority as an employee of the defendant?
19. In respect of the first aspect, I find that in the written statement as well as during the cross examination of DW-1 Sh. Harvinder Singh Kalra, the defendant has admitted that Sh. Tarun Rastogi was its employee. Therefore, it can be safely concluded that Sh. Tarun Rastogi was an employee of the defendant.
20. In respect of the second aspect, I find that the only relevant evidence brought by the defendant is the oral testimony of DW-1 Sh. Harvinder Singh Kalra. In paragraph 7 of his evidence affidavit, Ex.DW1/1, DW-1 Sh. Harvinder Singh Kalra has deposed as under :-
"7. I say that the transaction in dispute of August 2009 has been done by our ex- employee Mr. Tarun Rastogi of his own, without any knowledge, consent or authority to do so from our company and same has been done by misusing the official Civil Suit No.228/10 :13: infrastructure as well as reputation of our company and the cheque in question on the basis of which the present suit has been filed by the plaintiff is also issued by said Mr. Tarun Rastogi from his own account towards the transaction in dispute. I further state that the said Tarun Rastogi was never authorized by our office management to issue any exchange orders requesting the issuance of International Air Tickets from IATA Agents."
21. In addition to the aforesaid deposition, during cross examination DW-1 Sh. Harvinder Singh Kalra has deposed as under:-
"Sh. Tarun Rastogi had worked for the defendant for a period of 18 months. His job profile included ticketing for the defendant. However, he was not authorized to sign any exchange order.
...
(The witness is confronted with entries at point X on Ex.PW1/11) I have no knowledge about these transactions. I had not given any written instructions to the plaintiff to the effect that it is not required to honour the exchange orders that do not bear my signatures. Also, I had not given any specimen signatures to the plaintiff for comparing my signatures on the exchange orders.
..."
22. In my view, the aforesaid oral testimony of DW-1 Sh. Harvinder Singh Kalra is not sufficient to conclude that Sh. Tarun Rastogi was not authorized to issue any Exchange Orders on behalf of the defendant, especially when the defendant has admitted that Sh. Tarun Rastogi was working in its ticketing department; the Exchange Order ("47740") dated 24.8.2009 was Civil Suit No.228/10 :14: sent on its letter head by its fax no. 011-23413121 1 and that no intimation was given to the plaintiff to the effect that only the Exchange Orders issued by Sh. Harvinder Singh Kalra are to be honoured.
23. Further, in my view, if the defendant wanted to prove that Sh. Tarun Rastogi was not authorized to issue any Exchange Orders on its behalf, then it should have brought on record all its Exchange Orders of the relevant period i.e. July- September 2009 or it should have brought the appointment letter of Sh. Tarun Rastogi or any other letter describing the scope of his duties. In the absence of any such documentary evidence, I consider it appropriate to draw an adverse inference against the defendant as per Illustration (g), Section 114 of the Evidence Act, 1872 and conclude that Sh. Tarun Rastogi was authorized to issue Exchange Orders on behalf of the defendant. In drawing such an adverse inference, I find support from the judgment of the Hon'ble Supreme Court of India in Gopal Krishnaji Ketkar v Mamomed Haji Latif and Others, AIR 1968 SC 1413 and the judgment of the Hon'ble High Court of Delhi in Taneja Skins Co. Pvt. Ltd. v Bharath Skins Corporation, AIR 2002 Del 179.
24. In Gopal Krishnaji Ketkar v Mamomed Haji Latif and Others (supra), the Hon'ble Supreme Court of India has observed, "......Even if the burden of proof does not lie on a party, the Court may draw an adverse inference, if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring 1 During cross examination, DW-1 Sh. Harvinder Singh Kalra admitted the said fax number was of the defendant.
Civil Suit No.228/10 :15:to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof............"
25. In Taneja Skins Co. Pvt. Ltd. v Bharath Skins Corporation (supra), the Hon'ble High Court while deciding whether a certain Mr. Rahim was an employee of the defendant, has made the following observation, "From the evidence on the record it is patent firstly that one Rahim used to act on behalf of the defendant though defendant asserts that he was only a commission agent. The plaintiff's contention is that he in fact was an employee of the defendant. The defendant feels shy of producing the employees register to indicate that he was not the employee and therefore necessary inference has to be drawn against the defendant in this regard.
Rahim should be taken to be an employee acting on behalf of the defendant."
26. In light of the findings on the aforesaid two aspects, both the issues are decided in favour of the plaintiff and against the defendant. It is held that the parties had privity of contract, arising from the Exchange Order ("47740") dated 24.8.2009 and that the defendant is liable for the civil liability arising out of the Exchange Order ("47740") dated 24.8.2009. Consequently, it is also held that Sh. Tarun Rastogi is not a necessary party to this suit.
Civil Suit No.228/10 :16:ISSUE NO.3
27. The onus of proving this issue was placed on the plaintiff. In order to discharge the onus, the plaintiff has brought on record the oral testimony of PW-1 Sh. Surender Sharma. In support of his oral testimony, the plaintiff has also brought on record the Exchange Order ("47740") dated 24.8.2009, Ex.PW1/4, Computer generated E-Tickets, Ex.PW1/5 (Colly), Computer generated copy of PNRs, Ex.PW1/6, Computerized Office copies of Bills, Ex.PW1/7 and Ex.PW1/8, Copies of the Receipts, Ex.PW1/9 and Ex.PW1/10, Copy of Statement of Account, Ex.PW1/11, Original Cheque and Return Memo, Ex.PW1/12 and Ex.PW1/13.
28. Upon perusing the testimony of PW-1 Sh. Surender Sharma and the aforesaid documents, I find that the plaintiff had generated the tickets in favour of Ms. Ruchi Khandelwal, Ms. Reema Khandelwal and Mrs. Manju Kandelwal for Delhi/Bankok/ Melbourne/Bankok/Delhi and Mr. Ebid Mahmoud for Delhi/Shanghai/Delhi. Further, upon perusing the supplementary complaint dated 29.10.2009, written by the defendant to the SHO, PS Barakhamba Road, I find that the plaintiff had supplied the copy of the bounced cheque and the invoices to the defendant, before the filing the present suit.
29. In the written statement, the substantive defence raised by the defendant is that it had never issued the Exchange Order ("47740") dated 24.8.2009 to the plaintiff; the Exchange Order ("47740") bears forged signatures and was misused by Sh. Tarun Rastogi, former employee of the defendant; that the Civil Suit No.228/10 :17: payment of Rs.50,000/- was made by Sh. Tarun Rastogi out of his own pocket, instead of the funds of the defendant and that the defendant had/has no concern with the cheque ("458179") dated 22.9.2009 of Rs.88,824/-, issued by Sh. Tarun Rastogi.
30. In respect of the aforesaid defence raised by the defendant, I find that it is not maintainable in view of the findings given on issue no.1 and 2. In my view, it was the obligation of the defendant to ensure that its employee, Sh. Tarun Rastogi is unable to commit a fraud on the IATA agents including the plaintiff and the mere registration of the FIR no. 182/09, PS Barakhamba Road at the behest of the defendant cannot absolve the defendant from its liability qua the plaintiff.1
31. In light of the aforesaid discussion, the issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to receive Rs.88,824/- from the defendant.
ISSUE NO.4
32. The onus of proving this issue was on the plaintiff. By proving that the plaintiff is entitled to the suit amount, the plaintiff has established that it is entitled to interest. In the plaint, the plaintiff has prayed that interest be granted at any reasonable rate from the date of filing of this suit till the date of realization. Keeping in view, the interest granted by banks in case of term deposits, the plaintiff is granted pendente-lite interest at the rate of 9% per annum and keeping in view the provisions of the Interest Act, 1978 and the judgment of the Hon'ble Supreme 1 Reference is craved to the judgment of the House of Lords in Lloyd v Grace, Smith & Co. (1912) AC 716.
Civil Suit No.228/10 :18:Court of India in Central Bank of India v Ravindra, AIR 2001 SC 3095, the plaintiff is granted future interest at the rate of 6% per annum.
RELIEF
33. In view of the findings on the aforesaid issues, the suit of the plaintiff is decreed against the defendant for a sum of Rs. 88,824/- (Rupees Eighty Eight Thousand Eight Hundred and Twenty Four Only) alongwith pendente-lite interest at the rate of 9% per annum and future interest at the rate of 6% per annum. The parties shall bear their own costs.
34. Before parting with this Judgment, I find it expedient to observe that on account of the negligence 1 of the defendant, Sh. Tarun Rastogi was able to occupy a position of ostensible authority and commit a fraud on the plaintiff. Therefore, it is in the fitness of things that the defendant indemnifies the plaintiff for the loss suffered on account of the fraud committed by Sh. Tarun Rastogi and the defendant chases down Sh. Tarun Rastogi for recovery of the money paid in pursuance of this Judgment.
After preparation of the decree-sheet, the file shall be consigned to the Record Room.
Announced in the Open Court (Jay Thareja)
On 30.09.2011 Civil Judge-I, New Delhi District
New Delhi
1 The plaintiff has asserted that in the year 2009, 18 transactions were done between the plaintiff and the defendant. The defendant has denied all these transactions. In my view, the defendant was negligent in being unable to detect these unauthorized transactions done through its infrastructure including the 'Amadeus Reservation System'.
Civil Suit No.228/10