Delhi District Court
Sh. Anubhav Jain vs The Director/Concerned Person on 1 October, 2022
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
SENIOR CIVIL JUDGECUMRENT CONTROLLER
NEW DELHI DISTRICT: PATIALA HOUSE COURTS, NEW DELHI
CS No. 1017/18
Sh. Anubhav Jain
S/o Sh. Anil Jain,
R/o 131, 3rd floor, Street no.5,
Guru Ram Dass Nagar,
Laxmi Nagar, Delhi110092.
.......... Plaintiff
VERSUS
The Director/Concerned Person
Yatra Online Pvt. Ltd.
Unitech Cyber Park,
TowerD, 6th Floor,
Sector39, Gurugram122001.
2. Branch Office
Yatra Online Pvt. Ltd.
P15, Top Floor, Outer Circle,
Connaught Place, BlockP,
Connaught Place,
New Delhi110001.
.......Defendants
JUDGMENT
(Suit for Recovery of Rs.1,30,000/) Date of institution : 30.07.2018 Date for reserving for judgment : 23.09.2022 Date of judgment : 01.10.2022 Final judgment : Suit is partly decreed.
CS No. 1017/18 Page 1 of 131. This is a suit for recovery of Rs.1,30,000/ alongwith interest @ 18% per annum against the defendants.
2. Briefly stated, case of the plaintiff is that in the month of June, 2017 plaintiff had booked a couple tour of 6 nights from the office of defendant at Gurugram to visit Denpasar Bali and Kuala Lumpur, Malaysia through the website of defendant i.e. Yatra.com. It is averred that on 19.11.2017 plaintiff has paid Rs.1,20,000/ as a fare and Rs.10,000/ for visa proceedings via online payment from his saving account. That the plaintiff has obtained details of the trip and abide all the terms and conditions of the trip details relying upon the promises and reputation of the defendant in market.
It is further averred that on 26.11.2017, plaintiff came to know about the weather condition/eruption of volcanoes in Denpasar, Bali through through twitter as well media, then the plaintiff has asked about the fate of the trip but the AR of the defendant assured that they would handle the situation and trip would be as per the schedule. As such they took a flight and arrived at Kuala Lumpur and asked about further arrangement for next flight to Denpasar but the plaintiff came to know that the weather condition of destination was not good and has been further told to stay for sometime. That thereafter the plaintiff has tried to communicate AR of the defendant through phone and emails in this regard due to which plaintiff has suffer a lot of mental and physical agony at that time but to no avail. That the luggage were in airplanes and not CS No. 1017/18 Page 2 of 13 released to them and they had nothing to eat as well as such plaintiff had to take shelter in a hotel at Kuala Lumpur, Malaysia and had to pay extra money for accommodation.
It is further stated that on 28.11.2017, plaintiff had sent many messages through emails but one Ms. Pooja Bansal of the defendant replied that package tour has been cancelled and there is no other facility available to the plaintiff to refund the money or reschedule the tour and then, AR of the defendants assured and promised to refund all the payment made by the plaintiff. Thereafter, despite request, defendant flatly refused to rearrange the tour. It is further stated that plaintiff several times visited the office of the defendants to refund the amount however on 10.07.2018 defendants misbehaved and threatened the plaintiff that in case plaintiff again demanded to return the aforesaid amount then he will face dire consequence. The plaintiff served a legal notice dt. 13.01.2018 upon the defendant however despite the receipt of notice, defendants did not make any payment. Hence, the present suit is filed by the plaintiff for a sum of Rs. 1,30,000/ alongwith interest.
3. Summons of the suit were issued to the defendant. The defendant appeared and filed its written statement denying the allegations as contained in the plaint. That plaintiff has not approached this Court with clean hands and suppressed the material facts from this Court. That this court has no territorial jurisdiction to try and entertain the present suit. While replying on merits, it is admitted that on 19.11.2017 the plaintiff has paid an amount of Rs.1,20,000/ as fare and Rs.10,000/ for visa CS No. 1017/18 Page 3 of 13 proceedings via online payment. It is denied that one Ms. Pooja Bansal replied that the package has been cancelled and there is no other facility is available and on the request of the plaintiff for refund the money or reschedule, AR of the defendant assured and promised to refund all the payment made by the plaintiff. It is stated that due to the reason which was beyond the control of the defendant company and due to volcano eruption in Bali, the plaintiff could not board the connecting flight from Kuala Lumpur to Denpasar, Bali as all flight got cancelled. That since continuously there was no improvement and flight remained grounded for Bali there, on 28.11.2017 plaintiff was informed that further trip has been cancelled and plaintiff not be able to travel further. That defendant in consultation with plaintiff and airline arranged new return air tickets of the plaintiff and other passenger. It is denied that plaintiff visited the office of the defendant on 10.07.2018 or that legal notice was ever served upon the defendant. Rest of the contents of the plaint were duly denied by the defendant and defendants prayed that the suit of the plaintiff be dismissed.
4. No replication filed by the plaintiff to the WS of defendants.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 21.1.2019:
1. Whether the plaintiff is entitled to recovery of Rs.1,30,000/ alongwith the interest @18% per annum? OPP
2. Whether the plaintiff is entitled to pendente lite and future interest till final receipts of payment @18% per annum? OPP CS No. 1017/18 Page 4 of 13
3. Whether the plaintiff has not approached the court with clean hands and has suppressed material facts? OPD
4. Whether this court has no territorial jurisdiction to try the present suit? OPD
5. Relief.
6. In order to prove its case, plaintiff Anubhav Jain examined himself as PW1 who tendered his evidence by way of an affidavit Ex.PW1/1. He relied upon documents viz.
1. Photocopies of package details of Bali with Malaysia Holiday is Ex.PW1/A.
2. Photocopy of flight details and fare details are Ex.PW1/B.
3. Photocopies of Trip details with terms and conditions is Ex.PW1/C.
4. Photocopy of email sent by defendant is Ex.PW1/D.
5. Photocopies of conversations of cancellation of package is Ex.PW1/E.
6. Photocopy of travel summary is Ex.PW1/F.
7. Photocopies of confirmations are Ex.PW1/G.
8. Photocopy of service of itinerary is Ex.PW1/H.
9. Copy of receipt is Ex.PW1/I.
10. Copy of legal notice is Ex.PW1/J.
11. Copy of postal receipt is Ex.PW1/K. CS No. 1017/18 Page 5 of 13 and thereafter, plaintiff closed its evidence.
7. Defendants on the other hand, examined his AR/Senior Executive Sh. Pulkit Baluja as DW1 who tendered his evidence by way of affidavit Ex.DW1/A. He relied upon documents viz. Copy of authority letter dt. 03.1.2022 in his favour Ex.DW1/2, resolution dt. 05.02.2013 Ex.DW1/3, copy of details of payment made by plaintiff alongwith booking terms and conditions Ex.DW1/4, emails exchanged between plaintiff and defendant Ex.DW1/5, copy of travel tickets/history of plaintiff Ex.DW1/6 and thereafter, defendants closed its evidence.
8. I have heard the contentions and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to recovery of Rs.1,30,000/ alongwith pendente lite and future interest @18% per annum? OPP
9. The onus to prove issue no.1 was upon the plaintiff. Ld. Counsel for plaintiff argued that as per the terms and conditions of booking of the tour package, plaintiff alongwith his wife was to fly Denpasar, Bali on 28.11.2017 (by taking a connected flight from Kula Lumpur airport). On 27.11.2017, plaintiff had categorically asked the defendant company regarding the prevailing situation at Bali and he was assured that the trip will continue and he need not worry. Further, on the assurance of the CS No. 1017/18 Page 6 of 13 defendant, he alongwith his wife boarded the flat on 28.11.2017 and landed at Kula Lumpur airport. However, upon reaching Kula Lumpur airport he alongwith his wife and other copassengers was informed regarding cancellation of all flights to Bali due to volcano eruption at Bali. Therefore, plaintiff was forced to stay at a hotel at Kula Lumpur at his expenses as no arrangement was made by the defendant company despite several phone calls and emails sent by the plaintiff. Further during the aforesaid time, plaintiff was not given any answer by the defendant and during one of the email exchange he was even assured that his entire amount shall be refunded by one of the AR of the defendant. Thereafter, upon the request of the plaintiff a return ticket was arranged by the defendant for him and his wife. Subsequently, defendant alongwith his wife returned back to India. The aforesaid inconvenience caused harassment to the plaintiff and therefore, it is prayed by the plaintiff that as per the assurance given to him by the AR of the defendant, plaintiff be given an amount of Rs.1,30,000/ alongwith interest @ 18% p.a. and cost. It is further argued that defendant no.1 carries on his business and has his office in the jurisdiction of the present court and therefore, the jurisdiction of the court is made out. Ld. Counsel further argued that defendants have failed to prove on record there plea of defence rather during the cross examination of defendant witnesses material contradiction occurred rendering their testimony unreliable. Hence, the suit of the plaintiff deserves to be decreed.
10. On the other hand, it is argued on behalf of the defendants that CS No. 1017/18 Page 7 of 13 the jurisdiction of the present matter is not made out since the plaintiff had made online booking of the package from the office of the defendant situated at Gurgaon. It is further argued that all communications pertaining to the travel were carried out between both the parties from the office of Gurgaon and therefore, the suit is barred by jurisdiction. It is further argued by the defendant that the communication made by the plaintiff prior to the travel were extremely clear and plaintiff was well aware regarding the terms and conditions of the travel and also regarding the cancellation and refund policy of the defendant company. It is further argued that since the trip/travel plan was not cancelled by the defendant company prior to the date of travel, therefore, the contention raised by the plaintiff regarding the fact of calling the defendants to know the prevailing situation at Bali was inconsequential since even the defendant was unaware about any change in the international flights between Kula Lumpur and Bali. Further, the agreement between the defendant and plaintiff was carried out by the defendant company with utmost sincerity and the tickets for both the passengers for coming and going were paid by the defendant company but since the situation in Bali had deteriorated due to volcanic eruption and being 'Act of God' was not under the control of the defendant company and therefore, defendants cannot be made liable for any such eventuality which occur beyond the control of the defendants. Further, defendants had timely informed regarding the same to the plaintiff once he reached Kula Lumpur and the defendant ensured safe travel back of all the passengers from Kula Lumpur to Delhi by the next available flight which even the plaintiff boarded and traveled back. It is further CS No. 1017/18 Page 8 of 13 argued that the defendant was offered an amount of Rs. 44,000/ which was due to the plaintiff, but it was the plaintiff who did not accept the payment and therefore, the contentions raised by the plaintiff are false and frivolous.
11. The onus to prove this issue was upon the plaintiff so it has to be seen whether it has been successfully discharged or not. Plaintiff has relied upon document Ex.PW1/A regarding the email exchanged between him and the defendant between 26.07.2017 to 02.11.2017 which mentions regarding the conditions of booking, cancellation policy, payment options and terms and conditions. Further, PW1/B is the document regarding the flight details, terms and condition, trip details, cancellation policy. Document Ex.PW1/D is the email exchanged between the plaintiff and the defendant company between the period 28.11.2017 to 13.12.2017 wherein at point A it has been mentioned that the defendant shall refund for the entire package Ex.PW1/F is the computer generated flight tickets and Ex.PW1/G is the details pertaining to the booking done by the plaintiff. Further, Ex.PW1/H is the Service Itinerary and Ex.PW1/1 is the copy of payment receipt dt. 28.11.2017 of the hotel where the plaintiff stayed. However, the plaintiff has not placed on record any certificate u/s 65B of Indian Evidence Act in support of aforesaid documents which all are computer generated printouts. Further, believing that the documents relied upon being the email exchanged between the plaintiff and the defendant are not being objected by the defendant and have also been relied upon by the defendant during their evidence and therefore, can be considered.
CS No. 1017/18 Page 9 of 13However, plaintiff has failed to show the manner in which any inconvenience was caused to him since it is admitted by the plaintiff that the tickets were arranged by the defendant immediately upon his request for coming back to India. Further, the aforesaid documents relied upon by the plaintiff explicitly contains the terms and conditions of the tour booking which binds both the parties. It is also not disputed that the tour was not cancelled by defendant vide communication dated 27.11.2017. Defendant witness in his crossexamination has denied having knowledge of the document Ex.PW1/E from portion A to A1 and stated that executives of the company are authorized to make commitments to the customers as per the instructions received by them. Further, it was observed during crossexamination by the court that portion D to DA is a part of the chain made between the plaintiff and one Ms. Pooja Sharma, Team Leader of the defendant company.
12. Even in Grasim Industries Ltd. And Anr vs Agarwal Steel JT2009(13)SC413M2009(13)SCALE374(SS) it was held that when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted.
13. In the instant case, in view of the evidence and admitted terms and conditions the onus upon the plaintiff has not been discharged completely, since the defendant performed the agreement as per his CS No. 1017/18 Page 10 of 13 capacity and the fact that there was a volcano eruption at Bali, was not been situation under the control of the defendant and therefore, defendant cannot be burdened to repay the entire amount to the plaintiff.
14. It is important to note that there was no cancellation of tour by either of the parties and the same was performed by the defendant as per agreement. In totality plaintiff failed to prove his plea inconvenience caused to him by leading any cogent evidence. On the contrary not even a single suggestion has been put by plaintiff to the defendant witness with respect to any deviation of the cost of the package or the travel package. Not even a single contradiction has come out in the cross examination of DW1 thereby resulting in unrebutted testimony.
15. Further the contention of the defendant was that the defendant has no liability towards the plaintiff is not admissible since it is the defendant who has stated in the emails and communications between the plaintiff and the defendant that they are ready and willing to refund an amount of Rs.44,000/ to the plaintiff in document Ex.DW1/5. This court is of the view that this contention of the defendant falls flat in view of the admission of defendant in the aforesaid email.
16. In view of the evidence led and the observations given, the plaintiff can be said to have not established his case against the defendant and is only entitled to recover the amount of Rs.44,000/ admitted by the defendant. Accordingly, this issue stands decided partly in favour of CS No. 1017/18 Page 11 of 13 plaintiff and against the defendants.
ISSUE NO.4 Whether this court has no territorial jurisdiction to try the present suit? OPD
17. The onus to prove issue no.4 was upon the defendant. As already discussed above while deciding issue no.1 that since defendant no.1 voluntarily resides or carries on his business or personally work for gains and since the office of the defendant is in the jurisdiction of the present court and therefore, the jurisdiction of the court is made out. This issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO.2 & 3Whether the plaintiff is entitled to pendente lite and future interest till final receipts of payment @18% per annum? OPP & Whether the plaintiff has not approached the court with clean hands and has suppressed material facts? OPD
18. As far as issue no.2 and 3 are concerned, it cannot be said that the plaintiff did not approach the court with clean hands and suppressed any material facts. Nothing on record has been pointed out by the defendant which can show that the documents relied upon by the plaintiff were false or fabricated. Further, the issue pertaining to entitlement of the plaintiff to pendente lite and future interest till final receipt of payment @ 18% p.a. is concerned. Keeping in view the prevailing rate of interests in the CS No. 1017/18 Page 12 of 13 nationalized banks, the court is of the considered opinion that the interest of justice will be served if interest @ 8% p.a. is given on the outstanding amount to the plaintiff from the date of filing of the suit till realization. Here, I have also taken into consideration Section 34 of CPC.
Relief:
19. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is hereby partly decreed. Plaintiff is entitled to recover Rs.44,000/ against defendant alongwith interest @ 8% per annum from the date of filing of the suit till the date of realization of amount. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
20. File be consigned to the record room after due compliance.
[SHEETAL CHAUDHARY PRADHAN]
Announced in the open court SCJ-CUM-RC
on 01.10.2022 New Delhi Distt, PHC, Delhi
CS No. 1017/18 Page 13 of 13