Madras High Court
Mr.S.Krishnamachar vs M/S.Tour De Sports Private Limited on 20 July, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
C.S.(Comm Div) No.20 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.07.2022
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR
RAMAMOORTHY
C.S.(Comm Div) No.20 of 2021
M/s.Nippon Paint (India) Pvt. Ltd.,
(A Company incorporated and registered
under the provisions of the Indian Companies
Act, 1956)
Rep. by:
1. Mr.S.Krishnamachar,
The General Manager-Accounts
2. Mr.D.Sathish Kumar,
The Deputy Manager-Marketing
being the authorized representatives and
power of Attorney Agents of the Company and
having office at
No.3, 3rd Floor, Club House Road,
(off Anna Salai), Chennai-600 002. ... Plaintiff
vs.
M/s.Tour De Sports Private Limited,
Rep. by its Managing Director,
Mr.Subash Nair
Having office at
No.6, RAMS Flats,
New No.23, Dr.Nair Road,
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https://www.mhc.tn.gov.in/judis
C.S.(Comm Div) No.20 of 2021
T.Nagar, Chennai-600 017. ... Defendant
PRAYER: The suit is filed under Order IV Rule 1 of Original Side Rules
Read with Order VII Rule 1 CPC and under Section 2(1)(c)(i) and
2(1)(c)(xviii) of the Commercial Courts Act, 2015 (4 of 2016) as amended
by Act, 28 of 2018, praying to (a) directing the defendant to pay a sum of
Rs.1,19,91,468/- along with future interest at 18% per annum on
Rs.1,04,63,760/- from the date of plaint to till the date of realization; (b)
directing the defendant to pay a sum of Rs.79,66,918/- towards damages,
local travel expenses, compensation and further expenses incurred by the
plaintiff; and (c) for the costs of this Suit.
For Plaintiff : M/s.K.V.Sundara Rajan
JUDGMENT
The suit was filed for recovery of a sum of Rs.1,19,91,468/-
along with future interest at 18% per annum on the principal sum of Rs.1,04,63,760/- from the date of plaint till the date of realization, and for a sum of Rs.79,66,918/- as damages. Suit summons were served on the sole defendant on 03.08.2021. In spite of service of summons, the defendant failed to enter appearance. Eventually, by order dated 04.04.2022, the 2/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 defendant was set ex parte. Pursuant thereto, the matter was posted before the learned Additional Master No.I for recording the ex parte evidence of the plaintiff.
2. The plaintiff examined Mr.D.Sathish Kumar, its Senior Manager Marketing, as P.W.1. In course of the examination-in-chief of P.W.1, 69 documents were exhibited as Ex.P.1 to Ex.P.69.
3. The suit claim arises out of the plaintiff availing of the services of the defendant to organize a trip to the Rosebowl in Southampton for a cricket match between India and South Africa on 5th June 2019. The said trip was for the dealers of the plaintiff. Learned counsel for the plaintiff refers to Ex.P7, which is the bank account statement of the plaintiff and points out that a sum of Rs.1,02,54,484/- was paid to the defendant under cheque No.113234. This sum was towards 60% of the expenses in relation to that trip. He also invited my attention to subsequent correspondence so as to establish that the defendant did not take appropriate action to facilitate travel by the plaintiff's dealers. Consequently, he states that the visas did not 3/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 arrive in time for the trip and the dealers could not make the trip. This is the basis for the first component of the suit claim, namely, the sum of Rs.1,04,63,760/- with interest thereon.
4. As regards the second component of Rs.79,66,918/-, learned counsel referred to Ex.P.57 and Ex.P.58. Both these documents evidence the incurring of expenditure for domestic travel in relation to the trip to England.
Learned counsel points out that the expenditure incurred under Ex.P.57 and Ex.P.58 aggregate to the sum of Rs.15,57,236/-. As regards visa expenses, by drawing reference to Ex.P.39, he points out that some of the employees paid the visa expenses directly.
5. Ex.P7 discloses that a sum of Rs.1,02,54,484/- was debited from the plaintiff's account and remitted to the defendant's account. Since the trip did not fructify, on the basis of evidence adduced, the plaintiff is entitled to this sum along with interest thereon from the date of payment, i.e. 14.01.2019. As regards the second component of the suit claim, Ex.P.39 evidences that expenditure of Rs.1,25,694/- was incurred by way of visa 4/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 expenses. The plaintiff is entitled to this sum and not the sum of Rs.1,29,494/-. Ex.P57 and Ex.P58 evidence the expenditure incurred towards domestic travel in relation to the trip to England. In the aggregate, the amounts indicated therein add up to Rs.15,57,236/-. As such, the plaintiff is entitled to this sum also along with interest thereon from the date of payment of invoice dated 24.06.2011. The above mentioned amounts of Rs.1,29,494/- and Rs.15,57,236/- aggregate to Rs.16,82,930/-. In the absence of evidence of date of payment, the aggregate amount of Rs.16,82,630/- shall carry interest from 24.07.2019 by reckoning a 30 day credit period. No evidence has been adduced in respect of the claim for loss of reputation. As regards expenses incurred for arranging travel for some of the dealers to the United Kingdom, the plaintiff is not entitled to claim this amount from the defendant.
6. On the loser pays principle, the plaintiff is also entitled to costs. The plaintiff has paid a sum of Rs.2,06,633.86/- as Court fee. Since the suit claim has been allowed to the extent of about 1,18,00,000/-, the plaintiff is entitled to a sum of Rs.1,25,000/- towards court fee and a further sum of 5/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 Rs.1,50,000/- towards reasonable lawyer's fees and other expenses.
Although interest has been claimed at 18% per annum, there is no agreement as regards rate of interest. Consequently, taking into account the interest rate prevailing at the relevant point of time, the plaintiff is entitled to interest at 9% per annum.
7. In the result, the suit is partly decreed by directing the defendant to pay a sum of Rs.1,02,54,484/- along with the interest thereon from 14.01.2019 until realization at the rate of 9% per annum. The defendant shall also pay a sum of Rs.16,82,930/- towards visa and domestic travel expenses along with the interest thereon at 9% per annum from 24.07.2019 until the date of realization. The defendant shall also pay costs of Rs.2,75,000/- towards court fees, lawyer's fees and other expenses.
20.07.2022 anu Index : Yes / No Internet : Yes / No Plaintiff's witness:
1.Mr.D.Sathish Kumar : P.W.1 Defendant's witness : Nil 6/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 Documents exhibited by the Plaintiff:
Sl.No Exhibits Date Particulars of Documents
1. Ex.P1 - certified copy of the certificate of registration of the plaintiff company.
2. Ex.P2 27.08.2019 original resolution passed by the plaintiff company.
3. Ex.P3 27.08.2019 original Special Power of Attorney issued by the plaintiff company to its power agents.
4. Ex.P4 07.12.2018 original Quote given by the defendant to the plaintiff.
5. Ex.P5 18.12.2018 printout of Email sent by the plaintiff to the defendant regarding Hub-wise Travellers details.
6. Ex.P6 29.12.2018 printout of Job Order issued by the plaintiff in favour of the defendant.
7. Ex.P7 - original Statement of Account showing the amounts paid by the plaintiff to the defendant.
8. Ex.P8 19.02.2019 printout of Email sent by the plaintiff and reply email by the defendant regarding letter to Bharat Army Travel.
9. Ex.P9 21.02.2019 office copy of the letter by the plaintiff.
10. Ex.P10 14.03.2019 printout of Email sent by the plaintiff and reply along with trailing emails.
11. Ex.P11 18.04.2019 printout of email sent by the plaintiff to the defendant regarding 10 ticket cancellation confirmation and trailing mails.
12. Ex.P12 21.03.2019 printout of email by the defendant to the plaintiff regarding UK VISA documentation check list.7/14
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13. Ex.P13 25.04.2019 printout of email by the defendant to the plaintiff regarding Air fare in Emirates from various hubs with child fare from Delhi.
14. Ex.P14 29.04.2019 printout of email sent by the defendant regarding UK VISA letter format for VISA appointment.
15. Ex.P15 29.04.2019 printout of email by the plaintiff to the defendant regarding UK letter scan.
16. Ex.P16 29.04.2019 printout of email by the plaintiff to the defendant regarding Traveller List-for interview schedule.
17. Ex.P17 29.04.2019 printout of email by the plaintiff to the defendant regarding Travellers count updated-London.
18. Ex.P18 06.05.2019 printout of email by the defendant regarding documents required for biometric.
19. Ex.P19 07.05.2019 printout of email by the defendant regarding UK VFS VISA Appointment.
20. Ex.P20 07.05.2019 Printout of email sent by the defendant regarding draft UK VISA Letter for dealers.
21. Ex.P21 07.05.2019 Printout of email sent by the defendant regarding Tour itinerary for dealers.
22. Ex.P22 08.05.2019 Printout of email by Logesh Saran regarding Rooming List-London to the plaintiff.
23. Ex.P23 10.05.2019 Printout of email sent by the defendant to the plaintiff regarding details of documents from the plaintiff along with trailing mails.
24. Ex.P24 12.05.2019 Printout of email by plaintiff to the defendant regarding Hub wise document.
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25. Ex.P25 13.05.2019 Printout of email sent by the defendant regarding details of documents from Nippon.
26. Ex.P26 14.05.2019 Printout of email by Logesh Saran regarding details of documents from the plaintiff.
27. Ex.P27 14.05.2019 Printout of email by plaintiff to the defendant regarding Nippon documents for UK Visa along with trailing mails.
28. Ex.P28 14.05.2019 Printout of email by the plaintiff to Ace Events regarding Traveller List UK-for domestic arrangement planning.
29. Ex.P29 15.05.2019 Printout of email sent by Ace Events regarding Dealers schedule for May 16 & 17th. Appointments for UK Biometrics along with trailing mails.
30. Ex.P30 15.05.2019 Printout of email by defendant to the plaintiff regarding VFS addresses-Bangalore, Chennai and Hyderabad.
31. Ex.P31 15.05.2019 Printout of email sent by the defendant regarding dealers VISA Application-PAN India along with trailing mails.
32. Ex.P32 15.05.2019 Printout of Internet Email by the plaintiff regarding Nippon documents.
33. Ex.P33 15.05.2019 Printout of email by the defendant to the plaintiff regarding UK VISA.
34. Ex.P34 15.05.2019 Printout of email by the plaintiff to the defendant regarding VISA interview dates change.
35. Ex.P35 15.05.2019 Printout of email by the defendant to the plaintiff regarding UK appointment.
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36. Ex.P36 16.05.2019 Printout of email sent by Mr.R.Kathiravan of AKDA Travels to the defendants regarding check list confirmation.
37. Ex.P37 16.05.2019 Printout of email by the defendant to the plaintiff regarding Tour de Sports Letters- Pune, Ahmedabad, Jallandar, Jaipur & Delhi.
38. Ex.P38 16.05.2019 Printout of email by the defendant to the plaintiff regarding VFS-Ahmedabad & Pune adresses.
39. Ex.P39 22.05.2019 Printout of email sent by the plaintiff to the defendant calling upon them reimburse the amount spent in respect of biometrics.
40. Ex.P40 22.05.2019 Printout of email by the defendant to the plaintiff with a letter to be submitted to VISA Officer, British High Commission, New Delhi.
41. Ex.P41 22.05.2019 Printout of the Draft letter sent by the plaintiff to [email protected] as per the defendant's requirement.
42. Ex.P42 23.05.2019 Printout of email by UKVINewDelhi.
[email protected] to the plaintiff regarding request for issue of tourist visa for Nippon along with trailing mails.
43. Ex.P43 23.05.2019 Printout of email sent by the plaintiff to [email protected] k.
44. Ex.P44 23.05.2019 Printout of email sent by the defendant to the plaintiff regarding PV Application and fees and reply by the plaintiff.
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45. Ex.P45 25.05.2019 Printout of email by the defendant to the plaintiff regarding UK Embassy Fee.
46. Ex.P46 29.05.2019 Printout of email correspondences between the UKVINewDelhi
47. Ex.P47 29.05.2019 Printout of email sent by the defendant to the plaintiff regarding revised invoice for 2nd advance relase.
48. Ex.P48 31.05.2019 Printout of email by plaintiff to Ace Events and the defendant regarding ICC travel Schedule.
49. Ex.P49 31.05.2019 Printout of email sent by [email protected] k, to plaintiff regarding passengers' list.
50. Ex.P50 01.06.2019 Printout of email by the defendant to the plaintiff regarding payment for the tour package.
51. Ex.P51 02.06.2019 Printout of email by the defendant to the plaintiff regarding invoice for the 5 tour package.
52. Ex.P52 03.06.2019 Printout of email sent by the plaintiff to the defendant regarding very bad experience of the plaintiff with the defendant's tour plan along with trailing mails.
53. Ex.P53 05.06.2019 Printout of email sent by the defendant to the plaintiff claiming reimbursement of amount.
54. Ex.P54 07.06.2019 Printout of email sent by the plaintiff to the defendant regarding their bad experience with the defendant and also claiming return of the amounts paid.
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55. Ex.P55 11.06.2019 Printout of email sent by the defendant to the plaintiff claiming reimbursement of amount.
56. Ex.P56 17.06.2019 The office copy of the legal notice issued by the plaintiff to the defendant along with returned cover and the ack. Card.
57. Ex.P57 24.06.2019 The original Ashtalakshmi Creators' Tax Invoice for Rs.9,44,618/-.
58. Ex.P58 24.06.2019 The original Ashtalakshmi Creators' Tax Invoice for Rs.6,12,813/-.
59. Ex.P59 05.07.2019 The original interim reply given by the defendant's Advocate to the plaintiff's Counsel.
60. Ex.P60 13.07.2019 The original reply by the defendant's Advocate to the plaintiff's Counsel.
61. Ex.P61 10.09.2019 The printout of plaintiff's Job Order in favour of SOTC Travel Limited for Rs.32,92,065/-.
62. Ex.P62 10.09.2019 The plaintiff's Job Order in favour of Ashtalkshmi Creators for Rs.7,08,000/-.
63. Ex.P63 28.09.2019 The original SOTC's Tax Invoice for Rs.31,10,415/-.
64. Ex.P64 30.09.2019 The original SOTC's Tax Invoice for Rs.31,500/-.
65. Ex.P65 04.10.2019 The original SOTC's Tax Invoice for Rs.93,976/-.
66. Ex.P66 10.10.2019 The original Ashtalakshmi Creators' Tax Invoice for Rs.4,33,992/-.
67. Ex.P67 - The printout of list of persons, for whom the VISA approved and rejected.
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68. Ex.P68 - The printout of the Tax Invoice of the plaintiff, where the rate of interest for the delayed payment has been mentioned.
69. Ex.P69 - The printout of sales drop for those dealers who was selected for Trip but did not go due to Visa issue.
SKRJ 13/14 https://www.mhc.tn.gov.in/judis C.S.(Comm Div) No.20 of 2021 SENTHILKUMAR RAMAMOORTHY,J anu C.S.(Comm Div) No.20 of 2021 20.07.2022 14/14 https://www.mhc.tn.gov.in/judis