Delhi High Court - Orders
M/S Cox And Kings Limited vs Anuradha Chaudhary & Ors on 27 February, 2019
Author: Anu Malhotra
Bench: Anu Malhotra
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 43/2019 & CM APPL. 9458-9462/2019
M/S COX AND KINGS LIMITED ..... Appellant
Through: Mr. Jitender Mehta, Adv.
versus
ANURADHA CHAUDHARY & ORS ..... Respondent
Through
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 27.02.2019 CM APPL. 9458-9459/2019 & CM APPL. 9462/2019 (Exemptions) Exemptions allowed, subject to just exceptions. RSA 43/2019 & CM APPL. 9460-9461/2019 The appellant assails the impugned judgment dated 09.10.2018 of the First Appellate Court of the ADJ-03 (South), Saket in RCA 45/2017 whereby the appeal filed by the respondents to the present appeal, arrayed as defendant nos.1, 2, & 3 to CS No.83597/2016, was allowed by the learned trial Court and decree vide which the suit of the plaintiff that is of the present appellant that had been decreed by the learned trial Court in favour of the plaintiff of the suit i.e. the present appellant decreeing the suit in favour of the plaintiff to the tune of Rs.95,776/- against the defendant no.1 also on behalf of the defendant no.3 and Rs.47,888/- against the defendant no.2 along with interest @ 6% p.a. from the date of institution of the suit till the realization thereof with costs was set aside with observations therein of RSA 43/2019 page no.1 of 4 the First Appellate Court to the effect:
"8.1. Reverting back to the case in hand, I have also perused the terms and conditions of cancellation contained in booking form Ex. PWl/2 which contains stipulated cancellation charges if the travellers cancelled the booking, but in the case the company (the plaintiff) cancels or modifies the rules, it was liable only for refund of amount deposit without any interest further with a deduction of actual spent charges. This clearly shows that contract is one sided and signed by the person booking tour in standard format. The penalty/ cancellation charges contained in the standard format has to be implemented in the judicial canon of interpretation of Section 73 and 74 of Contract Act, as discussed above. The defendants/appellants have already deposited Rs. 1,26,000/- to the plaintiff/respondent, therefore, any further amount as decreed by the Ld. Trial Court could have been given only on demonstration of actual loss suffered. There is no evidence on record showing that plaintiff/respondent has suffered any loss or incurred expenditure in excess of Rs.1,26,000/-, therefore, in terms of contract, no further amount is warranted. There is an attempt on behalf of the plaintiff/respondent that services have been given to the defendant no. 1/ appellant no. 1 in respect of visa of USA and it is argued that after earlier rejection, the plaintiff/respondent could get the visa for defendant no. 1/ appellant no. l. However, it is to be understood that visa is granted by the embassy based on the credentials of the person who is travelling and does not depend upon as to who has facilitated the application. At the best, the role of the professional is limited and restricted to ensuring submission of proper documentation to the embassy. The defendants/appellants have already paid some amount towards documentation and initial charges. In view of the above discussion, the impugned judgment is set aside."
It has been submitted on behalf of the appellant that the defendants were signatories to the terms and conditions of the contract between the RSA 43/2019 page no.2 of 4 plaintiff and the defendants and were educated persons and that in terms of Section 74 of the Indian Contract Act, 1872 which provides to the effect:
"74. Compensation for breach of contract where penalty stipulated for:- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation, - A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
(Exception) -- When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the 35 [Central Government] or of any 36 [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation. - A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested,"
it is categorically legislated therein to the effect that the person complaining of the breach of the terms of the contract is entitled to the reasonable compensation in terms of the contract not exceeding the amount mentioned in the contract whether or not actual damage or loss is proved to have been caused by the breach of the contract by the persons committing the breach thereof.
On a consideration of the submissions made, without any RSA 43/2019 page no.3 of 4 observations on the merits or demerits of the prayers made, the substantial question of law formulated is to the effect:
"Whether the standard terms and conditions in the contract dated 31.03.2014 entered into between the appellant herein and the defendant no.1/ respondent no.1 for herself and for respondent nos.2 & 3 were null and void" and "Whether the appellant herein had essentially to establish loss suffered by it before acting upon the duly agreed policy and terms and conditions of its contract dated 31.03.2014".
Notice of the appeal and the accompanying application be issued to the respondents along with the notice of the substantial questions of law formulated on taking of steps by the petitioner, process returnable on 14.05.2019.
ANU MALHOTRA, J
FEBRUARY 27, 2019
vm
RSA 43/2019 page no.4 of 4