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[Cites 1, Cited by 0]

Delhi District Court

Vijay Pathak vs Satish Chander Jaiswal on 12 October, 2013

                                     1

               In the Court of Sh. Vivek Kumar Gulia 
          Commercial Civil Judge cum ARC­1 (Central)
                        Tis Hazari Courts, Delhi.

Suit No. 39/13/08
Unique I.D. No. 02401C0291732008

In the matter of :­


Vijay Pathak
Proprietor of M/s Ace Travels,
office at C­53, 2nd Floor,
Shivalik, New Delhi­110017.                                    ......... Plaintiff
                                 Versus
1.    Satish Chander Jaiswal
      C/o National Museum, 
      1, Janpath, New Delhi.
2.    Star World Wide Movers Pvt. Ltd.
      13/7, Mathura Road, Faridabad, Haryana.
3.    Atul Mathur, Director,
      Star World Wide Movers Pvt. Ltd.,
      W­10A/10, Western Avenue,
      Sainik Farms, New Delhi.                              ....... Defendants

                SUIT FOR RECOVERY OF RS. 64,925/­


Date of Institution :                                           23.02.2008
Final arguments heard/case reserved for Judgment :              07.11. 2013
Date of Judgment :                                               10.12.2013
Decision :                                                       Suit decreed


Page 1 of 16                                                 Suit no. 39/13/08
                                             2

                                    JUDGMENT:

1. The important facts of the case, as averred in the plaint are as under:

1A. The plaintiff is sole proprietor of a firm namely Ace Travels and is carrying on business of trading in air tickets. Defendant no. 1 is employed with National Museum and is a government servant. Defendant no. 2 is a company registered under Companies Act and defendant no. 3 is principal director of defendant no. 2. Plaintiff has been regularly selling tickets to the defendants no. 2 & 3 as per their orders and requirements. On 17.11.2007, defendant no. 2 and 3 requested for an air ticket in the name of defendant no. 1 from Delhi­Singapore­Delhi Sector between 23.11.2007 and 28.12.2007. Defendant no. 1 also contacted the plaintiff and furnished a copy of his passport for issuance of ticket. The plaintiff informed him and as well as defendant no. 3 that ticket is available for the scheduled dates at the cost of Rs. 62,370/­. Defendant no. 1 confirmed that he is entitled for the above rate of ticket and assured its payment. Simultaneously payment was assured by defendants no. 2 & 3.
1B. The ticket no. SQ 5621928999 was sent to defendants by e­mail which contained an entry about its rate and charges. Certain changes / Page 2 of 16 Suit no. 39/13/08 3 corrections were made in the ticket on the suggestion of defendant no. 1 later on. In addition to the above ticket, the plaintiff also sent an invoice number 1875 dated 17.11.2007 for an amount of Rs. 62,370/­ by fax to the defendants no. 2 & 3. Subsequently the original copy of bill was also delivered to office of defendant no. 2 company. Thereafter, defendant no. 1 utilized the ticket for his travelling.
1C. As per terms and conditions of the invoice, the payment was to be made within 7 days of the bill and in default an interest of 18% per annum was to be charged. However, the payment was not made within scheduled time despite repeated requests and reminders. Further, plaintiff received an e­mail dated 10.12.2007 from defendants no. 2 & 3 stating not to cancel the ticket for return journey and also asked to furnish TDS and commission details. Thereafter plaintiff issued a legal notice dated 23.12.2007. Only defendants no. 2 & 3 replied the same and though they admitted issuance of tickets by plaintiff and their liability to pay but they disputed the extent of their liability on the ground that the fare claimed is much higher. Because of arbitrary and illegal conduct of the defendant, the plaintiff is entitled for recovery of bill amount alongwith agreed rate of interest till recovery. Plaintiff is claiming for interest from 28.11.2007 to 20.02.2008, which comes to be Rs. 2555/­ and thus on the date of filing of suit, the total outstanding amount is Rs. 64,925/­. Page 3 of 16 Suit no. 39/13/08 4

In view of above, it prayed that a decree for recovery of sum of Rs. 64,925/­ alongwith pendente­lite and future interest @ 18% per annum and costs of the suit be passed.

2. On service of summons, defendants opted to contest the suit. 2A. Defendant no. 1 filed written statement mentioning that he is neither necessary nor proper party to the suit and claim of the plaintiff, even if any, can be adjudicated in absence of defendant no. 1. Further, it is stated that he had undertaken official tour arranged through his employer without any role in alleged communication and arrangement. Further, it is mentioned that for his visit, he had made available photocopies of his passport and his office arranged air tickets through defendants no. 2 & 3 and therefore he has nothing to do with the cost of tickets. Further, it is denied that he assured the plaintiff for alleged rate or payment against tickets. Further, he admitted that he had advised some corrections in his name as per his passport. Further, it is mentioned that defendants no. 2 & 3 are authorized agents of Singapore Govt. in India and the agreement in respect of air tickets was between plaintiff and defendants no. 2 & 3.

2B. Defendants no. 2 & 3 filed separate written statement mentioning that the plaintiff has already received the entire payment and there is no Page 4 of 16 Suit no. 39/13/08 5 outstanding dues as on date. Further, it is stated that plaintiff has concealed the material fact that the accounts between plaintiff and defendants were settled as plaintiff adjusted commission payable to the defendants, amount deducted by plaintiff purportedly as TDS and the advance amount paid to the plaintiff by the defendants. Further, it is mentioned that plaintiff has not taken any approval or confirmation from the defendants no. 2 & 3 and had instead dealt directly with the defendant no. 1 despite specific directions to the contrary. Further, it is stated that the said ticket was booked in the higher class in the economy fare without the acknowledge of defendants no. 2 & 3. Further, it is mentioned that without approval or knowledge of defendants, plaintiff made changes in the schedule of flight and specifications thereof on instructions of defendant no. 1. Further, it is stated that the ordinary fare of economy class for the said flight was in the range of Rs. 30,000/­ and for the business class, it was in the range of Rs. 45,000/­ but plaintiff had booked the flight in higher class. Further, it is denied that the departure or arrival date were ever communicated to defendants no. 2 & 3. Further, it is denied that ticket was sent to the defendants 2 & 3 by e­mail or fax. Further, it is stated that plaintiff never issued the TDS certificate despite several demands and did not pay commission on the air ticket in question. Further, it is stated that defendant company vide its e­mail Page 5 of 16 Suit no. 39/13/08 6 dated 10.12.2007 informed the plaintiff about said facts and also made demand of TDS amount and commission on the ticket as plaintiff was trying to extort undue amount by threatening that he will cancel the return ticket of defendant no. 1. However, after lot of persuasion the plaintiff agreed that the TDS amount deducted by him, advance amount lying with him and the commission payable to defendants no. 2 & 3 shall be adjusted against cost of ticket in question. Further, it is stated that legal notice of plaintiff was replied vide reply dated 29.12.2007. Further, it is stated that plaintiff never issued bill dated 17.11.2007 and it is false and fabricated document.

In view of above, it is prayed that the suit of the plaintiff be dismissed with exemplary costs.

3. Plaintiff filed separate replication to the written statement filed by the defendants wherein he denied the contentions raised by the defendants and reiterated the facts mentioned in the plaint. Further, it is added that the air fare was charged as per the charges specified by the airlines and plaintiff had no role to play. Further, it is stated that whenever any commission was payable to defendants no. 2 & 3, the same was reflected in the bill and no question of TDS deduction arose as the plaintiff is not paying any money to defendants no. 2 & 3. Page 6 of 16 Suit no. 39/13/08 7

4. On the basis of the pleading of the parties, following issues were settled by Ld. Predecessor of this court vide order dated 16.02.2009:

1. Whether the plaintiff is entitled to recover the claim as per the plaint? OPP
2. Whether the plaintiff is entitled to recover the interest as claimed by him in the plaint? OPP
3. Relief.

5. Plaintiff examined only one witness. He himself stepped into witness box as PW1 and deposed on the lines of plaint. Further, he relied upon following documents :

a) e­mail dated 17.11.2007 of def. no. 2 & 3. : Ex. PW1/1
b) Photocopy of passport of defendant no. 1 : Ex. PW1/2
c) Correction request of defendant no. 1 : Ex.PW1/3
d) Schedule of travel & payment charges : Ex. PW1/4
e) Invoice no.1875 dated 17.11.2007 : Ex. PW1/5
f) e­mail dated 10.12.2007 : Ex.PW1/6
g) Legal notice dated 23.12.2007 : Ex. PW1/7
h) Postal receipts : Ex.PW1/8 to Ex. PW1/15
i) Reply of defendants no. 2 & 3 to legal notice : Ex. PW1/16

6. On their turn, defendants examined two witnesses. 6A. Defendant no. 1 himself entered into witness box as DW1 and deposed on the lines written statement filed by him. 6B. On behalf of defendants no. 2 & 3, Sh. Tilak Raj Nijhawan, Page 7 of 16 Suit no. 39/13/08 8 Assistant Manager, Accounts, deposed as DW2 on the lines of written statement filed by defendants no. 2 & 3. Further, he relied upon following documents : 

a) Board resolution dated 07.07.2008        :   Ex. DW2/A
b) e­mail dated 25.10.2007                  :   Ex. DW2/B
c) e­mail dated 10.12.2007                  :   Ex. DW2/C

d) Reply dated 29.12.2007 to legal notice : Ex. DW2/D

7. I have heard the arguments advanced by Ld. counsel for plaintiff, Sh. V.K. Sabharwal, Ld. counsel for defendant no. 1 Sh. Vijay Prakash, and Ld. counsel for defendants no. 2 & 3 Sh. Sudhir Nagar. Record is perused. My issue­wise findings are as follows:

Issue no. 1.
1. Whether the plaintiff is entitled to recover the claim as per the plaint? OPP

8. Burden to prove this issue was on the plaintiff. It is the case of plaintiff that air tickets were booked in the name of defendant no. 1 at the instance of defendants no. 2 & 3 and though all the defendants assured for timely payment but they failed without any reason. On the other hand, defendant no. 1 put forth his case to the effect that the transaction of purchasing air ticket was between plaintiff and defendants no. 2 & 3 and Page 8 of 16 Suit no. 39/13/08 9 he had no role to play in it. Defendants no. 2 & 3 have taken two defences ­ firstly, that the plaintiff has adjusted the bill amount against advance payment, commission payable to defendants and TDS pertaining to transaction in question payable to defendants no. 2 & 3 and secondly, that plaintiff is not entitled for the bill amount since he booked the air tickets in higher class of economy fare without instructions and approval of defendants no. 2 & 3.

9. It is pertinent to mention here that the outlines of the case are not in dispute. These can be summed up as follows:­ The plaintiff booked air tickets for official visit of defendant no. 1 on the instructions of defendants no. 2 & 3 in the economy class; defendant no. 1 travelled on the basis of those tickets; tentative dates of journey were provided by defendants no. 2 & 3 and the departure date was to be informed to plaintiff by them; after commencement of the journey the defendants no. 2 & 3 sent an e­mail dated 10.12.2007 to the plaintiff and the plaintiff sent a legal notice dated 23.12.2007 to said defendants demanding the bill amount.

10. In order to prove his case, PW1 testified that he informed all the defendants that ticket is available for scheduled dates at the cost of Page 9 of 16 Suit no. 39/13/08 10 Rs. 62,370/­ and defendant no. 1 confirmed that he is entitled for above rate of tickets and further payment was assured by all the defendants. Further, it is deposed that tickets were sent by e­mail to defendants and thereafter request was made by defendants for correction in the tickets qua name of defendant no. 1. Further, he testified that the confirmed schedule of travel and payment of charges were also communicated to the defendants vide document Ex. PW1/4 and moreover, an invoice dated 17.11.2007 Ex. PW1/5 was also sent to the defendants no. 2 & 3 by fax on 21.11.2007 and its original copy was also subsequently delivered at the office of defendant no. 2. During cross examination conducted by defendant no. 1, PW1 stated that the order for purchasing of air tickets in question was made by Sh. Pranav Kumar Mathur, assistant manager of defendant no. 2 and in past payment of air ticket was made by defendant no. 2. During cross examination conducted by defendants no. 2 & 3, PW1 replied that as per order placed by defendant no. 2, the ticket was to be booked for 24.11.2007 and further admitted that the ticket was booked for 23.11.2007. Further, he deposed that date of ticket was changed on the request of defendant no. 1 and Mr. Pranav gave him contact no. of defendant no. 1. Further, he admitted that he sold some tickets of Singapore sector to defendants no. 2 & 3 in the range of Rs. 30,000/­.

Page 10 of 16 Suit no. 39/13/08 11

11. During cross examination, DW1 replied that when he found mistake in his name on the tickets, he firstly informed his authorized agent (defendant no. 2) and thereafter he was asked to send a photocopy of his passport with correct name to its office on 20.11.2007 by fax and on 21.11.2007, defendant no. 2 asked him to send the photocopy of same to the plaintiff. Further, he admitted that he was provided a fax number of plaintiff by defendants no. 2 & 3. From the testimony of DW1, it stands proved on record that after issuance of tickets reflecting incorrect name of defendant no. 1, defendants no. 2 & 3 authorized defendant no. 1 to communicate with plaintiff for the purpose of correction in the name. Thus, it gives strength to the case of plaintiff that defendants no. 2 & 3 asked him to communicate with plaintiff in respect of air ticket in question and at the same time it falsifies the stand of defendants no. 2 & 3 that they never instructed the plaintiff to deal with defendant no. 1 directly.

12. It is not disputed that while placing order for air ticket in question vide e­mail Ex. PW1/1, defendants no. 2 & 3 informed the plaintiff that departure date would be confirmed by them. PW1 has testified that ticket was booked and its details alongwith entry of charges were sent to Page 11 of 16 Suit no. 39/13/08 12 defendant no. 1 as well as defendants no. 2 & 3 by e­mail and further the bill Ex. PW1/5 was sent to office of defendants no. 2 & 3 through fax well before the commencement of the journey. Further, DW1 has also replied that on 21.11.2007, he received a fax from defendant no. 2 and thereafter from plaintiff informing the due correction in his name. Defendants no. 2 & 3 have not been able to controvert this fact. In such circumstances, it becomes clear that the details of tickets were came to the knowledge of defendants no. 2 & 3 on 21.11.2007, i.e., well before the scheduled date of departure of defendant no. 1 to Singapore. Thus, the defence of defendants no. 2 & 3 that they were not made available with the details including fare of the air ticket before the commencement of the journey cannot be believed. Moreover, even if it is accepted that plaintiff did not furnish the details of air fare before commencement of journey, defendants no. 2 & 3 failed to give explanation as to why they did not demand the required details before commencement of journey.

13. Furthermore, though the defendants no. 2 & 3 have proved on record that the departure date of defendant no. 1 was preponed but it is not the case of defendants no. 2 & 3 that this change in date has resulted in the hike of air fare substantially. Moreover, defendants no. 2 & 3 failed to satisfy this court as to how the plaintiff was benefited by changing the Page 12 of 16 Suit no. 39/13/08 13 sub­class of economic fare for purchasing the air ticket and at the same time, it is not their case that plaintiff got more commission by getting the ticket booked in different class. On the other hand, this court is in agreement with submissions made by counsel for plaintiff that plaintiff had no control over air fare which is regulated by particular air­lines. In view of above, it is held that the plaintiff booked the tickets for defendant no. 1 at the instance of defendants no. 2 & 3 in consonance with the agreement between them.

14. Furthermore, defendants no. 2 & 3 failed to lead any evidence to substantiate their defence that the claimed amount stood adjusted against the commission amount payable by plaintiff, the TDS in respect of the air tickets and the advance amount given to plaintiff by defendants no. 2 & 3. During cross examination, DW2 testified that he is not aware about original order dated 25.10.2007, about communication took place between defendant no. 3 & plaintiff about booking of ticket and price negotiation, about change of date of flight, price of ticket, receipt of bill and payment of bill. From the replies given by the only witness produced by defendants no. 2 & 3, it appears that he has no personal knowledge about transaction in question. Moreover, DW2 failed to placed on record any documentary evidence to suggest that the plaintiff ever shown TDS Page 13 of 16 Suit no. 39/13/08 14 in bills issued in favour of defendants no. 2 & 3, further that plaintiff paid commission invariably in each transaction of purchase of air ticket and that defendants no. 2 & 3 gave any advance payment to the plaintiff. This defence of defendants no. 2 & 3 also give rise to an inference that plaintiff raised appropriate air fare bill and it was communicate to defendant no. 2 & 3 in time. Moreover, it is noteworthy that after commencement of journey, defendants no. 2 & 3 sent an e­mail Ex. PW1/16 to plaintiff and this e­mail emphasizes only upon TDS deduction, payment of commission etc. and is silent about raising bill on higher side. Thus, it becomes clear that the defence of defendants no. 2 & 3 raised in respect of overcharging is an afterthought and therefore cannot be accepted.

15. Further, DW1 deposed that Govt. of Singapore paid for the journey undertaken by him on the aforesaid tickets as per MOU signed between the Singapore and Indian Government. Moreover, the defendants no. 2 & 3 have not rebutted the fact that they have already received payment against air ticket in question from Singapore government and it is not their case that any subclass of air fare was fixed by the Govt. of Singapore for to and fro journey of defendant no. 1. In view of above, it is held that plaintiff is entitled for recovery of bill amount from defendants Page 14 of 16 Suit no. 39/13/08 15 no. 2 & 3.

16. It is admitted position that defendant no. 1 never communicated with plaintiff in his personal capacity and air tickets were booked for his official visit on the instruction of his employer through defendants no. 2 &

3. Since there was no agreement between plaintiff and defendant no. 1 qua payment of the air ticket, defendant no. 1 cannot be fastened with any liability to pay the air ticket fare.

17. Further, it is seen that plaintiff has claimed interest of Rs. 2555 on the bill amount @ 18% per annum for pre suit period. This court is of the view that plaintiff should be awarded an interest on the bill amount of Rs. 62,370/­ @ 9% per annum from the date of legal notice dated 23.12.2007 till filing of the suit. Accordingly, this issue is decided in favour of plaintiff and against the defendants no. 2 & 3.

Issue No. 2.

Whether the plaintiff is entitled to recover the interest as claimed by him in the plaint? OPP

18. Burden to prove this issue was on the plaintiff. Plaintiff has Page 15 of 16 Suit no. 39/13/08 16 claimed pendente­lite and future interest @ 18% per annum on the due amount. Considering all the facts of the case, this court is of the view that plaintiff should be awarded with pendente­lite interest @ 12 % per annum and future interest @ 18% per annum.

RELIEF:

19. In view of issue­wise findings given above, suit of the plaintiff is decreed in favour of plaintiff and against defendant No. 2 & 3 and plaintiff is held entitled for recovery of Rs. 62,370/­ alongwith interest @ 9% per annum from 23.12.2007 till filing of the suit, pendente­lite interest @ 12% per annum and future interest @ 18% per annum on the aforesaid amount. In the facts & circumstances of the case, the costs of the suit are also awarded to the plaintiff. 

Announced in open Court                                  (Vivek Kumar Gulia)
on 10  Day of December, 2013                  CCJ cum ARC­1 (Central)
      th


[This judgment contains 16 pages.]                    Tis Hazari Courts, Delhi




Page 16 of 16                                                     Suit no. 39/13/08