M/S Stic Travels Pvt. Ltd. vs M/S Punjab Tourism Development ...
2009 Latest Caselaw 4712 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                        + RFA No. 96/1998

                                        Date of decision : 19.11.2009
IN THE MATTER OF :

M/S STIC TRAVELS PVT. LTD.                        ..... Appellant
                   Through: Mr. Manu Nayar with Mr. Amit Kumar
                            and Ms. Aradhan Mittal, Advs.

                  versus

M/S PUNJAB TOURISM DEVELOPMENT CORPN. LTD.
                                        ..... Respondent
                  Through: Nemo

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment? No.

     2. To be referred to the Reporter or not?   No.

     3. Whether the judgment should be
        reported in the Digest? No.

HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment and

decree dated 24.10.1997, by which the suit instituted by the appellant

against the respondent for recovery of Rs.3,22,283.82 paise was

dismissed.

2. Briefly stated, the facts of the case are that the appellant,

who is engaged in the business of arranging air travel tickets and visa

for tourists and passengers, and is also a general sales agent of a

number of international airlines, was approached by the respondent for

arranging a tour of 56 passengers for Delhi, Singapore, Hongkong,

Bangkok and Delhi. As per the averments made in the plaint, the

appellant stated that it offered the cost of a package for 7 nights and 8

days to the respondent @ Rs.9,700/- per passenger with Rs.650/-

towards additional night at Hongkong and that visa fees were

additional, apart from actual expenses. The appellant issued tickets

for 56 passengers and raised a bill for Rs.6,98,509/- on the

respondent. It is undisputed that the appellant received a sum of

Rs.4,72,150/- from the respondent in advance, thus leaving a balance

sum of Rs.2,04,379.82 paise.

3. The appellant submitted a bill dated 23.12.1989 for

Rs.2,05,490.82 paise(Ex.PW1/8) to the respondent, but the

respondent failed to clear the balance amount. As per the appellant, it

sent a number of reminders, telex messages and telephone calls to the

respondent for release of the balance payment, but to no effect. The

appellant thus claimed that a sum of Rs.50,000/- was spent by it

towards cost of service and other expenses and that a legal notice

dated 28.12.1991 was served by it upon the respondent, but the

balance payment was not released. The appellant therefore instituted

the present suit for recovery against the respondent in November,

1992.

4. Summons in the suit were issued to the respondent, who

entered appearance and contested the suit. In its written statement,

the respondent challenged the maintainability of the suit on various

grounds, including the ground that the Delhi court did not have the

territorial jurisdiction to entertain the suit, that there was no cause of

action that accrued in favour of the appellant and that the suit was bad

for non-joinder of parties. On merits, the respondent disputed the fact

that a sum of Rs.2,04,379.82 paise was due or payable by it to the

appellant. Instead, it was stated that the appellant failed to mention

that out of 56 passengers, 3 passengers were to travel free of costs.

5. After the pleadings were completed, the trial court framed 6

issues, which are reproduced hereinbelow for ready reference:

i) Whether this court has territorial jurisdiction to entertain and try the present suit? OPP

ii) Whether the plaintiff is a Private Ltd. Co. and the plaint has been signed and verified and suit instituted by a duly authorized person on behalf of the plaintiff? OPP

iii) Whether the plaintiff is entitled to a sum of Rs.2,04,379.82 as the balance amount of tickets issued by them to the defendant? OPP

iv) Whether the plaintiff is entitled to a sum of Rs.50,000/-

towards telex/telephone charges? OPP

v) Whether the plaintiff is entitled to any interest, if so, on what amount, at what rate and for what period? OPP

vi) Relief.

6. While issues No.1 & 2 were decided in favour of the

appellant, all the remaining issues were decided against it vide

judgment dated 24.10.1997. The appellant has assailed the impugned

judgment in the present appeal on the ground that no findings were

returned by the trial court in respect of issue No.3. The onus of

proving issue No.3 was on the appellant. The appellant was required

to establish that it was entitled to receive a sum of Rs.2,04,379.82

paise as the balance price of the tickets issued by it to the respondent.

7. While deciding the said issue, the trial court took into

consideration the brochure issued by the appellant company, which

was produced by the respondent and marked as Ex.DW1/3. The said

brochure stated that one person would travel free on 15 full paid

passengers. The covering letter dated 29.11.1989 issued by the

appellant enclosing Ex.DW1/3, was marked as Ex.DW1/2. The

appellant disputed the aforesaid document(Ex.DW1/3) by urging

before the trial court that it was not signed by any person for and on

its behalf. After taking into consideration the evidence produced on

behalf of the appellant, particularly, that of PW1, Shri Dharamvir

Bansal, Assistant Accounts Officer of the appellant company, the trial

court relied on Ex.DW1/3 and arrived at a conclusion that the

appellant was required to supply 3 free tickets against 15 full paid

passengers. No finding was returned with regard to the remaining

entitlement of the appellant, after deducting the value of the three free

tickets. Issue No. 4 was also decided against the appellant.

Thereafter, the suit was dismissed.

8. A perusal of the impugned judgment and decree shows that

the trial court has not returned any finding under issue No.3 as to the

entitlement of the appellant, if any, to the amount claimed in the suit,

and whether the said amount was liable to be reduced after deductions

of 3 free tickets to the respondent. Assuming that the appellant ought

to have given an adjustment of 3 tickets as free against 15 full paid

passengers, it was still incumbent on the trial court to examine the

material placed on record to establish as to whether after giving such

an adjustment, the appellant could claim any amount as outstanding

and payable by the respondent. Hence, the counsel for the appellant

is justified in submitting that issue No.3 was not decided conclusively

and was only partially decided.

9. Counsel for the appellant submits that instead of remanding

the matter to the trial court for deciding the remaining entitlement of

the appellant, looking at the vintage of the suit, the issue No.(iii) may

be decided conclusively in the present proceedings, particularly since

the respondent has neither denied the price of each ticket, nor the fact

that there was a balance amount outstanding and payable by it to the

appellant. In this regard, he draws the attention of this Court to the

written statement filed by the respondent in the suit proceedings,

particularly, paras 6, 8 and 11 thereof, which are reproduced

hereinbelow :

"6. That the contents of para No.6 are admitted to the extent that Corporation had paid a sum of

Rs.4,72,150/-, but it is wrong that a balance of Rs.2,04,379-82/- is left. The cost of issuing tickets to three persons is to be deducted from the said amount of Rs.2,04,379-82/-.

8. That the contents of para 8 of the plaint are wrong and hence denied. The defendant is not liable for the costs incurred by the plaintiff in sending telex messages, telephone calls and other such expenses from the date of negotiations till the date of return of the passengers from the tour. As per the offer of the plaintiff the defendant is only liable for Rs.9700+100US$.

11. That the contents of para No.11 are wrong and hence denied except that plaintiff wrote a letter to the defendant corporation on 15.3.90. In that letter it was specifically mentioned by the plaintiff that all the arrangement were made by Mr. Kaushal where as the Corporation/defendant never authorized Mr. Kaushal to make arrangement of his own. Defendant had agreed to pay Rs.9700/- + 100US$ per passenger to the plaintiff for the whole tour and it was the duty of the plaintiff to make all arrangements. As per the letter of the plaintiff Mr. Kaushal had made the arrangements of his own, especially when he was not authorized by the defendant, the plaintiff should have impleaded Mr. Kaushal as a party in this suit. The Corporation is not responsible for the acts of Mr. Kaushal, for which he had never been authorized by the Corporation."

10. Counsel for the appellant states that his client does not

wish to press its claim of Rs.50,000/-, subject matter of issue No.(iv).

He submits that in view of the clear and unequivocal admission by the

respondent/defendant in the written statement that the appellant was

entitled to receive payment per passenger @Rs.9,700/- +100US$,

after excluding the value of 3 tickets @ Rs.9,700/- per ticket from the

sum of Rs.2,04,379.82 paise, the appellant is entitled to receive the

balance amount of Rs.1,75,279.82 paise from the respondent. The

aforesaid submission is justified. It is apparent from a perusal of the

written statement that the respondent did not deny that it was liable

to pay the appellant/plaintiff only a sum of Rs.9,700/- + 100 US$ per

passenger for the whole tour. Its only grievance was that the value of

three free tickets was liable to be deduced from the balance amount

payable to the appellant.

11. Out of the bill of Rs.6,98,509/- raised by the appellant on

the respondent, the latter had admittedly paid the appellant a sum of

Rs.4,72,150/-. The appellant had claimed the balance sum of

Rs.2,04,379.82 paise from the respondent. Concurring with the

findings of the trial court that the respondent was entitled to deduction

of Rs.29,100/- being the total cost of 3 free tickets, it is held that only

a a sum of Rs.1,75,279.82 paise was payable by the respondent to the

appellant as balance amount and not Rs.2,04,379.82 paise as claimed

by the appellant. It is, therefore, held that the appellant is entitled to

receive a sum of Rs.1,75,279.82 paise from the respondent, towards

the balance amount for the price of the 53 tickets, after deducting the

price of three free tickets.

12. Insofar as the issue of interest and costs claimed by the

appellant under issue No.(v) is concerned, the appellant has claimed

interest from the respondent @ 24% p.a. by stating that the same was

the commercial rate of interest applicable for such transactions in the

market. This Court is not inclined to agree with the submission of the

counsel for the appellant. The aforesaid rate of interest cannot be

stated to be in consonance with the rate offered by nationalized banks

for FDRs at the relevant time. The appellant is held to be entitled to

interest on the outstanding amount of Rs.1,75,279.82 paise @ 6 ½

p.a. from the date of institution of the suit, till realization, with costs.

Decree sheet be prepared accordingly.

13. The appeal is disposed of. Trial court record be released.

                                                           (HIMA KOHLI)
NOVEMBER 19, 2009                                            JUDGE
sk