M/S. Diplomatic Travel Point (P) ... vs M/S. Consolidated Products ...
2011 Latest Caselaw 2 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                      RFA No.737/1999
 %                                                  3rd January, 2011


M/S. DIPLOMATIC TRAVEL POINT (P) LTD.               ...... Appellant
                               Through:        Mr. Anil K. Gujral,
                                               Advocate.
                       VERSUS

M/S. CONSOLIDATED PRODUCTS CORPORATION (P) LTD.
                                     ...... Respondent

Through: Mr. Samrat Nigam, Advocte with Mr. Sanjeev Mahajan, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present first appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree dated 16.8.1999 whereby the trial

Court dismissed the suit for recovery filed by the appellant/plaintiff

against the respondent/defendant. The suit for recovery was filed for

charges of an air ticket which was issued by the appellant/plaintiff to

the defendant/respondent.

2. It is not in issue that a ticket was issued and nor is it in

issue that there were business relations of many years between the

parties during which business of approximately Rs.59 lacs was

transacted by the respondent/defendant with the appellant/plaintiff.

The case of the respondent/defendant before the trial Court was that in

fact no amount was originally payable for the ticket issued because

this was to be a free ticket in view of the business given to the

appellant/plaintiff, however, there was a subsequent agreement on

account of insistence by the appellant/plaintiff whereby instead of the

entire amount of the ticket of Rs.1,73,085/-, 25% of the amount of the

ticket was paid for the complete price of the ticket. The cheque of Rs.1

lakh which was issued by the respondent/defendant to the plaintiff

included this 25% amount of Rs.47,294/- and the remaining balance

was towards other outstanding dues of the appellant/plaintiff.

3. The trial Court after completion of pleadings framed the

following issues:

"1. Whether there was an agreement between he plaintiff and the defendant that defendant shall be entitled for 75% agency discounted ticket and the defendant was liable to pay only 25% of the ticket amount?OPD

2. Whether the plaintiff is entitled to the relief claimed?OPP

3. Relief."

4. The relevant paragraphs of the judgment are paras 4 to 6

and which read as under:-

"ISSUE NO.1

4. The defendant has not denied the ticket issued by the plaintiff and has also not denied that only part payment in respect of this ticket was made. The stand of the defendant is that he was regular customer of the plaintiff and had provided business of more than 59 lakhs to the plaintiff and Airlines has treated him as CIP and plaintiff acting through Mr. M.P.Khanna had agreed with the defendant to provide to the defendant agency discounted ticket. Plaintiff did not provide agency discounted ticket and ultimately the plaintiff had agreed in respect of the ticket for which suit has been filed defendant should pay only 25% or the value and rest should be treated as agency discounted ticket. The defendant examined himself as D.W.1. In his testimony he has stated that transaction with the plaintiff company had started in 1989 and he was purchasing tickets from the plaintiff company for himself and his employees. The total amount for which tickets were purchased from the plaintiff from 1989 to 1997 was around Rs.57 Lakhs and no special facilities was given by the plaintiff to the defendant. In 1995 plaintiff's Managing Director told the defendant company that due to volume of business being offered by the defendant company two return tickets for USA would be provided by the plaintiff company. However, these two tickets were not provided by the plaintiff company either in 1995 or 1996. In 1997 he had taken return ticket for USA from the plaintiff company and after coming from USA he received a bill from the plaintiff for the ticket. At that time he told Mr. Khanna told him that tickets for which bill has been sent to him to be treated as free tickets and do not make the payment. However, later on he changed the stand and told the (defendant) would have to pay 25% of the amount of the tickets. When defendant told that this was not a way the business to be done with the defendant as the defendant had given lot of business to the plaintiff, the plaintiff told him that Rs.1,00,000/- be paid against the total outstanding and that will square the account, so the defendant paid Rs.1,00,000/- by cheque and told henceforth they would have no business with him. A letter was written by the defendant to the plaintiff and thereafter defendant company stopped dealing with the

plaintiff company. In cross examination this witness stated that it was no written agreement but it was a oral agreement between the plaintiff and the defendant that they would gave free ticket. Defendant however, stated that on the basis of travel mileage the airlines offered free ticket to the passenger who travel frequently and defendant had availed such facility. When question was put to the defendant about the agency discounted tickets being meant only for staff and employees of the agency the defendant answered that he was not concerned about technicalities and several other agents were offered such free tickets to their customers who gave so much business. Defendant also denied that agency discounted tickets were marked on the fact of it as such and are directly issued by Airlines. Suggestion was given to the defendant that an amount of Rs.52706/- was balanced against the defendant.

5. D.W 2 is Randhir Singh who was working as Manager Accounts with the defendant company. He stated that in 1995 plaintiff had agreed for providing discounted ticket to the defendant company. After Mr. Saigal (DW 1) came back from U.S.A asked for agency free tickets but he plaintiff did not agree to the same and told that defendant should pay Rs.1 lakh and that would settle the account and balance should be treated as discount. So a sum of Rs.1 lakh was given by cheque and as per settlement of account nothing was to be paid by the defendant and thereafter no transaction took place. This witness also stated that agreement was only oral agreement and there was no written document. Witness denied that this amount of Rs.1,00,000/- was paid on account but stated that was full and final settlement of the account against previous balance and cost of ticketing done in June-July

97. Witness also produced the ledger showing that payment of Rs.1 lakh was shown as full and final payment.

5. The plaintiff has not produced any evidence in rebuttal.

6. The court can take judicial notice of the fact that in the in the field of air travelling airlines and travel agents do grant discounted tickets and free tickets to commercial passenger who frequently travel by airlines. Such passenger are given VIP treatment and are providing special discount. The plaintiff has not denied that defendant had given to the plaintiff a business worth Rs.57 lacs. There is no evidence to disbelieve the testimony of the defendant that plaintiff had agreed for

providing free ticket and later agreed to provide discounted ticket. It is not necessary such an agreement should have been in writing and oral agreement is also a prefect valid agreement. Testimony of defendant is supported by DW 2 another defendant's witness. Moreover in the plaint the plaintiff has stated that out of total value of ticket of Rs.173085/-. The defendant had paid only Rs.47294/- and the remaining amount out of Rs.1 lacs was adjusted towards earlier balance. The plaintiff also claimed interest at the rate of 18% on this amount and also claimed the discount of Rs.10306 which was given in the bill was only against cash payment but the ledger of the defendant and testimony of the defendant shows that all the payments were made by cheques and discount was being given by the defendant in the bills even against the cheques payment. It is a matter of common knowledge that on ticket travel agents gave discount of 10% to every passenger. In case of some airlines discount given by travel agent was up to 40% of the value. This discount was given irrespective of the fact whether payment is made by cash or by cheque. In cross examination of the defendant the plaintiff gave suggestion that balance amount payable was Rs.52,705/-. While in the plaint plaintiff had claimed balance payment was payable Rs. 125791/-. I consider that inconsistent of the plaintiff only goes to prove the case of the defendant that there was a oral agreement between the parties that amount of Rs.1 lacs which was paid by the defendant to the plaintiff was to be treated as full and final payment against all the outstanding balance. The defendant has also prove Ext. DW1/1 the letter written by the defendant reminding the plaintiff about provided two tickets 75% discounted tickets of British Airways for U.S.A. as per promise. I therefore, come to the conclusion that there was an agreement between the plaintiff and the defendant for giving discounted tickets to the defendant and the payment of Rs.1 lacs by the defendant to the plaintiff was full and final payment of the disputed ticket after giving an agreed discount. This amount also include the part payment of previous amount. Issue is decided accordingly."

5. No doubt, the judgment of the trial Court is based upon an

oral understanding said to have been arrived at however the same has

correctly analyzed all the facts/evidence before coming to its

findings/conclusions. The trial Court also takes note of the fact that

when huge business is done with a travel agent then free tickets or

discounted tickets are usually given in the business.

6. I do not find any illegality or perversity in the impugned

judgment and decree. No doubt this Court is a Court of first appeal

both of facts and law, however, when two equal views can be taken

and one view is taken by the trial Court, then this Court will not

interfere with the impugned judgment and decree unless the view

taken by the trial Court causes grave injustice. In the present case at

time of encashing of cheque of Rs.1 lakh of which an amount of

Rs.47,294/- was towards 25% of the disputed ticket no letter was

written by the appellant/plaintiff to the respondent/defendant that this

cheque is being encashed without prejudice to its rights and

contentions and only for part payment of the disputed ticket.

7. Considering the overall facts of the present case, I do not

find that the present is a fit case for setting aside the impugned

judgment and decree. The appeal is therefore dismissed, leaving the

parties to bear their own costs. Trial Court record be sent back.

JANUARY 03, 2011                                VALMIKI J. MEHTA,J
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