M/S. Chl Ltd. vs M/S. Alitalia Airlines & Ors.
2011 Latest Caselaw 2964 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 02.06.2011

+           CS(OS) No.728/2009

M/S. CHL LTD.                                      .....Plaintiff

                              - versus -


M/S. ALITALIA AIRLINES & ORS.                  .....Defendants

Advocates who appeared in this case:
For the Plaintiff:      Mr. Ravi Kant Chadha, Sr. Adv.
                        with Ms. Mansi Chadha, Adv.

For the Defendants:            None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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                     No.
   in Digest?

V.K. JAIN, J. (ORAL)

IA No. 9272/2011

Vide this application, the plaintiff seeks to give full

name of the defendant.

Heard. Allowed.

The amended memo is taken on record.

The application stands disposed of.

CS(OS) 728/2009

1. This is a suit for recovery of Rs.3918606.37. The

plaintiff company is running a Hotel named "Crowne Plaza

Hotel" at New Friends Colony, New Delhi. It is alleged that

the defendant approached the plaintiff in the year 2006 for

providing accommodation along with other services to its

Passenger Crew and Cargo Crew. An agreement was

executed between the parties on 18.09.2006. The

agreement was valid from the period from 01.10.2006 to

30.09.2008. Under the agreement, the plaintiff bank was

required to set aside 20 to 31 rooms throughout the year,

10/11 rooms per day for "Passenger Crew" checking-in and

10/11 rooms per day for "Passenger Crew" late checking-

out(overlap) and 9 rooms for Cargo Crew back to back for

the year. The room rent was fixed at Rs.7.000 per double

room (single use) plus taxes for the period 01.10.2006 to

30.09.2007. The rate for the period from 01.10.2007 to

30.09.2008 was to be mutually agreed not later than

30.06.2007 and the maximum increase could have been

15%. Rs.3,000 including taxes per room per night were

agreed for the overlap.

2. The agreement dated 18.09.2006 was extended by

Integration of Agreement signed on 18.09.2007 wherein new

rates were agreed from the period 0.10.2007 to 30.09.2008.

These were, Cargo Crew Rs.8,050 per room per night plus

taxes Passenger Crew Rs.8,050 room per night plus taxes

and Overlap Crew Rs.3,450 per room per day inclusive of

taxes. Thereafter, for the period from 01.10.2008 to

30.09.2009, the rates were fixed at Rs.9500/- plus tax for

single occupancy and Rs.10500 plus 13.13% for double

occupancy along with breakfast charges of Rs.500/- plus

tax for each person.

3. The plaintiff - Company raised bills for providing

accommodation to the defendants from time to time. The

case of the plaintiff is that a sum of Rs.3694889.37 remains

due to it for the period from 11.08.2008 to 10.01.2009. The

agreement was terminated vide letter dated 07.01.2009

written by one Professor A.N.Augusto Fantozzi claiming to

be Extraordinary Administrator of the defendant. The

termination, however, had no effect in respect of the

services till 10.01.2009. Now, the plaintiff has claimed the

aforesaid unpaid amount of Rs.36,94,889/37 Ps. from the

defendant along with interest thereon at the rate of 18% per

annum amounting to Rs.2,23,717/- thereby making a total

sum of Rs.39,18,606/-.

4. The defendant was proceeded ex-parte on

10.03.2011. The plaintiff has filed the affidavit of its Vice

President Mr. N.K.Goel by way of ex-parte evidence In his

affidavit, Mr. Goel has stated on oath, the case set up in the

plaint and has stated that the tariff was fixed at Rs.8,050/-

per room per night plus taxes for Passenger Crew, Cargo

Crew and Rs.3,450/- (inclusive of tax) per room per day for

overlap Crew. He has further stated that the tariff for the

period from 01.10.2008 to 30.09.2009 was fixed at Rs.9,500

per day plus tax for single occupancy and Rs.10,500/- per

day plus taxes for double occupancy along with breakfast

charges Rs.500/- plus taxes per person per day. He has

further states that the amount of the following six bills is

still due from the defendant.

Date     From           To          Bill         Amount       No      18%
                                                                      Interest
                                    No                        of

                                                              Days

23/08/08 11/08/08 20/08/08 15659 570368.91                    209     58787.00




 02/09/08 21/08/08 31/08/08 16713 617120.46                198    60258.00

15/12/08 01/12/08 10/12/08 26399 766150.00                97     36649.00

22/12/08 11/12/08 20/12/08 27059 726350.00                87     31163.00

05/01/09 21/12/08 31/12/08 28423 776100.00                76     29088.00

12/01/09 01/01/09 10/01/09 29107 238800.00                66     7772.00

                                    INR      3694889.37

5. Ex.PW-1/2 & Ex.PW-1/2A are the agreements

where the tariff was fixed. The unpaid bills pertain to the

period 11.08.2008 to 10.01.2009. Ex.PW-1/2A shows that

the tariff agreed between the parties was Rs.8050/- per

room per night for cargo crew and passenger crew and

Rs.3450/- per day including taxes for the overlap, upto

30.09.2008. For the period subsequent to 30.09.2008,

there is no written agreement between the parties agreeing

to a particular tariff. It however, appears from Ex.PW-1/3

that the plaintiff company was demanding tariff of

Rs.9,500/- but the defendant wanted some reduction in the

proposed tariff.

The invoices raised by the plaintiff company on the

defendant from time to time are collectively as Ex.PW-1/4.

6. A perusal of the invoice No.15659 for the period

from 11.08.2008 to 20.10.2008 would show that the

plaintiff - Company has charged room rent at Rs.8,050/-

per day. In view of the agreement between the parties, the

defendant is liable to pay the amount of this invoice to the

plaintiff. A perusal of invoice No.16713 for the period from

21.08.2008 to 31.08.2008 would show that the plaintiff-

Company has charged defendant at the rate agreed between

them. The defendant - Company, therefore, is liable to pay

the amount of this invoice to the plaintiff.

Bill No. 26399 is the invoice for the period from

01.12.2008 to 10.12.2008. The tariff for this period has

been charged at Rs 8,700/- per room per day, which is more

than the tariff which the plaintiff was charging up to 30th

September, 2008, but is less than the tariff which it was

claiming from the defendant for the period subsequent to

30th September, 2008. The e-mail dated September 5, 2008,

sent by Mr Giorgio Elettra of the defendant-company to Mr

Munish Bhatia of the plaintiff-company would show that the

increase proposed by the plaintiff from Rs 8,050/- per day

to Rs 9,500/- was not acceptable to the defendant and the

defendant-company wanted tariff less than Rs 9500/- per

room per night. The tariff charged by the plaintiff being Rs

8700/- per room per night, it is substantially less than the

tariff which the plaintiff claiming from the defendant. There

is no evidence of the plaintiff having agreed to charge less

than this tariff. Since the defendant-company availed the

rooms provided by the plaintiff for stay of its employees, it is

bound to pay the aforesaid tariff to the plaintiff-company. I,

therefore, hold that the plaintiff is entitled to amount of

invoice No. 26399 from the defendant. A perusal of the Bill

No. 27059 would show that it pertains to the period from

10.12.2008 to 20.12.2008. In this invoice also, the plaintiff-

company has charged tariff at the rate of Rs 8700/- per

room per night. The defendant, therefore, is liable to pay the

amount of this invoice to the plaintiff. Bill No. 28243

pertains to the period from 20.12.2008 to 04.01.2009. In

this bill also, the tariff has been charged at the rate of Rs

8700 per room per night. The defendant is, therefore, liable

to pay the amount of this invoice also to the plaintiff. Bill

No. 29107 pertains from 04.01.2009 to 10.01.2009 and in

this invoice also, the tariff has been charged on the same

rate of Rs 8700/- per room per night. Hence, the plaintiff is

also entitled to recover the amount of this invoice from the

defendant. It would thus be seen that the plaintiff-company

is entitled to recover an amount of Rs 3694889.37 from the

defendant-company for the rooms provided by it to the

employees of the defendant-company. A perusal of the

invoice shows that interest at the rate of 18% per annum

was to be charged if the bill was not paid within seven days

of its receipt. Hence, the plaintiff-company is also entitled to

recover a sum of Rs 223717 from the defendant as interest

for the pre suit period.

7. For the reasons given in the preceding paragraphs,

a decree for recovery of Rs.3918606.37 with costs and

pendente lite and future interest at the rate of 12% per

annum is hereby passed in favour of the plaintiff and

against the defendant-company.

The learned counsel for the plaintiff states that the

defendant-company has not issued TDS certificates to the

plaintiff-company. He wants a direction to the defendant-

company to issue the aforesaid certificates to the plaintiff-

company. Since no mandatory injunction has been claimed

by the plaintiff-company, such a direction cannot be given

in this suit. The learned counsel for the plaintiff wants

permission under Order II Rule 2 of CPC. The plaintiff-

company is permitted to file an appropriate suit on account

of failure of the defendant-company to issue TDS certificates

to it.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE

JUNE 02, 2011 'sn'/'bg'