M/S STIC TRAVELS PVT. LTD. v. M/S PUNJAB TOURISM DEVELOPMENT CORPN. LTD.

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 2009:DHC:4879 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 PW[1], 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 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.