Order 13

Order Details: COPY OF ORDER
Pdf Text: CS (COMM.) No. 339/2022
Gaurav Chibber v/s Singapore Airlines
16.12.2023
Present: Ms. Surbhi Singh, ld. Counsel for the plaintiff.
Ms. Parvi, ld. Counsel for defendant /counter claimant.
1. This order will dispose of an application under Order VII Rule
11 CPC filed by the plaintiff/non-counter claimant (hereinafter
referred as 'applicant') contending therein that vide the Power of
Attorney dated 19.11.2020, the authorized representative of the
defendant/counter claimant (hereinafter referred as 'non applicant')
was duly authorized to perform the following acts / deeds:
(v) Power to appoint either the Indian Law Firms of M/s Messrs Shadul
Amarchand Mangaldas and Co. or M/s Cyrin Amarchand Mangaldas &
Co. or both to represent the company in all going and future matters on
which, the Company may instruct them, including:-
a) to institute suits, initiate and defend proceedings, sign and verify all
vakalatnamas, complaints, pleadings, applicants, affidavits, petitions or
any other documents before any courts in India and to deposit, withdraw
and receive documents and any moneys from the court or from any party
to proceedings in any future legal dispute arising in India;
b) xxxxxxxxx
c) xxxxxxxxx”
2. Further, it has been pleaded in the application that authorized
signatory of the non applicant has appointed M/s Kuldeep Rai Chawla
& Co. as their advocate to pursue the present counter claim and he has
not acted as per the said Power of Attorney. It is further pleaded that
the counter claim preferred by the non applicant for recovery of
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Rs. 37,22,947/- against applicant towards the loss of business is not
maintainable. There is no privity of contract between the parties. The
tickets were issued by non applicant directly to the applicant. The
applicant merely acted as a agent for his clients and paid the
consideration amount to the non applicant as sought at the time of
booking of tickets. Section 230 of Indian Contract Act, 1872 provides
that the agent is not bound by the agreement executed on behalf of
principal. It is further submitted that second counter claim Rs.
15,00,000/- against the applicant is towards the loss of goodwill. The
non applicant has alleged that there has been fraud in issuance of
tickets, however, the non applicant has failed to disclose as to how the
fraud as alleged is the issuance of tickets have tarnished its reputation.
In the present matter, the names of the passengers have been fairly
disclosed to the non applicant at the time of booking of tickets. The
non applicant itself has issued the tickets in the name of applicant's
clients. Therefore, there is no cause of action against the applicant in
the counter claim filed by the non applicant.
3. Ld. Counsel for applicant while reiterating above contentions
has argued that the applicant through its online web portal provides
travel services for both domestic as well as international travel. Since,
March 2022, he had booked more than 50 tickets for his clients to
travel from IGI Airport, New Delhi to Vancouver International
Airport, Canada via Singapore, Changai Airport, Singapore from the
period from April, 2022 to August 2022. He made the complete
payments towards the Air tickets at the time of booking for its
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respective price, which the non applicant accepted and issued the air
tickets in the name of the clients of the applicant. It is contented that
on 08.04.2022, when some of clients of the applicant tried to board
their flight from IGI Airport, the AR / agent of the non applicant
prevented them from boarding the flight and were told to pay Rs.
68,000/- per ticket claiming that there has been revision in the fare
charges. When the applicant contacted the non applicant, he did not
get any satisfactory answer and due to the act of the non applicant, the
applicant suffered loss of reputation and goodwill for which he is
entitled.
4. Ld. Counsel for applicant further urged that the
authorized signatory has not appointed Ms. Kuldeep Rai Chawla &
Co. as their advocate to present the present proceedings against the
applicant and there exists no cause of action against applicant and
prayed for rejection of counter claim.
5. Conversely, Ld. Counsel for the non applicant has
argued that applicant illegally booked a number of tickets with the
non applicant for his clients to travel from IGI New Delhi to
Vancouver International Airport, Canada via Singapore, Changai
Airport, Singapore for the month of March 2022. Since, there was no
direct flight from Delhi to Vancouver, it was mandatory to book the
flights in segments. The applicant has adopted various illegal booking
practices and booked the tickets by applying various permutation and
computation, duplicate bookings and cancelling various segments to
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override the ticking system. It is submitted that applicant
mischievously booked tickets by illegal methods from the non
applicant's website at a lower fare of Rs. 50,000/- approximately and
has failed to adhere to the general contract and rules stipulated by the
non applicant as well as IATA. It is next submitted that the applicant
wrongly mentioned the relevant paragraph of the said Power of
Attorney. On the contrary, bare perusal of said Power of Attorney
reflects that authorized representative of non applicant has not acted
in contrary to the said Power of Attorney dated 19.11.2020, the
relevant extract of Power of Attorney dated 19.11.2020 states that :-
1. Power of sue in the name of company and to appoint lawyers for such
purposes, provided that such appointment (1) is approved by the Legal
compliance & Secretariat Department of the Company and (2) does not
need to be effected or evidenced by any instrument which requires the
seal of the company to be affixed thereto.”
6. It is submitted that the application under reference is frivolous,
mischievous and liable to be dismissed.
7. Before going into the details of merits of instant case, it would
be significant to first refer to provision of Order VII Rule 11 CPC for
proper disposal of application in hand. Order VII Rule 11 CPC reads
as under:-
Rejection of Plaint- The plaint shall be rejected in the following cases-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on
being required by the Court to correct the valuation within a time to be
fixed by the Court, fails to do so;
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(c) Where the relief claimed is properly valued, but the plaint is
returned upon paper insufficiently stamped, and the plaintiff, on being
required by the Court to supply the requisite stamp-paper within a time to
be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be
barred by any law:
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-paper shall not be extended
unless the Court, for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature form correcting the
valuation or supplying the requisite stamp-paper, as the case may be,
within the time fixed by the Court and that refusal to extend such time
would cause grave injustice to the plaintiff.”
8. The above reading makes it quite obvious that it speaks about
four situations. Out of four, two relates to procedural requirements i.e.
(b) & (c) and for both situations, the plaint is not to be rejected unless
the plaintiff fails to make compliance, despite specific directions.
Thus, it would be pertinent to mention that a procedural formalities or
requirements, if found to be existing can well be allowed to be
rectified, if the same are not restricted by law or have created certain
legal rights in the claim of rival party. The Clause (a) is specific and
clear that a plaint, failing to spell out a cause of action shall require its
rejection. While referring to last clause (d), which shall come into
plaint, where the statement in plaint makes the suit barred by any law.
This clause cannot be said to be available, where, there is a technical
error, defect or any irregularity.
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9. In the instant matter, the Ld. Counsel for the applicant, for
rejection of the counter claim of the non applicant has mainly insisted
on two grounds, firstly that authorized signatory of the non applicant
has appointed M/s Kuldeep Rai Chawla & Co. as their advocates
contrary to the Power of Attorney and secondly, there exists no cause
of action against the applicant, thus, the counter claim of the non
applicant deserves to be rejected. It is a matter of record that the
written statement and counter claim has been filed along with an
affidavit and Statement of Truth by Chen Sy Yen, General Manager,
India of non applicant. The written statement / counter claim itself
shows that it is signed by him. Merely for the reason that Power of
Attorney spells that General Manager, India has power to appoint
either the Indian Law Firms M/s Messrs Shadul Amarchand
Mangaldas and Co. or M/s Cyrin Amarchand Mangaldas & Co. that
ipso facto is no ground to reject the plaint. Even if the plea of the
applicant is believed in this regard, the acts and deeds can well be
rectified by the principal and such anomaly can be rectified
subsequently, thus, on this ground, the counter claim cannot be
rejected. So far as the other contention of the applicant is concerned
that there is no privity of contract between the parties and the
applicant was merely acting as an agent and paid consideration
amount on behalf of his customers is concerned, it is seen from record
that the non applicant in its counter claim averred that the applicant
committed a booking ploy which is a breach of ticketing norms and
practice and due to the actions of the applicant, the non applicant has
suffered a loss of business and goodwill. On a holistic reading of the
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averments of the counter claim and on consideration of the reliefs
sought by the non applicant, it cannot be said, at this stage the counter
claim can be rejected. It is well settled that it is not permissible to cull
out a sentence or a passage and to read it in isolation. It is a substance,
and not merely the form, which has to be looked. If the allegations in
the plaint prima facie show a cause of action, the court cannot embark
upon an enquiry whether the allegations are true in fact.
10. In the instant case, from the reading of counter claim in
entirety, it is evident that serious dispute is raised in the counter claim
with regard to the cause of action, such a cause of action can only be
resolved and conducting trial on the said aspects but not rejecting the
plaint u/o VII rule 11 of CPC. The counter claim cannot be dismissed
at threshold without framing of issues and taking of evidence. Further
question of privity of a contract between the parties is mixed question
of law and facts, ex-facie in the present case on reading of averments
in the counter claim, it cannot be held that counter claim is barred by
law and is without any cause of action. In view of above discussion,
the application of the applicant moved u/o VII Rule 11 of CPC stands
rejected.
11. Be listed for framing of issues on 02.01.2024.
VINEETA GOYAL
District Judge (Commercial Court-03)
PHC / New Delhi / 16.12.2023
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