Interim Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1037/2020 in Comm. Suit No. 64/21. 1 Order.
MHCC010029502020
Presented on : 07-03-2020
Registered on : 07-03-2020
Decided on : 21-03-2022
Duration : 2 years, 0 months, 14 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1037 OF 2020
IN
COMMERCIAL SUIT NO. 64 OF 2021
Spearhead Destinations Pvt. Ltd. )...Applicant
IN THE MATTER OF :
Spearhead Destinations Pvt. Ltd. )...Plaintiff
Versus
UTS Travel and one )...Defendants
AND
Aleksey Krylov and three others )...Respondents
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 21st MARCH, 2022.
Mr. Jai Chhabria with Mr. Prateek Pal, Advocate for the plaintiff.
Smt. Usha Rahi with Mr. Pritesh Rajgur, Advocate for the defendant
no.2 and proposed defendants no.7 and 8.
ORDER
1. The plaintiff has filed present notice of motion for
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 2 Order.
declaration that the defendants themselves and through their partners,
directors, servants etc. have deliberately and willfully breached the
order dated 18/02/2020 passed by this Court in N/m No. 902/2020.
He further sought other reliefs including asking the defendants to
disclose trail of emails with agents and also details of their assets and
properties. He further prayed to preclude the defendants and
respondents from filing W.S. and reply in N/m No. 902/2020. He
further prayed for attachment of the defendants' properties and those
of the respondents'. He also sought directions asking them to deposit
amount of Rs.69,06,123/ with interest @ 19% p.a. from 27/02/2020
till the date of deposit. Lastly, detention of defendants and respondents
and all others who have committed willful disobedience of the order is
prayed. Defendants no.1 and 2 as well as respondents no.3 and 4 filed
affidavits in reply. The plaintiff filed rejoinder with documents.
Learned counsel Shri Jai Chhabria has placed on record Note II
regarding his arguments. He also filed compilation of citations. I have
gone through all these documents, the plaint and documents annexed
with the plaint.
2. Heard learned counsel Shri Jai Chhabria for the Plaintiff
and learned counsel Smt. Usha Rahi for defendant no.2 and
respondents no.3 and 4. Nobody appeared in the matter for advancing
arguments on behalf of defendant no.1 and respondents no.1 & 2.
3. Learned counsel Jai Chabriya for the plaintiff pointed out
the order dated 18/02/2020 in N/m No. 902/2020 as per which my
learned predecessor had granted interim relief to the plaintiff in terms
of prayer clause (d) and in part interim relief in terms of prayer clause
(b). Accordingly, defendant no.1 through his agents, servants or
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 3 Order.
representatives were directed to maintain statusquo as on date and not
to act upon in furtherance of any agreement with respect to the scope of
work under the plaintiff's agreement through defendant no.2 or any
other entity or person other than the plaintiff till next date. After
pointing out this order, he drew attention of the Court towards clause
3.1 in marketing and representation agreement dated 06/03/2018
executed between the plaintiff and defendant no.1 as per which the
plaintiff was sole representative of defendant no.1 company having
right of marketing tours and develop business for defendant no.1 in
India. He further submitted that the defendants and respondents
absolutely disregarded the order passed by this Court and continued to
carry on business in violation of the order. For this purpose, he relied
upon email addressed to the plaintiff's agent WIYO Travels by
defendant no.1 excluding the plaintiff. As per the said email,
defendant no.1 (UTS Russia) had responded to the quotation request
raised by an email dated 27/02/2020. He has annexed email
communications between defendant no.1 (UTS Russia) and other
agents of the plaintiff namely Harmony Tours, Travellers Wing Voyages,
Zenith Hospitality and WIYO Travels (Exh.B Colly.). Defendant no.2
had sent status report to defendant no.1 (UTS Russia) in pursuance of
arrangement between them by email (Exh.C).
4. Learned counsel Jai Chabriya further submitted that
quotations should be forwarded to the representative i.e. the plaintiff
and they will be forwarded to the company i.e. defendant no.1 in a
timely manner as per clause 3.3 in the said Agreement. It is his
submission that direct communication between agents and defendant
no.1 is in violation of the agreement and order of this court.
Respondent Nos.1 to 4 are representatives of defendants no.1 and 2.
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 4 Order.
He also pointed out para 18 of the citation at sr.no.9 in compilation of
documents i.e. FaberCastle Aktiengesellschaft Vs. Pikpen (P.) Ltd.
MANU/MH/0480/2004 to submit that attachment of properties is
admissible as per Order XXXIX Rule 2A of the CPC. He further drew
attention of the Court at paras 4 to 11 in the citation at sr.no.10 in
compilation of judgments i.e. Ramavatar Surajmal Modi V/s.
Mulchand Surajmal Modi 2004 SCC OnLine Bom 44 to agitate the
point that the defendants may be precluded from filing written
statement and their defence may be struck of. According to him, status
quo is not maintained by the defendants and respondents. He prayed to
allow the notice of motion.
5. On the contrary, learned counsel Smt. Usha Rahi for
defendant no. 2 and respondents no.3 and 4 read out para 8 in order
passed in N/m No. 902/2020 on 25/10/2021. According to her, this
court has observed in the said order that the plaintiff has not brought
on record sufficient material to demonstrate UTS Travels and UTS
Group are not the different legal entities and it is one legal entity
known with two different names. She submitted that UTS Travels and
UTS Russia are different legal entities. Order dated 18/02/2020 in
N/m No. 902/2020 is passed against defendant no.1. UTS Russia is not
party to the suit and order is obtained by showing that UTS Russia and
UTS Travels are the same parties. She further submitted that the
agreement is silent on the terms of agreement. According to her, scope
of work is not reflected in the plaint. She further submitted by referring
para 15 in affidavit in support in present notice of motion that agents of
the plaintiff deliberately sent emails to create grounds for taking action
against the defendants and the respondents. The plaintiff has no right
to create subagency. Subagency created to build pressure upon the
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 5 Order.
defendants. She further referred email communications annexed with
notice of motion. She pointed out that the plaintiff was not excluded in
email at page no.18 of the notice of motion. She further submitted
that the agreement between the plaintiff and defendant no.1 expired by
efflux of time on 15/04/2020. Queries can be replied by the defendants
and it is after termination of the agreement. As email communication
took place during pandemic period, travels dated 24/04/2020 and
16/05/2020 as referred in emails could not take place. Respondent
no.4 is not working with defendant no.2 since 24/10/2020. The
plaintiff could not bring on record any business transaction. The entire
communication is in the form of queries and replies. Notice of Motion
No.902/2020 is already disposed off. No relief can be granted against
defendant no.2. There is no contract between the plaintiff and
defendant no.2. She further submitted that no case is made out to
show breach of order made by defendant no.2. Defendant no.2 was not
debarred from entertaining the parties. Events at Ahmedabad and
Mumbai did not take place and therefore, there is no disobedience of
the Court's order. She further submitted that defendant no.1 is a
company registered at Scotland and not from Russia. She prayed that
notice of motion may be dismissed.
6. After considering rival submissions and material on record,
last marketing and representation agreement between the plaintiff and
defendant no.1 was executed on 06/03/2018 and it was valid for a
period of 24 months from 15/04/2018 to 15/04/2020. Meanwhile,
defendant no.1 terminated the said agreement by sending emails on
09/10/2020 and 12/12/2019. Termination clause 1.3 in the agreement
provides that either party wanting to terminate the agreement, must
give the other party three months' notice. In short, the agreement can
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 6 Order.
be said to have come to an end with effect from 12/03/2020. My
learned predecessor had passed order granting adinterim relief on
18/02/2020. It means that acts of parties between gap period of
18/02/2020 to 12/03/2020 can be said to be important for scrutiny.
Material on record in the form of email exchanges is at Exh.B of
present notice of motion. Contents in para 15 of the affidavit in support
reveals that agents of the plaintiff set up contact with UTS Russia. The
plaintiff was made 'C.C.' in a few email exchanges, but he is skipped in
some series of email exchanges. This is a material point making the
plaintiff to believe that UTS Russia is acting in violation of the
agreement with him. It is for the reasons that there is clause 3.1 in the
agreement authorizing the plaintiff to consult the market and develop
business for defendant no.1 and he was prevented from working for any
other inbound travel agents from Russia. The plaintiff could not bring
on record any additional material to show that the defendants and
respondents proceeded to act upon their exchange of thoughts by way
of email communications. Even agents of the plaintiff had actively
participated in the said email communication. All these email
exchanges are relating to travels either in the month of April2020 or
May2020. These events were going to happen posttermination of the
agreement. It is difficult to gather that the defendants and the
respondents carried out actual business activities during subsistence of
the agreement. Negotiation in respect of future events, which are going
to take place after termination of the agreement, cannot be treated as
disobedience of the Court's order. The plaintiff has not brought on
record sufficient material to show that UTS Russia and UTS Travels
(defendant no.1) are one legal entity. Entire trail of emails is with UTS
Russia. For want of sufficient material to conclude disobedience of the
order dated 18/02/2020, there is no scope to exercise the powers under
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N/m No. 1037/2020 in Comm. Suit No. 64/21. 7 Order.
Order XXXIX Rule 2A of the CPC. Even otherwise, Notice of Motion
No. 902/2020 is disposed off on 25/10/2021 granting limited relief of
depositing the amount of Rs.30,70,000/ in the Court by defendant
no.1. In short, all other directions granting interim injunctions are not
in operation. Therefore, present notice of motion deserves to be
dismissed. Hence, I pass the following order :
ORDER
1. Notice of Motion No. 1037/2020 is dismissed.
2. The proceeding of N/m No. 1037/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
Date : 21/03/2022. Mumbai.
1. Dictated on : 19 & 21/03/2022.
2. Transcribed on : 19 & 21/03/2022.
3. Signed on : 21/03/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/03/2022. 1.57 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 21/03/2022.
Judgment/Order signed by P.O. on 21/03/2022.
Judgment/Order uploaded on 21/03/2022.
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