Order 3

Order Details: Notice of Motion
Pdf Text: NM No. 104142 / 2022
Spearhead - UTS
Order (Exh.17) 1 of 6
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010120122022
Notice of Motion Filed :
04.11.2022
Arguments Over :
18.10.2023
Decided on :
25.01.2024
Duration : 1 Y, 2 M, 21 Days
Exhibit No.17
Notice of Motion No. 104142 / 2022
from
Commercial Suit No. 100064 / 2021
Plaintiff : Spearhead Destinations Pvt. Ltd. India
VERSUS
Defendants 1 UTS Travel, Russia
2 Brandit Marketing and Promotions, India
3 UTS – Hotelbook PTE Ltd., Singapore
4 UTS Travel Group LP, Scotland
5 Aleksey Krylov, Russia
6 Lika Golubeva, Russia
7 Lubaina Sheerazi, India
8 Nikita Hingorani, India
Appearances
Plaintiff
: Adv. Shri Jai Chabriya
Adv. Shri Pratik Pai
Defendant No. 2
: Adv. Ms. Usha Rani
Adv. Shri Pritesh Rajgor
Notice of Motion for dismissal of Suit against defendant No. 2
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NM No. 104142 / 2022
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Order (Exh.17) 2 of 6
ORDER
(Pronounced on this 25th Day of January, 2024)
Defendant No. 2 Brandit Marketing and Promotions
Pvt. Ltd. has preferred this Notice of Motion for dismissal of the
Suit for its misjoinder and for compensatory cost.
2) Spearhead Destinations Pvt. Ltd., Mumbai, Maharashtra
(hereinafter,
Plaintiff), is Private Limited Company, engaged in
tourism business.
Defendant No. 1 UTS Travel, Moscow, Russia, is
registered company providing tourism services, across Russia.
Defendant No. 2 Brandit Marketing and Promotions
Pvt. Ltd., Mumbai, India, is Private company in tourism business.
Defendant No. 3 UTS-Hotelbook PTE Ltd. Singapore,
Defendant No. 4 UTS Travel Group LP-Scotland, Defendant No.
5 Aleksey Krylov-Russia, Defendant No. 6 Lika Golubeva-
Russia, Defendant No. 7 Lubaina Sheerazi Mumbai-India and
Defendant No. 8 Nikita Hingorani Mumbai-India are
subsequently added in the Suit (hereinafter,
Defendants).
3) As per Agreement Dt. 01.04.2014 (hereinafter,
Agreement), plaintiff was to market and develop business of D1
in India. For that, plaintiff was to receive monthly retainer fee,
incentive, bonus fees, which were dependent on the gross revenue
generated by plaintiff for D1. Relying on said Agreement,
plaintiff has made numerous investments and carried numerous
activities. Thereby, plaintiff enabled D1 to earn .	₹ 61,00,18,510/-.
However, on 09.10.2019, D1 abruptly terminated
contractual arrangement with plaintiff w.e.f 15.04.2018. While
terminating said Agreement, D1 violated the terms of Agreement
relating to termination. Thereafter, during subsistence of said
Agreement, D1 surreptitiously entered into Agreement with D2.
Hence, plaintiff carried out assessment about losses and dues
recoverable from D1 and preferred present Commercial Suit No.
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Spearhead - UTS
Order (Exh.17) 3 of 6
100064 / 2021, for recovery of .	₹ 4,26,000/- due from D1.
Notice of Motion No. 104142 / 2022 (Exh. 17 Dt. 04.11.2022) :
4) In said Suit, D2 preferred present Notice of Motion No.
104142 / 2022 contending that, plaintiff has not made out any
cause of action against D2. Therefore, D2 is misjoinder in the
Suit. Hence, for filing such false, frivolous and vexatious
litigation against D2, plaintiff be ordered to pay compensation of
.	₹ 25,00,000/- and the Suit be dismissed against D2.
Reply to Notice of Motion by plaintiff (Exh. 18 Dt. 16.01.2023) :
5) Plaintiff filed reply and opposed the Notice of Motion.
Points for determination :
6) Heard both Learned Counsels. Perused Record. Points
for determination, findings and reasons are as follows :
Points
Findings
1 Is D2 entitled for dismissal of Suit
for its misjoinder?........................... In the Negative
2 What Order? …………………… As per final order.
R E A S O N S
7) It is grievance of plaintiff that, during subsistence of his
Agreement with D1, D1 illegally terminated said Agreement and
entered into fresh Agreement with D2. Hence, plaintiff has
preferred present Suit.
D1 has opposed the Suit for its misjoinder.
8) In backdrop of aforesaid controversy, the relevant
pleading of the plaintiff is reproduced here :
Para No. 1.5 of Plaint reads as follows :
Defendant No. 2 is a private limited company registered
under the provisions of the Companies Act, 2013,
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Spearhead - UTS
Order (Exh.17) 4 of 6
having its office at the address more particularly set out
in the cause title hereinabove. Defendant No. 2 appears
to also be a tourism service provider with whom
Defendant No. 1 appears to have collusively entered
into an understanding / arrangement, in the teeth of and
to bypass, the contractual arrangement between the
Plaintiff and Defendant No. 1 (as more particularly
detailed hereunder).
Prayer Clause (b), (f), (h) of Plaint reads as follows :
(b) For a permanent order and injunction restraining
Defendant No. 1 and Defendant Nos. 3 and 4, their
servants, agents or assigns or any person claiming by,
through or under it from carrying on business, or
entering into / or acting upon or in furtherance of any
agreement with respect of the scope of work under the
said Agreement through Defendant No. 2 or any other
entity or person other than the Plaintiff within India;
(f) That pending the hearing and final disposal of the
present Suit, this Hon’ble Court be pleased to pass a
temporary order and injunction restraining the
Defendant No. 1 and Defendant Nos. 3 and 4, their
servants, agents or assigns or any person claiming by,
through or under it from carrying on business, or
entering into / or acting upon or in furtherance of any
agreement with respect of the scope of work under the
said Agreement through Defendant No. 2 or any other
entity or person other than the Plaintiff within India;
(h) That pending the hearing and final disposal of the
present Suit, this Hon’ble Court be pleased to restrain
Defendant No. 1, its officers, assigns, representatives,
servants, agents, or any other person claiming by,
through or under it from appointing any new entity,
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Order (Exh.17) 5 of 6
including Defendant No. 2, for the period and during
the subsistence of the said Agreement dated 6th March,
2018.
Aforesaid pleading and prayers points that, plaintiff is seeking
relief against D1 as well as D2.
9) In that backdrop, it cannot be said that, D2 is misjoinder
in the Suit. For that purpose, his prayer of dismissing the Suit
against it, cannot be accepted.
10) That apart, D2 has already made prayer for
compensatory cost of .	₹ 25,00,000/- from plaintiff. If D2
considers that, he is misjoinder, then he is at liberty to raise his
said defense during cross-examination of witnesses of plaintiff.
Additionally, D2 can also lead its own evidence. On the strength
of such evidence, the entitlement of D2 regarding compensatory
cost can also be ascertained.
11) D2 has relied on following Judgments of the Hon’ble
Superior Courts :
1. Ramesh Hirachand Kundanmal Vs. Municipal
Corporation of Greater Bombay, (1992) 2 SCC 524
2. ITC Ltd Vs. Rakesh Behari, AIR 1997 Allahabad 323
3. SNP Shipping Vs. World Tanker Carrier Corporation,
AIR 2000 Bombay 34
4. Saleem Bhai Vs. State of Maharashtra, AIR 2003 SCC
759
5. Kasturi Vs. Iyyamperumal, (2005) 6 SCC 733
6. Mumbai International Airport Vs. Regency Convention
Centre & Hotels, (2010) 7 SCC 417
7. Spearhead Destination Vs. UTS Travel, Order in Notice
of Motion No. 902 / 2020 in Suit No. 64 / 2021, Dt.
25.10.2021 by Bombay City Civil Court, Mumbai.
8. Spearhead Destination Vs. UTS Travel, Order in Notice
of Motion No. 1037 / 2020 in Suit No. 64 / 2021, Dt.
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Order (Exh.17) 6 of 6
21.03.2022 by Bombay City Civil Court, Mumbai.
With humbleness and respect, I submit that, the facts in the case-
in-hand and cases-in-supra are different. Hence, the observations
will not help D2, at this stage.
12) Considering specific pleading and prayers from the
Plaint, D2 appears to be necessary party. Hence, prayer of D2
regarding dismissal of the Suit against it, cannot be considered, at
this stage. Therefore, Points are so answered and Notice of
Motion is disposed off, by following Order :-
ORDER
1. Notice of Motion No. 104142 of 2022, is rejected.
2. Parties be informed about their right to challenge this
Order and period of limitation for it.
3. Proceeding of Notice of Motion No. 104142 of 2022 is
closed.
4. Order dictated and pronounced in Open Court.
5. Record of Notice of Motion shall be part and parcel of
the main Commercial Suit No. 100064 / 2021.
Mumbai
Dated : 25.01.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 – Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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