Final Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 902/2020 in Comm. Suit No. 64/21. 1 Order.
MHCC010024172020
Presented on : 26-02-2020
Registered on : 26-02-2020
Decided on : 25-10-2021
Duration : 1 years, 7 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 902 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
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 25th OCTOBER, 2021.
Mr. Jai Chhabria with Mr. Prateek Pal, Advocate for the plaintiff.
Smt. Usha Rahi with Mr. Pritesh Rajgur, Advocate for the defendant
no.2.
ORDER
1. The plaintiff has filed present notice of motion for interim
reliefs including direction to the defendants to make full and complete
disclosure of documents executed between them (prayer clause a) and
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N/m No. 902/2020 in Comm. Suit No. 64/21. 2 Order.
direction to defendant no.1 for payment of Rs.30,70,000/ to the
plaintiff or to deposit in the Court towards retainer fees, admitted
incentive / bonus due and payable by defendant no.1 to the plaintiff
(prayer clause e). In addition to these two prayers, relief of temporary
injunction as elaborated in prayer clause (b), (c) and (d) is sought.
Defendants no.1 and 2 filed affidavits in reply. The plaintiff filed
rejoinder with documents. Learned counsel Shri Jai Chhabria has
placed on record Note I and II regarding his arguments. He also filed
compilation of citations and list of relevant dates and events. 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. Nobody
appeared in the matter for advancing arguments on behalf of defendant
no.1.
3. Learned counsel Shri Jai Chhabria submitted that
defendant no.1 is the Russian Company engaged in tourism industry in
Russia. The plaintiff provided tourism services to defendant no.1 in
India with the help of travel agents. Accordingly, the agreement dated
01/04/2014 was executed between the plaintiff and defendant no.1. He
further stated about continuation of dealing between the plaintiff and
defendant no.1 by virtue of agreements executed in the year 2016 and
2018 after the expiry of period of earlier agreements. The plaintiff has
carried out the work as per agreement between the parties and it was
appreciated by defendant no.1 from time to time. The plaintiff did not
provide an opportunity to defendant no.1 for raising grievance. It is
submission of learned counsel Shri Jai Chhabria that defendant no.1
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N/m No. 902/2020 in Comm. Suit No. 64/21. 3 Order.
admitted liability to pay USD 38,583 in his email placed on record at
page 78 to 80 of the plaint. He further referred other email of
defendant no.1 placed on record at page no.81 of the plaint as per
which amount is rectified and liability to pay USD 37,240 is admitted.
Defendant no.1 did not dispute this email conversation in his affidavit
in reply. He relied upon Order VIII Rule 3, 3A, 5 and Section 141 of the
CPC and submitted that defendant no.1 has not specifically denied case
of the plaintiff and it should be taken to be admitted by him. According
to him, the plaintiff is entitled to rely upon this admission and to get at
least that much amount during pendency of the suit. He further
submitted that defendant no.1 is not having assets in India and it is a
Russian company. Though defendant no.1 has claimed dues to be
recovered from the plaintiff, he has not clarified the same. He further
referred to engaging services of defendant no.2 by defendant no.1
during subsistence of the agreement between the plaintiff and
defendant no.1. It is contention of the plaintiff that association between
defendant no.1 and 2 is in violation of exclusive contract between the
plaintiff and defendant no.1. Learned counsel Jai Chhabria further
referred email dated 09/10/2020 stating about termination of the
contract. Future contract was refused as per email dated 24/12/2019.
Defendant no.1 did not give details for termination of the contract.
Learned counsel Shri Jai Chhabria submitted that the plaintiff has right
to recover dues in respect of services rendered by him to defendant no.1
till the date of termination of the contract. He has relied upon various
authorities in compilation of citations and taken the Court through
relevant paragraphs. He also referred Order XXXIX Rule 10 of the CPC
in order to clarify maintainability of his prayer clause (e) in the notice
of motion.
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N/m No. 902/2020 in Comm. Suit No. 64/21. 4 Order.
4. After advancing arguments on the point of money claim, in
terms of prayer clause (e), learned counsel Shri Jai Chhabria pointed
out association of defendant no.1 with defendant no.2 with the help of
two brochures filed with the plaint at page no.94 and 95. According to
him, defendant no.2 had organized programmes at Hyatt Ahmedabad
on 19/02/2020 and Lesupra at Khar (West) Mumbai on 21/02/2020 at
the instance of defendant no.1 for Russian people. It is his contention
that the said act is in express breach of the plaintiff's contract with
defendant no.1. For this purpose, he prayed that prayer clause (a) may
be allowed by directing to the defendants to make disclosure regarding
documents executed between them. He did not insist for granting relief
in terms of prayer clause (b), (c) and (d).
5. On the contrary, learned counsel Smt. Usha Rahi for
defendant no.2 submitted that no relief is sought against defendant
no.2 except prayer clause (a) of the notice of motion and prayer clause
(c) of the plaint. She further referred para 1.5 of the plaint in which it is
stated that defendant no.2 appears to also be a tourism service provider
with whom defendant no.1 appears to have collusively entered into an
understanding. Learned counsel Smt. Usha Rahi took objection to the
word 'appears' used in the plaint and submitted that the plaintiff is not
sure about alleged transaction or agreement between defendant no.1
and 2. She further referred use of the term 'appears' in para 2.5 of the
plaint. According to her, defendant no.1 is 'UTS Travel'. Brochures at
page no.94 and 95 of the plaint refer to 'UTS Group'. By pointing out
these variations in names of the companies, she submitted that
defendant no.2 has no dealings with defendant no.1. She further relied
upon para 3 of her reply and submitted that defendant no.2 is not
necessary party or proper party to the present suit because defendant
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N/m No. 902/2020 in Comm. Suit No. 64/21. 5 Order.
no.2 has specifically denied to have agreement or contract with
defendant no.1. She further denied necessity of disclosure for want of
contract between defendant no.1 and 2. She prayed that prayer clause
(a) in the notice of motion may be rejected.
6. On perusal of the record and considering rival submissions,
it is explicit that defendant no.1 had engaged the plaintiff for
facilitating him in the progress of his tourism business in India by way
of the agreement dated 01/04/2014 for the period of two years. Fresh
marketing and representation agreement was entered into between the
plaintiff and defendant no.1 on 03/06/2016. Subsequently, they
continued their business relations by virtue of agreement dated
06/03/2018. The plaintiff has filed the suit in respect of specific items
i.e. retainer fee, incentive / bonus, marketing and development of
business. The plaintiff has exhaustively pleaded details of the amount
to be recovered from defendant no.1.
7. Now, the plaintiff has come up with the case that defendant
no.1 is a Russian company and he has no assets in India. Therefore, he
is insisting for relief of depositing the amount of Rs.30,70,000/ in the
Court or payment of the same to the plaintiff. For this purpose, the
plaintiff has relied upon emails received from defendant no.1 dated
12/12/2019 and 13/12/2019 as per which liability to pay USD 37,240
is admitted. Though defendant no.1 disputed liability to pay the same
amount by pointing out alleged flaws in the services rendered by the
plaintiff and set up a case of certain amounts to be recovered from the
plaintiff in subsequent emails exchanged between the parties,
defendant no.1 has not filed the written statement setting up the claim
of 'Set Off'. Even otherwise, reply of defendant no.1 is silent in respect
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N/m No. 902/2020 in Comm. Suit No. 64/21. 6 Order.
of email conversations relied upon by the plaintiff for insisting the
payment of certain amount at interim stage. In short, silence on the
part of defendant no.1 with regard to material averments of the plaintiff
against him makes this Court to treat it as an admission of those facts in
view of Order VIII Rule 3, 3A, 5 and Section 141 of the CPC.
Admittedly, defendant no.1 is a foreign company having its base in
Russia and he does not have any assets in the India. Therefore, the
plaintiff has difficulty in recovery of the decretal amount if the suit is
decreed. The plaintiff has not only brought on record material to show
existence of prima facie case in his favour but also demonstrated
irreparable loss likely to be sustained by him. So far as question of
balance of convenience is concerned, defendant no.1 can deposit the
amount in the Court and it can be disbursed depending upon ultimate
fate of the suit. For this reason, no prejudice would be caused to
defendant no.1.
8. After parting the discussion in respect of prayer clause (e),
it is necessary to deal the alleged relations between defendant no.1 and
2. The plaintiff has insisted upon his appointment as an Exclusive
Representative of defendant no.1 in India by virtue of clauses in the
agreement and he is also shown as a sole representative in brochures. It
is pertinent to note that defendant no.1 sent emails to the plaintiff on
09/10/2020 and 12/12/2019 by quoting the aspect of termination of
the contract. Subsequently, representative of defendant no.2 are shown
to have rendered services to defendant no.1 by organizing programmes
at Ahmedabad and Mumbai on 19/02/2020 and 21/02/2020
respectively. Defendant no.2 has specifically denied such sort of act and
claimed that brochures of said programmes clearly state about UTS
Group which cannot be termed as defendant no.1 i.e. UTS Travels.
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N/m No. 902/2020 in Comm. Suit No. 64/21. 7 Order.
Even if, this contention of defendant no.2 is kept aside, termination of
the contract makes defendant no.1 free from obligations of the contract
and his liability remains restricted to acts done in consonance with
terms of the contract. Furthermore, the plaintiff has not brought on
record sufficient material to demonstrate UTS Travel and UTS Group
are not two different legal entities and it is one legal entity known with
two different names. In such circumstances, there is no scope to insist
upon defendant no.2 to bring on record material demonstrating his
transactions or dealings with defendant no.1. It is pertinent to note that
defendant no.2 has expressly denied to have entered into an agreement
with defendant no.1. When defendant no.2 is asserting the existence of
negative fact, it is unjust to ask him to produce positive evidence for
disproving the negative fact asserted by him and for proving the positive
fact pleaded by the plaintiff. Considering scheme of Order XI of the
CPC and concept of burden of proof as explained in Section 101 to 106
of the Evidence Act, 1872, there is no scope to grant prayer clause (a).
9. Learned counsel Shri Jai Chhabria did not insist for
granting prayer clause (b), (c) and (d) seeking relief of temporary
injunction. Prayer clause (c) itself speaks about termination of the
agreement dated 06/03/2018 by virtue of email dated 12/12/2019.
The plaintiff has made claim in respect of services rendered by him by
virtue of the terms of the agreement. The plaint is not clearly stating
about services provided by the plaintiff to defendant no.1 post
termination of the agreement. Considering all these aspects, question
of granting prayer clauses seeking relief of temporary injunction doesn't
arise. For all these reasons, notice of motion can be partly allowed only
in terms of prayer clause (e). Hence, I pass the following order :
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N/m No. 902/2020 in Comm. Suit No. 64/21. 8 Order.
ORDER
1. Notice of Motion No. 902/2020 is partly allowed in terms
of prayer clause (e).
2. Proceeding of N/m No. 902/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
Date : 25/10/2021. Mumbai.
1. Dictated online on : 25/10/2021.
2. Signed on : 26/10/2021.
3. 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
26/10/2021. 5.20 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 25/10/2021.
Judgment/Order signed by P.O. on 26/10/2021.
Judgment/Order uploaded on 26/10/2021.
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