M/S Marvs Travel INDIA PVT LTD vs. M/S K Home Appliances

Facts

The appellant, M/s Marvs Travel India Pvt Ltd, is appealing an order that dismissed its application under Order VII Rule 11 of the CPC. The respondent/plaintiff had filed a suit for recovery of Rs. 8,00,000/- against the appellant and others. The plaintiff alleged that they booked a group tour to Australia for 63 people with the appellant, paying an advance of Rs. 8,00,000/-. The tour was cancelled due to Covid-19, and the plaintiff sought a refund, claiming the amount paid was refundable. The appellant, however, argued that it was merely a BPO/Call Centre/agent for M/s Marvs Travel Group (MTG), an Australian entity, and that there was no privity of contract between the plaintiff and the appellant. The appellant contended that the offer was made by MTG, not the appellant.

Held

The Court held that the appeal is bereft of merit. It reiterated the well-settled proposition of law that when considering an application under Order VII Rule 11 CPC, the Court must read the averments in the plaint as a whole to ascertain if it discloses a cause of action. The Court cannot travel beyond the pleadings and consider the defence espoused in the written statement. The learned District Judge rightly relied on the decision in Salim Bhai v. State of Maharashtra & Ors., which emphasizes that for the purposes of deciding an application under Order VII Rule 11 CPC, the averments in the plaint are germane, and pleas taken by the defendant in the Written Statement are wholly irrelevant at that stage. The Court found that the averments in the plaint clearly indicated that the plaintiff made payment to the appellant for a package tour, and correspondence suggested the appellant's involvement in finalizing the itinerary and quotations. The Court concluded that the averments in the plaint clearly bring out that there exists a 'cause of action' in favour of the plaintiff, and at this stage, the defence put forth by the appellant cannot be considered. The appeal was dismissed in limine, with the observations not amounting to an expression of opinion on the merits of the case.

Key Issues

1. Whether the plaint, on its bare reading, discloses a cause of action against the appellant, thereby precluding rejection under Order VII Rule 11(d) of the CPC? The petitioner/appellant argued that the plaint should be rejected because there was no privity of contract between the plaintiff and the appellant. They contended that the offer for the international holiday was made by MTG, the Australian counterpart, and not by the appellant. The appellant pointed to an email dated 29.11.2019, which indicated the offer was made in Australian Dollars by MTG, and submitted that this clearly showed the appellant was not the service provider. The respondent/revenue argued that the plaint, when read as a whole, discloses a cause of action. They highlighted that the plaintiff specifically pleaded that the defendants painted a rosy picture of organizing international travel and that the advance payment of Rs. 8 lakhs was transferred to the appellant's bank account, supported by the plaintiff's bank statement.