IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 RSA.No. 417 of 2010 ----------------------------- [AS.NO.81/2007 OF SUB COURT, PALA, OS.NO.134/2004 OF MUNSIFF'S COURT, PALA] .................... APPELLNTS (APPELLANTS BEFORE THE LOWER APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT): ------------------------------------------------------------------------------------------------------------ 1. MRS.MARY PHILIP,W/O.PHILIP,MAMPALLIL HOUSE,KIDANGOOR P.O,(SOUTH)KIDANGOOR VILLAGE. 2. DR.JOSE PHILIP,S/O.PHILIP, MAMPALLIL HOUSE,KIDANGOOR P.O, (SOUTH) KIDANGOOR VILLAGE. BY ADV. SRI.S.VINOD BHAT. RESPONDENTS/(RESPONDENTS BEFORE THE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT: -------------------------------------------------------------------------------------------------------------------- 1. BIJU J.JOHN,S/O.JOHN,MANAGING PARTNER, ORIENT TRAVEL AND CONSULTANTS,NIRAVATHU BUILDING, KIDANGOOR P.O. 2. M.P.JOSE, S/O.PUNNOOSE, MAVELI HOUSE, KIDANGOOR SOUTH P.O, KIDANGOOR VILLAGE, KAKKANAD P.O. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.417 of 2010 ------------------------------------- Dated 24th May 2010 Judgment The plaintiffs are the appellants. The defendants are partners of a Travel Agency. 2. The case of the plaintiffs is that the defendants Travel Agency had agreed to purchase air tickets for the first plaintiff to go to USA on any date between 01.07.2001 to 04.07.2001 to attend the marriage of her relative on 08.07.2001. The date of travel was so chosen by her because some of her relatives were also going to USA on those dates and the first plaintiff being an old lady, could accompany them. According to the plaintiffs, the defendants assured them that the flight tickets would be arranged. It is alleged that the defendants had also offered to arrange for sight seeing. 3. On 2nd July, the defendants informed the plaintiffs that they were unable to arrange the ticket for Kuwait to USA by Kuwait Airways. It is averred in the plaint that the defendnats suggested to arrange tickets through another airlines. But, RSA 417/10 2 since the first plaintiff would have to travel to USA alone, the plaintiffs did not accept that offer. Pointing out that the defendants had committed breach of contract, the plaintiffs sought for return of the amount entrusted with the defendants and also for damages for the mental agony suffered by the first plaintiff in travelling alone to USA. 4. The defendants resisted the suit, pointing out that the plaintiffs had insisted for getting the tickets by a specific airlines namely, Kuwait Airways from Mumbai to Kuwait and from Kuwait to Chikago and the ticket of Jet Airways from Kochi to Mumbai. Since the route was busy and crowded, the defendants had informed the plaintiffs that they were not sure to get confirmed tickets for the first plaintiff. Inspite of best efforts, the defendants could not arrange the ticket for the first plaintiff for travelling to USA. When the plaintiffs were informed of this fact, they wanted their money back. The defendants refunded an amount of Rs.57,500/- out of Rs.60,500/- entrusted by the plaintiffs. Rs.3,500/- was deducted as their service charges. On the above grounds, the defendants pointed out that they are not liable to pay any amount to the plaintiffs. RSA 417/10 3 5. The Trial Court raised necessary issues for consideration. The evidence consists of the testimonies of PWs1 and 2 and DW1 and the exhibits marked as Exts.A1 to A4 from the side of plaintiffs and Exts.B1 to B2(a) from the defence side. On an evaluation of the materials before it, the Trial Court came to the conclusion that the plaintiffs have failed to establish the alleged breach of agreement committed by the defendants as there was nothing to show that the defendants had assured tickets for the first plaintiff. They had only promised to arrange tickets by Kuwait Airways. The Trial Court was of the opinion that it was the duty of the plaintiffs to establish that there was a breach of contract committed by the defendants and also that they had paid Rs.90,000/- to the defendants. On finding that the plaintiffs had failed to establish their claim, the suit was dismissed. 6. The plaintiffs took up the matter in appeal. The Appellate Court concurred the Trial Court. Hence the Second Appeal. 7. It is true that the Appellate Court has held that the plaintiffs wanted tickets by specific airlines on dates between RSA 417/10 4 1st July and 4th July so as to ensure that the first plaintiff travels along with her relatives. The Court has also noticed that there was nothing to show that the plaintiffs had insisted for the tickets of a particular flight on a particular date. It may be that the plaintiffs preferred ticket of a flight on any date between 01.07.2001 to 04.07.2001 as the first plaintiff was aged and she could go along with her relatives. The defendants could not arrange tickets through Kuwait Airways. But, that by itself does not mean that there is a breach of contract committed by them. There is nothing to show as rightly held by the courts below that the defendants had undertaken to get the tickets of a particular flight on any date between 01.07.2001 to 04.07.2001. In the light of the findings of fact by the Courts below, there is no breach of contract committed by the defendants. 8. However, it needs to be noticed that the first plaintiff wanted to go to USA to attend the marriage of a relative and she had engaged the defendants to procure air ticket to USA. They were asked to get the ticket on any date between 01.07.2001 to 04.07.2001. It is significant to notice that the defendants had agreed to try to procure the ticket of the airline RSA 417/10 5 chosen by the plaintiffs. But, inspite of best efforts, they could not arrange it. As rightly noticed by the courts below, there is nothing to show that the defendants had undertaken to procure tickets or had entered into any contract with the plaintiffs to get the ticket of any particular airline. Both the courts below have found that the claim of damages to the tune of Rs.35,000/- was not substantiated. As already noticed, there is nothing to show that there was a contract between the plaintiffs and the defendants. There is no evidence also to show that the plaintiffs had suffered damages due to any omission on the part of the defendants. In the light of the above facts, there are no grounds to interfere with the Judgments of the Courts below and no substantial question arises for consideration in this Second Appeal. This Second Appeal is without any merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE sta RSA 417/10 6 RSA 417/10 7