WRITTEN

STATEMENT
BA. LLB (Hons.)
Semester II

Submitted To-

Adv. A.K. Shukla

SCHOOL OF LAW, NMIMS

DEEMED TO BE UNIVERSITY

Submitted By-

Vidhi Doshi

BA.LLB (HONS)

A015
 IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2021

STAMP NO. OF 2021

DISTRICT: GREATER MUMBAI

Mr. Heinsberg ...Appellant

VERSUS

Travel Solution Pvt Ltd ...Respondent

: INDEX:

Sr. Exhibit Particulars Page No

No No

1. Memo of Written Statement

2. Memo of affidavit
 IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2021

DISTRICT: GREATER MUMBAI

Mr. Heisenberg ...Appellant

VERSUS

Travel Solution Pvt Ltd ...Respondent

ACTS TO BE REFERRED:

1. The Indian Contracts Act,1872

2. The Indian Evidence Act,1872

3. Civil Procedure Act, 1908

AUTHORITIES TO BE CITED:

National Union of General and Municipal Workers v. Gillian

Barclays Bank plc v Various Claimants

Dunlop Pneumatic Tyre Co. Ltd. V. Selfridge & Co. Ltd

Nirmala Anand V. Advent Corporation

Mumbai

Dated: -

Advocate for respondent

 MEMO OF AFFIDAVIT

IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2021

STAMP NO. OF 2021

DISTRICT: GREATER MUMBAI

Mr. Heisenberg ...Petitioner

VERSUS

Travel Solution Pvt Ltd ...Respondent

TO,

THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUDGES

OF THE HIGH COURT AT BOMBAY.

THE HUMBLE APPEAL ON BEHALF OF THE APPELLANT

MOST RESPECTFULLY SHEWETH

1. I, Travel Solutions Private Limited, Occ- Travel services, the

respondent above named do hereby state on solemn affirmation as

under: -

2. I say that respondent is a highly reputed private limited company based

in Mumbai that provides travel services such as booking air tickets,

processing requests for visas, hotel reservations etc. For making

arrangements for the petitioner’s trip to Australia, the petitioner

contacted the respondent for the trip.

3. I say that the above said petition filed by the petitioner against the

respondents is false, frivolous, and not maintainable in law. The petition

is filed without cause of action with the sole motive to harass the

respondents and to satisfy the ego by pressurizing the respondents and

demoralizing their status of respondents in society. It is therefore stated

that each and every content of Para no 5 & 11 of the petitions which is
 not specifically admitted is strictly denied by the respondents and put

the petitioner into the strict proof thereof and also the respondents pray

for the dismissal of the petition with a heavy cost.

4. I say that the sales team of the respondent met the petitioner and

explained to him about the services provided by them. The petitioner

was particularly concerned about the visa process. Upon inquiry, the

sales team of the respondent company assured the petitioner that the

process of issuance of a tourist visa generally takes 10-15 days and not

more than that.

5. I say that the petitioner was keen on booking the air tickets through

the respondent from Mumbai to Sydney via Singapore. However, the

petitioner advised him that the flight from Chennai to Sydney would

be much cheaper and considering that he would be booking the tickets

for his entire family, it would be more economical. Acting on the

advice of the respondent, he got the flight bookings to Sydney through

Chennai on 08.09.2017.

6. I say that the petitioner was given a list of documents required for the

processing of the visa on 07.08.2017 by Mr Tommen of the respondent

company. He had requested him to secure the documents and give them
 to him personally so that he may scrutinise them and send them to their

Delhi Office for filing with the embassy.

7. I say that the petitioner managed to submit the documents to the

respondent on the evening and after work hours of Mr. Tommen on

11.08.2017 at the reception desk by which time Mr Tommen had

already left the office. The petitioner called up Mr Tommen who

instructed the receptionist to dispatch the documents immediately.

8. I say that on 21.08.2017, The petitioner got a call from the Delhi office

of Travel Solutions Private Limited informing him that an additional

document was required. The petitioner was furious as to why the

documents given by him ten days back were not yet submitted to the

embassy.

9. I say that he was informed that on 12.08.2017 and 13.08.2017 the office

was closed on account of Second Saturday and Sunday. 14.08.2017 was

a holiday on account of Janmashtami and 15.08.2017 was Independence

Day. The documents were dispatched on 16.08.2017 and received only

on 18.08.2017. Saturday and Sunday the embassy was closed. On

21.08.2017 upon verification, they realised that a document was

missing.
10. I say that the respondent apologised profusely and requested the

petitioner to send the additional document immediately. The petitioner

took the rest of the day off and obtained the required document and sent

it to Delhi by express courier on 22.08.2017 which was received by

them on 23.08.2017.

11. I say that the respondent filed the visa form along with the documents

on 23.08.2017. The petitioner was very sceptic about the delay.

However, he was assured that the visa would be issued within time as

all papers are in order.

12. I say that on 06.09.2017, the Visas were finally issued to the petitioner

by the Australian embassy. The respondent received copies of the

passports and sent an image of the visas on Whatsapp to Mr Heisenberg.

Relieved the petitioner and requested that the passports be dispatched

immediately. The respondent advised the petitioner that owing to the

paucity of time, it would too risky for the passports to be dispatched to

Mumbai and instead passports would be sent to the Chennai airport

directly.

13. I say that the petitioner left Mumbai on 08.09.2017 with his wife and

two kids for Chennai. He reached Chennai airport by 14:00 hours and
 was waiting for the passports to board his flight to Australia.

Unfortunately, the passports reached the airport only by 21:00 by which

time The petitioner had missed his flight and was furious.

14. I say that out of frustration, the petitioner tweeted "Travel Solutions

Private Limited- a bunch of liars, cheats and thieves with no ethics. The

worst company ever". The petitioner pleaded a picture of his entire

family stranded at the airport along with a detailed post placing the

entire blame on the company. He ended the post with #TSPLsucks and

a logo of the company. The respondent, in this case, is well known and

provides travel services such as air ticket bookings, visa processing, and

hotel reservations, among other things.

According to Section 19 of the Civil Procedure Code,1908 ,

‘defamation’ as being committed: Through words (spoken or intended

to be read), signs, or visible representations which are a published or

spoken imputation concerning any person; If the imputation is spoken

or published with the intention of causing harm to the reputation of the

person to whom it pertains, or knowledge or reason to believe that the

imputation will harm the reputation of the person to whom it pertains

will be harmed.
According to the facts the Plaintiff, “Out of frustration, he tweeted

"Travel Solutions Private Limited- a bunch of liars, cheats and thieves

with no ethics. The worst company ever". Further, Mr Heisenberg

uploaded a picture of his entire family stranded at the airport along with

a detailed post placing the entire blame on the company. He ended the

post with #TSPLsucks and a logo of the company. The hashtag started

by Mr Heisenberg was trending the very next day. The incident drew

widespread condemnation on the internet.”

This is a clear case of defamation by the petitioner because this was

published on a social media platform where there are a large number of

people viewing this and hence this caused the respondent a harm to his

reputation and good will as they were a company well known in the

industry for ticket issuing also everything that was said was out of clear

bad intention and with a view of harming the defendant. This principle

of defamation was also established in a similar case of National Union

of General and Municipal Workers v. Gillian and it has made

defamation punishable by law and liable for damages according to the

Civil Procedure Code.

15. Without prejudice to the aforesaid submissions, the respondents now

crave leave of this Hon’ble Court to deal with the submission/

allegations made in the above said petition.

16. I say that with reference to Para no. 3 of the petition, the contents are

true and correct because it was stated that the visa process usually takes

10- 15 days and not more than that. The respondent filed the visa form

on 23.08.2017. the visas were issued to the petitioner on 06.09.2017,

which is 14 days after the visa form was filled. Hence the content of the

Para was true.

17. I say that with reference to Para no. 2,3,4,6,7 & 8 of the petitions are

the matter of the record of the Hon’ble Court and Ld. Tribunal and

hence no comments are required.

18. I say that with reference to Para no 5 & 11 of the petition, the contents

are partially true and correct but some contention in the said Para was

false and hence strictly denied by the respondents and put the petitioner

into the strict proof thereof.

19. I say that the petitioner was negligent as he didn’t submit the document

on time because of which delayed the visa process and it was not

respondent’s fault. If the petitioner had been careful he would have

 submitted the correct documents on time and received the visa’s in due

time for his vacation.

20. I say that the respondent was at no fault also because they had promised

that the visa’s will be issued in 10-15 days and they were issued in 14

days. Moreover, even when due to the negligence of the plaintiff a

document was missing the respondents accommodated that and got the

visa’s issued in due time for the flights.

21. I say that as per the para 5 which states that the respondent is liable for

the negligence of Mr. Tommen according to the concept of Vicarious

liability is completely baseless and false. Tommen was a self- employed

contractor according to his employment contract and hence the

respondent was not liable for the negligence. This was established in

the landmark case of Barclays Bank plc v Various Claimants the

Supreme Court of the United Kingdom which stated that an employer

will not be vicariously liable for the actions of genuinely self-employed

contractors it has engaged.

22. I say that the respondent had already released the passport from my

custody 6/09/17 and it was given to the courier company to deliver to

the petitioner and it was hands of the third party to deliver the passport

to the petitioner and according to the common law principle of Privity

 of Contract which talks about involvement of a third party cannot

enforce the contract thus the petitioner cannot blame the respondent for

any delay and the courier company is in fault to delay the delivery and

over here respondent should be the courier company. This principle was

further established in Dunlop Pneumatic Tyre Co. Ltd. V. Selfridge &

Co. Ltd where it was held that until there exists a contract between two

parties, nobody can sue a case against the opposite party. If a party acts

as an agent for another party, the party acting as an agent is not prone

to pay for the recovery of damages or consideration. The petitioner

accused the respondent of breaching the contract under Section 73 of

the Indian Contract Act 1872 but the respondent feels that he has not

breached the contract as the circumstances which led to the delay of the

visa process and for the petitioner to receive the visas was not in their

hands as mentioned in para 4 (f) of the written statement.

23. I say that the contract gets automatically discharged under Section 56

of the Indian Contract Act which talks about impossibility to fulfil the

contract when the situation is out of hand. The delay was caused due to

missing document which was not provided by the petitioner and the

national holidays which came up was also not in the hands of the

respondent which automatically caused a delay in the process thus the

 contract needs to be discharged under Section 56 and this can be opined

from the judgment of Nirmala Anand V. Advent Corporation where

we can see that the Supreme Court opined that logic given by English

law for frustration is not applicable to Indian law and “impossibility”

not just means physical and nonfictional impossibility but impossibility

under Section 56 means practical impossibility also. The court observed

that if the fulfilment of the contract becomes insolvable not just because

of nonfictional physical impossibility but also when the thing of the

contract becomes impracticable to satisfy it'd be under the dimension of

Section 56 of the Indian Contract Act.

24. I say that with reference to the Prayer clause of the petition, the

contents of prayer clause in para 22 (a) to (b) are illegal, which is

demanded and claimed by the petitioner. He is not entitled for any

relief as he has sought in the petition. It is therefore prayed before the

Hon’ble Court, that they are pleased to dismiss this petition with a

heavy cost.

25. Whatever stated hereinabove is true and correct to the best of my

knowledge, belief and information and I believe it to be correct.

Solemnly affirmed at Mumbai.

 VERIFICATION

I, Travel Solutions Pvt Ltd, Occ- Travel Business, the respondent no. 1 above

named do hereby state on the solemn affirmation that whatsoever stated

hereinabove is true and correct to the best of my knowledge and belief and

the same is drafted as per my instruction, which is true and correct and I verify

this fact.

Filed in the court

Vidhi Doshi

Advocate for respondent