* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 17th NOVEMBER, 2014
DECIDED ON : 28th NOVEMBER, 2014
+ CS (OS) 1061/2013 & IA Nos.5675/2014 & 18954/2013
CAPTAIN MUKUL GUPTA ..... Plaintiff
Through : Mr.Jasmeet Singh, Advocate with
Mr.Saurabh Tiwari, Advocate.
VERSUS
THE KINGFISHER AIRLINES LTD. ..... Defendant
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The plaintiff has instituted suit under Order XXXVII CPC for recovery of ` 20,09,795/- (`13,25,000/- as salary amount, ` 3,19,825/- as interest, ` 1,86,000/- as gratuity, ` 93,970/- as 45 days' leave encashment and ` 85,000/- as additional flying allowance above 70 Hrs.) against the defendant, pleadings the following :
CS (OS) 1061/2013 Page 1 of 5
(i) The plaintiff was appointed as "Transition Captain" for A320 w.e.f. 22.04.2006 vide appointment letter dated 17.02.2006 with a consolidated salary of ` 3,30,250/- per month, which was subsequently increased to ` 5,30,000/- per month w.e.f. 01.07.2011.
(ii) The defendant was, however, in a financial mess and was unable to pay the salaries and owing whereto the plaintiff had no option but to resign from the employment of the defendant vide letter dated 14.02.2012, which was accepted by the defendant by conduct. However, the plaintiff did not pay the arrears of salary and other emoluments.
(iii) The plaintiff has not been paid his salary for the month of December, 2011, January, 2012 and 15 days' salary for February, 2012 i.e. for about two and half months.
(iv) Besides the aforesaid amount, the plaintiff also claims interest thereon @ 18% per annum, which comes to `3,19,825/- and gratuity ` 1,86,000/-.
2. The suit was first time listed before the Joint Registrar on 27.05.2013. Summons to the defendant on the prescribed proforma under CS (OS) 1061/2013 Page 2 of 5 Order XXXVII CPC were ordered to be issued. The defendant was served on 01.08.2013. Appearance was put on behalf of the defendant on 06.09.2013 and it was informed that appropriate application in due course would be moved. The matter was subsequently, referred to Delhi High Court Mediation & Conciliation Centre for settlement. However, the matter could not be settled there. IA No. 5675/2014 under Order XXXVII Rule 3(4) CPC was moved on behalf of the plaintiff for issuance of summons for judgment. The defendant, however, did not file any application for leave to contest within the period of limitation.
3. Since the defendant did not apply for leave to defend, under Order XXXVII Rule 3 (6) CPC, the plaintiff is entitled to judgment forthwith.
4. Learned counsel for the plaintiff has filed on record judgment in CS (OS) 1063/2013 and IA No.17077/2013 decided on 25.08.2014 by HMJ Manmohan Singh. Similar claim was raised by Captain Dinesh Kant Sharma against the defendant - the Kingfisher Airlines Ltd. therein. In the said proceedings the learned counsel for the plaintiff confined his claim only to the principal amount as there was no pre-suit agreement for interest. Leaned counsel for the plaintiff has further filed on record judgment in CS(OS) No.1152/2013 dated 03.04.2014 of HMJ Rajiv Sahai CS (OS) 1061/2013 Page 3 of 5 Endlaw in a similar matter. This Court was of the view that the amount towards leave encashment and extra flying did not fall within the ambit of Order XXXVII. Learned counsel for the plaintiff therein opted to give up the said claim. The said judgment has attained finality. The claim under these two heads hence cannot be accepted in the present suit under Order XXXVII CPC.
5. In the light of above discussion axiomatically, the suit of the plaintiff for recovery of arrears of salary of two and a half months of `13,25,000/- and of gratuity ` 1,86,000/- due from the defendant, has to be decreed. As far as claim of the plaintiff for interest is concerned, I deem it proper to award it @ 10% per annum from the end of each month from which salary is due till the date of decree and interest @ 10% on the gratuity of ` 1,86,000/- from 15.02.2012 till the date of decree.
6. A decree is accordingly passed in favour of the plaintiff and against the defendant for recovery of `13,25,000/- with interest @ 10% per annum from the end of each month from which salary is due till the date of decree and ` 1,86,000/- with interest @ 10% from 15.02.2012 till the date of decree.
7. The counsel's fee is assessed to ` 15000/-.
CS (OS) 1061/2013 Page 4 of 5
8. The suit and all pending IAs stand disposed of accordingly.
9. Decree-sheet be prepared accordingly.
(S.P.GARG) JUDGE NOVEMBER 28, 2014 / tr CS (OS) 1061/2013 Page 5 of 5