Airports Authority Of India vs Aer Linges Ltd And 4 Ors
2023 Latest Caselaw 2334 Bom

           Digitally
                                            6 S-366-1997.FINAL (1).DOCX
           signed by
           LAXMI
LAXMI      SUBHASH
SUBHASH    SONTAKKE
SONTAKKE   Date:
           2023.03.13
           12:11:27     Laxmi
           +0530




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    ORDINARY ORIGINAL CIVIL JURISDICTION

                                      CHAMBER SUMMONS NO. 373 OF 2018
                                                     IN
                                            SUIT NO. 366 OF 1997


                        Airports Authority of India                   ..Applicant/Plaintiff
                              Vs.
                        Aer Lingus Ltd. & Ors.                              ..Defendants

                                                     --------

Ms. Radha H. Bhandari a/w S. Shetty i/b. M. V. Kini & Co. for the Applicant/Plaintiff.

Mr. S. Sen a/w Archana Deshmukh, Shrishti Singhania, K. G. Singhania & Preksha Shah i/b. Singhania & Co. for the Defendant Nos. 1, 4 and 5.

--------

                                           CORAM:         B. P. COLABAWALLA, J
                                           DATED:         10 MARCH 2023

                         P.C.

1. This Chamber Summons is filed by the Plaintiff seeking a

modification of the order dated 2 nd March 2015, insofar as it directs

that issue Nos.1 and 5 shall be tried under the provisions of Order XV

Rule 3 of the Code of Civil Procedure,1908 (for short "CPC") as its

adjudication will determine whether or not the Plaintiff would

require to lead evidence about the extent of the claim of the Plaintiff

against the contesting Defendant No.1 as well as Defendant Nos.4 & 5

[prayer clause (a)]. The other prayer sought in the Chamber

Summons [prayer clause (b)] is that the Plaintiff may be permitted to

10 March 2023 6 S-366-1997.FINAL (1).DOCX

take steps to convert the above Suit to a Commercial Suit because the

dispute between the parties is a commercial dispute and would be

governed by the provisions of the Commercial Courts Act, 2015.

2. So far as having the above Suit being numbered as a

Commercial Suit is concerned [i.e. prayer clause (b)], Mr. Sen does

dispute that the claim made by the Plaintiff in above Suit would fall

within the definition of a commercial dispute as contemplated under

the provisions of the Commercial Courts Act, 2015. He therefore

fairly stated that the above Suit can be converted and numbered as a

Commercial Suit.

3. Considering the fair stand taken by Mr. Sen, the Plaintiff

is permitted to take such steps in accordance with the provisions of

the Commercial Courts Act, 2015 to convert the above Suit to a

Commercial Suit and have it renumbered accordingly. Whatever

steps are required to be taken by the Plaintiff in that regard, shall be

taken within a period of two weeks from today. This takes care of

prayer clause (b) of the Chamber Summons.

4. This now leaves me to deal with the prayer seeking

modification of the order dated 2 nd March 2015 [prayer clause (a)]. As

far as modification of the order is concerned, the argument canvassed

10 March 2023 6 S-366-1997.FINAL (1).DOCX

is that the provisions of Order XV Rule 3 do not apply to the

Commercial Court and/or the Commercial Division of the High Court

and therefore Issue Nos.1 & 5 cannot be tried as preliminary issues.

For the sake of convenience, Issue Nos.1 & 5 are reproduced

hereunder:

"1. Whether the Plaintiffs are entitled to claim charges for services and facilities rendered and lending charges from Defendant No.1, who leased its aircrafts to Defendant Nos.2 and 3 under the Aircraft Act, 1934 and the Rules framed thereunder.

......

......

5. Whether the suit is maintainable against Defendant Nos.4 and 5 which are aircrafts."

5. As far as this argument is concerned, I find absolutely no

merit in the aforesaid contention. Though in the order a reference is

made to Order XV Rule 3 of the CPC, and which was correct at that

given point of time, even today, under Order XV-A of the CPC (and

which applies to the Commercial Court and the Commercial Division

of the High Court), categorically gives power to the Court to inter alia

decide (i) the order in which issues are to be tried; (ii) to exclude an

issue from consideration; and/or (iii) dismiss or give judgment on a

claim after a decision on a preliminary issue. This being the case, I

do not find that there is any requirement for modification of the order

dated 2nd March 2015, insofar as it stipulates that Issue Nos.1 and 5

shall be tried as preliminary issues. I am of the opinion, that the

10 March 2023 6 S-366-1997.FINAL (1).DOCX

Court has correctly ordered that Issue Nos. 1 and 5 shall be tried as

preliminary issues because only if those issues are answered in favour

of the Plaintiff, then the Plaintiff would be required to lead evidence

regarding the quantum of the claim against the said Defendants.

Further, Mr. Sen, the learned Advocate appearing for Defendant

No.1, correctly submitted that Issue Nos. 1 and 5 are questions of law

and can be decided as preliminary issues without any of the parties

being required to lead any evidence on these two issues. In these

circumstances, prayer clause (a) of the Chamber Summons stands

rejected.

6. In view of the foregoing discussion, the above Chamber

Summons is disposed of in the aforesaid terms. No order as to costs.

7. Place the above Suit on board for arguments on the

preliminary issues, namely, Issue Nos. 1 and 5, on 13 th April 2023.

8. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

B. P. COLABAWALLA, J

10 March 2023