Sahara India Airlines Ltd. vs Capt. A.K.Chowdhary
2011 Latest Caselaw 4138 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.644/2006

%                                                   25th August, 2011

SAHARA INDIA AIRLINES LTD.                             ...... Appellant
                                Through:    Mr. Sanjay Pal, Adv.

                          VERSUS


CAPT. A.K.CHOWDHARY                                      ...... Respondent
                                Through:    None.



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            The matter was passed over on the first call as no one was

appearing for the respondent. Even on the second call no one appears for

the respondent.      I have therefore heard the learned counsel for the

appellant and after perusing the record am proceeding to dispose of the

appeal. I note that even on the last date of hearing no one appeared for

the respondent.

2.            This Regular First Appeal under Section 96 CPC was filed

challenging the judgment and decree of the Trial Court dated 31.7.2006

by which the suit of the appellant/plaintiff was dismissed although it was

found that the respondent was liable to pay an amount of Rs.1,15,000/-
RFA No.644/2006                                                 Page 1 of 3
 with simple interest at 6% per annum.        The suit was dismissed as the

authorized filing for the suit was not proved.

3.          This Court during the pendency of the appeal on 16.9.2010

allowed an application under Order 41 Rule 27 CPC and permitted the

appellant/plaintiff to lead additional evidence to prove the due filing of the

suit, and which was issue no.2 as framed by the Trial Court. The matter

was remanded back to the Trial Court for leading additional evidence on

this limited aspect and the appellant has thereafter led the additional

evidence and the matter has now been sent back to this Court.

4.          I have perused the additional evidence which has been led by

the appellant/plaintiff in the Trial Court by filing additional affidavit by way

of evidence of PW2.       PW2 was cross-examined.         A reference to the

affidavit shows that the Board of Directors' resolution dated 11.4.1997 has

been proved and exhibited as EX.PW2/1 and even the original leaves of

the minutes above have been proved and exhibited as Ex.PW2/2A to

PW2/2F.     The authorization given to Sh. Gautam Sarkar has been

exhibited as Ex.PW2/2C. Nothing material has been elicited in the cross-

examination of this witness and therefore it is proved that the appellant

company has duly filed the suit.

            In any case, the suit was filed through Sh. Gautam Sarkar who

was then Commercial Manager of the appellant/plaintiff, and who is

therefore a principal officer in terms of Order 29 Rule 1 CPC. The suit was

therefore, in any case, validly filed and instituted in view of Order 29 Rule




RFA No.644/2006                                                  Page 2 of 3
 1 CPC. I therefore hold that the suit was validly instituted and filed on

behalf of the appellant/plaintiff.

5.             The Trial Court has already given a finding with respect to

issue no. 3 in favour of the appellant/plaintiff by holding the respondent

liable to pay a sum of Rs.1,15,000/- being a gross salary for one month

notice period, and which one month notice was not given before the

respondent left the service.     The Trial Court has given detailed findings

and    conclusions     with    regard   to    admissions    made   by   the

respondent/defendant with respect to the terms and conditions of

employment which have been exhibited as Ex.PW1/2 and these terms and

conditions show that if the respondent/employee/pilot leaves the service

without giving a notice of one month, then the appellant will be entitled to

an amount of one month's gross salary for failure to give the said notice.

Admittedly no notice was given by the respondent before leaving the

services of the appellant.     No cross objections have been filed by the

respondent/defendant to findings on issue no.3. I accept the findings of

the Trial Court with respect to issue no.3.

6.             The upshot of above discussion is that the suit of the

plaintiff/appellant is decreed against the defendant/respondent for a sum

of Rs.1,15,000/- with pendent lite and future interest at 6% per annum till

realization.    Parties are left to bear their own costs.   Decree sheet be

prepared. Trial Court record be sent back.



AUGUST 25, 2011                                   VALMIKI J. MEHTA, J.

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