M/S Chl Ltd. vs M/S Alitalia-Linee Aeree ...
2012 Latest Caselaw 5832 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     CS(OS) 125/2012

      M/S CHL LIMITED               ..... Plaintiff
                   Through Mr. Ravi Kant Chadha, Sr. Adv.
                            With Mr. R.K. Gautam and
                            Ms. Manoshree, Advs.

                   versus


M/S ALITALIA -LINEE AEREE
ITALIANE S.P.A          ..... Defendant
                   ThroughNemo.



      CORAM:
      HON'BLE MR. JUSTICE KAILASH GAMBHIR
         27.9.2012


      The plaintiff has filed the present suit for mandatory injunction to

direct defendant no.s 1 & 2 to give TDS certificates in respect of various

invoices issued by the plaintiff in terms of details given in Annexure A

attached with the plaint. The plaintiff also seeks in the alternative a relief to

direct defendants to pay a sum of Rs.39,59,455.23 in the event of the failure

of the plaintiff to issue the said TDS certificates.

      Since nobody has appeared on behalf of the defendant to contest the

present case despite the defendant being served, the defendant was

proceeded ex-parte vide order dated 19.7.2012.
       Ex-parte evidence was adduced by the plaintiff by the affidavit filed by

Mr.N.K.Goel, Vice President and authorised representative of the plaintiff

company.

      The case as set out by the plaintiff in the pliant is that defendant nos.

1 & 2 had approached the plaintiff in the year 2006 for providing

accommodation along with other services of the hotel for its cargo and

passenger crew members. After due negotiations had taken place between

the parties, written agreement dated 18.9.2006 was signed and executed by

both the parties for providing accommodation in the hotel of the plaintiff

and the said agreement came into effect from 1.10.2006 and remained

effective till 30.9.2008. Accordingly, the cargo and passenger crew

members of the defendant airlines started using the accommodation and

other facilities of the plaintiff as per the agreed terms. It is also the case of

the plaintiff that the agreement dated 18.9.2006 was extended by another

integrated   agreement     signed    between    the   parties   on   18.9.2007,

whereunder, new rates were agreed between the parties for the term

starting from 1.10.2007 till 30.9.2008. It is also the case of the plaintiff that

for the period from 1.10.2008 till 30.9.2009, the rates were again revised

along with the revision in the tax rates. It is also the case of the plaintiff

that initially the defendant used to make payments against the bills raised

by the plaintiff but the payments became erratic later during the period

from 11.8.2008 to 10.1.2009. Various reminders were sent by the plaintiff

but the defendant did not come forward to make the payment of the
 outstanding amount. Due to the non-payment of the outstanding amount,

the   plaintiff   was   constrained   to   file   a   civil   suit   for   recovery   of

Rs.39,18,606.37 against the defendant vide CS(OS) 728/2009 and the same

was decreed by this court vide ex-parte judgement and decree dated

2.6.2011

for a sum of Rs.39,18,606.37 alongwithpendentelite and future

interest @ 12% per annum. The plaintiff had also filed an application

bearing IA No.15855/2009 in the said suit to seek direction against the

defendant for issuing the TDS certificates in respect of various invoices but

the court was of the view that such an order can be passed by the court in

an independent suit to be filed by the plaintiff and not in an interim

application. This court accordingly granted leave to the plaintiff to file an

appropriate suit to claim relief with regard to the delivery of TDS

certificates. After grant of the said leave by the court, the plaintiff has filed

the present suit for mandatory injunction so as to direct defendant no.s 1 &

2 to issue TDS certificates in respect of all the invoices as per the details

given by the plaintiff in Annexure A or in the alternative to direct the

defendant to pay a sum of Rs.39,59,455.23 to the plaintiff. Vide order dated

27.2.2012, this court directed the plaintiff to file an undertaking that in the

event of the failure of the defendant to issue TDS certificates and

consequently the court granting alternative relief to the plaintiff for the

recovery of the said amount of Rs.39,59,455.23, the plaintiff shall deposit

the requisite court fee on the said amount. It is needless to mention that the

said undertaking was filed by the plaintiff in compliance with the order dated 27.2.2012.

The plaintiff has proved its case by filing the affidavit of Mr.N.K.Goel

in evidence, who is stated to be Vice President of the plaintiff company and

been duly authorised to sign, file and depose in evidence on behalf of the

plaintiff company in terms of the Board Resolution proved on record as

Ext.PW1/1. The plaintiff has further proved on record certified copy of the

judgment dated 2.6.11 as PW1/2 and the certified copy of the decree dated

2.6.2011 as Ext.PW1/3. The plaintiff has also proved on record copy of the

interim application filed by the plaintiff in CS(OS) 728/2009 as Ext.PW1/4

and the statement giving details of all the invoices in respect of which the

defendants having failed to issue TDS certificates as Ext.PW1/5.

The averments made by the plaintiff in the plaint and the testimony of

the plaintiff in evidence has remained uncontroverted, unchallenged and

unrebutted and therefore there is no reason to disbelieve the case of the

plaintiff which the plaintiff has been able to successfully prove in the

evidence. It will also be relevant to mention here that the defendant also

remained ex-parte in CS (OS) 728/2009 and therefore it is manifest that

defendant has deliberately avoided to contest the previous case as well as

the present suit.

Decree of mandatory injunction is accordingly passed in favour of the

plaintiff and against defendant no.s 1 & 2 thereby directing defendant no.s

1 & 2 to issue all the TDS certificates as per the details of these certificates

disclosed by the plaintiff in Annexure A attached with the plaint.

In case the defendants fail to issue the said TDS certificates within a

period of three months from the date of passing of this judgment and decree

then the plaintiff shall become entitled to recover an amount of

Rs.39,59,455.23 from the defendants and in that eventuality the plaintiff

shall deposit the court fee on the said amount. It is made clear that decree

to recover the said amount shall become executable only on the deposit of

the court fee amount by the plaintiff.

Decree sheet be drawn up accordingly.

KAILASH GAMBHIR, J September 27, 2012