Captain Aaditya Jugal Garg vs The Kingfisher Airlines Limited
2014 Latest Caselaw 1824 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 3rd April, 2014

+                          CS(OS) No.1152/2013

       CAPTAIN AADITYA JUGAL GARG                                  ....Plaintiff
                    Through: Mr. Achal Gupta, Adv.

                                     Versus

    THE KINGFISHER AIRLINES LIMITED          ... Defendant
                  Through: Mr. Sumit Pushkar, Mr. Abhijeet
                           Swaroop & Mr. Ankur Khandelwal,
                           Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
IA No.20860/2013 (of the defendant for leave to defend)


1.

The plaintiff has instituted this suit under Order 37 of the CPC for

recovery of Rs.44,87,266/- with pendente lite and future interest, pleading:-

(i) that the plaintiff was appointed as Co-Pilot on the ATR Fleet with

the defendant Airlines at New Delhi with a consolidated salary of

Rs.1,75,000/- per month and joined w.e.f. 10th April, 2007;

(ii) that the defendant was however in a financial mess and 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

24th January, 2012 which was accepted by the defendant on the

same day;

(iii) the plaintiff accordingly worked till 23rd July, 2012 and was

relieved and given No Objection Certificate;

(iv) that the plaintiff has not been paid his salary for the months of

March, 2012 to 23rd July, 2012 i.e. for a period of about five

months;

(v) that a sum of 29,40,000/- is due to the plaintiff towards salary from

March, 2012 to 23rd July, 2012 at the rate of gross salary of

Rs.6,20,000/- and a sum of Rs.86,800/- is due to the plaintiff

towards Leave Encashment of 42 days and a sum of Rs.43,833/-

towards extra flying for the month of March, 2012 and a sum of

Rs.75,500/- towards extra flying for the month of June and

Rs.10,00,000/- is due towards gratuity;

(vi) that the said salary / dues have been admitted by the defendant in

various e-mails but not paid; and,

(vii) that after deducting Rs.3,43,365/- as liquidated damages which is

standing against the plaintiff from the total principal sum of

Rs.41,46,133/-, the total outstanding claim due against the

defendant is Rs.38,02,768/- along with a sum of Rs.6,84,498/-

towards interest thereon @18% per month till the date of

institution of the suit, making a total of Rs.44,87,266/-.

2. The suit was entertained under Order 37 and summons for appearance,

and upon the defendant entering appearance summons for judgment, were

issued to the defendant and in response whereto the defendant has sought leave

to defend contending:-

(a) that the suit is not maintainable under Order 37 of the CPC;

(b) that the plaintiff has not even placed on record the original

Appointment Letter containing the contract between the parties;

(c) that this Court lacks territorial jurisdiction since the defendant has

its registered office at Bangalore and its corporate office in

Mumbai and the letter of appointment was issued from Mumbai;

(d) that while accepting the resignation of the plaintiff, vide letter

dated 24.01.2012, the defendant reiterated the obligation of the

plaintiff including the obligation of diligently performing

obligations during the notice period and of furnishing a cheque /

demand draft of Rs.3,46,365/- as liquidated damages payable by

the plaintiff to the defendant; inspite of such obligation, the

plaintiff failed to comply with such obligation and has on the one

hand failed to honour the claims of the defendant and on the other

hand has made his frivolous claims;

(e) that the plaintiff is not entitled to any amount towards leave

encashment;

(f) that the claim on account of Leave Encashment is contrary to the

letter dated 12th March, 2007 of appointment of the plaintiff;

3. Reply / rejoinder have been filed to the application for leave to defend

but since the counsels during the hearing did not advert thereto, need is not felt

to refer to the same.

4. The counsels have been heard.

5. I may at the outset notice that though plaintiff along with the plaint filed

photocopies of the letter dated 12th March, 2007 of his appointment, letter dated

24th January, 2012 of his resignation, the letter dated 24th January, 2012 of the

defendant of acceptance of resignation, the pay slip for the month of June, 2012

showing gross salary of Rs.6,20,000/- and of e-mails exchanged with the

defendant but has subsequently filed the original thereof also.

6. I have recently in judgment dated 11th September, 2013 in RFA

No.321/2013 titled Yogender Singh Vs. Kotak Mahindra Bank Ltd. on a

conspectus of case law in this regard, inter alia held that filing the original

documents at the time of institution of the suit is not absolutely essential.

7. What strikes one immediately is that the defendant, in the application for

leave to defend, has not disputed the rate of salary or the period for which the

salary is due. As far as the ground, of the defendant having counterclaim against

the plaintiff is concerned, even if it be so, it is the settled position in law (See

Deutsche Raitco GMBH Vs. Mohan Murti 52 (1993) DLT 288, Punjab &

Sind Bank Vs. S.K. Tulshan MANU/DE/0072/1990 & Ajanta Offset &

Packagings Ltd. Vs. Kintetsu World Express MANU/DE/6551/2011) that the

plea of the defendant having a counterclaim against the plaintiff is not a ground

for grant of leave to defend. Moreover, the plaintiff in the present case has

deducted from his claim, the amount claimed by the defendant.

8. Though the counsel for the plaintiff has from the e-mails exchanged

attempted to show that the defendant in the said e-mails admitted the liability

for Leave Encashment also but there being admittedly no provision therefor in

the contract of employment and upon it being put to the counsel for the plaintiff

that in view thereof the suit therefor cannot be under Order 37 of the CPC and if

the plaintiff insists upon recovery of the same, the suit for the entire amount

shall have to be treated as an ordinary suit, the counsel for the plaintiff gives up

the relief for recovery of amount on account of Leave Encashment.

9. Similarly, the counsel for the plaintiff realizing that the claim of

Rs.43,833/- and Rs.75,500/- towards extra flying for the months of March, 2012

and June, 2012 respectively did not fall within the ambit of Order 37, gave up

the same also.

10. Though the plaintiffs in CS(OS) No.1603/2013 & CS(OS) No.1151/2013

also listed today and in which also arguments on the applications for leave to

defend therein were also heard along with this suit had given up the claim made

therein for gratuity on account of plaintiffs therein having not completed five

years of service but the counsel for the defendant admits that the plaintiff herein

has completed five years of service and as per the terms of his employment is

entitled to gratuity of Rs.10,00,000/-. I may also notice that in the leave to

defend application of the defendant, no dispute has been raised with respect to

the claim for gratuity.

11. Another striking feature of this case, distinct from the other two cases, is

that unlike the appointment letters in the other two cases, the appointment letter

in this case neither provides for arbitration of disputes nor for the exclusive

jurisdiction of the Courts at Mumbai. It is not disputed that the Courts at Delhi

also have jurisdiction, as pleaded in the plaint; thus the dispute raised as to the

territorial jurisdiction of this Court is sham.

12. The counsel for the defendant has lastly contended that the affidavit of

the plaintiff accompanying the plaint is attested by a notary public of Singapore

with which country India has no reciprocity. He contends that the suit is not

maintainable on this ground. The counsel for the plaintiff has in response

invited attention to the judgment dated 18th January, 2007 of this Court in LA

Chemise Lacoste Vs. Crocodile Indl Pte. Ltd. negativing such an argument.

13. I therefore find that the application for leave to defend does not disclose

any ground in so far as the claims for recovery of arrears of salary and gratuity

are concerned. The application is accordingly dismissed.

CS(OS) No.1152/2013.

14. Axiomatically, the suit of the plaintiff for recovery of arrears of salary

from March, 2012 to 23rd July, 2012 of Rs.29,40,000/- and for recovery of

gratuity, less Rs.3,43,365/- due to the defendant and admitted by the plaintiff,

has to be decreed. As far as the claim of the plaintiff for interest is concerned, I

deem it proper to award to the plaintiff interest at the rate of 10% per annum

from the end of each month for which salary is due till the date of payment and

interest at the rate of 10% on the gratuity of Rs.10,00,000/- from 23rd July, 2012

till the date of payment.

15. A decree is accordingly passed in favour of the plaintiff and against the

defendant for recovery of Rs.29,40,000/- less Rs.3,43,365/- with interest at

10% per annum from the end of each month for which salary was due till the

date of payment and a sum of Rs.10,00,000/- towards gratuity along with

interest at the rate of 10% on the gratuity of Rs.10,00,000/- from 23rd July, 2012

till the date of payment.

16. The plaintiff shall also be entitled to costs of the suit. The counsel's fee

assessed at Rs.15,000/-.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J APRIL 3, 2014 'gsr'..