Captain Sanjeev Kumar Ahuja vs The Kingfisher Airlines Limited
2014 Latest Caselaw 1827 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 3rd April, 2014

+                          CS(OS) No.1603/2013

       CAPTAIN SANJEEV KUMAR AHUJA             ..... Plaintiff
                    Through: Mr. M.K. Ghosh & Ms. Tina Gang,
                             Advs.

                                     Versus

    THE KINGFISHER AIRLINES LIMITED          .....Defendant
                 Through: Mr. Sumit Pushkar, Mr. Abhijeet
                           Swaroop & Ankur Khandelwal, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
IA No.526/2014 (of the defendant for leave to defend).


1.

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

recovery of Rs.31,08,867/- with pendente lite and future interest, pleading:-

(i) that the plaintiff was appointed as a Captain of Airbus-320 Aircraft

with the defendant at New Delhi with a consolidated salary of

Rs.4,30,000/- per month and joined w.e.f. 9th October, 2008;

(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

1st February, 2012 which was accepted by the defendant vide letter

dated 2nd February, 2012; that the defendant while accepting the

resignation of the plaintiff informed the plaintiff that the plaintiff

was required to give a notice period of at least six months and

would be relieved from his duties at the close of work hour on 31 st

July, 2012;

(iii) the plaintiff accordingly worked till 31st 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 to July, 2012 i.e. for a period of five months;

(v) that a sum of Rs.25,37,500/- is due to the plaintiff towards salary

for five months at the rate of gross salary of Rs.5,07,500/- and a

sum of Rs.97,133/- is due to the plaintiff towards Leave

Encashment of 47 days at the rate of basic salary of Rs.62,000/-

per month;

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

various e-mails but not paid; and,

(vii) that besides the aforesaid total principal sum of Rs.26,34,633/- a

sum of Rs.4,74,234/- is also due towards interest thereon at 18%

per month till the date of institution of the suit, making a total of

Rs.31,08,867/-.

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 the plaintiff had also not placed on record the Training

Agreement executed between the parties and the general terms and

conditions and guidelines applicable to the cockpit crew;

(d) that as per Clause 14 of the Appointment Letter, any dispute or

difference between the plaintiff and the defendant has to be

resolved by way of arbitration of the Chief Operating Officer of

the defendant or his nominee with the venue of the arbitration

being at Mumbai or at any other place designated by the Chief

Operating Officer of the defendant;

(e) that even otherwise, this Court does not have territorial jurisdiction

as the Letter of Appointment of the plaintiff provides for the

exclusive jurisdiction of the Courts at Mumbai;

(f) that the plaintiff has committed breach of Clause 12.4 of the Letter

of Appointment and has not completed the Commitment Period of

five years and not served the notice period;

(g) that the plaintiff having not completed the Commitment Period of

five years could not have terminated the Agreement without

paying to the defendant such amounts as were due to the

defendant;

(h) that the plaintiff has failed to pay liquidated damages due to the

defendant;

(i) that the payment of monthly salary to the plaintiff was contingent

on completion of 80 flying hours by the plaintiff which the

plaintiff failed to complete and therefore the amount claimed by

the plaintiff in the plaint is not payable to the plaintiff;

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

letter dated 3rd March, 2008 of appointment of the plaintiff;

(k) that the defendant is entitled to deduct from the salary of the

plaintiff the dues of the plaintiff qua the Commitment Period and

notice period; and,

(l) that all the aforesaid raise triable issues.

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 the plaintiff along with the plaint

filed photocopies of the letter dated 3rd March, 2008 of his appointment, the

letter dated 27th April, 2009 of the defendant enclosing therewith compensation

package of the plaintiff effective from 27th April, 2009, the Clearance

Certificate dated 31st July, 2012 issued by the defendant to the plaintiff, his pay

slips for the month of January, 2012 showing the gross salary of Rs.5,07,500/-

and copies of e-mails of the defendant admitting the liability but has

subsequently filed the originals thereof also. 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.

6. 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.

7. 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.

8. I may however notice that though the defendant has taken the ground, of

the plaintiff being committed to serve the defendant for five years, but no

provision therefor is to be found in the Employment Contract. Similarly as far

as the plea of the plaintiff having not flown for 80 hours per month is

concerned, the clause therefor is as under:-

"Note:- a) The monthly salary as shown above is based on 80 hours of flying. There will be a quarterly review of the block flying hours flown. Shortfall in flying hours at 80 hours / month i.e. 240 hours per quarter (3 consecutive months) for reasons not attributable to the captain would have no impact on pay and allowances. In case, however, the shortfall occurs for reasons attributable to the captain, proportionate adjustments will be made @ Rs.1,812/hr which is the applicable hourly rate. Shortfall in flying hours on account of sanctioned leave will not affect pay and allowance and not entail any recovery."

9. It is not pleaded by the defendant in the leave to defend that the shortfall

even if any was attributable to the plaintiff and without any such plea, there can

be no deduction on the said account.

10. That leaves only the objection qua territorial jurisdiction and abitrability.

I have during the hearing enquired from the counsel for the defendant whether

the defendant has any Chief Operation Officer at the moment. The factum of

the defendant having closed its operations and being under heavy debts and a

large number of employees of the defendant being left without salary for

several months is today public knowledge. Though the counsel for the

defendant earlier stated that there is no Chief Operating Officer but

subsequently states that there is.

11. As far as the aspect of territorial jurisdiction is concerned, though the

Appointment Letter of the plaintiff does provides for exclusive jurisdiction of

the Courts of Mumbai but as per the law laid down in Inter Globe Aviation Ltd.

Vs. N. Satchidanand (2011) 7 SCC 463, the question of the parties restricting

the jurisdiction to one of the several Courts having jurisdiction arises only when

several Courts have jurisdiction. It is the averment of the plaintiff in the plaint

that the plaintiff was appointed at Delhi, was based at Delhi and was being paid

his salary at Delhi. The defendant, in the application for leave to defend, has not

controverted any of the said facts and has also not stated as to how the Courts at

Mumbai have jurisdiction. Without any averment to the said effect, the said

clause of exclusive jurisdiction cannot be held to have vested the Courts at

Mumbai, which otherwise have no jurisdiction, jurisdiction over the matter. The

reliance by the counsel for the defendant on Swastik Gases Private Limited Vs.

Indian Oil Corporation Limited (2013) 9 SCC 32 in this regard is thus of no

avail.

12. As far as the plea of arbitrability is concerned, defendant has not filed

any application under Section 8 of the Arbitration and Conciliation Act, 1996.

Upon the same being put to the counsel for the defendant, the counsel for the

defendant invites attention to G. Rajarajan Vs. AIG Consumer Financial

Services (India) Ltd. (2012) 5 CTC 313 of a Single Judge of the Madras High

Court, to contend that a plea to the said effect in the leave to defend application

suffices.

13. I have considered the aforesaid contention.

14. It cannot be lost sight of that there is really no denial or dispute raised by

the defendant to the claim of the plaintiff for recovery of arrears of his salary.

There is thus really no dispute for adjudication by arbitration. I see no reason to

deny to the plaintiff in this suit the relief of recovery of money which

admittedly is due to the plaintiff and the chances of recovery whereof, even if a

decree were to be passed in favour of the plaintiff, are remote and to compel the

plaintiff to spend more monies in invoking the arbitration clause when there is

really nothing for arbitration. Without thus intending this to be precedent, in the

facts and circumstances of the present case, I reject said argument also of the

defendant. I may also notice that today, CS(OS) No.1151/2013 & CS(OS)

No.1152/2013 also filed by two other pilots of defendant, for similar claims are

also listed and in the appointment letter subject matter of CS(OS)

No.1152/2013, there is no arbitration clause or the clause for the exclusive

jurisdiction of the Courts at Mumbai.

15. 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.

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

any ground in so far as the claim for recovery of arrears of salary is concerned.

The application is accordingly dismissed.

CS(OS) No.1603/2013.

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

five months of Rs.25,37,500/- 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.

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

defendant for recovery of Rs.25,37,500/- with interest at 10% per annum from

the end of each month for which salary was due till the date of payment.

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

assessed at Rs.15,000/-.

20. Needless to state, the aforesaid would not come in the way of defendant,

if entitled to, making a claim for its dues on the plaintiff.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

APRIL 3, 2014 pp..