Dinesh Kant Sharma vs The Kingfisher Airlines Ltd.
2014 Latest Caselaw 3908 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Order delivered on: August 25, 2014

+             CS(OS) No.1063/2013 & I.A. No.17077/2013

       DINESH KANT SHARMA                                      .....Plaintiff
                    Through              Mr.Jasmeet Singh, Adv.

                         versus

       THE KINGFISHER AIRLINES LTD            .....Defendant
                    Through Mr.Ankur Khandelwal, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The plaintiff has instituted this suit under Order XXXVII CPC for recovery of Rs.36,43,344/- (Rs.28,95,000/- as salary amount, Rs.4,80,075/- as interest and Rs.2,68,269/- as gratuity) against the defendant, pleading the following :-

(i) The plaintiff was appointed as "Transition Captain" of Airbus-320 Aircraft with the defendant at New Delhi with effect from 3rd January, 2005 with a consolidated salary of Rs.2,80,250/- per month which was subsequently increased from time to time and the last drawn salary of the plaintiff was Rs.5,95,000/- per month with effect from 1st July, 2011.

(ii) The defendant was, however, in a financial mess and was unable to pay the salaries and owing whereto the plaintiff had no option but to resign from the employment of the defendant vide letter sent through e-mail dated 12th January, 2012 which was

accepted by the defendant vide letter dated 27th July, 2012. 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 on 26th July, 2012;

(iii) The plaintiff accordingly worked till 26th July, 2012 and was relieved and also given No Objection Certificate;

(iv) The plaintiff has not been paid his salary for the months of March, 2012 up to 26th July, 2012 i.e. for a period of approx. five months.

(v) A sum of Rs.23,80,000/- is due to the plaintiff towards salary for four months at the rate of Gross Salary of Rs.5,95,000/-; a sum of Rs.5,15,000/- towards 26 days salary of July, 2012 and a sum of Rs.2,68,269/- towards gratuity for 7.5 years.

(vi) The amount of salary due and payable has been admitted by the defendant vide letter through email dated 27th September, 2012 but has not been paid;

(vii) Besides the aforesaid total principal sum of Rs.28,95,000/-, the plaintiff also claims interest thereon at 18% per annum which comes to Rs.4,80,075/- and gratuity of Rs.2,68,269/-, making a total of Rs.36,43,344/-.

2. The suit was first time listed before the Joint Registrar on 30th May, 2013 when after hearing the learned counsel for the plaintiff, it was recorded that since there was no agreement as regards pre-suit interest, for the time being, the learned counsel for the plaintiff submitted that the suit may be confined to only the principal amount.

Accordingly, the suit was ordered to be registered as a summary suit for recovery of the principal amount and summons to enter appearance in the prescribed format under Order XXXVII CPC were issued to the defendant. The defendant was served on 10th June, 2013. However, an application being I.A.No.14833/2013 for appearance was filed by the defendant and the same was allowed vide order dated 18th September, 2013. By the same order, the plaintiff's application being I.A. No.15025/2013 seeking summons for judgment against the defendant was also allowed and the summons for judgment in the format prescribed under Order XXXVII CPC were issued against the defendant. Defendant was served with summons for judgment on 14th October, 2013 and in response thereto the defendant has sought leave to defend by way of filing an application being I.A.No.17077/2013 contending the following :-

(a) The suit is not maintainable under Order XXXVII CPC.

(b) The plaintiff has not even placed on record the original Appointment Letter containing the contract between the parties.

(c) As per Clause 17 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;

(d) 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.

(e) The payment of monthly salary to the plaintiff was contingent on completion of 70 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;

(f) The plaintiff has not filed any affidavit in terms of Section 65B of the Evidence Act,1872 in order to authenticate the veracity of the electronic records/emails.

(g) All the aforesaid raise triable issues.

3. Reply has been filed to the application for leave to defend by the plaintiff denying the contents of the application.

4. Prior to the present suit, admittedly, one Captain Sanjeev Kumar Ahuja filed a similar suit being CS(OS) No.1603/2013 under Order XXXVII CPC for recovery of Rs.31,08,867/- with pendent lite and future interest. In that case also, the Captain of Airbus-320 Aircraft sought the prayer with a consolidated salary for the months of March to July, 2012, i.e. for a period of five months. The grounds taken in the application for leave to defend are identical as taken in the said suit. The said suit was decreed by my esteemed brother Mr.Rajiv Sahai Endlaw, J. on 3rd April, 2014. Each and every ground taken in the said suit by the defendant has been dealt with by the Hon'ble Judge on merits in paras 6 to 16 of the said judgment.

5. I have been informed that the said judgment has attained finality. Considering the view already taken by one Court in the

similar facts, it is not necessary to deal with the same grounds in the present case, except paras 6 to 16 which are reproduced here below:

"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 therefore in the contract of employment and upon it being put to the counsel for the plaintiff that in view thereof the suit therefore 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 therefore 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 therefore 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."

6. Under these circumstances, the application being I.A. No.17077/2013 filed by the defendant seeking leave to defend is dismissed.

7. Accordingly, the suit of the plaintiff for recovery of arrears of salary of approx. five months of Rs.28,95,000/- is decreed. As far as the claim of the plaintiff for interest is concerned, the same is also granted at 10% per annum from the end of each month for which the salary is due till the date of payment. The plaintiff is also entitled for the cost of the suit. The counsel's fee is assessed at Rs.15,000/-. A decree be prepared accordingly.

(MANMOHAN SINGH) JUDGE AUGUST 25, 2014