Delhi High Court
Captain Mukul Gupta vs The Kingfisher Airlines Ltd. on 28 November, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 17th NOVEMBER, 2014
DECIDED ON : 28th NOVEMBER, 2014
+ CS (OS) 1061/2013 & IA Nos.5675/2014 & 18954/2013
CAPTAIN MUKUL GUPTA ..... Plaintiff
Through : Mr.Jasmeet Singh, Advocate with
Mr.Saurabh Tiwari, Advocate.
VERSUS
THE KINGFISHER AIRLINES LTD. ..... Defendant
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The plaintiff has instituted suit under Order XXXVII CPC for
recovery of ` 20,09,795/- (`13,25,000/- as salary amount, ` 3,19,825/- as
interest, ` 1,86,000/- as gratuity, ` 93,970/- as 45 days' leave encashment
and ` 85,000/- as additional flying allowance above 70 Hrs.) against the
defendant, pleadings the following :
(i) The plaintiff was appointed as "Transition Captain" for A320
w.e.f. 22.04.2006 vide appointment letter dated 17.02.2006
with a consolidated salary of ` 3,30,250/- per month, which
was subsequently increased to ` 5,30,000/- per month w.e.f.
01.07.2011.
(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 dated 14.02.2012, which was accepted by the
defendant by conduct. However, the plaintiff did not pay the
arrears of salary and other emoluments.
(iii) The plaintiff has not been paid his salary for the month of
December, 2011, January, 2012 and 15 days' salary for
February, 2012 i.e. for about two and half months.
(iv) Besides the aforesaid amount, the plaintiff also claims
interest thereon @ 18% per annum, which comes to
`3,19,825/- and gratuity ` 1,86,000/-.
2. The suit was first time listed before the Joint Registrar on
27.05.2013. Summons to the defendant on the prescribed proforma under
Order XXXVII CPC were ordered to be issued. The defendant was served
on 01.08.2013. Appearance was put on behalf of the defendant on
06.09.2013 and it was informed that appropriate application in due course
would be moved. The matter was subsequently, referred to Delhi High
Court Mediation & Conciliation Centre for settlement. However, the
matter could not be settled there. IA No. 5675/2014 under Order XXXVII
Rule 3(4) CPC was moved on behalf of the plaintiff for issuance of
summons for judgment. The defendant, however, did not file any
application for leave to contest within the period of limitation.
3. Since the defendant did not apply for leave to defend, under
Order XXXVII Rule 3 (6) CPC, the plaintiff is entitled to judgment
forthwith.
4. Learned counsel for the plaintiff has filed on record judgment
in CS (OS) 1063/2013 and IA No.17077/2013 decided on 25.08.2014 by
HMJ Manmohan Singh. Similar claim was raised by Captain Dinesh Kant
Sharma against the defendant - the Kingfisher Airlines Ltd. therein. In the
said proceedings the learned counsel for the plaintiff confined his claim
only to the principal amount as there was no pre-suit agreement for
interest. Leaned counsel for the plaintiff has further filed on record
judgment in CS(OS) No.1152/2013 dated 03.04.2014 of HMJ Rajiv Sahai
Endlaw in a similar matter. This Court was of the view that the amount
towards leave encashment and extra flying did not fall within the ambit of
Order XXXVII. Learned counsel for the plaintiff therein opted to give up
the said claim. The said judgment has attained finality. The claim under
these two heads hence cannot be accepted in the present suit under Order
XXXVII CPC.
5. In the light of above discussion axiomatically, the suit of the
plaintiff for recovery of arrears of salary of two and a half months of
`13,25,000/- and of gratuity ` 1,86,000/- due from the defendant, has to
be decreed. As far as claim of the plaintiff for interest is concerned, I
deem it proper to award it @ 10% per annum from the end of each month
from which salary is due till the date of decree and interest @ 10% on the
gratuity of ` 1,86,000/- from 15.02.2012 till the date of decree.
6. A decree is accordingly passed in favour of the plaintiff and
against the defendant for recovery of `13,25,000/- with interest @ 10%
per annum from the end of each month from which salary is due till the
date of decree and ` 1,86,000/- with interest @ 10% from 15.02.2012 till
the date of decree.
7. The counsel's fee is assessed to ` 15000/-.
8. The suit and all pending IAs stand disposed of accordingly.
9. Decree-sheet be prepared accordingly.
(S.P.GARG)
JUDGE
NOVEMBER 28, 2014 / tr
