M/S C L Micromed Pvt Ltd. vs M/S Lufthanasa German Airlines & ...
2014 Latest Caselaw 4256 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
C.M.(M) No.1161/2013 and C.M.Nos.17025/2013 (stay) & 17027/2013
(stay)

%                                                   08th September, 2014

M/S C L MICROMED PVT LTD.                                      ......Petitioner
                  Through:               None

                          VERSUS

    M/S LUFTHANASA GERMAN AIRLINES & ORS.                    ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M.No.17028/2013

1. For the reasons mentioned in the application, delay of 65 days in re-

filing the petition is condoned.

2. Application is disposed of.

CM(M) No.1161/2013

1. This petition under Article 227 of the Constitution of India is filed by

the petitioner/plaintiff in the suit impugning the order dated 30.5.2013 by

which the trial court has dismissed the application under Order XII Rule 6 of

Code of Civil Produce, 1908 (CPC).

2. The subject suit is a suit for recovery of Rs.18,73,801/- against a

carrier. I may note that even if a carrier wants to contract out of its liability,

it cannot contract out of willful misconduct/gross misconduct. This has been

held by a learned Single Judge of this Court in the case of Vij Sales

Corporation Vs. Lufthansa German Airlines AIR 2000 Delhi 220.

3. Whether or not, there is willful misconduct in order for the plaintiff to

succeed, is a disputed question of fact which will have to be proved by the

plaintiff if it wants to succeed in the suit for recovery, and therefore decree

could not have been passed under Order XII Rule 6 CPC.

4. Dismissed.

VALMIKI J. MEHTA, J SEPTEMBER 08, 2014 KA