Delhi High Court
Airmid Aviation Services Pvt. ... vs Orissa Stevedores Limited on 12 December, 2018
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1283/2018
AIRMID AVIATION SERVICES PVT. LTD. ..... Plaintiff
Through: Mr. Nitesh Jain & Mr. Abhinav
Mukhi, Advs.
Versus
ORISSA STEVEDORES LIMITED ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 12.12.2018
IA No.17011/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(COMM) 1283/2018 & IA No.17012/2018 (under Order XXXIX
Rules 1&2 CPC)
3. The plaintiff has sued for recovery of Rs.22,27,40,981/- comprising of
Rs.4,58,54,100/- towards aircraft lease charges, Rs.7,74,46,889/- towards
aircraft maintenance charges and the balance amount towards interest
thereon.
4. From the e-mail of the defendant at page 39 of Part-III file, it
transpires that the stand of the defendant is that the aircraft was returned to
the plaintiff on 4th October, 2014 and the defendant is not liable for any
amounts for the period thereafter. The plaintiff, at page 41 of Part-III file
has filed its response to the aforesaid communication of the defendant and in
which the plaintiff has not controverted the stand of the defendant, of the
aircraft having been returned to the plaintiff on 4th October, 2014. The
plaintiff, in the plaint, has neither pleaded that the aircraft was so returned
nor controverted that it was returned, as claimed by the defendant. The
plaint is quiet on this aspect. The counsel for the plaintiff, on being given an
opportunity to explain, says that under the lease agreement, the plaintiff was
to get the payments of lease rent as well as maintenance charges, even after
the aircraft was returned. However, in the same breath, it is stated that the
defendant was using the aircraft after 4th October, 2014 also.
5. Without the plaintiff making requisite pleas with respect to what
emerges from the documents, summons / notice of the suit cannot be issued.
6. The defence of the defendant, as evident from the correspondence
exchanged preceding the presentation of plaint, is that the defendant is not
liable for any amounts after 4th October, 2014 because of the plaintiff having
taken back the aircraft. It is incumbent on a plaintiff to in the plaint make
appropriate pleas as to what is the stand of the plaintiff qua return of aircraft
on 4th October, 2014 claimed by the defendant and if the aircraft was so
taken back, how the defendant, notwithstanding the same, is liable for the
monies claimed in the suit. It is only when such pleas are made that the
defendant's response thereto will come before the Court and the controversy
between the parties crystalised. Else, the defendant in the written statement
will plead so and the plaintiff, even if files replication and pleads in response
thereto, the defendant will not have an opportunity to place its version on the
same. The stand of the defendant, of the plaintiff having taken back the
aircraft on 4th October, 2014, has implications qua entitlement of plaintiff to
lease charges and maintenance charges with respect to the aircraft for the
period thereafter, even if so provided in the contract. Prima facie it appears
that even if the defendant, in breach of contract has compelled the plaintiff to
take back the aircraft, the claim of the plaintiff cannot be in the nature of
specific performance and can only be for recovery of damages. The claim of
the defendant, of the plaintiff having taken back the aircraft, has implications
qua limitation also. The suit has been instituted only on 1st December, 2018.
7. Whenever, from correspondence preceding the suit or otherwise, the
defence of the defendant to the claim of the plaintiff is known or can be
gauged, it is incumbent on the plaintiff to, in the plaint itself plead the facts
negating the said defence and, why, inspite thereof, the claim is entitled to be
allowed. The same would constitute a material fact/particular within the
meaning of Order VI Rules 2&4 of the CPC and without the same, the plaint
cannot be entertained.
8. It cannot be forgotten that the suit has been filed as a commercial suit
and the Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act. 2015 prescribes timelines for
decision of the suits and suits cannot be decided within such time unless the
controversy for adjudication emerges from the plaint so as to enable the
defendant to respond to the same in the written statement and to enable the
Court to frame precise issues on which evidence is to be led. Else, omnibus
issues are proposed and got framed and which lead to needless trial which
cannot possibly concluded within the prescribed time.
9. There are similar other errors also in the plaint.
10. Though in page 24 of the plaint, the last lease billing is stated to be on
7th June, 2016 but at page 25 of the plaint, the claim for lease billing for 1 st
June, 2016 is made when as per the chart of lease billing at page 24, there is
no billing of 1st June, 2016. On enquiry, the counsel for the plaintiff vaguely
suggests that it is a mistake.
11. Such mistakes lead to lengthy written statements and which can be
avoided if at the time of drafting the plaint itself, care is taken.
12. The plaintiff, at one place in the plaint has pleaded that there was a
running account with the defendant. However, the plaintiff has not pleaded
the date of last payment made; though the statement of account filed at page
41 of Part-III file shows last payment to be of 14th December, 2015. Order
VII Rule 1(e) of the CPC requires the same to be pleaded. It is essential for
a plaint in a commercial suit to be specific about the claim being in
limitation and pleadings cannot be left vague.
13. The counsel for the plaintiff states that he will seek amendment.
14. List on 16th January, 2019.
RAJIV SAHAI ENDLAW, J
DECEMBER 12, 2018
'gsr'..
