Delhi High Court
Captain Amar Bhatia vs The Kingfisher Airlines Limited on 3 April, 2014
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd April, 2014
+ CS(OS) No.1151/2013
CAPTAIN AMAR BHATIA ... Plaintiff
Through: Mr. Achal Gupta, Adv.
Versus
THE KINGFISHER AIRLINES LIMITED ... Defendant
Through: Mr. Sumit Pushkar, Mr. Abhijeet
Swaroop & Mr. Ankur Khandelwal,
Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
IA No.20857/2013 (of the defendant for leave to defend)
1.The plaintiff has instituted this suit under Order 37 of the CPC for recovery of Rs.25,68,676/- with pendente lite and future interest, pleading:-
(i) that the plaintiff was appointed as a Transition Captain of Airbus-
A-320 Aircraft with the defendant at New Delhi with a consolidated salary of Rs.4,30,000/- per month and joined w.e.f. 7th January, 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 CS(OS) No.1151/2013 Page 1 of 10 to resign from the employment of the defendant vide letter dated 13th February, 2012 which was accepted by the defendant in June, 2012 and the plaintiff was given No Objection Certificate;
(iii) that the plaintiff has not been paid his salary for the months of December, 2011 to 14th February, 2012 i.e. for a period of two and a half months;
(iv) that a sum of Rs.13,00,000/- is due to the plaintiff towards salary from December, 2011 to 14th February, 2012 at the rate of gross salary of Rs.5,20,000/- and a sum of Rs.64,066/- is due to the plaintiff towards Leave Encashment of 31 days and a sum of Rs.10,00,000/- is due towards gratuity;
(v) that the said salary / dues have been admitted by the defendant in various e-mails but not paid; and,
(vi) that besides the aforesaid total principal sum of Rs.23,64,066/- a sum of Rs.2,04,610/- is also due towards interest thereon at 12% per month till the date of institution of the suit, making a total of Rs.25,68,676/-.
CS(OS) No.1151/2013 Page 2 of 10
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 (I may record that the original letter was filed along with the plaint and the plea appears to have been taken because of the leave to defend application being on the same lines as filed in CS(OS) No.1603/2013 also listed today and in which original was not filed);
(c) that 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;
CS(OS) No.1151/2013 Page 3 of 10
(d) 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;
(e) that the plaintiff has committed breach of Clause 15.4 of the Letter of Appointment and has not completed the Commitment Period of five years and not served the notice period;
(f) 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;
(g) that the plaintiff has failed to pay liquidated damages due to the defendant;
(h) that the claim on account of Leave Encashment is contrary to the letter dated 15th June, 2007 of appointment of the plaintiff;
(i) 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, CS(OS) No.1151/2013 Page 4 of 10
(j) 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. 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.
6. 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 CS(OS) No.1151/2013 Page 5 of 10 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.
7. The counsel for the plaintiff similarly, realizing that as per the terms of appointment, the gratuity could accrue to the plaintiff only after completing service for five years and which the plaintiff admittedly did not complete, gives up the claim for gratuity also.
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.
9. 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 CS(OS) No.1151/2013 Page 6 of 10 defendant earlier stated that there is no Chief Operating Officer but subsequently states that there is.
10. 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.
CS(OS) No.1151/2013 Page 7 of 10
11. 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.
12. I have considered the aforesaid contention.
13. 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.1603/2013 & CS(OS) CS(OS) No.1151/2013 Page 8 of 10 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.
14. 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.
15. 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.1151/2013.
16. Axiomatically, the suit of the plaintiff for recovery of arrears of salary of two and a half months of Rs.13,00,000/- has to be decreed. As far as the claim of the plaintiff for interest is concerned, I deem it proper to award to the CS(OS) No.1151/2013 Page 9 of 10 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.
17. A decree is accordingly passed in favour of the plaintiff and against the defendant for recovery of Rs.13,00,000/- with interest at 10% per annum from the end of each month for which salary was due till the date of payment.
18. The plaintiff shall also be entitled to costs of the suit. The counsel's fee assessed at Rs.15,000/-.
19. 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 'gsr'..
CS(OS) No.1151/2013 Page 10 of 10