Delhi District Court
Delhi Flying Club Ltd vs Meenal Barapatre And Ors on 13 November, 2024
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IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 17253/16
CNR No. : DLSW01-004475-2016
M/s Delhi Flying Club Ltd.
Through its Secretary / Accountable Manager
Air Amde.(Retd.) A.K.Gupta,
Safdarjung Airport,
New Delhi - 110003 .....Plaintiff
Versus
1. Ms. Meenal Barapatre
C-4/95-96, New Kondli Road,
Mayur Vihar-III, Delhi
2. Mr. Raje Bhatnagar
Deputy Director
For Director General of Civil Aviation
Safdarjung Airport
New Delhi - 110003 .....Defendants
SUIT FOR RECOVERY OF RS. 88,19,932/- ALONGWITH
INTEREST
DATE OF INSTITUTION : 28.01.2014
DATE OF FINAL ARGUMENTS : 24.09.2024
DATE OF DECISION : 13.11.2024
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr.
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JUDGMENT
1. The Plaintiff has filed the present suit seeking recovery of Rs. 88,19,932/- along with interest @ 18% per annum with pendente lite and future interest against the Defendant. Plaint
2. The brief facts as mentioned in the plaint are as under:
(i) The plaintiff is a company incorporated under the Companies Act, 1956. The present suit is filed by Sh. A.K.Gupta, Air Cmde.(Retd.), Secretary Cum Accountable Manager, who has been duly authorised by the plaintiff to initiate legal action and other matters against the defendants.
(ii) The defendant no.1 is the Proprietor of M/s Global Aviation having its office at A-12-A, National Apartments, Dwarka, New Delhi. The defendant no.1 is carrying on business in her name as sole proprietorship concern. The defendants are engaged in the business of supply of aircraft and related aviation equipment. Defendant no.2 is the husband of defendant no.1 and presently working as Dy. Director in the office of Director General of Civil Aviation. Defendant no.2 has been acting on behalf of defendant no.1 and deceitfully induced plaintiff to enter into the purchase agreement dated 27.01.2009 by abusing his Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 3 / 72
position as a Public Servant. A Deed of Guarantee dated 11.12.2010 has been signed by defendant no.2, who agreed and voluntarily offered himself to be the guarantor for discharged amount of principal as well as interest in the event of non- performance up to 20.12.2010 of the purchase agreement.
(iii) Plaintiff company is an Aircraft Maintenance Engineering (AME) Training Institute at Safdarjung Airport, New Delhi which is approved by the DGCA (Director General Civil Aviation). As per CAR Part 8 Section 2 dated 30.05.2008, AME Training Institute was required to purchase a 'not airworthy' pressurized Aeroplane with its engines and systems including instrumentation in a working condition. The plaintiff in order to maintain its approval to run an AME Training Institute was therefore, required to procure and place such a jet aircraft in its premises. Based on the above, the Managing Committee of the plaintiff accorded approval and the plaintiff initiated the process of procurement of such a Jet Aircraft at an estimated cost of approx. Rs.1 crore.
(iv) To facilitate early implementation of DGCA's CAR on the subject, quotations were obtained by the plaintiff from M/s Global Aviation, M/s Discovery Aerospace and M/s Creative Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 4 / 72 Aviation. The quotations of defendant no.1 was the lowest and matched the estimated cost as approved by the Managing Committee of the plaintiff. Accordingly, defendant no.1 with its office in Delhi was given a letter of intent on 12.01.2009 for the supply of a jet aircraft and engines by the plaintiff. Defendant no.1 responded by sending a draft agreement on 21.01.2009 containing the terms and conditions and agreeing to supply a Learjet 24 model jet aircraft with working engines and systems etc. to the plaintiff at a firm price of Rs.1 Crore.
(v) On 27.01.2009, the plaintiff and defendant no.1 formally signed the purchase agreement in which the total price of the Learjet 24 Aircraft was agreed at Rs.1 crore and the payment schedule was as under:
(a) Rs.45,00,000/- at the time of signing the agreement.
(b) Rs.40,00,000/- within 7 days on receiving the details of the Aircraft.
(c) Rs.5,00,000/- before 7 days the Aircraft arrived at the Indian Port and Rs.10,00,000/- as full and final payment when the Aircraft reached the Institute / plaintiff.
(vi) The first installment of Rs.45,00,000/- vide cheque no.000393 dated 02.02.2009 was debited in the bank account of Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 5 / 72
the plaintiff on 06.02.2009 as per the purchase agreement. It is submitted that the defendant no.1 on 15.04.2009 informed the plaintiff that the Learjet 24 Aircraft was ready to be shifted to India at Tuglakabad dryport and subsequently to the premises of the plaintiff. Vide the said letter, the defendant no.1 also asked for the second installment of Rs.40,00,000/- as per the purchase agreement. The plaintiff also paid a sum of Rs.40,00,000/- vide cheque no.000423 dated 29.03.2009 to the defendant as second installment which was debited to the Bank account of the plaintiff on 24.04.2009.
(vii) It was envisaged in the purchase agreement that the entire deal shall be closed not later than 120 days from the date of signing the agreement or 90 days after payment of second installment. According to the purchase agreement, the subject Learjet 24 Aircraft with engines and components etc. was scheduled to be delivered to the plaintiff by 23.07.2009, i.e. 90 days from the release of 2nd installment of Rs.40,00,000/- which was debited in the account of plaintiff on 24.04.2009.
(viii) Subsequent to the agreement on 27.01.2009 and the payment on 24.04.2009, the defendant no.1 on 18th/19th September, 2009 informed the plaintiff that the Learjet 24 model Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 6 / 72 aircraft (serial no.151 which was booked for DFC) can not be supplied as it had some lien in USA and defendant no.1 instead offered to supply another Learjet 25 model alongwith the engines and components etc. Defendant no.1 also forwarded a letter of Invoice no.1796 from M/s J.S.Aviation dated 18.09.2009 indicating the serial no.154 and other details of the Learjet 25 model being offered to plaintiff at a cost of $1,20,000/-.
(ix) The plaintiff while agreeing to the supply and import of Learjet 25 aircraft (#154) model initiated action through the defendant no.1 for obtaining necessary NOC from DGCA as well as DGFT. The summary of the NOC from DGCA and DGFT was in respect to the permissions for import are detailed below:
Date of Model Date Model
Approval
DGCA 12.11.2009 Learjet 25 Sl 11.02.2010 Learjet 25 Sl.
No.154 (08.02.2010 dated No.168
of Appl.)
DGFT 20.01.2010 Learjet 25 Sl 12.02.2010 Learjet 25 Sl.
No.154 (12.02.2010 dated No.168
of Appl.)
(x) The defendants in order to mislead the plaintiff gave them
false impression that the subject Aircraft was being imported, whereas the real fact was that the Aircraft which was purportedly placed in the premises of the plaintiff was locally sourced by the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 7 / 72 defendants therefore the permission / NOC of DGCA and DGFT went in vain.
(xi) The defendant no.1 sent a Bill of Lading dated 10.12.2009 vide e-mail to the plaintiff. On 07.01.2010 the plaintiff sent a letter to defendant informing them of violation of para 4 and para 12 of the purchase agreement dated 27.01.2009, the relevant para of the purchase agreement is extracted below:
"4. SALE OF THE AIRCRAFT & ITEMS - CLOSING
(a) Subject to the Terms and Conditions set forth herein, on the Closing date. Buyer hereby agreed to purchase from the Seller and Seller hereby agrees to sell to the Buyer on the Closing Date in India or at such other location as Seller and Buyer may agree.
(b) The closing date shall be not later than 120 days from the date of execution of this agreement and 90 days after second installment is made by the buyer to seller. The Delivery period is from USA to any Indian Sea Port.
DEFAULT If Seller should default in delivery of said Aircraft within the time fixed, unless the default is caused by any failure to act by the Buyer, then : For the delay period Buyer is liable to charge Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 8 / 72 15% interest per annum. If Buyer delays the payment as per due dates, he is liable to pay 15% interest on balance of payments."
(xii) The plaintiff in view of the inability of the defendant no.1 to deliver the Learjet Aircraft with engine and components on the scheduled date of 23.07.2009 as per the original terms and condition of the Agreement informed the defendant no.1 on 07.01.2010 of levying penal interest for the delay, and for which a cheque of Rs.3,19,932/- dated 10.01.2011 as interest was collected from defendant no.1 and the remaining interest amount of Rs.15,00,000/- was adjusted against the final payment.
(xiii) On 09.02.2010, the plaintiff sent a reminder to Defendant no.1 asking for revised probable date of completion. Defendant no.1, however, kept delaying the supply of the Aircraft on one pretext or the other like asking for change of Aircraft model, Registration number, due to which the plaintiff had to revise its permissions / NOCs for import of the aircraft from DGCA and DGFT which caused undue delay.
(xiv) On 10.05.2010, plaintiff wrote a letter to defendant no.1 that the DGCA vide their circular dated 04.05.2010 had intimated that the AME Training Institute which did not meet the requirement as per CAR 15.06.2010 would not be permitted to Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 9 / 72 take fresh batches of the students from July 2010 session. The defendant no.1 was also informed that they would be responsible for the consequences / loss suffered by the plaintiff as a result of delay in the supply of the Aircraft as agreed.
(xv) On 07.06.2010, defendant no.1 wrote a letter to plaintiff asking for a grace period of 30 to 45 days in supply of Learjet aircraft. The defendant also informed that during final inspection of the aircraft some of the components like LRU's and items in Avionics compartment were missing and for that they have to take the matter with the insurance company which had delayed the custom clearance of the aircraft and for that reason, a different aircraft which is procured for South Africa and expected to reach the Mumbai Port around 25 th of June will be kept ready for delivery soon after custom clearance. (xvi) On 12.06.2010, the plaintiff agreed to grant the defendant no.1 extension of 30 days to position the aircraft in the premises of the plaintiff in order to secure the liability of the payment received from the plaintiff. The defendant issued cheques of Rs.45,00,000/- and Rs.40,00,000/- respectively in July 2010 (which were subsequently replaced vide cheque no.007272 and 007273 dated 30.10.2010). M/s J&S Aviation on behalf of Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 10 / 72 defendant no.1 intimated the plaintiff with a letter dated 19.06.2010 asking for more time to position the Learjet un- airworthy aircraft (Serial no.168) and make the aircraft engine in running condition on or before 31.07.2010. Subsequently, defendant no.1 vide letter dated 25.09.2010 intimated the plaintiff that "Learjet unserviceable aircraft is in the final stage of clearance. All the formalities and other practical constraints have been overcome. The only one document which is to be submitted is a charted engineer's certificate from USA, in respect of this Aircraft. This certificate is in the transit post and as soon as it reaches India shall be submitted to Customs for final clearance and issue of loading Gate Pass. We are expecting the machine to be out by this week end or maximum by Monday i.e. 4 th of October 2010. Meanwhile engines and other components have been placed in DFC campus. We sincerely apologize for the delay. This delay was not in our hand and was totally a system delay for bringing a negative item like Aircraft in an unserviceable knock down condition". In September 2010, one engine of Learjet Aircraft was received at the premises of the plaintiff.
(xvii) In view of the inordinate delay in receipt of the aircraft and Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 11 / 72 associated engines / equipment, the sub-committee of the plaintiff, on 30.11.2010 called defendant no.1 and defendant no.1 gave the following undertakings :
(a) That the defendant no.1 will give the guarantee in the form of property papers covering the amount of money received by the defendant no.1 from the plaintiff plus interest thereon
(b) The defendant no.1 owner will submit their original papers alongwith the GPA in the name of the President, The Delhi Flying Club by 03.12.2010.
(c) The defendant will supply the Aircraft latest by
20.12.2010, failing which the plaintiff may initiate necessary action deemed fit.
(xviii) Defendant no.1 and 2 accordingly, after having admitted that they could not honor and discharge their obligations in terms of the Purchase Agreement and wanted final extension of time for the last time with the assurance that the Learjet Aircraft 24 would be supplied by 20.12.2010, executed and declared in December 2010, the following documents to safeguard the interest of the plaintiff with regard to the payment already made:
(a) A memorandum of Understanding dated 11.12.2010
(b) Two cheques of Rs.45 lacs vide cheque no.007272 and Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 12 / 72
Rs.40 lacs vide cheque no.007273.
(c) Mortgage deed dated 11.12.2010 in respect of the following two properties :
• Bhavan No. Naya Khand III/121 B, Second Floor, having a covered area of 20.14 sq. mtres. under sale deed registered on 21.01.2009 in book no.1 vol 1293 at pages 67 to 98 at serial no.1326 with SR-IV, Ghaziabad.
• Plot no.A-26, measuring 100 sq. yds in Khasra no.3/23 at Village Matiala of abadi known as Sainik Nagar, New Delhi - 110059 legally owned by the defendant no.2 with his brother Shri Rajeev Bhatnagar.
(xix) Deed of Guarantee dated 11.12.2010 signed by the defendant no.2 who has agreed and voluntarily offered himself to be the guarantor for discharged amount of principal as well as interest in the event of non performance up to 20.12.2010 of the purchase agreement.
(xx) The defendant no.1 on 15.12.2010 informed the plaintiff that they are going to supply un-airworthy Learjet 24 Aircraft as originally agreed instead of Learjet 25 in view of the immediate Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 13 / 72
requirement. The Defendant no.1 further assured the plaintiff that the shipment of the Aircraft shall, with the other engine and equipments etc., will arive at the Mundra port by 17.10.2010 and via Tughlakabad would be delivered in the premises of the plaintiff.
(xxi) That on 27/28.12.2010 a Learjet 24 Aircraft un-airworthy and in a dismantled condition bearing Serial no.205 and one engine was positioned at the premises of the plaintiff. Subsequently, engine mounts were locally fabricated and only one engine was hooked up (No.2) and dressed.
(xxii) The defendants on 04.01.2011 approached the plaintiff for release of the original papers in respect of portion of Plot no.A-26, measuring 100 sq. yds. in Khasra no.3/23 at Village Matiala of abadi known as Sainik Nagar, New Delhi - 110059 legally owned by the defendant no.2 with his brother Sh. Rajeev Bhatnagar, the title deed of which were deposited with the plaintiff to safeguard its interest with regard to the payment of Rs.85 lacs plus interest thereon already made to the defendant no.1 at the time of signing the first MOU on 11.12.2010. It is submitted that the plaintiff took a lenient view in view of the second property being the jointly owned by the defendant no.2 Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 14 / 72 with his brother and released the original papers of the second party.
(xxiii)The plaintiff executed with the defendant, a fresh MOU on 04.01.2011 and also an endorsement / receipt of having received back the original GPA, AGM, Receipt, Will, Affidavit which were submitted to the plaintiff with the mortgage deed dated 11.12.2010 in respect of portion of Plot no.A-26, measuring 100 sq. yds. in Khasra no.3/23 at Village Matiala of abadi known as Sainik Nagar, New Delhi - 110059. The defendants agreed to the interest of Rs.18,19,932/- till 27.12.2010 for payment to the plaintiff and agreed to reimburse an amount of Rs.3,19,932/- after deducting the balance payment of Rs.15,00,000/- from the total amount of interest.
(xxiv)The plaintiff, thereafter, through the technical team inspected the Learjet 24 un-airworthy aircraft in the presence of defendant no.1 and observed that one engine was unserviceable and required replacement. Besides this there were many other snags in the battery, hydraulic systems, avionics electrical and instruments etc. The defendants were accordingly, informed about the snags. The synopsis of snags is as under :
Electrical external power connected. Engine fuel tank Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 15 / 72
booster pumps serviced and with the help of 28 voltd ext. power, engine started sequence commenced. After giving several attempts and changing relevant components like FCU and P&D valve proper atomization could not be achieved and several attempts were made to start but not successful till date.
With above delays, airframe systems like electrical, hydraulics, air conditioning were simultaneously not made serviceable by the personnel of defendant no.1. (xxv) It is submitted that the plaintiff received a notice dated 31.03.2011 on behalf of M/s AMEI (Aircraft Maintenance and Engineering Institute) Barasaat West Bengal stating that the said Aircraft purchased by the plaintiff was legally owned by AMEI Barasaat West Bengal. The plaintiff informed the defendant accordingly and asked her to give proof about the bonafide ownership of the said Aircraft.
(xxvi)The defendant no.1 after being confronted with the Notice of AMEI Barasaat, West Bengal dated 31.03.2011, submitted a letter dated 07.04.2011 declaring that the Learjet 24 aircraft sold to the plaintiff was free of any encumbrances and had a clear title in favour of the defendant no.1 M/s Global Aviation which has Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 16 / 72 been passed.
(xxvii) The defendant vide letter dated 05.04.2011 intimated to plaintiff regarding the service schedule of Learjet Aircraft which was to be complete by 05.05.2011 inter alia as under:
• Serviceablity of major electrical component and main functioning of electrical system by 07.04.2011. • Serviceability of major Hydraulic Components & Main functioning of Hydraulic System by 20.04.2011. • Serviceability and ground run up of one engine by 19.04.2011.
• Serviceability and ground run up of second engine by 28.04.2011.
• Other minor functional checks of the Aircraft by 05.05.2011.
(xxviii) The plaintiff vide their letter dated 06.04.2011 informed their protest to the defendant after supply of the aircraft on 28.12.2010. It was over 3 months and the aircraft was nowhere near the stage where it could be shown to DCGA for approval of mechanical system for the school of the plaintiff. Through the same letter the defendant no.1 was also informed that the Aircraft was not supplied as per the Purchase Agreement and the first Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 17 / 72 Memorandum of Understanding dated 11.12.2010. (xxix)After the plaintiff received the aforesaid notice on behalf of AMEI, Barasaat, West Bengal, after discreet enquiries were made by the plaintiff, a legal notice was got issued on its instruction dated 13.05.2011, calling upon the defendants to undo the wrongs that had been perpetrated on the plaintiff. (xxx) On the instructions of defendant no.1, M/s Mount Zion, Kerala picked up the serviceable one engine of the Learjet 24 Aircraft un-airworthy, for replacement. This was duly acknowledged vide their two letters dated 16.06.2011. This engine never came back to the plaintiff till date and the aircraft remains unserviceable.
(xxxi)In response to the legal notice dated 13.05.2011 of the plaintiff, the defendants denied the same through their advocate vide letter dated 17.06.2011. Hence, the plaintiff was left with no other option but to file the present suit.
(xxxii) The plaintiff has also filed complaints under Section 138 of Negotiable Instruments Act against the defendant no.1 in respect of cheque no.312171 dated 25.04.2011 amounting to Rs.85,00,000/- and cheque no.312215 dated 14.07.2011 amounting to Rs.3,19,952/- which are pending in the court of Ld. Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 18 / 72 MM, Saket Courts, New Delhi. The said two complaints i.e. CC No.6985/11 and 6986/11 are being contested by defendant no.1. Proceedings of the Case
3. The present suit was initially filed on 09.12.2013 before Hon'ble High Court of Delhi but the plaintiff could not remove the objections within the stipulated period of 30 days i.e. on or before 08.01.2014. Hence, on 28.01.2014 an application for condonation of delay in re-filing the suit was filed by the plaintiff, which was allowed. An application u/o XXXIX R 1 and 2 CPC for grant of ex parte ad interim injunction was also filed which was also allowed. Summons were issued to the defendants which were received back unserved with the report 'no such person'. Thereafter, on 04.04.2014, plaintiff was directed to file fresh address of the defendants and summons were again issued to the defendants on filing fresh address. Thereafter, amended memo of parties were filed. On 30.07.2014, defendant no.2 entered his appearance through his counsel. He was directed to file Written Statement. Defendant no.1 remained unserved. Ld. Counsel for plaintiff submitted that defendant no.1 is the wife of defendant no.1 and in fact, defendant no.1 is appearing in a cheque bouncing case in the court of Ld. MM in Saket Courts. Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 19 / 72 Therefore, defendant was again summoned. Dasti summons were also issued. On 01.12.2014, defendant no.1 entered appearance through counsels and requested for some time to file Written Statement. Defendant no.2 filed his Written Statement.
4. In his Written Statement, the defendant no.2 has averred that the present suit has not been verified in accordance with law and therefore, the same is liable to be dismissed. It is further averred that the suit is barred by limitation and is liable to be dismissed as the alleged cause of action arose on 11.12.2010 or on 04.01.2010 and the suit having been filed beyond the period of three years. It is further averred that the agreement dated 04.01.2011 is forged and fabricated as it does not bear signatures of defendant no.2 and even the signatures of defendant no.1 appear to be forged. It is further averred that the suit was initially filed on 09.12.2013 and plaintiff deliberately did not remove the objections within the stipulated period of 30 days from the said date, i.e. on or before 08.01.2014. It is further averred that the present suit is not maintainable against defendant no.2 as the only cause of action as alleged by the plaintiff against defendant no.2 is to the extent that defendant no.2 mortgaged his property for payment of due performance of the agreement by defendant no.1. Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 20 / 72 However, the plaintiff has not enforced any right against the said property alleged to be mortgaged with plaintiff as the plaintiff has filed a normal recovery suit and not a mortgage suit, hence the present suit against defendant no.2 is liable to be rejected. It is also averred that defendant no .2 has never been served with any notice from the plaintiff for get the performance of the Agreement in question from defendant no.1 for which the defendant no.2 mortgaged his property and in absence of any such notice, no cause of action accrues against defendant no.2. It is further averred that the property of defendant no.2 was allegedly given as security by creating mortgage thereon only till delivery of the unairworthy Learjet Aircraft (whether in serviceable condition or not) and admittedly, it was delivered to the plaintiff on 28.12.2010. It is also averred that defendant no.2 never executed any guarantee in favour of the plaintiff for the dues of defendant no.1 or had mortgaged his property.
5. It is further averred that the plaintiff has not come before this Court with clean hands and has concealed various important facts. It is further averred that the plaintiff has stated in the application seeking exemption from filing original documents that the original documents have been filed in complaint case Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 21 / 72 u/s.138 Negotiable Instruments Act, 1881 preferred against defendant no.1, however the originals of most of the documents have not been filed in the said case as well.
6. It is further averred that this Court has no territorial jurisdiction to entertain, try and adjudicate upon the present suit as the plaintiff has claimed charge over the property admeasuring 20.14 sq. mtrs. Bhawan No.Nyay Khand - III/121 B, Second Floor, Ghaziabad.
7. It is further averred that defenants are husband and wife but are separated and not living together. It is also averred that some court cases are also pending between both of them. It is further averred that defendant no.2 has nothing to do with the agreement of plaintiff and defendant no.1. It is further averred that defendant no.2 was not acting on behalf of defendant no.1 and did not induce the plaintiff to enter into the purchase agreement dated 27.01.2009 by abusing his position as Public Servant causing wrongful loss to the plaintiff. It is further averred that as regards MOU, Mortgage Deed and Deed of Guarantee, all dated 11.12.2010 is concerned, defendant no.1 was not able to supply the un-airworthy Learjet aircraft to the plaintiff within stipulated time, the plaintiff having come to know about the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 22 / 72 official position of defendant no.2, coerced and forced defendant no.2 to execute the aforesaid documents. It is further averred that vide aforesaid documents, defendant no.2 and his brother Sh. Rajeev Bhatnagar mortgaged their two properties and defendant no.1 handed over two post dated cheques in replacement of the earlier cheques of July, 2010. It is also averred that the said mortgage dated 11.12.2010 was valid till defendant no.1 in the capacity of M/s Global Aviation placed the un-airworthy / unserviceable aircraft in the premises of the plaintiff and as soon as the same is placed in the campus of plaintiff, the title documents of the properties would be released to defendant no.2 and Sh. Rajeev Bhatnagar and thereupon the mortgage and alleged guarantee would stand discharged and post dated cheques would also be returned to defendant no.1. It is further averred that on 28.12.2010, plaintiff acknowledged the receipt of Learjet 24 aircraft and thereafter only upon due running of the said aircraft, another acknowledgment dated 30.12.2010 has been signed by the plaintiff. Hence, the compliance of the aforesaid agreement had already been done and title documents of one of the properties being Plot no.A-26, admeasuring 100 sq. yds out of Khasra no.3/23 at Village Matiala Abadi known as Sainik Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 23 / 72 Nagar, New Delhi were returned to defendant no.2 and Sh. Rajeev Bhatnagar by the plaintiff. It is further averred that as regards the other property which belongs exclusively to defendant no.2, plaintiff has no right to retain the title documents of the same and the plaintiff is bound to return the same. It is further averred that the agreement dated 27.01.2009 is invalid as as new MOU was signed by defendant no.1 stating that the entire amount has been received by her in full.
8. On 27.07.2015, Written Statement was filed by defendant no.1. In her Written Statement, defendant no.1 has averred that the suit is barred by Limitation and is liable to be dismissed. It is further averred that the defendant no.1 had delivered the unairworthy Learjet aircraft (whether in serviceable condition or not) the alleged liability of the defendant no.1 came to an end. It is further averred that the property of defendant no.1 was given as security by creating mortgage thereon only till the delivery of unairworthy Learjet aircraft and admittedly, it was delivered on 28.12.2010 and the plaintiff on their satisfaction on delivery of Learjet aircraft, had released the security / mortgaged property being Plot no.A-26, admeasuring 100 sq. yds.out of Khasra no.3/23 at Village Matiala Abadi known as Sainik Nagar, New Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 24 / 72 Delhi. As regards the other property which belongs exclusively to defendant no.2, plaintiff has no right to retain the title documents of the same and plaintiff is bound the return the same to defendant no.2.
9. It is further averred that due to recession in aviation and poor performance of plaintiff in imparting training for aircraft maintenance engineering, the plaintiff is running into huge losses and the investment made by them has become worthless and therefore, they targeted defendant no.2, who happened to be the husband of defendant no.1. It is further averred that the plaintiff has not produced the actual agreement dated 27.01.2009 before the Court. It is also averred that the said agreement was canceled and superseded by a subsequent agreement.
10. It is further averred that the NOC obtained by the plaintiff for import of aircraft was delayed by more than 60 days and the serial number mentioned in the NOC of DGCA was not correct that the plaintiff had erroneously requested a NOC with a wrong serial number and thereafter, the DGFT license procured by DFC was dated 26.02.2010, i.e. eleven months after giving the second and final installment of payment of Rs.40 lacs. It is further averred that thereafter, only import procedures could be initiated Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 25 / 72 but by this time, the unairworthy Learjet aircraft earmarked in USA for the plaintiff was no more available and due to late procurement of DGFT license by the plaintiff, almost 11 months elapsed and due to time constraint, an unairworthy Learjet aircraft was locally sourced by answering defendant from India and supplied to the plaintiff. It is further averred that the plaintiff is deliberately not producing the original agreement dated 27.01.2009 and falsely claiming that the original agreement has been filed in the Criminal Case u/s. 138 NI Act whereas the said agreement dated 27.01.2009 was canceled and superseded by subsequent MOU. The defendant no.1 has denied that the plaintiff in view of the inability of defendant no.1 to deliver the Learjet aircraft with engine and components on the scheduled date of 23.07.2008, the plaintiff informed defendant no.1 of levying penal interest and a cheque of Rs.3,19,932/- dated 10.01.2011 was collected from defendant no.1 and the remaining interest amount of Rs.15,00,000/- was adjusted against the final payment. It is further averred that there was no delay in delivering the aircraft to the plaintiff by the defendants.
11. It is further averred that the alleged mortgage deed in respect of two properties is compulsorily registerable under the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 26 / 72 Indian Registration Act and Transfer of Property Act and since the alleged mortgage deed has not been registered, therefore, the same does not convey any right, title or interest in favour of the plaintiff and against the defendant in respect of the said properties.
12. It is further averred that the plaintiff did not have any qualified and/or experienced team to handle the unairworthy Learjet 24 aircraft and faced difficulty in maintaining it. The snags and problems as mentioned in letter of defendant no.1 dated 04.06.2011 occurred as the said aircraft was not being properly managed and thereupon defendant was consulted for these problems and she tried to help the plaintiff in a best possible manner. It is also averred that troubleshooting of the aircraft after delivery was never a part of the agreement between plaintiff and defendants and therefore, the cost of making it serviceable was chargeable. In fact, the letter dated 11.12.2010 clearly stipulates that the mortgage would come to an end on delivery of unserviceable aircraft at the premises of the plaintiff.
13. Thereafter, on 18.11.2015, the matter was fixed for filing of replication and for admission - denial of documents. On 09.02.2016, it was observed by Hon'ble Joint Registrar that the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 27 / 72 present suit was valued less than Rs.1 crore. Hence, in view of the orders passed by Hon'ble Chief Justice, Hon'ble Delhi High Court, the present suit was transferred to District Courts, Dwarka, Delhi. Thereafter, on 20.07.2016, the file was placed before Ld. District and Sessions Judge, Dwarka Courts and the same was transferred to the court of Ld. ADJ, Dwarka Courts, New Delhi. Thereafter, on 27.08.2016, ld. Predecessor of this court observed that since he was himself the member of plaintiff company, it would be against judicial propriety to proceed with the trial of this case and hence, ordered that the suit be put up before Ld. District & Sessions Judge, Dwarka with request to assign the same to some other court. Thereafter, on 06.09.2016, the file was again put up before Ld. District & Sessions Judge, Dwarka Courts, Delhi and the matter was transferred to the court of Ld. ADJ-05, Dwarka Courts, Delhi.
14. On 21.10.2016, the plaintiff submitted that he does not want to file any replication. Admission-denial of documents could not be conducted as defendant no.1 did not appear, hence admission - denial was dispensed with.
15. On 21.10.2016, on the pleadings of the parties the following issues were framed:
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 28 / 72
(i) Whether the suit is barred by the law of limitation? OPP
(ii) Whether this court has no territorial jurisdiction to decide the present suit? OPP
(iii) Whether the plaintiff is entitled to a decree in the sum of Rs.88,19,932/- as prayed? If the answer to the aforesaid question is affirmative, whether the plaintiff is entitled to the interest, if so, at what rate and for what period? OPP
(iv) Relief.
Thereafter, the matter was fixed for plaintiff's evidence. EVIDENCE LED BY THE PARTIES
16. On 21.08.2017, affidavit of evidence of PW-1 was filed. PW Sh. A.K.Gupta was examined as PW-1. He tendered his evidence affidavit as Ex.PW-1/A and relied upon the following documents :
(i) Copy of Board Resolution is Ex. PW1/1 (OSR).
(ii) Copy of certificate of incorporation is Ex. PW1/2 (OSR)
(iii) Copy of letter of intent dated 12.01.2009 is Ex. PW1/3 (OSR).
(iv) Copy of Purchase Agreement dated 27.01.2009 is marked as Mark-A
(v) Copy of NCR dated 12.12.2013 is Ex. PW1/4 (OSR) Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 29 / 72
(vi) Copy of cheque dated 02.02.2009 along with payment voucher is marked as Mark-B (Colly) (running into two pages)
(vii) Copy of cheque dated 29.03.2009 along with receipt dated 20.04.2009 are marked as Mark-C (Colly) (running into two pages)
(viii) Copy of letter dated 15.04.2009 is Ex. PW1/7 (OSR)
(ix) Copy of letter dated 19.09.2009 along with letter dated 18.09.2009 are marked as Mark-D (Colly.) (running into two pages)
(x) Copy of NOC dated 12.11.2009 is Ex. PW1/8 (OSR)
(xi) Copy of bill of lading dated 10.12.2009 is marked as Mark-E
(xii) Copy of letter dated 07.01.2010 is Ex. PW1/10 (OSR)
(xiii) Copy of letter dated 09.02.2010 is Ex. PW1/11 (OSR)
(xiv) Copy of letter dated 10.05.2010 is Ex. PW1/12 (OSR)
(xv) Copy of letter dated 07.06.2010 is Ex. PW1/13 (OSR) (xvi) Copy of letter dated 12.06.2010 is Ex. PW1/14 (OSR) (xvii) Copy of letter dated 19.06.2010 is marked as Mark -F (OSR) His further examination in chief was deferred for want of original documents.
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 30 / 72
17. On 18.05.2018 PW-1 was recalled for further examination in chief. He further relied upon the following documents :
i) Copy of minutes of meeting dated 30.11.2010 Ex. PW1/16
ii) Copy of MOU and mortgage deed dated 11.12.2010: Ex.
PW1/17 & Ex.PW-1/18.
iii) Copy of deed of guarantee dated 11.12.2010: Ex. PW1/19
iv) Copy of letter dated 15.12.2010 referred as Ex. PW1/20 in the affidavit is de-exhibited and the same be read as Mark H.
v) Copy of letter dated 27.12.2010 & 28.12.2010: Ex. PW1/21 & Ex. PW1/22
vi) Copy of MOU dated 04.01.2011 along with receipt: Ex. PW1/23 (colly)
vii) Copy of notice dated 31.03.2011 Ex. PW1/24
viii) Copy of letter dated 05.04.2011: Ex. PW1/25
ix) Copy of letter dated 06.04.2011: Ex. PW1/26
x) Copy of legal notice dated 13.05.2011: Ex. PW1/27
xi) Copy of letters dated 16.06.2011: Ex. PW1/28 & PW1/29
xii) Copy of reply dated 17.06.2011: Ex. PW1/30 His cross examination was deferred.
18. On 29.10.2018, PW-1 was cross examined. In his cross examination, he has deposed that he had left the services of Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 31 / 72 plaintiff company in July 2014 and prior to that, I was working as Secretary in the plaintiff company. He further deposed tat the managing committee of the plaintiff used to meet and authorise the persons to do acts on behalf of the plaintiff company. He further deposed that in the Board of Directors, there were total Eleven members plus there were two nominated members ie Mr. Anand Verma and DAW from DGCA, Palam who was nominated by appointment. He also deposed that the minutes of each meetings were recorded in a register and the same was signed by him and the President upto a certain date and the registers pertaining to the meetings were kept in his custody.
19. Further cross examination is deferred as original documents were not produced by the witness. Thereafter, PW-1 did not appear on several dates for one reason or the other for his cross examination. On 22.05.2019, last and final opportunity was granted to PW-1 to be present for cross examination subject to cost of Rs.10,000/- to be paid to the defendants. On 27.08.2019, an application for adjournment was filed on behalf of PW-1 Sh.A.K.Gupta stating that he is of poor health and plaintiff company is in the process of appointing new AR and simultaneously trying to convince PW-1 who had agreed to Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 32 / 72 appear for his further cross examination.
20. On 15.01.2020, an application for substitution of AR has been filed along with affidavit of Sh. B.B.L.Madhukar and copy of board resolution passed in the meeting of Managing Committee of plaintiff company held on 22.10.2019. Since PW-1 did not appear despite numerous opportunities, testimony of PW-1 was taken off record and the matter was fixed for examination in chief and cross examination of Sh. B.B.L.Madhukar. On 24.05.2022, ld. Counsel for the plaintiff moved an application u/o XXVI R 4 CPC for appointment of Local Commissioner for recording of evidence of PW-1 Sh. B.B.L.Madhukar on the grounds of infirmity as the witness was stated to be suffering from acute sciatica alongwith arthiritis and was stated to be 80 years of age which was allowed and Sh. Shikhar Singhal was appointed as the Local Commissioner for recording of evidence of PW-1 B.B.L. Madhukar.
21. On 17.08.2022, PW-1 Sh. B.B.L. Madhukar had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and relied upon the following documents:
(i) Board Resolution as Ex. PW1/1;
(ii) Certificate of Incorporation as Ex. PW1/2;
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 33 / 72
(iii) Copy of letter of intent dated 12.01.2009 as Ex. PW1/3;
(iv) Purchase agreement dated 27.01.2009 as Ex. PW1/4 (colly);
(v) Copy of the cheque with payment voucher as Ex. PW1/5 (colly) (2 pages);
(vi) Copy of cheque no. 000423 along with receipt as Ex. PW1/6 (colly);
(vii) Letter dated 15.04.2009 as Ex. PW1/7;
(viii) Copy of letter dated 19.09.2009 as Ex. PW1/8 (colly);
(ix) Copy of NOC dated 12.11.2009 as Ex. PW1/9;
(x) Copy of bill of lading dated 10.12.2009 as Ex. PW1/10;
(xi) Copy of letter dated 07.01.2010 as Ex. PW1/11;
(xii) Copy of letter dated 09.02.2010 as Ex. PW1/12;
(xiii) Copy of letter dated 10.05.2010 as Ex. PW1/13;
(xiv) Copy of letter dated 07.06.2010 as Ex. PW1/14;
(xv) Copy of letter dated 12.06.2010 as Ex. PW1/15; (xvi) Copy of letter dated 19.06.2010 as Ex. PW1/16; (xvii) Copy of minutes of meeting dated 30.11.2010 as Ex. PW1/17 (OSR);
(xviii) Copy of MOU dated 11.12.2010 as Ex. PW1/18 (OSR); (xix) Copy of mortgage deed dated 11.12.2010 as Ex. PW1/19 Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 34 / 72 (OSR);
(xx) Copy of deed of guarantee dated 11.12.2010 as Ex. PW1/20 (OSR);
(xxi) Undertaking of Defendant no. 1 as Ex. PW1/20A; (xxii) Copy of letter dated 15.12.2010 as Ex. PW1/21; (xxiii) Copy of letter dated 27.12.2010 as Ex. PW1/22; (xxiv) Copy of letter dated 28.12.2010 as Ex. PW1/23; (xxv) Copy of MOU dated 04.01.2011 as Ex. PW1/24 (OSR); (xxvi) Receipt dated 04.01.2011 as Ex. PW1/24A; (xxvii) Copy of notice dated 31.03.2011 as Ex. PW1/25 (OSR); (xxviii) Copy of letter dated 05.04.2011 as Ex. PW1/26; (xxix) Copy of letter dated 06.04.2011 as Ex. PW1/27; (xxx) Copy of legal notice dated 13.05.2011 as Ex. PW1/28; (xxxi) Copy of letter dated 16.06.2011 for sub-acknowledgment of engine as Ex. PW1/29;
(xxxii) Copy of letter dated 16.06.2011 for sub-repair / replacement of engine as Ex. PW1/30 and (xxxiii) Copy of reply dated 17.06.2011 as Ex. PW1/31.
22. Objections were raised by the Ld. Counsel for Defendant no. 2 to the exhibition of the documents Ex. PW1/2, Ex. PW1/3, Ex. PW1/4, Ex. PW1/5 (colly), Ex. PW1/6 (colly), Ex. PW1/7, Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 35 / 72 Ex. PW1/8 (colly), Ex. PW1/9, Ex. PW1/10, Ex. PW1/11, Ex. PW1/12, Ex. PW1/13, Ex. PW1/14, Ex. PW1/15, Ex. PW1/16, Ex. PW1/20A, Ex. PW1/21, Ex. PW1/22, Ex. PW1/23, Ex. PW1/24A, Ex. PW1/26, Ex. PW1/27, Ex. PW1/28, Ex. PW1/29, Ex. PW1/30 and Ex. PW1/31 on the ground of mode of proof and being inadmissible in evidence.
23. On 23.08.2022, PW-1 was cross examined in the presence of the Ld. LC and during cross-examination, he deposed that he had been associated with the Plaintiff company since around 1990 and that he had also been the Director and member of the managing committee. He deposed that Mr. A.K. Gupta was a company secretary in the Plaintiff company at the time of the transaction in question. Relevant portion of the cross- examination of PW-1 is extracted herein:
"........At this stage the court file containing the plaint and the supporting affidavit is shown to the witness and asked whether he identifies the signature of the persons who has signed the plaint at point X and at point X2 and at point Y1 and Y2 at affidavit, After seeing the above the witness has answered "I do not recall".
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 36 / 72 At this stage copy of extracts of minutes of meetings of the board of directors of the plaintiff company dated 20.09.2011 as filed along with the plaint has been shown to the witness and is asked whether he identifies the signatures at point Z1. The witness states that I do not recall the said signatures. This document is now marked as Mark P1 for the purpose of identification. It is correct that Mark P1 is not on the letterhead of the plaintiff company. It is also correct that the stamp of the plaintiff company is not affixed in original on Mark P1.......... " Thereafter, the witness was shown various exhibits to which he stated that he did not recall those documents. An original letter dated 28.12.2010 issued by the Plaintiff company to M/s Global Aviation was shown to the witness to which he admitted that the same was issued by the Plaintiff company on its letterhead and also bears the stamp of the Plaintiff company and duly signed by Secretary / Accountable Manager Sh. A.K. Gupta. The said document was exhibited as Ex. PW1/D1. The witness further admitted that the Plaintiff company had received the Learjet 24 un-airworthy unserviceable aircraft from M/s Global Aviation and that the said Learjet 24 aircraft was to be used only for ground training, demonstration and educational purpose and that it was not meant Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 37 / 72 for any commercial use.
24. Thereafter, the witness was shown document dated 30.12.2010, MOU and letter dated 11.12.2010 to which the witness stated that the said documents were issued by / to Delhi Flying Club Ltd and the said documents were exhibited as Ex. PW1/D2 (colly) (OSR). The witness further admitted that the original papers of two properties were submitted along with two security cheques amounting to Rs. 85,00,000/- as a surety for purchase of Learjet aircraft. The witness was further cross examined at length by the Ld. Counsel for Defendant no. 2 and Ld. Counsel for Defendant no. 1 had adopted the cross- examination conducted by Ld. Counsel for Defendant no. 2. The witness was discharged on the even date.
PE was thereafter, closed vide separate statement of Ld. Counsel for Plaintiff on 13.09.2022 and matter was proceeded for Defendant's evidence.
25. On 21.03.2023, DW-1 Smt. Meenal Barapatre had tendered her evidence by way of affidavit exhibited as Ex. DW1/A and the copy of the receipt dated 28.12.2010 was marked as Mark A. During cross-examination, she deposed that she had obtained the PAN number of M/s Global Aviation and that Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 38 / 72 Defendant no. 2 was responsible for the day to day affairs and operational activities of M/s Global Aviation. She further deposed that M/s Global Aviation had submitted a bid / quotation for supply of learjet aircraft to the Plaintiff company which was drafted by Defendant no. 2. She also deposed that Defendant no. 2 was responsible for supplying the draft agreement to the Plaintiff company and also entered into the purchase agreement dated 27.01.2009 on behalf of M/s Global Aviation with the Plaintiff company. She deposed that she had signed the purchase agreement. She further deposed that Rs. 85,00,000/- was received by M/s Global Aviation from the Plaintiff company by way of cheque which was received by Defendant no. 2 on behalf of M/s Global Aviation. It was further deposed by DW-1 that Defendant no. 2 was an engineer so basically all the transactions and technical part was handled by him and she herself handled a little bit of administration work. She further deposed that there was no timeline for supply of un-airworthy learjet aircraft as per the terms and conditions of the purchase agreement dated 27.01.2009. The witness also deposed that the Defendant no. 2 and his brother had entered into the MOU dated 11.12.2010 on the instructions of Delhi Flying Club Committee through meeting Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 39 / 72 verbally. The witness had denied the suggestion that Defendant no. 2 had used her position and proprietorship firm to further his financial interests while holding public office. She admitted that she had no technical know-how regarding the subject-matter of the purchase agreement dated 27.01.2009. The witness was thereafter, discharged.
26. On 11.04.2023, DW-2 Sh. Raje Bhatnagar had tendered his evidence by way of affidavit exhibited as Ex. DW2/A and during cross-examination, he deposed that he had no role in M/s Global Aviation but used to advise and help Ms. Meenal i.e. Defendant no. 1. He deposed that the agreement dated 27.01.2009 was never effective and was cancelled and written off but there was another MOU for Rs. 85,00,000/- and the terms and conditions were only to supply un-airworthy unserviceable learjet aircraft for training purpose. Thereafter, the witness was questioned as to what was the quorum of the mutual discussed held before the MOU to which the witness answered that "There were AIR.CMD (Retd) A.K. Gupta and late Sh. O.P. Sharma and representatives of Global Aviation. Sometimes, myself and Ms. Meenal both and sometimes either of us. After the mutual discussion, this MOU of Rs. 85,00,000/- was executed and signed by authorised Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 40 / 72 representative of Delhi Flying Club, Sh. A.K. Gupta. During the entire dealing, the discussions were only made by AIR.CMD (Retd) A.K. Gupta and late Sh. O.P. Sharma as a representative of Delhi Flying Club in the office of Delhi Flying Club. " He also deposed that in the year 2012, he was appointed as Sr. Investigator in Aircraft Accident and Investigation Bureau, Ministry of Civil Aviation, New Delhi and earlier to this, he was with DGCA since 1991 and did 11 postings throughout India.
27. He also deposed that there was no timeline decided in writing due to practical constraints of import and permission required, however, in the mutual discussions, it was requested that the un-airworthy and unserviceable aircraft may be placed by the end of year 2010 so that the Plaintiff could get their approval from Delhi Region office of DGCA for admission of new batch commencing in July 2021. DW-2 was cross examined at length and was thereafter, discharged on 11.04.2023 and on the even date, DE was also closed vide separate statement of the Ld. Counsel for Defendant. Matter was proceeded for final arguments.
CONTENTION OF PARTIES
28. Final arguments were heard on behalf of the parties. Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 41 / 72 Written submissions were also filed on behalf of Plaintiff and Defendant no. 2. It was argued by Ld. Counsel for Plaintiff that the Defendants are in breach of their fundamental contractual obligations vide the MOU dated 27.01.2009 vide which the learjet aircraft which was unairworthy and meeting the conditions of CAR Section 2, Series E, Part VIII, Issue IV. It is submitted that the entire purchase price was paid to the Defendant no. 1 which is the admitted fact. The Defendant no. 1 did not supply the same in timely fashion and even after supplying the same, the Plaintiff could not use the same as the same was in defective condition and not in compliance with the conditions laid out in the MOU dated 27.01.2009 and approval could not be given by DGCA for the mechanical screen of the Plaintiff's school. It is further submitted that time was essence of the agreement and as the Defendant no. 1 failed to deliver the aircraft on time, the Plaintiff suffered significant additional losses. It is further submitted that the Defendants were in fundamental breach of the agreement dated 27.01.2009 specifically clause 1, 4, 5 and 7. It is submitted that the good supplied were not as per the description and there was the delay of 188 days in supplying the aircraft. It is further submitted that Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 42 / 72 the Defendants have breached the implied warranty of good title as a notice was received from AMEL, Barasat, West Bengal claiming ownership of the aircraft and no title documents have been supplied by the Defendant no. 1. It is further submitted that no log book, maintenance record and manual were supplied by the Defendant no. 1 which was in violation of clause 7 of the agreement dated 27.01.2009. It is submitted that the Plaintiff is entitled to reject the goods and claim the entire sum of money which was given as the purchase price and therefore, the Plaintiff prays for recovery of Rs. 88,19,932/- along with 18% interest per annum. It is further submitted that the Plaintiff did not have an adequate opportunity for examining the goods that is the aircraft to ensure that it complied with CAR Section 2, Series E, Part VIII, Issue IV. It is submitted that vide letter dated 05.04.2011, the Defendant no. 1 had intimated the Plaintiff that the aircraft is being prepared for the ground run but the same was never done and the engine was sent to a third party M/s Mount Zion who was to get the engine repaired.
29. Per contra, Ld. Counsels for Defendant no. 2 has filed written submissions and also submitted that Defendant no. 2 is not privy to the contract and had merely stood as a guarantor Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 43 / 72 after handing over title documents of his property and therefore, cannot be held liable. He has submitted that the suit is time barred. He further states that all the obligations of Defendant no.1 were discharged upon the delivery of the aircraft on 28.12.2010 and that the same delivery was also acknowledged by the Plaintiff vide letter dated 30.12.2010 being Ex. PW1/D2. The documents deposited by the Defendant no. 2 in order to ensure performance were also returned by the Plaintiff which further indicates that the parties had completed their terms of the contract. He has further submitted that various documents which have been exhibited by the Plaintiff PW-1 are inadmissible on the ground that the original was never produced and that there was no compliance of Section 65 of the Indian Evidence Act, 1872 which is applicable to the present trial. He has submitted that objection was also taken during the recording of evidence qua the same. He has submitted that there is no agreement dated 27.01.2009 and the same has not been proved in accordance with law. The aircraft was delivered in time. The security cheques of Rs. 85,00,000/- and deed of guarantee executed by Defendant no.2 were returned by the Plaintiff and there was no obligation of Defendant no. 1 or Defendant no. 2 to provide post delivery Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 44 / 72 maintenance of the aircraft to the Plaintiff. All the subsequent snags developed in the aircraft were due to the lack of manpower of the Plaintiff and experienced engineers and therefore, the Plaintiff had demanded help of Defendants to maintain the same on payment basis. The Defendants at the asking of the Plaintiff had engaged services of a third party i.e. M/s Mount Zion who were to repair the engine and Defendants were only the mediators for the same.
ISSUE WISE FINDINGS
30. I have heard the parties and perused the record. Issue no. (iii) The Plaintiff's case in brief is that there was a contract for purchase of an unairworthy aircraft which was to be used for training purposes by the Plaintiff. The aircraft was supplied as per the case of the Plaintiff itself, however, the Plaintiff claims for the recovery of the entire sale consideration paid to the Defendant no. 1 on the ground that the aircraft was not fit for the purpose for which it had been purchased and therefore, the Plaintiff was entitled to reject the goods and claim the entire purchase price.
31. Before proceeding to examine the claim of the Plaintiff, it Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 45 / 72 would be appropriate to refer to the relevant statutory provisions of the Sale of Goods Act, 1930 in order for ready reference.
"Section 12 - Condition and warranty (1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty. (2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated.
(3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated.
(4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract.
Section 13 - When condition to be treated as warranty (1) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition or elect to treat the breach of the condition as a breach of warranty and not as a ground for treating the contract as repudiated. Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 46 / 72 (2) Where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty and not as a ground for rejecting the goods and treating the contract as repudiated, unless there is a term of the contract, express or implied, to that effect.
(3) Nothing in this section shall affect the case of any condition or warranty fulfillment of which is excused by law by reason of impossibility or other wise.
Section 16 - Implied conditions as to quality or fitness Subject to the provisions of this Act and of any other law for the time being in force, there is no implied warranty or condition asto the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:-
(show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he is the manufacturer or producer or not), there is an implied condition that the goods shall be reasonably fit for such purpose:
Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 47 / 72 condition as to its fitness for any particular purpose. (shall be no implied condition as regards defects which such examination ought to have revealed.
(4) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.
Section 14 - Implied undertaking as to title, etc. In a contract of sale, unless the circumstances of the contract are such as to show a different intention there is--
(a) an implied condition on the part of the seller that, in the case of a sale, he has a right to sell the goods and that, in the case of an agreement to sell, he will have a right to sell the goods at the time when the property is to pass;
(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods;
(c) an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party not declared or known to the buyer before or at the time when the contract is made.
Section 41 - Buyer's right of examining the goods (1) Where goods are delivered to the buyer which he has not Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 48 / 72 previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. Section 42 - Acceptance The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Section 59 - Remedy for breach of warranty (1) Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods; but he may--
Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 49 / 72
(a) set up against the seller the breach of warranty in diminution or extinction of the price; or
(b) sue the seller for damages for breach of warranty. (2) The fact that a buyer has set up a breach of warranty in diminution or extinction of the price does not prevent him from suing for the same breach of warranty if he has suffered further damage.
Section 62 - Exclusion of implied terms and conditions Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both parties to the contract."
32. The position then being that for the breach of a condition whether contractual or implied under the Act, the buyer i.e. the Plaintiff is entitled to reject the goods and recover the entire sale consideration whereas, for a breach of warranty, the buyer is only entitled to claim damages but not reject the goods. Therefore, it is to be seen whether the Plaintiff has been able to prove that there was a condition of sale which was breached by the Defendants. The following observations arise from the perusal of the record Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 50 / 72 and the evidence led by the parties.
(a) A perusal of the record would show that the Counsel for Defendant no. 2 had objected to the exhibition of the documents namely Ex. PW1/2, Ex. PW1/3, Ex. PW1/4, Ex. PW1/5 (colly), Ex. PW1/6 (colly), Ex. PW1/7, Ex. PW1/8 (colly), Ex. PW1/9, Ex. PW1/10, Ex. PW1/11, Ex. PW1/12, Ex. PW1/13, Ex. PW1/14, Ex. PW1/15, Ex. PW1/16, Ex. PW1/20A, Ex. PW1/21, Ex. PW1/22, Ex. PW1/23, Ex. PW1/24A, Ex. PW1/26, Ex. PW1/27, Ex. PW1/28, Ex. PW1/29, Ex. PW1/30, Ex. PW1/31. The reason for the objections being that the originals were not produced by the Plaintiff.
A perusal might be required of the relevant provision of the Indian Evidence Act, 1872 which would be applicable to the present trial.
"Section 65 - Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 51 / 72 or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in1[India] to be given in evidence;
(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court and Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 52 / 72 the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
In J. Yashoda vs. K. Shobha Rani (19.04.2007 - SC) :
MANU/SC/7314/2007/2007 INSC 441, Hon'ble Supreme Court has observed as under:
"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 53 / 72
a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence "means and includes" and then follow the five kinds of secondary evidence.
8. The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 54 / 72
in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section."
It is apparent from the record that the objection of the Defendant no. 2 must succeed. The aforesaid documents have not been proved in accordance with the law. If the Plaintiff wished to produce secondary evidence, then the conditions of Section 65 of the Indian Evidence Act should have been satisfied, however, it is not the Plaintiff's case that any of such conditions are applicable. The documents are private in nature and therefore, paras (e) and
(f) would not be applicable. Para (d) is as well not applicable to the present case. There is no evidence of the applicability of paras (a), (b) and (c). No evidence or averment has been placed on record that the said documents are in the exclusive possession of the Defendants nor has any notice to produce ever been served upon the Defendants. The said documents have not been admitted by the process of admission-denial nor is it the case that Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 55 / 72 the originals have been destroyed or lost. Ld. Counsel for Plaintiff could not rebut the proposition put forward by the Counsel for Defendant no. 2 in this regard. The aforesaid documents i.e. Ex. PW1/2, Ex. PW1/3, Ex. PW1/4, Ex. PW1/5 (colly), Ex. PW1/6 (colly), Ex. PW1/7, Ex. PW1/8 (colly), Ex. PW1/9, Ex. PW1/10, Ex. PW1/11, Ex. PW1/12, Ex. PW1/13, Ex. PW1/14, Ex. PW1/15, Ex. PW1/16, Ex. PW1/20A, Ex. PW1/21, Ex. PW1/22, Ex. PW1/23, Ex. PW1/24A, Ex. PW1/26, Ex. PW1/27, Ex. PW1/28, Ex. PW1/29, Ex. PW1/30, Ex. PW1/31 are therefore, inadmissible in evidence and cannot be relied upon by the Plaintiff for proving the case.
(b) Therefore, the Plaintiff cannot rely upon the document Ex. PW1/4 which is purportedly the sale agreement dated 27.01.2009. In consequence, the Plaintiff cannot prove that there was a contractual express condition that was breached by the Defendants in order to enable the Plaintiff to repudiate the contract, reject the goods and seek the entire sale consideration. The Plaintiff can therefore, only rely upon the implied conditions as provided in Section 14 and 16 of the Sale of Goods Act, 1930. I now proceed to examine whether the Plaintiff has been able to prove any such implied condition and the breach thereof by the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 56 / 72 Defendants.
(c) The Plaintiff's case is that firstly, the Plaintiff had received a notice Ex. PW1/25 sent by Advocate of one organization namely AMEI Barasat, West Bengal stating that the aircraft in question had actually been purchased by them and therefore, there was no title vested in the Defendants which they could transfer to the Plaintiff. The Plaintiff, I assume, rely upon Section 14(a) and 14(b) of the Sale of Goods Act to aver that the implied condition as to the good title has been breached. After having perused the record, I am of the opinion that the Plaintiff has not been able to produce any evidence to show that the Defendants did not have the title to the goods. Merely, the unverified claim made in one letter Ex. PW1/25 sans any other corroborative evidence or proof that the Aircraft Maintenance and Engineering Institute, Barasat, West Bengal was the actual owner cannot suffice to prove the claim of the Plaintiff. The Plaintiff did not seek to summon any witness from AMEI, Barasat, West Bengal to prove the letter Ex. PW1/25 or to produce any oral evidence of their claim that the aircraft was actually purchased by AMEI from Defendant no. 1. Therefore, the best person who could have proved such claim has not been summoned before the Court. No Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 57 / 72 such evidence or suggestion could also be put to the Defendant witnesses to show that they were not having the valid title to the goods. Therefore, the Plaintiff has not been able to prove the breach of an implied condition on these grounds.
(d) The Plaintiff's main claim for breach of an implied condition is on the basis that though the goods were supplied, the aircraft in question was not functional for the purpose of providing training as it is submitted that the various electronic, hydraulic and avionics of the aircraft were not in functional state. It is the admitted position that the aircraft was supplied and placed in the possession of the Plaintiff. This is clear from a perusal of Ex. PW1/D1 (OSR) which is the acknowledgment by A.K. Gupta who was the Secretary of the Plaintiff. The said acknowledgment dated 28.12.2010 reads as "This is to acknowledge receipt of LEARJET-24 Un-airworthy aircraft, Sl. No:205 by us on 28th December, 2010 from M/s. Global Aviation, New Delhi.
The Learjet-24 aircraft shall be used only for ground training and demonstration purpose. This aircraft shall be used for educational purpose and is not for further sale.
..........." The Defendant has also been able to prove another Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 58 / 72 certificate Ex. PW1/D2 (colly) signed by the Secretary of the Plaintiff and issued by one Nitin Sharma, General Manager (Engineering) which states that "This is to state that the Lear Jet 24 Aircraft, Sr. No. 205 is "CERTIFIED" as per the requirement of CAR, Section 2 Series "E", Part VIII.
This certificate is being issued on behalf of Global Aviation by the undersigned, holder of Indian DGCA Basic Aircraft Maintenance Engineers licence (BAMEL) No. 9376, in the capacity of GM Engineering.
You are requested to kindly acknowledge the receipt. Thanking you.
..........." The Plaintiff has not been able to refute the existence of these documents, nor have they been able to refute that these documents were signed by the Secretary of the Plaintiff at that time. The sole Plaintiff witness PW-1 who was the Director of the Plaintiff institution was confronted with the said documents and nothing could be explained by him which would lead the Court to doubt the genuineness of the said documents. It is pertinent to note that rather, PW-1 admitted the said documents during his cross-examination, the relevant part of which reads "At this stage original letter dated 28.12.2010 issued by the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 59 / 72 plaintiff company to M/s Global Aviation regarding receipt of Learjet 24 un-airworthy aircraft is shown to the witness. He admits that the same has been issued by the plaintiff company on its letterhead and bears the stamp of the plaintiff company and is duly signed by Secretary / accountable manager Sh. A K Gupta. The said document is now exhibited as Ex. PW1/D1. VOL Office copy of the said document has already been placed on record as Ex. PW1/23.
It is correct that the plaintiff company has received the Learjet 24 un-airworthy unserviceable aircraft from M/s Global Aviation. It is correct that the Learjet 24 aircraft was to be used only for ground training, demonstration and educational purpose. It is correct that it was not meant for any commercial use. At this stage document dated 30.12.2010, memorandum of understanding and latter dated 11.12.2010 are shown to the witness in original. He states that it appears that the said documents have been issued by / to Delhi Flying Club Ltd.. The copy of said documents are now exhibited as Ex. PW1/D2 (Colly) (OSR).
Que- I put it to you that as per Ex. PW1/D2 (Colly), the 3 documents as mentioned in latter dated 11.12.2010 were agreed Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 60 / 72 to stand cancelled after the receipt of un-airworthy / unserviceable Learjet 24 aircraft by the plaintiff company? Ans- It is correct.
.............
Que- is it correct that original papers of two properties were submitted along with two security cheques amounting to Rs. Eighty five lakhs as a surety for purchase of Learjet aircraft? Ans- It is correct.
At this stage the original of Ex. PW1/20A is shown to the witness and he admits the same to be correct.
At this stage the copy of the same document is exhibited as Ex. PW1/D3 (OSR).
Que- Is it correct that the plaintiff company should have handed over the original property papers of both the property and two cheques amounting to Rs. Eighty five lakhs back to the defendants on the receipt of Learjet aircraft? Ans- Yes. It is correct.
Que- Are you aware whether the original property papers of both the properties and the cheques amounting to Rs. Eighty five lakhs have been returned to the defendants?
Ans- I presume that the same must have been returned to the Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 61 / 72 defendants as per the agreed terms.
I do not know whether the original property papers and the original cheques have been infact returned to the defendants or not. As I am not aware about the return of property papers and cheques and so I can not admit or deny the suggestion that the original paper of only one property papers have been returned to the defendants but the original papers of one property papers and original cheques have not been returned to the defendants. ................" A perusal of the same would show that in terms of Ex. PW1/D2, the certain documents which were deposited by Defendant no. 2 were in fact, returned and certain MOUs were cancelled. The MOU contained within Ex. PW1/D2 which is signed by both the Plaintiff and Defendant no. 1 representatives notes that the unairworthy learjet aircraft for ground training and demonstration purpose for sum of Rs. 85,00,000/- has been delivered which includes disassembly, custom clearance, insurance and freight charges in the US, shipping charges, customs duty, assembly charges and transportation charges in India. Notably, the said MOU does not mention charges relating to further maintenance and repair of the aircraft after delivery. The said document Ex. PW1/D2 also shows that the Plaintiff had Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 62 / 72 acknowledged the delivery of aircraft complying with the requirements of CAR Section 2, Series E Part VIII. Section 42 of the Sale of Goods Act, 1930 would therefore, come into the picture and it is apparent that the Plaintiff had unqualified acceptance of the aircraft which can also be construed by the signature of the Air Commodore A.K. Gupta (Retd.) who was the Secretary of the Plaintiff on Ex. PW1/D2 which has already been extracted above.
(e) On the other hand, the Plaintiff has not been able to prove that there was any implied condition qua the functionality of the various parts of the aircraft post the delivery and acceptance of the same which would override the acceptance as signified by Ex. PW1/D2. Moreover, the Plaintiff has not led any evidence to show that the aircraft was not fit for the purpose for which it had been purchased by leading the independent evidence of any expert engineer who had inspected the aircraft at the time of delivery. During the cross-examination of PW-1 who was the sole Plaintiff witness, the witness was asked as to whether the aircraft could be inspected with one engine running to which the witness had volunteered that at the time of delivery, when the aircraft was supplied, the inspection of the aircraft was done, Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 63 / 72 however, it was not found to be in acceptable position. Though, on one hand, the Plaintiff witness states that inspection was got done and the same was not found to be in acceptable condition, neither the witness could name the person who had carried out the inspection nor was any such witness produced during trial. The Plaintiff also did not bother to get any expert examined who could examine the aircraft and give a report qua the deficiencies in the aircraft. The witness was further questioned during the cross-examination which read as under:
"Que- Can you point out the deficiencies as per the records maintained by the plaintiff in the aircraft supplied by the defendants?
Ans- Whatever were the deficiencies, it were pointed out to the defendants. I can not readily provide any document which would show any deficiencies in the aircraft supplied by the defendants. Que- How did you maintained the aircraft after taking the delivery from the Global Aviation?
Ans- It was not maintained by the plaintiff as it was not in position to be used.
Que- Do you have any document with you or can you place on record any document to show that the aircraft was not in a proper Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 64 / 72 position to be used?
Ans- I do not have any such document readily available with me. ...........
Que- Do you have any knowledge about the requirement of CAR, Section 2 Series "E", Part VIII Certification for the aircraft supplied by the defendants?
Ans- No, I am not aware about it.
I do not remember as to who from the plaintiff side acknowledged the receipt of the aircraft supplied by the defendants. I do not remember who inspected the aircraft after the same was received by the plaintiff. ..............
Que- How did you maintain the aircraft after taking delivery from the defendant no. 1?
Ans- The normal care of the aircraft was done. Que- Have you maintained any logbook, spares, consumable items like seals, oil, howling etc?
Ans- I do not recall anything.
Que- How many times the aircraft was given run-up and when? Ans- I do not remember.
Que- Were any documents prepared for any such run-up, if at all Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 65 / 72 given?
Ans- I do not know.
..........
Que- Can you state if sunup was given for the aircraft on hanger or open space?
Ans- I do not remember.
There was a hanger at Delhi Flying Club but it is not available as on date.
Que- Can you state if both the engines of the aircraft were in running condition or not at the time of delivery of the aircraft to the plaintiff?
Ans- I do not recall.
............
Que- Have you ever seen the aircraft in question? Ans- I do not recall.
Que- Have you seen or pointed out any deficiencies in the aircraft at any point of time?
Ans- No. VOL I was not looking after the technical aspects. Que- How was the person who was looking after the technical aspects of the said aircraft?
Ans- Besides the secretary, other engineers were also looking Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 66 / 72 after the same.
Que- Kindly specify the names of the said engineers and secretary?
Ans- Air Commodore A.K Gupta (Read.) was the secretary. I do not remember the names of the said engineers. Que- Is it correct that the aircraft was inspected by Sh. A.K. Gupta on behalf of the plaintiff company? Ans- It must have been inspected by Sh. A.K. Gupta with his team of engineers.
Que- As per your knowledge, who was the person authorised to give the receipt/acknowledgment of the aircraft in question? Ans- I do not recall.
Que- As per the records of the plaintiff company, what all deficiencies were there in the aircraft supplied by the defendant no. 1?
Ans- I do not know.
Que- Did the plaintiff ever wrote any letter to return the aircraft to the defendants?
Ans- It was written, but I do not have the details. Que- Have you filed any such letter on record of this case? Ans- I do not remember.
Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 67 / 72 Que- On what basis have you stated that such letter was written to the defendants?
Ans- I do not remember in which form this proposal was sent to return the aircraft but it was communicated by the plaintiff to the defendant.
Que- Can you produce any email, letter, SMS or any other document to suggest that the plaintiff had ever asked the defendants to take the aircraft back?
Ans- I can not produce.
......................"
The aforesaid testimony shows that on one hand, the Plaintiff admits that the aircraft was inspected at the time of delivery. It is specifically admitted that the Secretary and other engineers were looking after the technical aspects of the aircraft. The Secretary was air commodore A.K. Gupta (Retd.). On the other hand, the Plaintiff has not been able to prove any evidence to show that after such inspection, the Plaintiff sent any letter or communication to the Defendant no. 1 protesting the functional inadequacies of the aircraft delivered on 28.12.2010. It is pertinent to note that the Plaintiff has not been able to prove the letter dated 06.04.2011 Ex. PW1/27 as the original was never Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 68 / 72 produced. The letter allegedly sent by Defendant no. 1 to the Plaintiff dated 05.04.2011 which was marked as Ex. PW1/26 was also never proved as the original was never produced. However, even assuming that the same were proved in accordance with law, the same would show that though the delivery took place on 28.12.2010 and it is admitted by PW-1 that inspection also took place at the time of delivery and though the Secretary of the Plaintiff issued an acknowledgment and signed on a letter by the Engineer acknowledging that the aircraft was complying with the relevant norms, no letter was then written in protest of the deficiencies by the Plaintiff soon after or within a reasonable time and the letter Ex. PW1/27 was at best written only in response to a letter dated 05.04.2011 and did not specifically mention any deficiencies in the aircraft. The conduct of the Plaintiff does not show that there were in fact, any deficiencies of such nature as to warrant a conclusion that the implied condition under Section 16 of the Sale of Goods Act, 1930 had been breached. Rather it appears that the general rule of caveat emptor as enshrined in the main portion of Section 16 would be applicable. Moreover, even if there was an implied condition, on the facts of the case, the Plaintiff has been unable to prove any Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 69 / 72 evidence to show that the goods supplied were in breach of the implied conditions and that the aircraft was not fit for the purpose for which it had been purchased. Further, the fact that the Plaintiff handed over the documents it had taken from Defendants no. 1 and 2 as guarantee for performance further corroborates the fact that the Plaintiff had accepted the goods in terms of Section 42 of the Sale of Goods Act and therefore, cannot now reject the same. Moreover, on the facts, I find that the Plaintiff did not within the reasonable time, intimate Defendant no. 1 about the rejection of the goods and in fact, retained the goods without informing Defendant no. 1 about any deficiencies on their own volition and in fact, even the letter dated 06.04.2011 was written in response to a letter of Defendant no. 1 and not independently. Therefore, having accepted the goods, the Plaintiff cannot reject the same due to the statutory law under Section 42 of the Sale of Goods Act, 1930.
(f) A weak attempt has also been made to show that the Defendant no. 1 delayed the delivery and therefore, is liable for damages. The facts of the case show that the delay, if any, had been condoned and moreover, the delay in delivery does not imply that the buyer can sue for the complete sale price rather, Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 70 / 72 the buyer can sue for consequential damages arising due to the delivery under Section 73 of the Indian Contract Act, 1872. As per the Plaintiff's own case, the delay in delivery, if any, had been condoned by virtue of the document Ex. PW1/17 which shows that the Plaintiff's managing committee had conducted a meeting on 30.11.2010 and decided that due to the delay, the Plaintiff would have to give a guarantee in form of property papers for covering the amount of money paid to them and that the aircraft had to be delivered by 20.12.2010. The aircraft was admittedly delivered on 28.12.2010 but the Plaintiff has not produced any evidence to show that it suffered any damages due to the eight days of delay in the delivery of the aircraft. In fact, the legal notice sent by the Plaintiff dated 13.05.2011 Ex. PW1/28, though inadmissible, otherwise even if read into evidence, shows that the Plaintiff did not claim any damages due to the delay in delivery of aircraft or due to the deficiencies in the same rather, the only point of issue in the said legal notice dated 13.05.2011 was on account of misrepresentation regarding title of goods. The same further goes against the case of the Plaintiff.
In light of the foregoing, the issues are decided against the Plaintiff and in favour of the Defendants.
Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 71 / 72 Issue no. (i)
33. I find that the suit is not time barred. One of the cause of action cited by the Plaintiff is the letter of AMEI, Barasat, West Bengal dated 31.03.2011 on the basis of which the Plaintiff had made the claim that the Defendant no. 1 had breached the implied condition as to the title. If the said letter is taken to be the cause of action then the suit is within time. It is a different matter that on the facts, I have found that the Plaintiff has not been able to make out the claim of breach of the implied condition. Therefore, this issue is decided in favour of the Plaintiff and against the Defendants.
Issue no. (ii)
34. The Defendants have not led any evidence to show that this Court lacks territorial jurisdiction. The only ground for claiming such is that the property which was the subject-matter of a mortgage for guarantee of the performance of the contract was located in Ghaziabad. However, that is not the bundle of facts relevant for deciding the cause of action for filing the present suit. The fact that the goods were to be supplied within the territorial jurisdiction of this Court is sufficient to vest this Court with jurisdiction over the present matter. Therefore, this Suit No. 17253/16 M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr. 72 / 72 issue is decided against the Defendants and in favour of the Plaintiff.
RELIEF
35. As a result of the foregoing, the suit has to be dismissed.
36. Decree sheet be prepared accordingly. Parties to bear their own costs.
37. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2024.11.13
15:52:19
+0530
Announced in the open court (Sh. Divyang Thakur)
On 13.11.2024 DJ-03/South West
Dwarka / New Delhi
Suit No. 17253/16
M/s Delhi Flying Club Ltd. Vs. Ms. Meenal Barapatre and Anr.