Madhya Pradesh High Court
Spicejet Limited vs Airports Authority Of India on 20 April, 2022
Author: Anjuli Palo
Bench: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANJULI PALO
ON THE 20th OF APRIL, 2022
MISC. APPEAL No. 1178 of 2021
Between:-
SPICEJET LIMITED, A COMPANY INCORPORATED
AND REGISTERED UNDER THE COMPANIES ACT,
1956 HAVING ITS REGISTERED OFFICES AT
TERMINAL 1D, INDIRA GANDHI INTERNATIONAL
AIRPORT, NEW DELHI-110037 REPRESENTED BY
ITS SR.VICE PRESIDENT (LEGAL) & COMPANY
SECRETARY, MR.CHAND SAND SON OF MR.
ASHOK SAND AGED ABOUT 41 YEARS
(P-6 BEFORE THE TRIAL COURT)
.....APPELLANT
(BY SHRI VARUN K.CHOPRA, ADVOCATE)
AND
1. AIRPORTS AUTHORITY OF INDIA HAVING ITS
OFFICES AT JABALPUR AIRPORT JABALPUR 482
OO5, MADHYA PRADESH REPRESENTED BY THE
AIRPORT DIRECTOR
(D-1 BEFORE THE TRIAL COURT)
2. AIRPORT AUTHORITY OF INDIA HAVING ITS
CORPORATE HEAD QUARTERS AT RAJIV GANDHI
BHAWAN, SAFDARJUNG AIRPROT, NEW DELHI
(DELHI)-110001 REPRESENTED BY EXECUTIVE
DIRECTOR
(D-2 BEFORE THE TRIAL COURT)
3. DIRECTORATE OF GENERAL CIVIL AVIATION
OFFICE OF THE DIRECTORATE GENERAL OF OF
CIVIL AVIATION OPPOSITE SAGDARJUNG
AIRPORT, NEW DELHI-110003 REPRESENTED BY
THE DIRECTOR GENERAL OF CIVIL AVIATION.
(D-3 BEFORE THE TRIAL COURT)
4. NATIONAL INSURANCE COMPANY LIMITED
HAVING ITS REGISTERED AND HEAD OFFICE AT 3,
MIDDLETON STREET KOLKATA-700071 AND
HAVING ITS DIVISION OFFICE, BHAVBHUTI
MARG, NEAR NEW DELHI, RAILWAY STATION,
AJMERI GATE SIDE, NEW DELHI-110002
REPRESENTED BY ITS CHIEF MANAGER AND
AUTHORISED SINGNATORY MR. SHANKAR
KRISHNAN S/O LATE ANANTHA KRISHNAN AGED
ABOUT 56 YEARS
(P-1 BEFORE THE TRIAL COURT)
5. ORIENTAL INSURANCE COMPANY LIMITED
HAVING ITS CORPORATE BUSINESS REGIONAL
OFFICE AT 4TH FLOOR, (REAR PORTION) JEEVAN
VIHAR BUILDING , SANSAD MARG, NEW DELHI-
110001 REPRESENTED BY ITS REGIONAL
2
MANAGER(IN CHARGE)
(P-2 BEFORE THE TRIAL COURT)
6. ICICI LOMBARD GENERAL INSURANCE
COMPANY LIMITED HAVING ITS REGISTERED
OFFICE AT ICICI LOMBARD HOUSE, 414 VEER
SAVARKAR MARG, NEAR SIDHI VINAYAK
TEMPLE, PRABHADEVI MUMBAI-400020
(MAHARASHTRA) REPRESENTED BY ITS SENIOR
VICE PRESIDENT
(P-3 BEFORE THE TRIAL COURT)
7. HDFC ERGO GENERAL INSURANCE COMPANY
LIMITED HAVING ITS REGISTERED OFFICE AND
CORPORATE OFFICE AT 1ST FLOOR, HDFC HOUSE,
165-166, BACKBAY RECLAMATION, H.T. PAREKH
MARG, CHURCHGATE, MUMBAI 400020
(MAHARASHTRA) REPRESENTED BY ITS SENIOR
VICE PRESIDENT
(P-4 BEFORE THE TRIAL COURT)
8. THE NEW INDIA ASSURANCE COMPANY LIMITED
HAVING ITS REGISTERED & HEAD OFFICE AT
NEW INDIA ASSURANCE BUILDING 87, MG ROAD,
FORT MUMBAI-40, MAHARASHTRA
REPRESENTED BY ITS CHIEF MANAGER
(P-5 BEFORE THE TRIAL COURT)
.....RESPONDENTS
(RESPONDENTS NO. 1 TO 3 BY SHRI ANOOP NAIR, ADVOCATE)
(RESPONDENTS NO.4 TO 8 BY SHRI ANSHUMAN SINGH,
ADVOCATE)
This appeal coming on for hearing on interlocutory applications this day,
the court passed the following:
ORDER
The Appellant/Spice Jet Ltd. filed instant Miscellaneous Appeal under Order 43 Rule l(r) read with Section 104 of the Code of Civil Procedure assailing the order dated 23.03.2021 passed by the 28th Additional Judge, Jabalpur in RCS-B 86/2018 whereby the application under Order 39 Rules 1 & 2 read with section 151 of CPC has been dismissed.
2. The Appellant as plaintiff No.6 alongwith others filed aforesaid civil suit seeking loss for an amount of Rs.29,70,80,503/- [Rupees Twenty Nine Crores Seventy Lacs Eighty Thousand Five Hundred and Three only] from the Respondent No.1/Airport Authority of India because it suffered loss, as an Spice Jet flight (Airline Company) landed at Jabalpur Airport and was confronted with the herd of wild boars. Therefore, the said Aircraft sustained significant damage owing to collapse of nose landing rear and left main landing scar of the aircraft. The appellant/Spice Jet Limited suffered loss due to short comings in the 3 aerodrome maintenance, which is required to be maintained u/ss. 12 &22 of the Airport Authority of India Act. An investigation was conducted by a Committee, which attributed negligence and lapses on the part of Airport Authority of India. The Appellant being a scheduled airline operator is covered by the credit policy of respondents to maintain security deposit either (i) bank guarantee equal to 2 months’ of average billing or (ii) in case of cash deposit, equal to 1.5 months’ average billing. Thus, the Appellant furnished bank guarantee of Rs.160.14 crores and deposited cash of Rs.12.54 crores with the respondents.
3. The respondents filed written statement on 20.01.2020. However, since the time of filing of the suit the respondents have been raising demands to remit landing charges to them as also penal and exaggerated interest over the same including the disputed period i.e. 2015-16.
4. The appellant’s submission is that any demand qua disputed period would be subject to adjudication of aforesaid civil suit. However, number of correspondences were made between parties, but eventually the respondents gave ultimatum to the appellant that they would invoke the bank guarantee of Rs.160 crores towards the demand raised for entire period including the disputed period.
5. Thereafter, on 22.02.2021 the appellant moved an application under Order 39 Rules 1 & 2 CPC for restraining the respondents/defendants from invoking the Bank Guarantee of Rs.160 crores which submitted by the appellant, during pendency of the suit. The respondents filed reply to the aforesaid interlocutory application. The respondents also filed an application u/s 151 CPC for bringing order of Delhi High Court passed in WP(C) No.9862/2020 on record indicating that counsel for the respondent had given undertaking that respondents will not invoke the Bank Guarantee in question.
6. The trial Court vide impugned order dated 23.3.2021 dismissed the application under Order 39 Rules 1 & 2 CPC.
7. The appellant being aggrieved with the impugned order of the trial Court preferred this appeal on the ground that trial Court failed to observe that no prima facie case in favour of the appellant is made out. It further failed to see that appellant has clearly highlighted that it has outstanding claims as against the Airport 4 Authority of India on account of loss caused to the appellant due to negligence of respondents. The trial Court ought to have appreciated that reconciliation of interest between the parties was going on. The court below further erred in assuming that case of appellant was regarding invocation of Bank Guarantee, whereas in injunction application prayer was to restrain the respondents from seeking payment of Rs.29,70,80,503/- till pendency of suit. The respondents mislead the trial Court by placing the order of Delhi High Court on record and questioning the jurisdiction of the trial Court qua injunction. The trial Court ought to have appreciated that Inquiry Report of Committee which attributed incidents to the respondents, therefore, their demand for landing charges was illegal. The trial Court failed to appreciate the principle of balance of convenience and erroneously held that no irreparable loss would be caused to the appellant. It further ought to have been seen that refusal to grant injunction would render the suit infructuous.
8. By filing I.A.No.4057/2021 the respondents alleged that the appellant has already filed a writ petition before the Delhi High Court being W.P No.9864/2020 as Annexure-D-1 and prayed for stay of encashment of Bank guarantee. Thus, the appellant cannot claim the same relief in multiple forums. The outstanding amount of Rs.134,0468,396.99 as principal sum and Rs.39,50,37,211.39 towards undisputed interest, totalling Rs.173,55,05,608.38 as due against the appellant. The Delhi High Court vide order dated 15.04.2021 has already directed that whatever dues is payable by the appellant to the respondent should be paid as per order Annexure-D-3. The appellant concealed the above material facts. Hence, this appeal deserves dismissal.
9. This Court on 07.5.2021 restrained the respondents from invoking the Bank Guarantee to the extent of Rs.29,70,80,503/-. On 16.06.2021, the respondent claimed to vacate the interim order dated 07.05.2021 passed by this Court. Thereafter, the appellant filed another application I.A.No.5420/21 for seeking appropriate direction alleging that on 07.05.2021 this Court has passed a detailed and elaborate order whereby the respondents No.1 & 2 have been directed not to invoke the Bank Guarantee to the extent of Rs.29,70,80,503/-. The appellant also concluded that as per respondents the writ petition is pending at Delhi High Court which covers the present Bank Guarantee. They also moved an application to 5 invoke the Bank Guarantee in the writ petition. The writ Court passed an order directing the respondents not to take any coercive measure for encashment of the entire Bank Guarantee against the present appellant, subject to the appellant's paying a sum of Rs.20 Crores to the respondent No.1 towards its outstanding dues. Thus, the appellant prayed that hearing of the instant appeal be deferred till disposal of Writ Petition (C) No.9864/2020 which is pending before Delhi High Court.
10. During hearing on all these pending Interlocutory Applications learned counsel for the appellant has produced photo copies of order sheets of the trial Court passed in RCSB-86B/18 from 15.02.2022 to 04.03.2022 which reflects that on 04.03.2022 the main suit filed by the appellant has been dismissed for want of prosecution (non appearance of the appellant and its witnesses). This material fact is admitted by the parties. However, the learned counsel for the appellant submits that he had filed an application for restoration of the case. Notice has not been accepted by the respondents. Hence appropriate order is necessary in the interest of justice.
11. It is important to note that this Misc. Appeal has been filed against the order passed by the Court below under Order 39 Rules 1 & 2 CPC in Regular Civil Suit No.86B/2018. The said civil suit has already been dismissed. Hence, this appeal arising out of order passed on interlocutory application in civil suit by court below also becomes infructuous. The proceedings of this case cannot be stayed till disposal of Writ Petition No. 9864/2020 pending before the Delhi High Court. Thus, I.A.No.5420/2021 is hereby dismissed.
12. Further, the appellant has still not complied with the peremptory order dated 08.7.2021 and not paid welfare fee on Vakalatnama, Certified copy of impugned order and notarized affidavits.
13. In the result, this appeal is hereby dismissed.
Signature Not Verified SAN(SMT. ANJULI PALO) JUDGE RM Digitally signed by RAJESH MAMTANI Date: 2022.04.20 19:09:04 IST