Karnataka High Court
Jet Air (P) Ltd. vs Kingfisher Airlines Limited on 4 September, 2013
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 04TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE K.L.MANJUNATH
WRIT PETITION NO.6922/2011 (GM-CPC)
BETWEEN :
Jet Air (P) Ltd.
Reg. Off at House No.13
Community Center
Yusuf Saral
New Delhi - 110049.
Represented by its
General Manager ....Petitioner
(By Sri. W.M.Sundara Murthy, Adv.,)
AND :
1. Kingfisher Airlines Limited
A company incorporated under the
Provisions of the Companies Act, 1956
Having its registered office at
The UB Group, UB Tower
Level 12, UB City
No.24, Vittal Mallya Road
Bangalore - 560001.
Represented by its Senior Legal Manager
Mr.A.Hamid, Major
2. HAL - Air India Joint Working Group
Having its office at Gate No.30
Near HAL International Airport
Vimanapura P.O.
2
Bangalore - 560017.
Represented by its
Chief Executive Officer, Major
3. Mr. Mathbar Singh Rawath
S/o M.Mansingh
Aged about 66 years
Residing at No.86/B, MES Colony
Konena Agrahara
Vimanapura Post
Bangalore - 560017.
4. Hindustan Aeronautics Ltd.
A company having its registered office
At 15/1, Cubbon Road
Near K.S.C.A. Stadium
Bangalore - 560001.
Represented by its Managing Director
5. Air India Ltd.,
A company having its registered office
At Air-India Building
Mumbai - 400 021.
Represented by its
Managing Director, Major ...Respondents
(By Sri C.K.Nanda Kumar, Adv., for R1,
Sri G.H.Vishwanath for
M/s.Fox Mandal Assts., for R2, 4, 5,
R3 - Notice Dispensed with)
....
This Petition is filed under Articles 226 and
227 of the Constitution praying to quash the order
dated 8.12.2010b vide Annexure-A, passed by the
XL Additional City Civil Judge, Bangalore in
O.S.No.8682/2007.
3
This Petition coming on for Preliminary
Hearing in B Group this day, the Court made the
following:
ORDER
The petitioner has questioned the legality and correctness of the order passed on 8-10-2010 on I.A.No.I/2009 by the XL Additional City Civil Judge, Bangalore.
2. Heard the learned counsel for all the parties.
3. King Fisher Airlines Limited filed the suit against respondents-2 to 5 herein for recovery of certain amount towards damage caused to its aircraft on account of the negligence of respondent No.3.
4. In the suit, the 5th respondent herein M/s. Air India Limited filed an application to implead the present writ petitioner M/s.Jet Air (P) Ltd., as additional defendant on the ground that defendants have entered into an agreement with M/s. Jet Air (P) Ltd., for establishing and running ramp handling services at HAL airport, and therefore HAL Air India Joint Working Group i.e., the first defendant came into existence and in turn the first defendant entered into an agreement 4 with Jet Air Ltd., for providing services relating to ramp handling, cargo handling, push back services etc., In terms of the agreement entered into between the first defendant and Jet Air Ltd., the Jet Air Ltd., has to indemnify the first defendant against all liabilities, costs, claims or suits, demands, penalties etc., The said application was resisted not only by the writ petitioner but, also by the plaintiff. Still the Court has allowed the application filed by the writ petitioner and the writ petitioner is ordered to be arrayed as 5th defendant in the suit. This order is called in question in this writ petition.
5. Mr.Sunder Murthy, learned counsel for the petitioner contends that petitioner is not a necessary or a proper party to indemnify the first defendant. He does not dispute the agreement entered into between the defendants and the writ petitioner. It is also not in dispute that the contract entered into between the first defendant and the writ petitioner is more in the nature of indemnifying the first defendant.. If a suit is filed by M/s.King Fisher Airlines against the defendants and if 5 there is an agreement between the first defendant and the writ petitioner to indemnify the first defendant and if an application is filed by the fourth defendant to implead the writ petitioner as an additional defendant to indemnify the first defendant, this court cannot find fault with the same. However, it is the contention of Mr.Sundar Murthy that in a suit filed by M/s. Kingfisher Airlines against defendants 1 to 4 he cannot be arrayed as a party because of the arbitration clause in the agreement entered into between the first defendant and the writ petitioner and that on the date of filing of the application to implead the writ petitioner as a party the claim against the petitioner is barred by limitation.
6. The learned counsel for the respondents submitted that the petitioner has already raised these contentions.
7. When the writ petitioner has already raised the contention of limitation and maintainability and also the arbitration clause entered into between the first defendant and the writ petitioner in the agreement, it is 6 for the trial court to frame preliminary issues on these points and consider the case of the parties on merits and in accordance with law. Considering the nature of agreement entered into between the first defendant and the writ petitioner, the writ petitioner is standing more in the nature of Insurance Company to indemnify the first defendant and in such an event if an application is filed by the fourth defendant this court cannot find fault with the order of the trial court. However, the preliminary objections raised by the writ petitioner in regard to maintainability, limitation and arbitration clause shall be considered by the trial court by framing preliminary issues and dispose of the same in accordance with law.
8. Accordingly, the petition is disposed of.
Sd/-
JUDGE.
NT/-