Delhi District Court
M/S Spicejet Limited vs Mr. Ajay Kumar Singh on 2 December, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 515563/2016
CNR No. DLSW010007982015
IN THE MATTER OF:
1. M/s Spicejet Limited
Through Ms. Rachna Joshi
Authorized Representative
Spicejet Limited
Terminal - 1D,
Indra Gandhi International Airport
New Delhi - 110037
Also at:
319, Udyog Vihar, Phase - IV
Gurgaon, Haryana -- 122016 ... Plaintiff
v.
1. Mr. Ajay Kumar Singh
House # 62, Aditya Avenue
Airport Road
Bhopal - 462032
Madhya Pradesh, India
Also at:
701, Kalpana Tower
Vishu Puri, Kanpur - 208002 ... Defendant
CS DJ ADJ No. 515563/2016
Page No. 1/14
Date of filing of suit: 17.07.2015
Date of institution of suit: 20.07.2015
Date of filing of application(s): 26.05.2016
Date of order reserved: 22.11.2019
Date of pronouncement of order: 02.12.2019
ORDER
02.12.2019
1. The plaintiff, namely, Spicejet Ltd. (hereinafter "plaintiff") has preferred a summary suit for recovery of money to the tune of ₹10,00,000/- (Rupees Ten lakhs only) against the defendant, namely, Ajay Kumar Singh (hereinafter "defendant") under Order XXXVII, of the Code of Civil Procedure, 1908 (hereinafter "CPC").
2. The case urged by the plaintiff as per the plaint is that the defendant was employed as a transition Captain in the flight operations department. During the course of his employment, the defendant was sent for a training program as a transition Captain for a Bombardier DHC-8 Series 400 (Q 400) aircraft, in regard of which an indemnity bond cum service undertaking dated 21.11.2011was signed and executed by the defendant in favour of the plaintiff. The training was in context of flight safety and the same conducted at Toronto, Canada. The defendant was sent for the training by the plaintiff and all CS DJ ADJ No. 515563/2016 Page No. 2/14 the expenses were incurred by the plaintiff, as the defendant had represented to the plaintiff that he would work for a minimum period of 3(three) years in discharge of his duty and functions as assigned by the management of the plaintiff in lieu of the training cost. The defendant deposited 5(five) cheques with the plaintiff to cover up the tangible and other intangible costs of the training in the event the defendant leaves the employment of the plaintiff before completion of the agreed minimum period of 3 (three) years.
3. The defendant attended the training period and on account of his performance being assessed below standard by the pilot review board, the services were terminated by termination order dated 21.06.2012. On account of the termination of the defendant being in contravention of the terms and conditions enshrined in the letter of appointment, the plaintiff is entitled to seek reimbursement of the training cost incurred from the defendant. The plaintiff presented all five cheques for encashment with its banker, namely, ICICI Bank, Connaught Place, New Delhi. Though, all the five cheques were drawn for an amount of ₹2,00,000/- (Rupees Two lakhs only) each upon State Bank of India, branch MLA Rest House, Bhopal, Madhya Pradesh but out of the five cheques, the 4(four) cheques were dated 06.07.2012 and the fifth cheque dated 07.07.2012. All the five cheques were returned dishonoured by cheque returning memos dated 11.07.2012 on account of insufficient funds. The plaintiff on 24.07.2012 issued a legal notice to the defendant calling upon him to CS DJ ADJ No. 515563/2016 Page No. 3/14 pay the amount of the dishonoured cheques within 15 days from the date of the receipt of the cheque. The plaintiff has averred in the plaint that the defendant replied to the notice and made false averments, which were contrary to the contractual terms and the defendant chose not to pay the whole of the agreed amount to the plaintiff. Hence, the summary suit for recovery of ₹10,00,000/- (Rupees Ten lakhs only).
4. Pursuant to the service of summons under Order XXXVII, CPC, the defendant filed appearance and thereafter on issuance of summons for judgment at the application of the plaintiff, the defendant filed an application seeking leave to defend the suit under Order XXXVII, Rule 3(5) of the Code of Civil Procedure, 1908 (hereinafter "CPC") against the summary suit preferred by the plaintiff.
5. The main plank of the defence urged by the defendant in his leave to defend application are that no cause of action had arisen within the jurisdiction of this court and the suit preferred by the plaintiff is barred by law of limitation. It is also urged by the defendant in his application seeking leave to defend that the cheques in question were issued as security cheques and the same were undated, with the unilateral termination of defendant's employment being bad and erroneous, no occasion arose for the plaintiff to present the cheque for encashment. It is also urged by the defendant in his leave to defend application that the practice of taking undated cheques from a needy employee is illegal, unethical and an unfair practice. In short, the defendant has sought leave to defend the suit on the ground CS DJ ADJ No. 515563/2016 Page No. 4/14 that triable issues arise for adjudication and no ground for judgment is made out in the favour of the plaintiff under Order XXXVII, CPC.
6. Mr. Ompal Singh, learned counsel for the defendant and Mr. Shiv B. Chetry, learned counsel for the plaintiff advanced their arguments on the present application under consideration.
7. Mr. Singh, learned counsel for the defendant submitted that no case in favour of the plaintiff for a judgment under Order XXXVII, CPC is made out, as the plaintiff has misused the security cheques. The learned counsel for the defendant submitted that this is a classic case of an abuse of dominant position by a mighty corporation against a hapless employee, an employee, who was terminated by the plaintiff company during the course of his training. The learned counsel for the plaintiff submitted that it is wholly unbelievable that the defendant, who served with the Indian Air Force for over 25 years was found incompetent during training itself.
8. The learned counsel for the defendant further submitted that the five cheques in question on the basis of which the plaintiff has preferred the present summary suit were taken as security cheques along with the indemnity bond/undertaking and the same were presented for encashment without knowledge and consent of the defendant. The learned counsel for the defendant further submitted that the cheques were blank cheques at the time of being handed over to the plaintiff but the date in them had been filled by the plaintiff in a whimsical manner.
CS DJ ADJ No. 515563/2016 Page No. 5/149. Mr. Singh, learned counsel for the defendant submitted that an amount more than ₹5,00,000/- (Rupees Five lakhs only) is lying with the plaintiff and the same has not been returned to the defendant despite his termination from employment and yet the plaintiff preferred a false summary suit in utter abuse of process of law.
10. Mr. Singh, learned counsel for the defendant submitted that no cause of action had arisen within the territorial jurisdiction of this court and the suit is bound to dismissed. The learned counsel for the defendant submitted that not only defendant joined his employment and signed the indemnity bond/undertaking but also his initial training was imparted at Gurgaon, Haryana. The learned counsel further stated that thereafter the training was imparted at Toronto, Canada. The learned counsel further submitted that the cheques were presented for payment by the plaintiff at Connaught Place, New Delhi and the same were dishonoured at Bhopal, Madhya Pradesh and both the places are not situated within the territorial jurisdiction of this court. The learned counsel further drew attention of the Court to the indemnity bond- cum-service undertaking that the same is on a stamp paper of ₹100/- (Rupees One hundred only) from the State of Madhya Pradesh.
11. The learned counsel for the defendant submitted that very termination reeks of mala fide as the same is apparent from the averments urged by the plaintiff in the plaint. The learned counsel further submitted that the training at Toronto, Canada commenced from 28.05.2012 and by 03.06.2012, the defendant was found CS DJ ADJ No. 515563/2016 Page No. 6/14 incompetent and a termination notice dated 21.06.2012 was issued to the defendant. The learned counsel for the defendant further submitted that without any intimation and knowledge, the plaintiff presented the five cheques for payment in the first week of July 2012 and the same were dishonoured. The learned counsel for the defendant submitted that such swift and one-sided action by the plaintiff entitle the defendant for an unconditional leave to defend, as the defendant not only raised triable issues but also has substantial defence to thwart the money claim of the plaintiff.
12. Lastly, the learned counsel for the defendant submitted that the summary suit preferred by the plaintiff against the defendant is barred by law of limitation. The learned counsel for the defendant further submitted that the plaintiff has preferred the summary suit beyond the prescribed period of 3 years and the same be dismissed. The learned counsel for the defendant submitted that the cheques are dated 07.07.2012 and the same were dishonoured on 11.07.2012, whereas the plaintiff filed the plaint before the court on 17.07.2015, which is well beyond the prescribe period. To buttress his arguments, learned counsel for the defendant placed reliance upon the judgments passed by the Hon'ble Supreme Court in Urvashiben & Anr. v. Krishnakant Manuprasad Trivedi1 and by the Hon'ble High Court of Delhi in Virender Kumar Jain v. M/s Alumate (India) Pvt. Ltd.2 1 Civil Appeal No. 12070-12071/2018 arising out of SLP(Civil) No. 23062-23063 of 2018 date of decision 14.12.2018 :: 2018 SCC OnLine 2833 2 RFA No. 153/2004 date of decision 02.03.2012 CS DJ ADJ No. 515563/2016 Page No. 7/14
13. To the contrary, Mr. Shiv B. Chetry, learned counsel for the plaintiff submitted that no case for leave to defend be it conditional and/or unconditional leave to defend is made out in favour of the defendant, and whereas a clear case for a judgment in favour of the plaintiff is made out under Order XXXVII, CPC, as the cheques in question are not denied by the defendant.
14. Mr. Chetry, learned counsel for the plaintiff channelised his arguments on the twin-prong challenge flanked by the learned counsel for the defendant. The learned counsel submitted that substantial cause of action arose within the territorial jurisdiction of this Court, as the registered office is based within the territorial jurisdiction of this Court. In support of his submissions, the learned counsel placed reliance upon the judgment pronounced by the Hon'ble High Court of Delhi in Boston Scientific International BV v. Metro Hospital.3 The learned counsel further submitted that the plaintiff on 22.11.2019 filed the proof of the registered office address, which is situated within the territorial jurisdiction of this court.
15. The learned counsel for the plaintiff submitted that the contention urged by the learned counsel for the defendant that the suit preferred by the plaintiff is barred by law of limitation is fallacious and incorrect. The learned counsel for the plaintiff submitted that subsequent to the dishonour of cheques, the plaintiff issued a demand notice dated 24.07.2012 under Section 138 of the Negotiable 3 2007 (136) DLT 278 CS DJ ADJ No. 515563/2016 Page No. 8/14 Instruments Act, 1881 and though the same was replied by the defendant but the defendant did not make any payment. The learned counsel for the plaintiff further submitted that the cause of action arose not only on date of issuance of demand notice but also on the date when the defendant replied to the plaintiff's notice and the summary suit preferred by the plaintiff seeking recovery of money is well within the prescribed period.
16. Mr. Chetry, learned counsel for the plaintiff placed reliance upon Satti Parabas Samadhi and Philliar Temple v. M. Shakuntala 4 and submitted that assuming for the sake of arguments that the challenge flanked by the defendant for the suit being time barred, yet the same is a mixed question of law and fact and for that reason no case for dismissal of suit is made out in favour of the defendant.
17. The powers vested in the Court, particularly, under Order XXXVII, Rule 3, CPC is a discretionary power to grant leave to the defendant to defend the suit and the same should be exercised judicially, judiciously and on sound legal principles.
18. To determine whether the defendant is entitled for a leave to defend the suit, I would first deal with the challenge foisted by the defendant that the suit being barred law of limitation, as the same is of primordial importance.
19. The plaintiff has preferred a summary suit for recovery of ₹10,00,000/- (Rupees Ten lakhs only) along with pendente lite interest 4 (2015) 5 SCC 674 CS DJ ADJ No. 515563/2016 Page No. 9/14 and future interest @ 18%p.a. against the defendant on the basis of 5(five) cheques, which are dated 06.07.2012 and 07.07.2012. It is the case of the plaintiff that the cheques were dishonoured on 11.07.2012 and thereafter the plaintiff issued a demand notice dated 24.07.2012 to the defendant under Section 138 of the Negotiable Instruments Act, 1881 and despite receipt of the said demand notice, the defendant did not make payment as per the indemnity bond -cum-undertaking and the terms and conditions agreed upon in the appointment letter. The learned counsel for the plaintiff submitted that the plaint filed on 17.07.2015 is well within the prescribed period of limitation.
20. To the contrary, the defendant in his defence has urged that the summary suit preferred by the plaintiff is barred by limitation as the same has been filed beyond the period of 3(three) years. The defendant has also urged in his defence that the cheques were security cheques and the same have been misused by the plaintiff.
21. This Court observes that the admitted position between the parties that the plaintiff's summary suit is based upon 5(five) dishonoured cheques, which were dated 06.07.2012 and 07.07.2012 respectively. It is also not disputed between the parties that the cheques were dishonoured on 11.07.2012.
22. Article 35 of Part II - Suits Relating to Contracts, First Division
- Suits of the Schedule to the Limitation Act, 1963 reads as under:
CS DJ ADJ No. 515563/2016 Page No. 10/14Description of Suit Period of limitation Time from which period begins to run
35. On a bill of Three years The date of the bill or exchange or note promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue
23. On bare perusal of Article 35 of Part II - Suits Relating to Contracts, First Division - Suits of the Schedule to the Limitation Act, 1963, it is apparent that the suit ought to have been filed by the plaintiff within the period of 3 years from the date of the bill of exchange or note (read as cheques) i.e. 06.07.2012 and 07.07.2012, respectively. However, the summary suit for recovery of ₹10,00,000/- (Rupees Ten lakhs only) along with pendente lite interest and future interest @ 18% p.a. was filed by the plaintiff on 17.07.2015. It is observed that the 3(three) years prescribed period from the date of the cheques expired on 06.07.2015 and 07.07.2015, respectively.
24. The King's Bench Division in R.B. Policies at Lloyd's v. Butler5 in an action arising out of a return of a motor vehicle, which was alleged to be wrongfully detained by the defendant, as the same was stolen from the plaintiff by some unknown person. The Bench while determining when the cause of action arose observed and foisted 5 (1949) 2 All ER 226 (KBD) CS DJ ADJ No. 515563/2016 Page No. 11/14 the principle of a cause of action being barred under the Limitation Act, 1939. The relevant extract of the aforesaid judgment is reproduced as under:
"Can it be said, therefore, that, the cause of action being otherwise complete the ignorance of the plaintiff regarding the person who committed the conversion is sufficient to prevent the accrual of that cause of action? I think not, and I agree with the argument of counsel for the defendant. It would lead to appalling results if someone, having lost a watch and discovered it fifty or sixty years later in the possession of a wholly innocent person who had bought it many years previously, was able to bring action for its recovery merely because he did not know who the thief was fifty or sixty years before. I cannot think that that is the policy of the Limitation Act, 1939. I agree that on of the principles of the Act is that those who go to sleep on their claims should not be assisted by the Courts in recovering their property. But another equally important principle is that there shall be an end of these matters, and that there shall be protection against stale demands. In A' Court v. Cross [(1825) 3 Bing. 329] Best, C.J., referred to the policy of the Limitation Act, 1923, in this way:
"It has been supposed that the legislature only meant to protect persons who had paid their debts, but from length of time had lost or destroyed the proof of payment. From the title of the Act to the last section, every word of it shows that it was not passed on this narrow ground. It is, as I have heard it often called by great judges, an act of peace. Long dormant claims have often more cruelty than of justice in them."CS DJ ADJ No. 515563/2016 Page No. 12/14
I am not suggesting that the plaintiffs here was guilty of heartlessness or cruel conduct, but a claim made seven or eight years after the loss of the car against a perfectly innocent holder who has given good consideration for it without any knowledge that it was stolen does not seem just. I think that one object of this Act is to prevent injustices of that kind and to protect innocent people against demands which are made many years afterwards. In my view, the proper construction of the words "the action accrued" involves the finding that the cause of action here accrued in 1940 when the car was stolen from the plaintiffs. This preliminary point must, therefore, be decided in favour of the defendant."
[Emphasis added by underlining and highlighting of text]
25. The reliance placed by the learned counsel for the plaintiff on reliance upon Satti Parabas Samadhi and Philliar Temple v. M. Shakuntala6 is misplaced, merely for the reason that in the present case, the question of limitation is not a mixed question of law and fact. Article 35 of Part II - Suits Relating to Contracts, First Division - Suits of the Schedule to the Limitation Act, 1963, unequivocally provides the limitation period of 3 years from the date of the cheques. The plaintiff has based its money claim under Order XXXVII, CPC, on the cheques, which are dated 06.07.2012 and 07.07.2012, thus the limitation period of 3 years would run from the dates of the cheques and not from issuance of demand notice under Section 138, Negotiable Instruments Act, 1881 and/or from the date of the reply to 6 (2015) 5 SCC 674 CS DJ ADJ No. 515563/2016 Page No. 13/14 said notice by the defendant. In short, the plaintiff's claim is time barred.
26. I, observe that dealing with the other grounds urged by the defendant in the leave to defend application, such as no cause of action arose within the territorial jurisdiction of this Court would be a futile exercise, as the summary suit preferred by the plaintiff under Order XXXVII, CPC is held to be time barred.
27. In view of the Article 35 of Part II - Suits Relating to Contracts, First Division - Suits of the Schedule to the Limitation Act, 1963 and the legal principle culled out in R.B. Policies at Lloyd's v. Butler 7 the plaintiff's claim against the defendant on the basis of 5 (five) cheques is time barred and hit by law of limitation. Accordingly, the plaint is rejected. The costs of the suit are awarded to the defendant, as the defendant battled the legal proceedings for over 4(four) years in a stale claim initiated by the plaintiff against him.
28. File be consigned to record room only after due compliance and necessary action, as per Rules.
Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI
SINGH JAGGI
Date: 2019.12.02
16:02:23 +0530
Pronounced in the open Court (Hargurvarinder Singh Jaggi)
on December 02, 2019 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
7 ibid.
CS DJ ADJ No. 515563/2016
Page No. 14/14