Final Order 1

Order Details: Other
Pdf Text: MHCC010003612020 Presented on 09/01/2020
Registered on 09/01/2020
Decided on 12/06/2024
Duration 04Y: 05M: 03D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO.05 OF 2020
IN
SUMMARY SUIT NO.682 of 2016
Air India Ltd., ]
a company incorporated under the ]
Companies Act, 1956, having its ]
Registered office at Airlines House, ]
113, Gurudwara Rakabganj Road ]
New Delhi and Corporate office at ]
Air India Building Nariman Point, ]
Mumbai 400 021. ]… Plaintiffs
Vs. ]
1. M/s. Sovika Airlines Services Limited, ]
Having its registered office at ]
B/2, Parekh Mahal, 30, Veer Nariman ]
Road, Mumbai 400 020. ]
2. White Airways, ]
A company incorporated under ]
Laws of Portugul, having its Head office ]
at Rua Hendrique Callado ]
Nr 4Piso2, Edificio OrangeLeiao ]
2740303 Porto Salvo, Portugal ]
Through their Authorized Representative ]
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In India ]
M/s. Sovika Airlines Services Limited, ]
Having office at : B/2, Parekh Mahal, ]
30, Veer Nariman Road, Mumbai 400 020.] … Defendants
Appearance:
Ld. Advocate Yasmin Sarang for the plaintiffs.
Ld. Advocate Rudra Deosthali i/b. Shardul Amarchand Mangaldas & Co.
for defendant No.2.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 12/06/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 07/12/2019. Defendant No.2 has filed its reply and
resisted with prayer to dismiss summons for judgment and prayed for
unconditional leave to defend. Defendant No. 1 failed to file its reply
therefore, order was passed on 08/08/2022 to proceed summons for
judgment without its reply.
02] As per the plaintiff, it is a registered company owned by
Government of India and is having National Flag Ship bearer in the field
of Air Transport and allied essential services having network through
out the world. Defendant No. 2 is a company registered under Laws of
Portugal and defendant No.1 is a company registered under the
Companies Act 1956. The plaintiff had floated a tender
No. EY/Haj/2013/1, dated 02/05/2013 and invited bids for Air travel
services on charter basis to undertake operations to Haj in the year
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2013. Defendant No. 2 had lowest tender for five stations i.e. Bhopal,
Indore, Ranchi, Goa and Mangalore. Accordingly, plaintiff entered into
an Agreement with defendant No. 2 on 19/07/2013. Defendant No. 2
had appointed defendant No. 1, a company registered under Companies
Act 1956 as its representative. The flights to Haj were operated under
Air India Call Sign, all the costs, expenses of the flight such as landing,
parking, handling, fuel etc. were billed to the plaintiff from Bhopal,
Indore, Ranchi, Goa and Mangalore and same were paid by the plaintiff
at the said stations on behalf of defendant No. 2. As per clause 4 (3) of
the Agreement these expenses were to be deducted by defendant No. 2
while making payment to them. The plaintiff has incurred an amount of
USD 1,03,784/. The plaintiff has paid agreed amount to the defendants
from time to time without deducting the expenses recoverable from
defendants. Thus, the amount of USD 1,03,784/ is due against the
defendants. As defendants failed to pay the said amount, legal notice
dated 13/08/2015 was issued to the defendant No.1 and called upon to
make the payment. Defendant No.1 has replied on 11/01/2016 to the
said notice and without disputing the amount due to the plaintiffs have
falsely contended that winding of notice is not maintainable against
defendant No.1. Thereafter, again plaintiff issued notice dated
20/02/2016 and demanded balance due against the defendants. The
defendant No.1 has replied to the said notice on 26/02/2016 and
denied the liability. The plaintiff is entitled to recover an outstanding
amount from the defendants along with interest at the rate of 18% p.a.
The plaintiff has filed relevant documents on record to substantiate its
contentions. The defence of the defendant No.2 is that it is a foreign
company and summons is not duly served on it. Further, issue of
limitation has been raised. The defendant No.2 has also raised
contention that suit is not maintainable however, the amount claimed
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by the plaintiff is on the basis of Agreement executed between the
plaintiff and defendant No.2, therefore, suit is maintainable. Hence,
summons for judgment may be allowed.
03] On the other hand, defendant No. 2 has submitted in its
reply to the summons for judgment and not disputed there was an
Agreement between the plaintiff and defendant No.2 in respect of
carriage of pilgrimage from India to Saudi Arabia for the festival of Haj
in view of tender No.EY/Huj/2013/1,dated 02/05/2013. The defendant
No. 1 was authorized by defendant No. 2 vide letter dated 23/03/2013
to represent defendant No. 2 in pursuance to the said tender. As per
the Agreement, it was the only bid for ferry of passengers for Haj from
India to Saudi Arabia at reasonable and affordable rates and obligations
of any payment lay from plaintiff to defendant No.2 in form of purchase
of tickets for the flight and not the other way around. As per the
contentions of the plaintiff, he has made payment for Airport charges on
behalf of defendant No. 2. Further, plaintiff has sent emails in respect
of said outstanding dues however, he has not annexed emails along
with the plaint. Further, plaintiff has not served defendant No.2 as per
Hague Convention. As per clause 2(j) of the Agreement, liability of
Airport charges was on the plaintiff and not defendant No.1. Therefore,
defendant No.2 is not liable to make any payment to the plaintiff.
Therefore, this suit is not maintainable in the present form. Further,
payment towards airport is not services provided by the plaintiff to the
defendant No.2, as flights were operated as per the instructions of the
plaintiff. Moreover, plaintiff has not raised any invoices in respect of
Airport charges to the defendant No.2. Therefore, whether plaintiff has
provided service to the defendant No.2 is to be decided on evidence.
The plaintiff has not filed any documents to show that how defendant
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No.2 is liable to pay the charges to the plaintiff. Therefore, it is
necessary to lead the evidence by the plaintiff to prove the same. Thus,
the defendant No.2 has raised substantial defence and triable issues
which requires evidence. The defendant No.2 has terminated the
Agreement at the end of 2013 and last payment was received from the
plaintiff to defendant No.2 on 05/12/2013. Therefore, considering the
defence raised by the defendant No.2, it may be granted an
unconditional leave to defend the suit.
04] Perused summons for judgment, reply of defendant No. 2,
and documents filed on record. On perusing pleading of the parties, it
appears that it is not disputed that plaintiff and defendant No.2 had
entered into Charter Agreement dated 19/07/2013 in respect of Bhopal,
Indore, Ranchi, Mangalore and Goa of the defendant No.2 was
accepted. It is also not disputed that defendant No.1 was appointed as
a representative of defendant No. 2 by it. Further, both parties have not
disputed the terms and conditions in the Charter Agreement dated
19/07/2013. As per the plaintiff, clause 8(u) of the said Agreement
states that defendants No 1 and 2 are jointly and severally responsible
for obligations under the contract of Haj 2013.
05] As per clause 3 of the said Agreement the first party i.e.
plaintiff shall make payment of per pilgrim for different stations as
mentioned in the Agreement. Further, first party shall pay to the second
party, passengers service fee, User development fee, Saudi Airport tax
and Saudi Airport Service charges on receipt of the same from Haj
community. The service Tax shall be paid by the plaintiff to the Service
Tax Authorities. As per clause 4, payment for the services provided by
the operator for Haj 2013, it was subject to receipt of money from
MOCA and HCOI, deduction of all expenses incurred and services
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provided by the plaintiff to the defendant No. 2 and after receipt of
custom certified, manifest copies for phase I and copies of invoice. As
per the plaintiff they have incurred expenses and made excess payment
to the defendant No.2 without deducting any expenses. Therefore, an
amount of USD 1,03,784/ is due against the defendant No.2. It is
pertinent to note that plaintiff has filed original documents on record
vide list Exh.2 i.e. Agreement dated 19/07/2013, Letter dated
01/08/2016 issued by the defendant No.1 to the plaintiff and Letter
dated 01/06/2017 issued by the plaintiff to the defendant No.1. It is
pertinent to note that there is no letter or notice filed on record issued
to the defendant No. 2. Even, plaintiff has not pleaded how much
amount is paid to the defendant as per agreement only it is stated an
amount of USD 1,03,784/ is due.
06] On perusing Letter dated 01/08/2016 issued by the
defendant No.1 to the plaintiff, it appears that defendant No.1 has
shown his willingness to settle the matter by paying 70% amount
against outstanding amount due from the defendant No.2. As discussed
above, defendant No.1 has not filed his reply to the summons for
judgment. Further, plaintiff has issued letter dated 01/07/2018 and
agreed and settle matter by accepting 70% amount against due amount
towards full and final settlement. This shows that defendant No.1 has
admitted and accepted the liability.
07] So far as, defendant No. 2 is concerned, they have raised
the substantial defence that there is no clause in the Agreement that
plaintiff is entitled to Airport charges from the defendant No.2.
Moreover, plaintiff has not filed other relevant documents showing that
they have incurred the alleged expenses. The plaintiff has not pleaded
about Airport charges only but other expenses also. However, plaintiff
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has not filed any documents to show how much expenses has incurred
and any communications between plaintiff and defendant No.2 via
email. Even, plaintiff has not sent notice to defendant No. 2 and called
upon pay outstanding amount. Therefore, it appears that the defendant
No. 2 has raised substantial defence and triable issue that no amount is
due against it.
08] The defendant No. 2 has also raised issue that he has not
properly and duly served summons as it is the foreign company
registered under the foreign law. As per Section 29 of the Civil
Procedure Code, if any foreign summons has to be served, then it must
be sent to the Court in the territory where the Court applied and they
will further serve the summons as if it had been issued by them.
Admittedly, it appears that plaintiff has not followed the said
procedure. Thus, the defendant No. 2 has raised the substantial defence
and triable issues. Therefore, I am of the view that defendant No. 2 is
entitled for unconditional leave to defend the suit. However, as
discussed above, defendant No.1 has failed to file reply, contest the
summons for judgment and admitted the liability. Therefore, I proceed
to pass following order:
O R D E R
1] Summons for judgment No. 05/2020 is disposed off as follows :
(a) Defendant No.1 is granted conditional leave to defend the suit
subject to depositing 70% amount of outstanding dues in the
Court within one month.
(b) After depositing said amount, defendant No.1 is entitled to
file its written statement on record within next 30 days.
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(c) Defendant No. 2 is granted unconditional Leave to defend the
suit and further directed to file its written statement within 30
days from the date of order.
2] Summons for judgment No. 05/2020 is disposed off accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 12/06/2024 C.R.No.81
Dictated on:12/06/2024
Corrected & signed on:18/06/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
19/06/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER
12/06/2024
JUDGMENT/ORDER signed by P. O. on 18/06/2024
JUDGMENT/ORDER uploaded on 19/06/2024
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