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HIGH COURT OF DELHI
CS(OS) 1117/2013
JUDGMENT
Through: Mr.Saurabh Tiwari, Advocate
Through: Mr.Abhijeet Swaroop, Advocate
Arbitration & Conciliation Act)
1. Defendant has filed the IA.No.16227/2014 under Order 8 of the Arbitration & Conciliation Act for referring the dispute between the parties, subject matter of the present suit, to arbitration in view of the arbitration clause contained in the letter of appointment dated 21.10.2008.
2. IA.No.16773/2013 has been filed by the defendant seeking leave to defend. Both the applications [IA.No.16227/2014 & IA.No.16773/ 2013] are being disposed of by a common order.
3. Plaintiff has filed the present suit under the provisions of Order 37 Code of Civil Procedure. The suit is based on a written agreement being the appointment letter. As per the plaint, the plaintiff was appointed as a “Transition Captain” for A320 w.e.f. 14.10.2008 vide appointment letter dated 21.10.2008 with a consolidated salary of Rs.4.30 lacs per month, which was subsequently increased to Rs.4.55 lacs per month from July, 2014:DHC:4536 2011 onwards. On account of financial mess, the defendant was unable to pay salary to most of its pilots, including the plaintiff. The defendant was in arrears of paying salary to the plaintiff for the months of December, 2011 and January to March, 2012. With no option the plaintiff resigned vide e-mail dated 12.8.2011. The resignation was withdraw vide e-mail dated 3.2.2012, which was accepted by the defendant by their e-mail dated 8.2.2012. The resignation was withdrawn by the plaintiff in view of assurances rendered by the defendant that they would soon resume the operations and would clear all the dues.
4. Despite plaintiff having resumed his job, the situation did not change. Plaintiff again vide e-mail dated 13.3.2012 submitted his resignation which was accepted. Plaintiff has not received salary for the months of December, 2011 and January to March, 2012. The details of due, as claimed by the plaintiff are as under: “Gross Salary: Rs.4,55,000/- X 3 (December, 2011 and January to February, 2012) = Rs.13,65,000/- 12 days salary of March, 2012 = Rs.1,90,000/- Over time of December (5 hrs.) = Rs. 15,000/- Over time of February (3 hrs.) = Rs. 9,000/- 48 days leave encashment @ Rs.2066/- = Rs. 99,168/- Interest @ 18% per month = Rs.3,77,678/- Rs.20,55,846/-”
5. Plaintiff claims to have made various requests to the defendant to clear the dues, but no payments were made, resultantly the present suit has been filed. As per the plaint, plaintiff was appointed at Delhi, he was posted at Delhi, salary was paid at Delhi, hence, this court has the territorial jurisdiction to entertain the present suit.
6. The defendant has filed IA.No.16773/2013 for unconditional leave to defend on the ground that there is an arbitration clause between the parties, and this Court has no territorial jurisdiction to try and entertain this matter. Counsel for the defendant also submits that in view of clause 17 of the letter of appointment, jurisdiction has been conferred on the courts at Mumbai.
7. Unconditional leave is also sought on the ground that the plaintiff was obliged to serve defendant company for a minimum period of five years from the date of joining which period would have expired on 20.10.2013, however, the plaintiff resigned from the services of the defendant without serving the commitment period, which is a clear breach of the agreed term of the letter of appointment. Besides, in case the plaintiff resigned prior to the completion of the commitment period, the plaintiff was liable to pay liquidated damages. Six months’ notice period was also required prior to the acceptance of the resignation.
8. It is further the case of the defendant that in the absence of the original documents having been filed, the present suit is not maintainable under Order 37 Code of Civil Procedure.
9. Counsel for the plaintiff submits that all the defences sought to be raised by the defendant have been subject matter of at least three earlier suits decided by this Court i.e. CS(OS)No.1151/2013 titled Captain Amar Bhatia Vs. The Kingfisher Airlines Limited and two other suits one of them is CS(OS)No.1063/2013 titled Dinesh Kant Sharma Vs. The Kingfisher Airlines Ltd.’.
10. Counsel for the plaintiff submits that all the above said suits were identical. They all pertains to pilots, based on appointment letter, all the suits are related to non-payment of salary, objections with regard to the jurisdiction and arbitration was raised. It is also submitted that in those suits the applications for leave to defend were decided against the defendants.
11. Counsel for the defendant submits that this case is no different from the abovesaid cases. Counsel for the defendant submits that in those cases no application under Section 8 of the Arbitration & Conciliation Act was filed and thus there was no opportunity for the Court to decide this objection.
12. I have heard counsel for the parties and considered their rival submissions. Leave to defend is sought by the defendant firstly on the ground that this Court has no territorial jurisdiction in view of the fact that parties had agreed to confer jurisdiction over the Courts at Mumbai. This ground was raised in the similar matters as well and rightly rejected.
13. The objection with regard to the territorial jurisdiction is also without any force, for the reason that jurisdiction cannot be conferred on a Court where no part of cause of action has arisen. The plaintiff was appointed as a pilot for Delhi, which is evident from reading the letter of appointment. This aspect was also considered in para 10 in the case of Captain Amar Bhatia (Supra), which reads as under:
14. The second ground raised is with regard to the existence of an arbitration clause and for which I.A.16227/2014 has been filed under Section 8 of Arbitration and Conciliation Act, 1996. The argument also stands rejected by another Single Judge of this Court in an identical matter.
15. In the case of Captain Amar Bhatia Vs. The Kingfisher Airlines Limited [CS(OS)No.1151/2013], the defendant did raise the question of an arbitration clause. The Judge dealt with this objection in the following manner:
16. I am in respectful agreement with the finding for the reason that the plaintiff has claimed salary for 3 months. The quantum of salary is not in dispute. Since the quantum of salary is not in dispute, I am of the view that there can be no dispute which can be referred to arbitration. I, however, add that the plaintiff had agreed that if the matter is referred to an arbitrator in Delhi and the fee is to be paid by the defendant he was agreeable to the same. But this offer was declined by the defendant on the ground that proceedings are to be held in Mumbai.
17. Given the present financial condition of the defendant of which this Court can take judicial notice, no purpose is going to be achieved by referring this matter to arbitrator when in fact nothing remains to be adjudicated upon.
18. The defendant seeks unconditional leave also on the ground that the original appointment letter has not been filed. As far as non-filing of the letter of appointment is concerned, counsel for the plaintiff on instructions submits that the said letter has been mis-placed.
19. No doubt it is settled law that in a suit under Order 37 CPC original documents are to be placed on record. Even otherwise, as per Order 7 Rule 14 CPC original documents on which the suit is based, is to be filed along with the plaint, this by itself will not be a ground to disentitle the plaintiff to a decree. However, taking into consideration the peculiar facts and more particularly that the appointment letter is not in dispute, I am of the view that the defence raised in this leave to defend is neither bona fide nor plausible and reasonable. The defence is sham and moonshine and is only to be rejected in the light of the parameters laid down by the Apex Court in the case of M/s.Mechalee Engineers & Manufacturers Vs. M/s.Basic Equipment Corporation AIR 1977 SC 577. Relevant praras of the judgment reads as under:
20. Resultantly both the applications [I.A. 16773/2013 & I.A. 16227/2014] are dismissed. CS(OS) 1117/2013
21. In view of the order passed in the applications [I.A. 16773/2013 & I.A. 16227/2014] plaintiff is entitled to a decree. Counsel for the plaintiff restricts his prayer for the salary of three months and 12 days with pendente lite and future interest @10%. Decree-sheet be drawn up accordingly. G.S.SISTANI, J SEPTEMBER 09, 2014 ssn