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08th September, 2014 M/S C L MICROMED PVT LTD. ......Petitioner
Through: None
Through:
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
C.M.No.17028/2013
JUDGMENT
1. For the reasons mentioned in the application, delay of 65 days in refiling the petition is condoned.
2. Application is disposed of.
1. This petition under Article 227 of the Constitution of India is filed by the petitioner/plaintiff in the suit impugning the order dated 30.5.2013 by 2014:DHC:4479 which the trial court has dismissed the application under Order XII Rule 6 of Code of Civil Produce, 1908 (CPC).
2. The subject suit is a suit for recovery of Rs.18,73,801/- against a carrier. I may note that even if a carrier wants to contract out of its liability, it cannot contract out of willful misconduct/gross misconduct. This has been held by a learned Single Judge of this Court in the case of Vij Sales Corporation Vs. Lufthansa German Airlines AIR 2000 Delhi 220.
3. Whether or not, there is willful misconduct in order for the plaintiff to succeed, is a disputed question of fact which will have to be proved by the plaintiff if it wants to succeed in the suit for recovery, and therefore decree could not have been passed under Order XII Rule 6 CPC.
4. Dismissed.
VALMIKI J. MEHTA, J SEPTEMBER 08, 2014 KA