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2017 Supreme(Del) 4558
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
SPICEJET LTD. - PETITIONER
Versus
ARUN KUMAR - RESPONDENT
CM(M) 1269 of 2017
Decided On : 10-11-2017
For the Petitioner: Mr. Kapil Sankhla, Mr. Shiv B. Chetry
The need for evidence in cases of indemnities and the limitations of summary procedure in such cases.
Headnote:
Article 227 - Civil Procedure Code - Order XXXVII - Section 115 of CPC - Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation (1976) 4 SCC 687, Siri Krishan Bhardwaj Vs. Manohar Lal Gupta AIR 1977 Delhi 226 (DB), Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524 - The court discussed the maintainability of a petition under Article 227 of the Constitution of India in the context of a leave to defend application, and emphasized that a Revision Petition under Section 115 of CPC is the appropriate remedy. The court also highlighted the need for evidence in cases of indemnities and the limitations of summary procedure in such cases.
Fact of the Case:
The petitioner filed a suit for recovery of Rs.10 lakhs under Order XXXVII of CPC based on cheques issued by the respondent and an agreement. The respondent had undertaken to serve the petitioner for three years and indemnify against losses.
Finding of the Court:
The court found that the suit was not maintainable under Order XXXVII of CPC and emphasized the need for evidence in cases of indemnities. It also dismissed the petitioner's plea based on the contents of the order under challenge.
Issues: The issues included the maintainability of the petition under Article 227, the validity of the suit under Order XXXVII of CPC, and the need for evidence in cases of indemnities.
Ratio Decidendi: The court emphasized that a Revision Petition under Section 115 of CPC is the appropriate remedy for challenging a leave to defend application. It also highlighted the limitations of summary procedure in cases of indemnities and the need for evidence to prove losses.
Final Decision: The petition was dismissed with no costs.
CMs No. 40407/2017 & 40408/2017 (both for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM(M) 1269/2017 & CM No.40406/2017 (for stay)
3. This petition under Article 227 of the Constitution of India impugns the order [dated 15th July, 2017 in CS No. 15562/2016 (Old No. 230/2016) of the Court of Additional District Judge (ADJ)-04 (South West), Dwarka Courts, New Delhi] granting unconditional leave to the respondent/defendant to defend the suit filed by the petitioner/plaintiff under Order XXXVII of the Code of Civil Procedure, 1908 (CPC) for recovery of Rs.10 lakhs, on the basis of cheques issued by the respondent/defendant in favour of the petitioner/plaintiff and an agreement entered into between the respondent/defendant and the petitioner/ plaintiff, who had an employer and employee relationship.
4. The contention of the counsel for the petitioner/plaintiff is not that the leave to defend application should have been dismissed but that conditional leave to defend should have been granted. However, the counsel for the petitioner/plaintiff at this stage states that his first contention is that the leave to defend application should have been dismissed.
5. I have enquired from the counsel for the petitioner/plaintiff, as to how a petition under Article 227 of the Constitution of India is maintainable with respect to the aforesaid grievance. The grievance is redressable under the CPC by preferring a Revision Petition under Section 115 of CPC.
6. The counsel for the petitioner/plaintiff, instead of replying on the basis of law, states that he has filed several other petitions against similar orders and for this reason he has filed this petition under Article 227 of the Constitution of India and states that there are judgments in this regard. The counsel is however neither carrying the said judgments nor is able to show whether this aspect has been discussed therein. It is a typical case of cut, copy and paste arguments.
7. The law in this regard is well settled. Against an order of grant of leave to defend and for the grievance of the leave to defend application having not been dismissed, a Revision Petition under Section 115 of CPC lies. Mechelec Engineers & Manufacturers Vs. Basic Equipment Corporation (1976) 4 SCC 687 was also a case arising from exercise of jurisdiction under Section 115 of the CPC by this Court. Supreme Court held that this Court erred in interfering with the discretionary order and it is only in cases where the defence is patently dishonest or so unreasonable that could not be reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned. Reference may also be made to Siri Krishan Bhardwaj Vs. Manohar Lal Gupta AIR 1977 Delhi 226 (DB). It has been held by the Supreme Court in Sadhana Lodh Vs. National Insurance Co. Ltd. (2003) 3 SCC 524 that if a remedy under CPC is available, a petition under Article 227 of the Constitution of India, does not lie.
8. Be that as it may, having spent time on the matter, it is deemed appropriate to deal with the matter on merits on the parameters of Section 115 of CPC.
9. Inspite of the challenge being to the order of grant of unconditional leave to defend, no copy of the plaint has been annexed to the paper book. The counsel for the petitioner/plaintiff, on enquiry, has handed over a copy of the plaint and which is taken on record and a perusal whereof shows the petitioner/plaintiff to have instituted the suit, pleading (i) that the respondent/defendant was working with the petitioner/plaintiff as a Transition Captain in the Flight Operations Department; (ii) that during the course of his employment, the respondent/defendant was sent for a training program as Transition Captain on Bombardier DHC-8 Series 400 (Q 400); (iii) that the respondent/defendant had executed an Indemnity Bond-cum-Service Undertaking dated 21st November, 2011 in this regard in favour of the pe
