Spicejet Ltd v. Arun Kumar

RAJIV SAHAI ENDLAW, J. NOVEMBER 10, 2017 "bs" (corrected & released on 28th December, 2017)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th November, 2017 + CM(M) 1269/2017 SPICEJET LTD. ..... Petitioner Through: Mr. Kapil Sankhla and Mr. Shiv B. Chetry, Advs. Versus ARUN KUMAR ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 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 em