M S Nepc India Ltd Vs Capt Kersy Ratonsha Driver - Citation 919286 - Court Judgment

Judgment:

1. This is a suit for recovery of Rs 50 lakhs as damages alleged to have been suffered by the plaintiff on account of illegally grounding of its aircraft, pursuant to an order passed by Bombay High Court. The plaintiff-company, which was earlier known as M/s NEPC Micon Limited,claims to be the owner of Beach Craft King Air C-90-A Aircraft having purchased it in the year 1995. Vide its interim order dated 25th August, 2008, passed in Notice of Motion No. 220 of 2007 in Writ Petition No. 2763 of 2003 filed by the defendant, seeking attachment, impounding and sale of the above-referred aircraft, an order came to be passed for attachment of the above-referred aircraft. The case of the plaintiff is that the defendant had falsely alleged before Bombay High Court that the aforesaid aircraft belongs to Skyline NEPC Limited, whereas, in fact, it belonged to the plaintiff-company. The aircraft came to be attached at Delhi on 03rd October, 2008. The case of the plaintiff is that it suffered huge losses and undue hardship on account of attachment of the aforesaid aircraft and, therefore, is entitled to damages amounting to Rs 50 lakhs from the defendant.

2. The defendant has contested the suit and has taken preliminary objections including that this Court has no territorial jurisdiction to try the present suit.

3. The following issues were framed on the pleadings of the parties:-

1. Whether the suit is barred in law as alleged in preliminary objection No.1 of the written statement? OPP

2. Whether the Delhi Court does not have territorial jurisdiction to try the suit as alleged under preliminary objection No.2 of the written statement? OPP

3. Whether the plaint has been signed, verified and the suit instituted by the competent person? OPP

4. Whether order of attachment of the aircraft of the plaintiff company was obtained by the defendant by playing fraud and on misrepresentation, as alleged in the plaint? OPP

5. Whether the plaintiff is entitled to any damages from the defendant and, if so, to what amount? OPP

6. Relief.

Arguments have been heard on the issues of territorial jurisdiction.

4. During the course of arguments, the learned counsel for the plaintiff contended that in view of the provisions contained in Section 16(f), 19 and 20(c) of the Code of Civil Procedure, this Court has jurisdiction to try the present suit.

5. Section 16 of the Code of Civil Procedure, to the extent it is relevant, provides that suits for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.

6. This is not a suit for recovery of movable property. Admittedly, the attachment of the aircraft has already been revoked by the Bombay High Court. In the present suit, the plaintiff is seeking recovery of damages on the ground that the attachment was illegal as the aircraft belonged to it and not to M/s Skyline NEPC Limited. Therefore, the suit is not at all governed by the provisions of Section 16(f) of the Code.

7. Section 20(c) of the Code Civil Procedure provides that subject to "the limitations aforesaid" every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. Section 19 of the Code, to the extent it is relevant, provides that where a suit is for compensation for wrong done to movable property, if the wrong was done within the local limits of jurisdiction of one Court and the defendant resides or carries on business, or personally works for gain, within the jurisdiction of another Court, the suit may be instituted, at the option of the plaintiff, in either of the said Courts. The contention of learned counsel for the defendant is that since the provisions of Section 20 of the Code, have been made subject to limitations contained in other provisions, which would include Section 19 thereof, clause (c) of Section 20 would not apply, in case Section 19 of the Code applies to the present suit.

8. The learned counsel for the plaintiff has referred to decision of Allahabad High Court in Rani Amrit Kuar vs (Maharaja) Gur Charan Singh, AIR 1934 Allahabad 226, wherein it was held that a suit related to movable property can be filed in whose jurisdiction movable property is kept. In the case before Allahabad High Court, the suit was filed for recovery of documents comprising a Government Promissory Note, a Mysore Bond and an FDR. In the alternative, the plaintiff had sought a decree for recovery of amount equivalent to the value of the aforesaid articles. Since the provisions of Section 20(c) are subject to the provisions of Section 16 to 19 of the Code and the present suit is squarely covered by the provisions of Section 19 of the Code, this judgment in my view can be of no help to the plaintiff.

9. In Dalpatri Jhanjhnari vs. West End Watch Co. Bombay AIR 1953 MB 38, the Court held that the provisions of Section 20 of the Code are subject to the limitations of Section 19 as is evident from the opening words "Subject to the limitation aforesaid" used in Section 20 of the Code.

10. In State of Meghalaya & Ors. vs. Jyotsna Das, AIR 1991 Gau 96, in a suit filed for compensation for wrong done to the moveable property, the High Court held that the provisions of Section 19 of the Code were clearly attracted and the provisions of Section 20 which commences with the words "Other suits to be instituted" and "subject to the limitations aforesaid" would not be attracted for determination of the forum, where the suit could be filed. It was held that the above noted words in Section 20 clearly means that if a suit was to be regulated by the provisions of Section 19, the provisions of Section 20 would not come into operation. In Sreepathi Hosiery Mills (P) Ltd. Calcutta & Anr. vs. Chitra Knitting Co. Tirupur AIR 1977 Mad 259, the defendants who were residents of Calcutta gave a complaint against the goods manufactured by the plaintiff and sent to Bombay for sale and consumption. Bombay police took action on the complaint and seized goods of the plaintiff. The plaintiff filed a suit for permanent damages for loss of reputation and business on the ground that the defendants had misled the police. The defendants contended that the Court in Tirupur from where the goods were sent to Bombay had no jurisdiction to entertain the action. The trial Court took the view that in view of the provisions of Section 19 of the Code, the suit could be instituted either at the place where the defendant resided or worked for gain or at the place where the wrong was committed. The trial Court took the view that it had jurisdiction to try the suit. The High Court, however, felt that there was no way out of limitation as to jurisdiction envisaged in Section 20 of the Code. The witness of the plaintiff in that case had deposed that he had heard about the alleged damage to the plaintiff. The High Court was of the view that if it was to create or vest jurisdiction in Civil Court, then Section 19 would be otiose.

11. The next question which comes up for consideration is as to whether wrong to the aircraft of the plaintiff was done in the jurisdiction of Bombay High Court or in the jurisdiction of this Court. There is no dispute that the order was passed by Bombay High Court situated at Mumbai, whereas the distraint order in respect of the aircraft in compliance of that order was executed in the jurisdiction of this Court, since the aircraft at that time was parked/stationed at Delhi.

Para 24 of the plaint which deals with the cause of action to file the present suit reads as under:-

"That the cause of action for filing the present suit arose on 25.8.2008, when the High Court of Bombay passed interim orders dated 25.8.2008 in Notice of Motion No.220/2007 in Writ Petition No.2763 of 2003 filed by Defendant abovenamed, ordered attachment, impounding and sale of Beach Craft King Air C-90-A Aircraft having Registration No. VT-NEI and Certificate No. 2668 dated 31.5.1995.
That the cause of action is of continuing nature as the Air-Craft belonging to the Plaintiff Company is grounded under the garb of the order dated 25.8.2008."

It would thus be seen that the plaintiff itself does not claim that the cause of action arose in the jurisdiction of this Court on account of the aircraft having been stationed in Delhi at the time it was subjected to distraint order. In para 21 of the plaint, the plaintiff has specifically alleged that the defendant is guilty of playing fraud in procuring the impugned judgment and order dated 25th August, 2008 by misrepresentation of facts.

12. Since the case of the plaintiff is that the aircraft belonging to it was wrongfully got attached by the defendant and, therefore, he is entitled to recover damages from the defendant, this clearly is a suit for compensation for wrong done to a movable property. Hence, if Section 19 of the Code is applied, the suit, at the option of the plaintiff, can be instituted either in the jurisdiction of the Court where the wrong was done or in the jurisdiction of the Court where the defendant resides or carries on business or personally works for gain. Admittedly, the defendant does not reside, carries on business or personally works for gain within the local limits of the jurisdiction of this Court. Therefore, if the suit is governed by Section 19 of the Code, it could have been instituted only in the local limits of jurisdiction of the Court where the wrong was done to its property.

13. It was contended by the learned counsel for the defendant that the wrong in respect of the aircraft cannot be said to have been caused in the jurisdiction of this Court merely because at the time of its attachment/grounding by the Civil Aviation Department in compliance of the order passed by the Bombay High Court on 25 th August, 2008, the aircraft was stationed/parked at Delhi. His contention is that the wrong alleged to have been done to the aircraft was done when the order dated 25 th August, 2008 came to be passed by Bombay High Court on the basis of the misrepresentation alleged to have been made by the defendant with respect to the ownership of the aircraft. He submitted that it also cannot be said that the alleged wrong to the aircraft of the plaintiff-company was committed in the jurisdiction of Bombay High Court where the order dated 25th August, 2008 for attachment of the aircraft was passed as well as in the jurisdiction of this Court, where the aircraft was stationed/parked at the time it was attached/ground by the Civil Aviation Department. He pointed out that a perusal of the order passed by Bombay High Court on 25th August, 2008 in Notice of Motion No. 220 of 2007 in Writ Petition No. 2763 of 2003 would show that it was Collector, Mumbai Suburban District, who was directed to take all steps for impounding and attachment of aforesaid aircraft. A perusal of the communication dated 03 rd October, 2008 issued by Senior Airworthiness Officer, Civil Aviation Department, Safdarjung Airport, Delhi would show that on receipt of the order from Bombay High Court, Collector, Mumbai Suburban District, approached the Civil Aviation Department to distrain the aircraft immediately and accordingly, the Director of Airworthiness requested the Accountable Manager, Aerial Services Management, IGI Airport, New Delhi that the aircraft is not to be released for further flight from Delhi. The letter was written to Aerial Services Pvt. Ltd. since the aircraft was maintained by that company, as is evident from the communication dated 03 rd October, 2008. It was thus pointed out that not only the order of attachment was passed in the jurisdiction of Bombay High Court even the communication to Civil Aviation Department was issued within the jurisdiction of that Court. In these circumstances, according to the learned counsel for the defendant mere ministerial act of directing the agency maintaining the aircraft not to allow the aircraft to fly out of Delhi would not amount to causing wrong to the aircraft in the jurisdiction of this Court.

14. The learned counsel for the plaintiff on the other maintained that since the distraint order in respect of aircraft came to be passed in Delhi, wrong to the aircraft was done within the jurisdiction of this Court.

15. It cannot be disputed that once Bombay High Court had passed an order for attachment of the aircraft, the Civil Aviation Department, by which the aircraft was grounded/attached, was performing only a ministerial act, in compliance of that order. The Civil Aviation Department was bound in law to dutifully carry out and obey the order passed by the Bombay High Court and was, therefore, required to attach/ground the aircraft irrespective of the place where it was stationed/parked at the relevant time.

16. In The State of Maharashtra vs. Sarvodaya Industries AIR 1975 Bom 197, the plaintiff had imported raw material to Akola. Their grievance in the suit was that their import of raw material was affected by an action taken by defendant No.2 mala fide and without legal authority, who stopped its movement and because of which their business in Akola was affected and they suffered losses. The raw material in that case was stopped in the jurisdiction of Bhandara. Defendant No.2 was said to have acted on behalf of and under the authority of defendant No.1. It was held by the High Court that since the loss by the plaintiff was suffered within the territorial limit of Akola Court, though because of a wrongful intervention outside the limits of the Court, Akola Court had jurisdiction to try the suit. During the course of judgment, the High Court inter alia observed as under:-

"It is clear that the phrase "wrong done" is not used in any narrow sense but has to be understood in all its amplitude so as to afford forum and necessary relief. That clearly taken in both cause and effect.
Injury or actual wrong may occur at place A but its effect may be felt at places other than „A and may effect places „B or „C Act or actions taking place at a given place may still give rise at places quite different and at all these places and for all those effects, cause would arise seeking compensation. Without resultant loss or its proof restitution justice may not afford any relief nor there could be any remedy in vacuum. Thus the phraseology used by Section 19 about "the wrong done" would clearly take in not only the initial action complained on but its result an effect... ...Mere allegation of wrong is not the whole cause of action. It is the resultant effect that furnishes cause of action. Therefore, the damages that was suffered by the plaintiff, was the part of the cause of action i.e., "the wrong done" and that arose within the jurisdiction of Akola Court. Though therefore, the complaint of the plaintiff was against the action by defendant No.2 being without the limits of Akola Court, it follows that as he was affected by that action for all purposes in his business within the jurisdictions of that Court all the requirements of Section 19 of the Code have been fully answered and the suit was properly laid in Akola Court."

17. In State of Meghalaya & Ors. vs. Jyotsna Das (supra), the plaintiff was carrying business in non-levy cement at Silchar in Assam. The husband of the plaintiff purchased 500 bags of cement from Gauhati and it was transported from Gauhati to Silchar by road, which ran through the State of Meghalaya. At the check post of Umkiang Police in the State of Meghalaya, the trucks carrying the cement were stopped and the cement was unloaded or partly unloaded. In the process, the cement got damaged. In a suit filed by the plaintiff for recovery of damages, it was contended on behalf of State of Assam that since the cause of action had arisen at Umkiang Police, the territorial jurisdiction for the suit was with the Courts in Meghalaya and the suit could not have been filed in Silchar in the State of Assam. The submission of the plaintiff, on the other hand, was that cause of action had partly arisen at Silchar where the plaintiff had found the damaged goods and therefore the Court had jurisdiction. The High Court held that though the trucks had been stopped in the State of Meghalaya, the plaintiff had found at Silchar that some of the cements had been damaged and had become useless and, therefore, the wrong was also done at Silchar where the goods were delivered to the plaintiff and consequently the suit for compensation could be filed within the jurisdiction of the Court at Silchar.

18. In Appeal from Order No.75/2005 decided by Bombay High Court on 15th March 2010, the plaintiffs, who were transporters entered into contract with the Cooperative Sugar Factory to move the molasses from their premises at Osmanabad to their factory site in Aurangabad District. When the trucks were transporting the goods, they were detained by the respondent/defendant and an amount of Rs.7 Lac was also recovered. A suit was filed for the compensation for the wrong committed by the defendant. The suit was filed before Civil Court at Aurangabad. The trial Court was of the view that territorial jurisdiction to try the suit vested in Civil Court at Osmanabad and returned the plaint. It was held by the High Court that the cause of action about the loss occurred at Aurangabad on account of use of the vehicles at Aurangabad and therefore, the suit could be filed within the jurisdiction of Civil Court at Aurangabad, though the vehicles were detained at Osmanabad. In taking this view, the High Court relied upon the provisions of Section 19 of the Code.

19. In G.Ayyappan Pillai vs. State of Kerala & Anr. ILR 2009 (2) Kerala 522, the appellant purchased teak wood for construction of his house and was transporting them in a lorry to the construction site in Kanayannur Taluk. The lorry was intercepted at Karukutty Sales Tax check post. Respondent No.2 refused permission to the appellant to proceed further with the timber to its destination. He was permitted to leave only on next date on payment of some charges. A suit was filed for recovery of Rs.50,000/- on the ground that the act of respondent No.2 was mala fide. The suit was filed in the Court at Ernakulam. The respondent contended that the Court at Ernakulam had no jurisdiction since the incident occurred at Karukutty beyond its territorial jurisdiction. In the plaint, it was stated that the cause of action arose when respondent No.2 stopped the lorry at Karukutty. The trial Court was of the view that the Court at Ernakulam did not get territorial jurisdiction to try the suit merely because the amount recovered from the plaintiff/appellant was refunded under order of the Sales Tax Officer at Ernakulam. Referring to Section 19 of the Code, the Court was of the view that the suit could be filed either at the place where wrong was done or at the place where respondent was resided or carried on business or personally worked for gain. The Court was of the view that since the effect of the alleged wrongful act of respondent No.2 was felt at Ernakulam as well, Section 19 of the Code would apply and the Court within whose jurisdiction such effect was felt also has jurisdiction to entertain the suit. During the course of the judgment, the High Court inter alia observed as under:-

"A "wrong" involves the violation of ones right. "Wrong done" includes the effect of the act and the resultant damage. If the act does not lead to any consequence or damage, such act may not be actionable. Therefore, the phrase "wrong done" occurring in Section 19 of the Code should be understood as including the effect of the act."

20. It is difficult to dispute that despite order of attachment having been passed at Mumbai, wrong to the aircraft was done partly at Delhi where the aircraft at the relevant time was parked and an order of its grounding was issued by Civil Aviation Department of Government of India. In fact had the aircraft not been grounded, the plaintiff might not have even sought damages from the defendant. It was the actual grounding of the aircraft, prohibiting it from flying out of Delhi, which is alleged to have been caused pecuniary loss to the plaintiff, which could not utilize the aircraft till the order of attachment was revoked by the High Court. Even if the Court proceeds on the assumption that wrong to the aircraft was done at Mumbai when the order of attachment of aircraft was passed by the Mumbai High Court, it is difficult to dispute that consequences of the aforesaid order of the High Court ensured in Delhi where the order was executed/implemented by grounding/detaining the aircraft. Therefore, from whatever angle I may take, it is difficult to dispute that the wrong to the aircraft of the plaintiff was at least partly caused within the jurisdiction of this Court. The issue therefore is decided against the defendant and in favour of the plaintiff. The issue is decided accordingly.

21. In Callipers Naigai Ltd. And Ors. vs Government Of NCT Of Delhi And Ors., 2004 II AD (Delhi) 293, relied upon by the learned counsel for the defendant, petitioner No. 1 took a loan from respondent No. 3 M/s Pradeshiya Industrial and Investment Corporation of U.P. Ltd. (PICUP). The registered officer of petitioner No. 1 was situated at Delhi and petitioner Nos. 2 and 3 who were guarantors for the loan taken by petitioner No. 1 were also residing in Delhi. PICUP, however, did not have any office in Delhi. A recovery notice was issued by respondent No. 1 Assistant Collector, Grade-I, Saket, New Delhi to the petitioners. The respondent PICUP took an objection that this Court has no territorial jurisdiction to hear the petition. Regarding issue of recovery notice at Delhi, it was submitted by PICUP that it was only a ministerial act which could not be subject matter of a writ of Certiorari and if the petitioners were aggrieved, they ought to go to Lucknow Bench of Allahabad High Court which was the proper forum of adjudication of the disputes raised in the petition. The recovery notice of that case was issued by respondent No. 1 from Delhi on the basis of a recovery certificate issued in Uttar Pradesh Public Monies (Recovery of Dues) Act, 1972 which provided that in case of default in repayment of loan, the Managing Director of PICUP could send the certificate to the Collector mentioning the sum due and requesting that such sum together with costs of proceedings be recovered as it were arrears of land revenue. The certificate sent to the Collector is final subject to the exceptions provided in the Act. Upholding the objection taken by PICUP, the petition was dismissed by this Court. During the course of judgment, this Court, inter alia, observed that the Collector, who receives the recovery certificate has no role to play except to recover the amount stated in the recovery certificate as arrears of land revenue and he merely performs a ministerial function without deciding any lis and the action taken by him does not have the trappings of a quasi-judicial services.

Similar view was taken by this Court in Yogesh Saraf and Ors. vs. The Pradeshiya Industrial and Investment Corporation U.P. Ltd. & Anr. 2005 (VIII) AD (Delhi), 240 and it was held that mere recovery certificate issued from Delhi does not form an integral part of cause of action and does not vests territorial jurisdiction in the Court where the recovery certificates are received for adjudication. In Indo Gulf Explosives Ltd. & Anr. v. U.P. State Industrial Devp. Corpn. & Anr. 79 (1999) DLT 193, a demand notice was issued by UPSIDC threatening recovery and forfeiture of the rights of the petitioner to run their Industrial State Unit. The notice was received by the petitioner at its registered office at New Delhi. It was alleged in the writ petition that since the notice was received at New Delhi, the cause of action had accrued within the territorial jurisdiction of this Court, as notice was an integral part of the whole transaction as also the cause of action. After taking into consideration the decision of Supreme Court in State of Rajasthan vs M/s. Swaika Properties and Another AIR 1985 S.C.1289, a Division Bench of this Court held that mere service of notice on petitioners registered office at Delhi would not be an integral part of the transaction of cause of action.

However, in none of these cases, the property of the petitioner was attached within the jurisdiction of this Court and in none of them the Court examined the matter in the light of the provisions contained in Section 19 of the Code. Therefore, these judgments to my mind do not apply to the factual situation prevailing before this Court.

22. In his written synopsis, the learned counsel for the defendant also referred to Kusum Ingots & Alloys vs. Union of India & Anr. (2004) 6 SCC 254 where it was observed that if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same might not be considered to be determinative factor compelling the High Court to decide the matter on merits and in appropriate cases, the High Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of Forum Conveniens. This judgment, however, is of no help to the defendant since the wrong to aircraft of the plaintiff was partly done in the jurisdiction of this Court when the aircraft stationed/parked at Delhi airport was grounded, which would give jurisdiction to the plaintiff to file the suit within the jurisdiction of this Court. The learned counsel also referred to Rashtriya Mahila Kosh vs. The Dale View & Anr. 2007 IV AD (Del.) 593 where the Court was of the view that it is a substantial part of cause of action. accrual of which gives jurisdiction to this Court. Again this judgment is of no help to the defendant since grounding of the aircraft cannot be said to be a minor part of the cause of action giving rise to the filing of the suit. The learned counsel for the defendant has next referred to Lohia Starlinger Ltd. & Anr. vs. Govt. of NCTD & Ors. 2006 V AD (Del.) 732, where it was observed that even if a part of cause of action arises, the Court may on the principle of Forum Non Conveniens refuse to exercise jurisdiction. These observations came to be made in a writ jurisdiction and have no applicability where the statutory provisions give discretion to the plaintiff to file the suit within the jurisdiction of this Court. The learned counsel as lastly referred to ABN AMRO Bank NV v. CBDT 131 (2006) DLT 248 (DB), which again was a writ petition and the Court was of the view that merely because Mandamus was sought against the authorities at Delhi, that would not give jurisdiction to Delhi Courts when other reliefs can be agitated effectively at Kolkata where the genesis in the proceedings were conducted. Since this a suit covered by Section 19 of the Code of Civil Procedure and wrong to the property of the plaintiff was partly done in the jurisdiction of this Court, it is difficult to say that this Court has no jurisdiction to try the present suit.

23. In view of my finding on issue No.2, affidavit by way of evidence be filed within four weeks. The parties to appear before the Joint Registrar on 4th July 2011 for fixing date for cross-examination of the witnesses of the plaintiff.

Subject	Civil
Court	Delhi High Court
Decided On	May-02-2011
Case Number	CS(OS) No. 2643/2008
Judge	V.K. JAIN, J.
Acts	Code of Civil Procedure (CPC) - Sections 16(f), 19, 20(c)
Appellant	M/S Nepc India Ltd.
Respondent	Capt. Kersy Ratonsha Driver
Appellant Advocate	Mr. Ajay Kr. Agarwal, Adv.
Respondent Advocate	Mr. Janendra Lal; Ms. Yasmin Tarapore, Advs.
Cases Referred	Anr. vs. Govt. of

M/S Nepc India Ltd. Vs. Capt. Kersy Ratonsha Driver - Court Judgment