BOC Aviation Pvt. Ltd vs Union Of India & Ors.

MINI PUSHKARNA, J: (ORAL)

This is an application on behalf of respondent no. 3 under Section 5 of the Limitation Act read with Section 151 CPC seeking condonation of delay of 31 days in filing its counter affidavit.

For the reasons stated in the application, the delay in filing the counter affidavit is condoned. The counter affidavit filed on behalf of respondent no. W.P.(C) 5169/2013 Page 1 of 6 3 is taken on record.

Application is disposed of.

The present application has been filed under Section 151 CPC on behalf of respondent no. 2/ Delhi International Airport Limited (DIAL) to encash the Bank Guarantee of USD 402,767/- furnished by the petitioner and recover the parking, landing and housing charges in respect of Airbus A320-200 Aircraft bearing registration MSN 2376, which was leased to Kingfisher Airlines, in line with the judgment of the Supreme Court in Civil Appeal No. 2932/2015.

It is the case on behalf of respondent no. 2 that Supreme Court in its judgment dated 17^th March, 2015 passed in Civil Appeal No. 2932/2015 held that DIAL is at liberty to invoke the Bank Guarantee, which was provided towards charges prior to de-registration of the Aircraft and to recover the arrears of landing, parking or housing fees/ charges in accordance with law.

Learned counsel for the respondent no. 3 supports the present application and submits that the respondent no. 2 be allowed to encash the Bank Guarantee in terms of the liberty granted by the Supreme Court.

On the other hand, learned counsel for the petitioner submits that he may be granted time to file reply to the present application. He further submits that the judgment dated 17^th March, 2015 passed by the Supreme Court in Civil Appeal No. 2932/2015 stands on a different footing and does not apply to the petitioner. He further submits that the amended Regulation is merely clarificatory in nature and therefore, it does have a retrospective effect.

Disputing the averments made on behalf of the petitioner, it is submitted on behalf of the respondents that the petitioner has not taken the objection with respect to retrospective effect of the Regulations in the writ petition. It is further submitted that the petitioner has been taking contradictory stands as regards the judgment dated 17^th March, 2015 passed by the Supreme Court in Civil Appeal No. 2932/2015. The learned counsel for the respondents, thus, pray that the present application be allowed.

Having heard learned counsel for the parties, this Court is not inclined to give further time to the petitioner for filing reply to the present application. Reference in this regard may be made to the order dated 7^th August, 2023 passed by this Court, wherein it was clarified that an endeavour shall be made to dispose of the present application and no request for adjournment shall be entertained. Order dated 7^th August, 2023 passed by this Court reads as under:

In view of the aforesaid, this Court proceeds to deal with the present application.

A lease agreement dated 1^st June, 2004 was executed between the petitioner and the Kingfisher Airlines in respect of the Aircraft bearing no. W.P.(C) 5169/2013 Page 3 of 6 MSN 2376. Subsequently on 9^th July, 2013, the aforesaid Aircraft was de-registered by respondent no. 4. Thereafter, on 10^th July, 2013, the petitioner terminated the lease agreement dated 1^st June, 2004. The present writ petition has been filed seeking enforcement of the policy decision dated 26^th March, 2013, whereunder the petitioner is liable to pay parking charges only post de-registration i.e. from 9^th July, 2013. However, as per the stand of the respondent no. 2, not only post de-registration charges, but pre-deregistration charges are also due.

While issuing notice in the present writ petition vide order dated 10^th September, 2013, the petitioner was permitted to refurbish the aircraft only after payment of all de-registration charges. Subsequently, vide order dated 13^th December, 2013, this Court directed the petitioner to submit a Bank Guarantee to the tune of USD 402,767/- to the respondent no. 2 in lieu of pre-deregistration charges. Order dated 13^th December, 2013 passed by this Court is reproduced as hereunder:

(Emphasis Supplied)

Thus, by order dated 13^th December, 2013, this Court permitted the petitioner to fly out the Aircraft in question subject to the petitioner furnishing a Bank Guarantee for an amount of USD 402,767/- towards charges prior to de-registration of the Aircraft. Pursuant thereto, the petitioner furnished a Bank Guarantee on 20^th September, 2013 and the aircraft was permitted to fly out on 13^th December, 2013.

Subsequently, the Supreme Court by its judgment in the case of Delhi International Limited Versus International Lease Finance Corporation & Others^{11.(2015) 8 SCC 446} held that DIAL was at liberty to invoke the Bank Guarantee to recovers the areas of landing, parking or housing fees/charges in accordance with law. Relevant portion of the said judgment is reproduced hereinunder:

(Emphasis Supplied)

In view of the aforesaid, it is clear that the respondent no.2/DIAL is entitled to invoke the Bank Guarantee furnished by the petitioner.

At this stage, learned counsel for the petitioner submits that he may be granted time to seek instructions as to whether the petitioner is ready to make payment to respondent no.2 directly instead of encashment of Bank Guarantee by respondent no. 2. Learned counsel appearing for respondent no. 2 submits that he has no objection if payment is made directly by the petitioner to respondent no. 2.

In view of the aforesaid, it is directed that the petitioner is at liberty to release an amount of USD 402,767/- to the respondent no. 2 within one week from today, failing which the respondent no. 2 would be entitled to encash the Bank Guarantee furnished by the petitioner to the tune of USD 402,767/-.

The present application is disposed of accordingly.

List for hearing on 13^th February, 2024.