Kambli 1 WP618.97 & NM586.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ... WRIT PETITION NO.618 OF 1997 ... AER Lingus Ltd. ...Petitioner v/s. 1.Airport Authority of India 2.Union of India ...Respondents WITH NOTICE OF MOTION NO.586 OF 1997 IN SUIT NO.366 OF 1997 ... Airports Authority of India ...Plaintiff v/s. 1.AER Lingus Ltd. 2. The Official Liquidator, the Liquidator of the East West Travel & Trade Links Ltd. ...Defendants ... Mr.Venkatesh Dhond with Mr.Santosh Mishra, Mr.K.G.Singhania i/b Singhania & Co. for Petitioners. Mr.A.S.Rao, Sr.Advocate with Mr.S.K.Chari i/b M.V.Kini & Co. for Respondent No.1. Mr.Rajinder Kumar with Mr.D.P.Singh for Respondent No.2. ... Kambli 2 WP618.97 & NM586.97 CORAM: D.K.Deshmukh & Anoop V. Mohta, JJ DATED: 9th March, 2011 P.C.: 1. The facts which are relevant and material for deciding the Writ Petition and the Notice of Motion are as under: . Writ Petition No.618 of 1997 was filed by a company incorporated under the Laws of Ireland seeking an order restraining the Respondent No.1-Airport Authority of India not to detain its aircraft for recovery of the dues of East- West Travel & Trade Links Ltd. The following are the admitted facts: (i) The Petitioner had given on lease the aircraft owned by it to East-West Travel & Trade Links Ltd. (hereinafter referred to as “East West”) for operating it in India. Certain sums of money were admittedly payable by East West to Airport Authority of India for the service provided by the Airport Authority to the aircraft owned by the Petitioner, while it was on lease with East West. Bills were issued by the Respondent No.1-Airport Authority to the East West for Kambli 3 WP618.97 & NM586.97 payment of this sums. However, payment was not made and therefore a public notice was issued dated 6th July, 1996 by the Respondent No.1-Airport Authority, which reads as under: “Despite persistant reminders, East West Airlines have failed to fulfill their commitment to clear the accumulated dues in respect of landing, parking and navigational charges. Therefore, we are constrained to stop their aircraft operation with effect from 7th July, 1996. Inconvenience caused to affected passengers is regretted. The Petitioner who is the owner of the aircraft wanted to take away the aircraft, but the Airport authority was not permitting it to do so, therefore, the present petition was filed. 2. The Airport Authority of India filed a suit being Civil Suit No.366 of 1997 to which the Petitioner was joined as Defendant No.1 and East West was joined as Defendant No. 2. The principal relief claimed in the Civil Suit are claimed by prayer clauses (a) to (d). They read as under: (a) that this Hon’ble Court be pleased to declare that the Plaintiff is entitled to detain Defendants No.4 and 5 aircraft until and unless all the aforesaid Kambli 4 WP618.97 & NM586.97 charges due in respect of the aircrafts are cleared to the Plaintiffs; (b) that this Hon’ble Court be pleased to order and decree the Defendants jointly and severally to pay to the Plaintiffs a sum of Rs.2,71,51,058/- in respect of Defendants No.4 and 5 aircrafts towards the aforesaid charges as per particulars of claim being Exhibit “I” hereto with further interest thereon at the rate of 18% per annum from the date the said charges became due till the date of the suit and thereafter till payment or realisation; (c) that this Hon’ble Court be pleased to order and decree the Defendants jointly and severally to continue to pay the parking charges as per the prescribed rate prevailing from time to time until the aircrafts are allowed to be cleared by the Plaintiffs; (d) that this Hon’ble Court be pleased to declare that the Plaintiffs have a lien over Defendants Nos.4 and 5 aircrafts until all charges and expenses payable in respect of Defendants No.4 and 5 aircrafts are paid and cleared by the aircrafts or the operators or the owners thereof jointly and severally, and the Plaintiffs are entitled for refusing the permission to anyone to fly these aircrafts until such time; 3. Thus, in the civil suit mainly a money decree is claimed by Airport Authority against the Petitioner, owner of the aircraft and East West for the unpaid charges for the service provided to the aircraft. A decree is also sought for detaining the aircraft till those charges are paid. Notice of Motion No.586 of 1997 has been taken out by the Plaintiff Kambli 5 WP618.97 & NM586.97 Airport Authority for detaining the aircraft of the owner of the aircraft till the dues are paid. It is also an admitted position that East West which was a company registered under the Companies Act has been ordered to be liquidated and Official Liquidator has been appointed as Liquidator of that company. As the subject matter of the Writ Petition and the Notice of Motion taken out in Suit No.366 of 1997 was the same, they were directed to be heard together. 4. We have heard the learned Counsel appearing for both sides. 5. The principal submission of the learned Counsel appearing for the owner of the aircraft who is the Petitioner in Writ Petition No.618 of 1997 is that the charges for the recovery of which the Airport Authority wants to detain or withhold the aircraft of the Petitioner are for the services rendered by the Airport Authority to the aircraft owned by the Petitioner while it was on lease with East West. The learned Counsel for the Petitioner pointed out to us provisions of the Kambli 6 WP618.97 & NM586.97 Aircraft Act and Rules framed thereunder to claim that charges for the services rendered by the Airport Authority to the aircraft are recoverable from the lessee at whose instance the services are provided. He pointed out that even the Bills have been issued by the Airport Authority to the East West and it is East West which has been asked to pay these dues. He submits that for failure of East West to pay these dues, the Petitioner who is owner of the aircraft will not become liable. The learned Counsel, therefore, submits that as the charges, for the service rendered to the aircraft while it was on lease with East West, are not liable to be paid by the owner of the aircraft, the aircraft cannot be detained. 6. The learned Counsel appearing for the Airport Authority, on the other hand, submits that because the services were provided to the aircraft, the charges can be recovered by detaining the aircraft. The learned Counsel submits that charges are for parking of the aircraft, for landing of aircraft etc. These services are availed of by the aircraft. And therefore charges can be recovered by detaining the Kambli 7 WP618.97 & NM586.97 aircraft. The learned Counsel took us through the provisions of the Aircraft Act and the Aircraft Manual (India) in support of his submission. 7. From the material on record, it is clear that there is no dispute that the Airport Authority wanted to detain the aircraft, which is admittedly owned by the Petitioner, for recovery of the charges which were demanded by the Airport Authority not from the Petitioner, but from East West. It is also an admitted position that the services for which these charges are claimed were rendered to the aircraft while it was on lease with East West. Obviously, therefore, liability to pay these charges was of East West. In fact, in the civil suit a money decree is sought by the Airport Authority against East West. No doubt, it is claimed that the owner of the aircraft is jointly and severally liable along with East West to pay these charges. The owner can be made liable to pay these charges to the Airport Authority only if there is a contract between the Airport Authority and the owner for payment of these charges or there is any Law which obliges the owner to pay these Kambli 8 WP618.97 & NM586.97 charges to the Airport Authority. It is not even the case of the Airport Authority that there is any contract between the owner of the aircraft and the Airport Authority for payment of these charges by the owner of the aircraft to the Airport Authority. We have also not been pointed out any Law which will make the owner of the aircraft liable to the Airport Authority to pay the charges for the services which are rendered to its aircraft while it was on lease to somebody. The liability to pay charges for the services rendered is of the person at whose instance the services are provided. Admittedly, in this case, services were provided to the aircraft owned by the Petitioner by the Airport Authority at the instance of East West and it is only therefore that demand for payment of these charges are made by issuing bills by the Airport Authority from East West. Because of failure of the Airport Authority to recover these dues from the East west, the owner of the aircraft will not become liable. The Airport Authority can legitimately recover the dues only from East West to whom the services were provided. East West unfortunately is presently under liquidation. It is also to be mentioned here that by an interim Kambli 9 WP618.97 & NM586.97 order the Petitioner who is the owner of the aircraft was permitted to take away the aircraft on furnishing a bank guarantee. Therefore, the order that is sought is that either the bank guarantee should be continued during the pendency of the suit or the Airport Authority should be permitted to encash that bank guarantee. As we find that the bank guarantee has been given by the owner of the aircraft, who was in no way liable to pay the charges to the Airport Authority, the bank guarantee given by the owner cannot either be retained or encashed for the benefits of the Airport Authority of India. 8. In the result, therefore, Writ Petition No.618 of 1997 succeeds and is allowed. It is held that the Petitioner was entitled to take away its aircraft as it was not liable to pay the dues of East West for the services rendered by the Airport Authority to its aircraft. The Prothonotary & Sr.Master is directed to cancel the bank guarantee given by the Petitioner. Notice of Motion No.586 of 1997 is also disposed of. Kambli 10 WP618.97 & NM586.97 9. At the request of the learned Counsel appearing for the Airport Authority, the Prothonotary & Sr.Master is directed not to cancel the bank guarantee for a period of four weeks from today. (D.K.DESHMUKH, J.) (ANOOP V. MOHTA, J.)