1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1103 OF 1995 WITH NOTICE OF MOTION NO. 273 OF 1997 AERCAP IRELAND LIMITED. ... Plaintiff. V/s. East West Travel and Trade Links Ltd. ... Defendant. And Airports Authority of India. ... Applicant. Ms. Fereshte Sethna a/w. Divya Gurbuxani, Nidhi Singh & A.T. Suryavanshi i/b. Dutta Menon Dunmorr Sett for Plaintiff. Ms. Jyoti Mistry i/b. S.K. Srivastav & Co. for the Defendant. Mr. Girish Kulkarni i/b. M.V. Kini & Co. for the Applicant. CORAM : S.C. DHARMADHIKARI,J. DATED : 17TH AUGUST 2009. P.C. :- This Suit is placed on Board for withdrawal at the request of the Plaintiff's Advocate. 2. The Suit is filed by the Plaintiff in this Court against the sole Defendant, who is stated to be now in liquidation and the Official Liquidator, High Court, Bombay is appointed as a Liquidator. The Liquidator has no objection to the Suit being permitted to be withdrawn. 2 3. The Suit is filed in this Court against the Defendant directing the Defendant to pay to the Plaintiff a sum of Rs. 10,16.409.96 US Dollars as per the particulars of claim and also re-delivery of the Aircraft. 4. It is not in dispute that the Plaintiff is a Company based in Ireland whereas the Defendant is a Public Limited Company incorporated under the provision of the Indian Companies Act, 1956. 5. At the relevant time, the Defendant was carrying on business as a commercial Air Ways. There was an agreement under which a Air Craft was leased to the Defendant by the Plaintiff and the Suit recites the relevant obligations and thereafter, the defaults. Based upon the defaults, which came to be pointed out, ultimately, it is stated in the plaint that the defaults were not rectified, the Aircraft was not re-delivered and therefore, there was a breach of the contractual obligations. The Suit is filed in this Court on 28th March 1995. 6. The request for withdrawal is not opposed by the Defendant but by the Airport Authority of India, who had moved a Notice of Motion in this Suit seeking certain directions with regard to payment of the monies which the Defendant Company owed to it on account of certain dues and taxes. This Court passed interim order on the said Notice of Motion being Notice of Motion No. 273 of 1997 and my attention is invited by Mr. Kulkarni, appearing for the 3 Respondent – Applicant / Airport Authority of India to these orders. It is stated that by virtue of the interim orders, the Aircraft has been taken away by the Plaintiff upon furnishing of a Bank Guarantee. There are certain benefits which are derived from the interim orders passed in the Suit and therefore, the Plaintiff does have a absolute right of withdrawal of the Suit. The request to withdraw the Suit must, therefore, be rejected and he placed reliance upon the decision of the Supreme Court reported in AIR 1999 S.C. Page 958 (The Executive Officer, Arthanareshwarar Temple V/s. R. Sathyamoorthy & Ors.). 7. On the other hand, it is contended by Ms. Sethna, learned Counsel appearing for the Plaintiff that in law the Plaintiff can at any stage request the Court to allow it to withdraw the Suit. Such a request is governed by Order XXIII Rule 1 of C.P.C. and there are no conditions in law save and except in cases where the Suits are pertaining to the rights of minors or paupers as spelt out in the provision itself. Such is not a case here. The interim orders are in furtherance of the final orders and merely because at some stage the Airport Authority of India had sought a relief that they should be impleaded as party Defendant to the Suit does not mean that they are entitled to object to the withdrawal of the Suit. More so, when it is not a party to the Suit and the sole Defendant who is represented by the Official Liquidator has no such objection. 4 8. I have considered these contentions in the light of the relevant statutory provision. Upon repeatedly raising query as to how the Airport Authority of India can oppose withdrawal of the Suit, all that, Mr. Kulkarni would urge is that the Plaintiff has derived some benefit from the interim orders and that interests of the Airport Authority of India are vital and need to be protected. He complained that there is breach of the terms and conditions on which the Aircraft was allowed to fly out of India but Ms. Sethna states that there is no such breach. Mr. Kulkarni could not point out anything in law which would enable him to object to the withdrawal of the Suit. He relied upon the Supreme Court’s decision in AIR 1999 S.C. Page 958 (the Executive Officer, Arthanareswarar Temple V/s. R. Sathyamoorthy & Ors.). 9. In that case, what is relevant to notice is that the predecessor in the title of Respondent Nos.1 and 2 before the Supreme Court endowed various immovable properties for the purpose of certain religious ceremonies in six public Hindu temples. The subject matter of the trust deed comprises of the immoveable properties, lands and buildings and also jewels. There was an application made by Respondent Nos.1 and 2 under the Indian Trusts Act, 1882 seeking permission for sale of the land and immoveable properties including some 9 shops by public auction and negotiations. The application was filed in the capacity as trustees by Respondent Nos.1 and 2 before the Supreme Court. They claim that they can maintain application by virtue of trust deed dated 19th April 1920. The 5 Application came to be dismissed by the learned District Judge by an order dated 28th October 1986. The District Judge held that there is specific prohibition against the sale of the properties of The Trust and there is no need to sell them. The matter was carried in Revision before the Madras High Court and that also came to be dismissed. A Review Application was filed and the learned Single Judge allowed the Review Application on 3rd March 1989 granting permission for sale. He directed that the entire sale proceeds be deposited by the purchaser to the credit of the Original Petition No.301 of 1985 and he restored the same to the file of the District Judge, Periyar. He issued certain directions. Thereafter, Respondent No.5 before the Supreme Court filed a Petition before the Commissioner under Section 23 of the Tamil Nadu Hindu Religious and Charitable Endowments Act bringing to his notice that the properties had been ordered to be auctioned on 23rd December 1989 by the learned District Judge, Periyar and this should be stopped. He also contended that the District Court has no jurisdiction. Certain other directions were sought including to the authorities under the Act to get him impleaded and which was sought to be done by filing an interim application. Accordingly, the authorities under that Act applied for their impleadment and for stay of auction. No order of stay of auction was passed, the sale was held but confirmation was not made. 10. At that stage, a Special Leave Petition was filed in the Supreme Court challenging the order dated 3rd March 1989 in 6 the Review Application. That was admitted and ultimately came to be disposed off but in the meanwhile, the Supreme Court re-opened the Civil Revision Application for fresh disposal by directing that all parties including the authorities under the Endowment Act should be allowed to make their submissions. 11. On 7th January 1991 the Trustees viz. Respondent Nos.1 and 2 filed the Memo in the High Court seeking permission under Order 23 Rule 1 of the C.P.C. to withdraw the Revision Application itself. 12. Thus, from the facts before the Supreme Court it is apparent that the proceedings which were subject matter of the Supreme Court order were directed to be disposed off on merits and in accordance with law. They were sought to be withdrawn by the parties. Finding that the Endowment Act was in existence, parties were already impleaded and that several vital issues concerning sale of trust properties arose for determination and consideration that the Supreme Court made the observations relied upon by Mr. Kulkarni, in paragraphs 7 and 8 of its decision. These observations may not be seen in the peculiar factual back-drop and may not have any bearing on the request for withdrawal made in the present Suit by the Plaintiff. These observations do not lay down any general rule or principle of law that application for withdrawal cannot be permitted. 7 13. There is no other objection raised save and except stating that the Bank Guarantee is still alive and that the Airport Authority has filed a substantive Suit in this Court in which also it applies for interim relief. Surely, withdrawal of the instant Suit and disposal of the interlocutory application made therein cannot have any bearing on the rights of the Airport Authority of India to proceed with its own Suit and even interlocutory proceedings therein. All rights and contentions of the Airport Authority of India so also the Plaintiff herein, if it is a party thereto, remain unaffected and clarifying that they shall so remain, the Plaintiff is allowed to withdraw the Suit. The application for withdrawal is granted. The Suit is dismissed as withdrawn. No order as to costs. The Plaintiff shall be entitled to refund of Court fees as per Rules. 14. At this stage, Mr. Kulkarni, learned Counsel appearing on behalf of the Airport Authority of India applies for stay of this order and for continuation of the Bank Guarantee furnished by the Plaintiff in this Suit. On my board today is not just the request of the Plaintiff for withdrawal of the Suit but it is the Notice of Motion which is filed by Airport Authority of India being Suit No.479 of 1997. Since the substantive Suit and the application for interim relief therein is on my Board, I do not see how the Airport Authority of India is prejudiced either by withdrawal or by discharge of the Bank Guarantee. However, while clarifying that the Bank Guarantee in this Suit may be discharged and returned to the Plaintiff duly cancelled, the same shall not affect the rights of the Airport Authority of 8 India to seek renewal or continuation of the same in their own Suit and all contentions in that behalf are kept open, that Suit is allowed t o be withdrawn. Clarifying thus, the prayer made for stay is rejected. 15. All interlocutory applications in the Suit which stands withdrawn stand disposed off. (S.C. DHARMADHIKARI,J.)