9911796707
TMI Blog2023 (8) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 7.1 above have been terminated and the process of deregistration of the Aircrafts has commenced. Once an event of default has occurred and the Petitioners have terminated the Lease Agreement(s) and commenced the process of deregistration of the Aircraft, flying such Aircraft will be contrary to the provisions of the Aircraft Act, 1934 and the Rules framed thereunder. The document termed as the Airbus Manual (which appears to only be an extract of the complete Airbus Manual) has been relied upon to submit that during the parking period such flights require to be undertaken at intervals of 3 months. This document also does not help the case of the Respondent No. 9/RP, as Paragraph 3 of this document itself contains multiple options qua storage and maintenance. Paragraph 3(A)(4) also states that a maintenance/handling flight is requisite every two years, during a storage period, so that the Aircraft is preserved. It cannot be disputed by the either party that these Aircrafts have not been grounded for two years. Therefore, reliance placed on the Airbus Manual extract, as has been done by the Respondent No. 9 /RP of Go Airlines, cannot be accepted either - thus, the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless an Aircraft has been registered and it bears its nationality and registration marks on the Aircraft, it shall not be flown. 11.2 The registration and marking of an Aircraft is provided for in Rule 30 of the Aircraft Rules. The relevant extract reads as follows: 30. Certificate of Registration (1) (2). An aircraft may be registered in India in either of the following categories, namely: Category A Where the aircraft is wholly owned either (i). ... (iv). by a company or corporation registered elsewhere than in India: Provided that such company or corporation has given the said aircraft on lease to any person mentioned in sub-clause (i), sub-clause (ii) or sub-clause (iii); and]... 11.3 Rule 30(6)(iv) of the Aircraft Rules provides as follows: (6) The registration of an aircraft registered in India may be cancelled at any time by the Central Government, if it is satisfied that (i) .... ..... (iv) the lease in respect of the aircraft, registered in pursuance of sub-clause (iv) of clause (a) of sub-rule (2) [has expired or has been terminated in accordance with terms of lease or]; 11.4 Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aircrafts by the DB order. Reliance is placed on para 18 of the Division Bench order, which reads as follows:- 18. In view of the statement made by Ms. Gosain, without prejudice to the rights and contentions of the parties, the DGCA is permitted to process and decide Go Air s resumption application. (iv) Subsequently thereto, Respondent No. 2/DGCA by letter dated 21.07.2023 addressed to Respondent No. 9/RP of Go Airlines by Respondent No. 2/DGCA [hereinafter referred to as Resumption Plan Letter ], inter-alia, communicated the acceptance of the Respondent No. 9/RP of Go Airlines Resumption Plan. However, it was stated clearly in the Resumption Plan Letter, that the Resumption Plan would be subject to the outcome of the writ petition pending before this Court and that Respondent No. 9/RP of Go Airlines may commence flights subject to conditions and outcome of the proceedings pending before this Court. Reliance is placed on paragraph 2 of the Resumption Plan Letter which reads as follows: 2. In this regard, it is to inform that the proposed resumption plan dated 28.06.2023, amended vide communication dated 15.07.2023, has been examined by this office and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No. 9/RP of Go Airlines is below: (i) Mr. Srinivasan submits that the prayers in the present Application are to strictly comply with the directions and observations in 05.07.2023 judgment and the same are being duly complied with by the Respondent No. 9/RP of Go Airlines. (ii) The fact that the Aircraft(s) have been flown by the Respondent No. 9/RP of Go Airlines is not disputed. However, this was done to maintain the airworthiness of the Aircraft(s), the Aircraft(s) were required to be flown and that this forms a part of the routine maintenance activities and such flights are termed as handling flights . (iii) Relying on the DB Order and connected matters, it is submitted that the DB Order permitted the deletion of the words and all maintenance tasks from paragraph 20.1(ii) of the 05.07.2023 judgment while permitting the Respondent No. 9/RP of Go Airlines to carry out all maintenance tasks of the Aircrafts as follows: 16. In the meantime, direction (ii) contained in paragraph No. 20.1 of the impugned judgement is modified to the extent that Go Air, through RP, is permitted to carry out all maintenance tasks of the thirty subject aircrafts, their engine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Applicant for commercial use, it is pertinent to mention that the DGCA has not deregistered the aircraft, which means that they are available to the Corporate Debtor for use to resume operations. Therefore, as long as the aircrafts/engines are registered, they can be used for operating or flying to keep the Corporate Debtor as a going concern, however, within the safeguards/safety norms prescribed by the Regulators. Additionally, it has already been ordered by this Tribunal vide its Admission Order dated 10.05.2023, that it is the duty of the IRP to keep the Corporate Debtor as a going concern. In order to keep the Corporate Debtor as a going concern, the Aircrafts have to be flown and hence, the Aircrafts shall be with the Corporate Debtor and shall be operated by the Corporate Debtor. Therefore, we see no reason to allow this interim relief claimed by the Applicant(s). 14 .. Furthermore, the purpose of inspection is to see whether these Aircrafts/Engines are properly cared and protected or not. Since by our order dated 15.06.2023, we have already asked the RP to maintain the Aircrafts, therefore, no fruitful purpose would be served by allowing this prayer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2/DGCA and hence, Respondent No. 2/DGCA processed and finalised the same by the Resumption Plan Letter. 4.1 However, Ms. Gosain submits that the Resumption Plan Letter [which is appended at Annexure C to the present Application] clearly states that the Resumption Plan is subject to the conditions as stated therein as well as outcome of the Writ Petitions and Applications pending before this Court and the NCLT. 5. Mr. Rajiv Nayar, learned Senior Counsel in Rejoinder, has made the following additional submissions: (i) The Respondent No. 9/RP of Go Airlines has not been able to show any clear impending danger or urgent requirement to operate or fly the Aircrafts. The DB Order also recognized that this Court is still to finally decide the matter, hence even the Division Bench declined to interfere at this stage. (ii) The NCLT has not passed a blanket order for resuming flights qua all the Aircrafts in possession of Respondent No. 9/RP of Go Airlines and as such its directions are only applicable to the Applicants before the NCLT which does not include the Petitioners before this Court. (iii) The Airbus Manual, relied on by the Respondent No. 9/ RP of Go Airlines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P 09.10.18 02.05.23 7. Airbus A320-214 MSN 5809 IRM VT-WGA 30.09.12 02.05.23 8. Airbus A320-271N MSN 7330 IRM VT-WGE 24.01.17 02.05.23 9. Airbus A320-214 MSN 6072 IRM VT-GOR 01.05.14 02.05.23 10. Airbus A320-271N MSN 7205 IRM VT -WGD 01.12.16 02.05.23 8. The provisions of the Aircraft Act, 1934 and the Aircraft Rules, 1937 provide that no person shall use and operate an Aircraft unless it is in accordance with the Aircraft Rules, 1937. Rule 30(6)(iv) of the Aircraft Rules, 1937 provides that the registration of an Aircraft registered in India may be cancelled where the lease in respect of the Aircraft has expired or been terminated. Rule 30(6)(iv) states: 30. ...... (6) The registration of an aircraft registered in India may be cancelled at any time by the Central Government, if it is satisfied that (i) .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Airlines, that the reason, 2 of the 10 Aircrafts have been flown by Go Airlines is that these were handling flights forming part of the scheduled maintenance activity for the Aircraft, is misconceived. 14. The Respondent No. 9/RP of Go Airlines has also not been able to show any urgency or any grave imminent threat to these Aircrafts to suddenly and without any prior notice, compel the Respondent No. 9/RP of Go Airlines to fly these Aircrafts. Prima facie, the term scheduled maintenance cannot be understood to include flying the Aircrafts even if it is a non-commercial flight. Thus, Respondent No. 9/RP of Go Airlines cannot be permitted at this stage, to continue with these handling/maintenance flights. 15. In view of the foregoing discussion, let status quo be maintained in respect of handling/non-revenue flights of the Petitioners Aircrafts [as reproduced in paragraph 7.1 hereinabove] till the next date of hearing. 16. Ms. Pratiksha Mishra, learned counsel on behalf of the Respondent/RP of Go Airlines seeks and is granted time to file a reply, if any, in two days. 17. Rejoinder be filed before the next date of hearing. 18. List this Application for further hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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