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TMI Blog2023 (10) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... Air on the doctrine of merger cannot be agreed upon. The doctrine of merger enunciated by the Supreme Court, does not have a universal or unlimited application. For a merger to operate, the superior court must examine the issues and record findings on merits. The decision in KUNHAYAMMED AND OTHERS VERSUS STATE OF KERALA AND ANOTHER [ 2000 (7) TMI 67 - SUPREME COURT] also sets forth that doctrine of merger applies once a superior court has disposed of the lis before it. The Supreme Court in the case of Kaikhosrou (Chick) Kavasji Framji v. Union of India [ 2019 (3) TMI 1961 - SUPREME COURT] has reiterated this and clarified that the merger principle is applicable to a decision on merits. Thus, the doctrine of merger is applicable only when an Appellate Court has gone into the merits of the case. In any event, it has now been more than five months, since the Aircraft were grounded by the Respondent/RP of GoAir. A review of the documents and photographs filed by the Petitioners/Lessors show the evident cannibalization of the Aircraft. The Petitioners/Lessors have made out a prima facie case and it has become necessary for this Court to pass additional directions to protect these highly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Vishrutyi Sahni and Ms. Stanzin Dolker, Advs. for COC., Ms. Anjana Gosain, SPC with Ms. Avshreya Pratap Singh Rudy, G.P., Mr. Akhil Hasija, Ms. Gauri Goburdhun and Mr. Ojaswa Pathak, Advs. for R- 1 &2. Mr. Rajesh Gogna, CGSC with Mr. Amit Acharya and Ms. Avshreya Pratap Singh, Advs. for DGCA. Mr. Diwakar Maheshwari, Ms. Pratiksha Mishra & Mr. Shreyas Edupugnati, Advocates for RP. Mr. Gopal Jain, Sr. Adv. with Mr. Dheeraj Nair, Mr. Angad Baxi, Ms.Vishrutyi Sahni and Ms. Stanzin Dolker, Advs. for COC., Mr. Rajesh Gogna, CGSC with Ms. Avshreya Pratap Singh Rudy, G.P. for R-1 &2., Mr. Neeraj Kishan Kaul, Senior Advocate with Mr. Diwakar Maheshwari, Adv., Mr. Deepak Joshi, Ms. Pratiksha Mishra, Mr. Shreyas Edupugnati and Ms. K. Lakshmi, Advocates for RP. Mr. Gopal Jain, Sr. Adv. with Mr. Dheeraj Nair, Mr. Angad Baxi, Ms. Vishrutyi Sahni and Ms. Stanzin Dolker, Advs. for COC. Ms. Ragini Sharma, Advocate for R-4 & 8. Ms. Milanka Chaudhary, Ms. Ashly Cherian and Ms. Harshita Agarwal, Advs. for R-7. JUDGMENT CM APPL. 45749/2023 in W.P.(C) 7774/2023[Application for modification of 05.07.2023 Order] CM APPL 47071/2023 in W.P.(C) 7663/2023 & CM APPL. 47257/2023 in W.P.(C) 9432/2023 [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the aforesaid aircrafts in accordance with law...." 4. A challenge to the DB Order was dismissed on 07.08.2023 by the Supreme Court in SLP(C) No.16762-69/2023 directing: "1 Proceedings under Article 226 of the Constitution are pending before a Single Judge of the High Court of Delhi. The petitions are being argued on a day to day basis. The jurisdictional issues which are sought to be raised in these proceedings can be addressed before the High Court. 2 The Special Leave Petitions are dismissed." 5. This Court also issued directions including on 28.07.2023 maintaining status quo in respect of the handling/non-revenue flights of the Aircraft(s). 6. During the course of final hearing of the Petitions, some of the Petitioners/Lessors have been constrained to file interim applications seeking urgent directions including for modification of the orders already passed by this Court. Although the prayers in these Applications are different, the essential grievance of the Petitioners/Lessors emanate from orders of inspection and maintenance of the Aircraft's which form subject matters of the petitions pending before this Court [hereinafter referred to as the "Aircraft"]. 6.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase; (iv) all Aircraft Documents, and (v) all substitutions, replacements and renewals of any and all thereof in accordance with the Lease. " ""Aircraft Documents" shall mean the maintenance and inspection records and all other current and historical records, documentation and mass storage media pertaining to the Aircrafts, including without limitation, the terms identified in Exhibit B hereto, those generated by Lessee during the Term and all such documents and records whether or not kept or to be kept in compliance with any regulation of the Aviation Authority and EASA". (c) Aircraft are sophisticated and highly technical equipment, it is not sufficient to walk-around to inspect the Aircraft. It is essential that Aircraft documents as well as records of Aircraft(s) part removal have to be provided for to the Petitioner/Lessors for an effective maintenance. However, Aircraft documents including records pertaining to maintenance as well as removal of parts has not been provided to the Petitioner/Lessors, despite repeated requests. (d) The Petitioners/Lessors have upon their walk around inspection found that the Aircraft are not been maintained properly and that there is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Aircraft documents and/or records [hereinafter referred to as "Notice of contempt"]. (h) This Notice of contempt was replied to on 30.08.2023 by the Respondent/RP of Go Air, stating that there was no direction by the Court to provide the Aircraft documents and/or records and was limited to granting inspection to the Petitioner/Lessor of their Aircraft of the Petitioners/Lessors. (i) Therefore, the Petitioners/Lessors seek urgent directions to inspect the records pertaining to the Aircraft, its engines and other parts and components relating to the storage, preservation, maintenance performed (if any) and removal/change of such engines, parts and components (if any), of the Aircraft. (j) The Petitioners/Lessors further contend that in lieu of the deteriorating condition of the Aircraft and the fact that there are parts which have been removed and/or are missing from Aircraft, grave and irreparable harm is being caused to the Petitioners/Lessors for which urgent interim directions are necessitated by this Court. 8. Mr. Diwakar Maheshwari, Advocate on behalf of Respondent/RP of Go Air has made the following submissions: (a) This Court by 05.07.2023 Order, was not incli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rify an Order which has been modified by a Division Bench/Superior Court Order. (d) Emphasis has been laid on the conduct of the Petitioners/Lessors who have first filed a Notice of contempt and thereafter filed these Applications during the final hearing of the Writ Petition contending that such Applications are only being filed with a view to delay the final hearing of the Petition. (e) The Petitioner/Lessors in WP(C) 7663/2023 has raised the same prayers before the National Company Law Tribunal [hereinafter referred to as "NCLT"] in IA No. 3253/2023 and therefore, the same cannot be dealt with by this Court as has already been adjudicated by the NCLT and the Petitioners/Lessors are forum shopping and have suppressed material facts. (f) The documents sought by the Petitioners/Lessors are in the care and custody of the Stock Holding Corporation Ltd., the designated custodians for these documents. Obtaining the documents is expensive and would take time. 9. In Rejoinder, it has been submitted on behalf of the Petitioners/Lessors that: (a) The doctrine of Merger will not apply to the present case as what has been modified by the DB Order is not the directions on 'inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioners/Lessors and the Respondent/RP of Go Air alone. 11. The Petitioners/Lessors have contended that the superficial inspection which is being permitted by the Respondent/RP of Go Air i.e. 'walk-around the aircraft' is not sufficient without the Aircraft documents or records to ensure a proper inspection of the Aircraft, and hence have sought urgent directions. 12. The Respondent/RP of Go Air has primarily raised two objections. Firstly, that the interim directions passed by this Court by the 05.07.2023 Order were modified by the DB Order and that any modification to the directions for inspection and maintenance would have to be done by the Division Bench alone. Reliance has further been made on the judgment in the Kunhayammed case to submit that once an order has been modified by the Division Bench and then confirmed by the Supreme Court, the principle of merger becomes applicable and no modification can be made to the same by this Court. 12.1 It has additionally been contended by Respondent/RP of Go Air that the conduct of the Petitioners/Lessors has to be seen prior to granting any relief to them. The Petitioners/Lessors are forum shopping by filing interim applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als and highly valuable accessories which may be accessed by third parties. These documents, records, materials, accessories and parts of the Aircrafts could be removed and/or damaged, so as to cause huge losses to the Petitioners. Further, the Aircraft MSN 7858does not contain an engine or the Auxiliary Power Unit of the Aircraft, and hence is inoperable. 17 boxes of documents required for the maintenance of this Aircraft are also not in possession of the Respondent/GoAir, being already returned to the Lessor - Pembroke Aircraft Leasing 11 Limited on 03.05.2023. 19. The Petitioners have made out a strong prima facie case in view of the provisions of the Aircrafts Rules as discussed herein. The balance of convenience is also in favour of the Petitioners. The Petitioners are suffering irreparable losses as the value of these Aircrafts are diminishing on a daily basis. 20. There can also be no denial of the fact that the Aircrafts of the Petitioners are extremely valuable and highly sophisticated equipment and require regular maintenance for their preservation." [Emphasis supplied] 15. Despite the directions of this Court on 05.07.2023 and thereafter, the canabalization of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urge the same before the learned Single Judge or the NCLT, as the case may be, who would be free to proceed further in accordance with law." [Emphasis Supplied] 16.4 There is no impediment for this Court to pass additional interim directions either. 17. The other contention of Respondent/RP of Go Air that the Petitioners/Lessors are forum shopping by simultaneously filing the same Application before the NCLT and before this Court. However, admittedly, and as set forth in paragraph 8(b) above, and the Petitioners/Lessors in [W.P.(C) 7663/2023], have in their Rejoinder not proceeded with/dropped the similar prayers before the NCLT, in view of the orders passed in this matter. 17.1 So far as concerns the objection of delay in adjudication of the present Petition is concerned, the Respondent/RP of Go Air has yet to commence its final arguments and had on the last date of hearing sought time to examine the recent notification dated 03.10.2020 passed by the Ministry of Corporate Affairs. 17.2 Other than the request of supply of documents being time consuming and onerous, no objection on the merits of the matter has been taken by the Respondent/RP of GoAir. In fact, it is contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r security service for all the Aircrafts at their own expense. Respondent No.3/DGCA shall permit, the duly verified security personnel/security agency so appointed by the Petitioners/Lessors, access at the various airports in and around the country, where the Aircraft are lying parked. 20.3 The Respondent/RP of Go Air shall continue to maintain the Aircraft as already directed. 21. The directions in paragraph 20 above are being passed for all the 54 Aircraft as set forth in the table herein below: S.No. Petition No. Details of the Aircraft Leased 1 WP(C) 6569/2023- ACCIPITER INVESTMENTS AIRCRAFT 2 LTD V UOI Airbus A320-214 MSN 5811IRM VT-GOO 2 WP(C) 6626/2023- EOS AVIATION 12 (IRELAND) LTD. Vs. UOI Airbus A320-271N MSN 11111 IRM VT-WDB 3 WP(C) 7214/2023- PEMBROKE AIRCRAFT LEASING 11 LTD VS DGCA AND ORS Airbus A320NEO MSN 7858 IRM VT-WGN 4 WP(C) 7369/2023- SMBC AVIATION CAPITAL LIMITED AND ORS Vs. UNION OF INDIA AND ORS Airbus A320-214 MSN 5675 IRM VT-GON Airbus A320-271N MSN 7047 IRM VT-WGA Airbus A320-271N MSN 7074 IRM VT-WGB Airbus A320-271N MSN 8498 IRM VT-WGY Airbus A320-214 MSN 5990 IRM VT-GOQ Airbus A320-271N MSN 8656 IRM VT-GOP Airbus A320-214 MSN ..... X X X X Extracts X X X X X X X X Extracts X X X X
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