Ltu Lufttransport Unternehmen Gmbh Now Merged Into Air Berlin Plc And Co Luftverkehrs Kg vs Airports Authority Of India
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 20 July, 2026
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Pronounced on: 30 October, 2026
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Uploaded on: 30 October, 2026
CNR No : DLHC010249402022
+ RFA 277/2022, CM APPL. 46845/2022
LTU LUFTTRANSPORT UNTERNEHMEN GMBH
(NOW MERGED INTO AIR BERLIN PLC AND CO LUFTVERKEHRS
KG)
Saatwinkler Damm 42-43
Berlin 13627
Germany
C/o Remfry & Sagar
Remfry House
At the Millennium Plaza
Sector-27, Gurgaon-122009. .....Appellant
Through: Appearance not given.
versus
AIRPORTS AUTHORITY OF INDIA
Rajiv Gandhi Bhawan, Safdarjung Airport,
New Delhi-110003 .....Respondent
Through: Mr. Vaibhav Kalra, Ms. Neha
Bhatnagar and Mr. Deepankar Singh,
Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 1 of 49
1. The present Regular First Appeal under Section 96 read with Order
XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”) has been preferred by the Appellant/Plaintiff, LTU Lufttransport
Unternehmen GmbH, now merged into Air Berlin PLC & Co. Luftverkehrs
KG , against the Judgment and Decree dated 20.12.2021 passed by the
learned Additional District Judge, whereby its Suit for Recovery was
dismissed as barred by limitation , even though the Plaintiff had established
its claim to ₹68,24,653.71/-.
2. The Plaintiff had instituted a Summary Suit CS(OS) No. 2123/2010
under Order XXXVII CPC against Airports Authority of India and the
Ministry of Civil Aviation, defendants for recovery of ₹94,94,682.61/-,
comprising the principal amount of ₹68,24,653.71/- and pre-suit interest of
₹26,70,028.90/-, together with pendente lite and future interest @ 12% per
annum and costs.
3. The facts in brief, as stated in the Plaint instituted through its duly
constituted attorney, Sh. Shivam Vikram Singh , holder Power of Attorney
dated 06.10.2010 , are that the Plaintiff, a Company incorporated under the
laws of Germany and forming part of the Air Berlin Group, was engaged in
operating scheduled air transport services on medium and long-haul routes,
as well as charter services.
4. Defendant No.1, Airports Authority of India (hereinafter referred to
as “AAI”), constituted by an Act of Parliament,was responsible for
maintaining and managing civil aviation infrastructure and providing air
navigation services.Defendant No. 1, AAI, charges a fee for grant of "air
traffic rights" from foreign airlines, each time their aircraft enter or cross
Indian airspace.The Plaintiff’s aircraft crossed Indian airspace on several
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 2 of 49
occasions, for which charges were raised by AAI and payments were made
by the Plaintiff.
5. On 22.02.2006, an "Overfly Bill" bearing No.
AAI/NAD/DP/TR/2005-06/LTU/22/25079 was raised by Defendant No. 1,
AAI upon the Plaintiff for an amount of 4,35,540, without specifying the
currency. The Plaintiff, in good faith, remitted USD 4,35,540, vide bank
transfer on 04.04.2006, to Defendant No.1, AAI, instead of ₹4,35,540/-.
6. Upon subsequently realising that the amount payable was in fact, Rs.
4,35,540/- and not USD 4,35,540, the Plaintiff, vide Letter dated 12.06.2007,
requested for a refund of the excess payment.
7. By e-mail dated 05.07.2007, AAI informed the Plaintiff that, after
adjustment of certain outstanding amounts and credits, a sum of
₹1,46,33,653.71/-, remained available to its credit. The Plaintiff relied upon
this communication, as an acknowledgment of AAI’s liability to refund
the said amount.
8. Pursuant thereto, AAI remitted a "part payment" of Rs. 78,09,000/-on
08.10.2007, which the Plaintiff acknowledged, vide Letter dated 21.08.2009,
while requesting payment of the balance amount of Rs. 68,24,653.71/-. The
Plaintiff maintained that the Suit was within limitation, relying , inter alia ,
upon the part payment dated 08.10.2007.
9. A reminder was sent on 21.10.2009, in response to which the
concerned official of AAI informed the Plaintiff on 22.10.2009 that its
request had been forwarded to the DGM (Finance), Northern Region.
Further Reminders were sent on 23.10.2009, 09.11.2009, 20.11.2009,
27.11.2009, 04.12.2009, 21.12.2009, 18.06.2010 and 16.07.2010, but the
balance was not refunded.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 3 of 49
10. The Plaintiff thereafter, issued a Demand Notice dated 30.09.2010 to
both Defendant No. 1, Airports Authority of India and Defendant No. 2,
Ministry of Civil Aviation, Government of India , calling upon them to pay
the sum of Rs. 68,24,653.71/- along with interest accrued thereon @ 12%
per annum from 05.07.2007. Despite the Notice, the Defendants failed to
pay the outstanding amount.
11. Aggrieved, the Plaintiff instituted the present Summary Suit under
Order XXXVII CPC seeking recovery of a total sum of Rs. 94,94,682.61/- ,
(comprising of the principal amount of Rs. 68,24,653.71/- and interest of Rs.
26,70,028.90/-,) , along with future and pendente lite interest @ 12% per
annum, till realisation, as Defendant No. 1, Airports Authority of India ,
admitted its liability to pay Rs. 1,46,33,653.71/- to the Plaintiff, of which
only Rs. 78,09,000/- was remitted on 08.10.2007 , leaving the balance of Rs.
68,24,653.71/- unpaid.
12. Summons for appearance were issued, under Order XXXVII CPC.
AAI entered appearance on 27.10.2010, whereafter, the Plaintiff moved an
Application dated 02.11.2010 under Order XXXVII Rule 3(4) CPC, for
issuance of summons for judgment.
13. Subsequently, vide Order dated 28.09.2012, Defendant No. 2,
Ministry of Civil Aviation, was deleted from the array of parties at the
request of the Plaintiff.
14. AAI, filed its Leave to Defend Application on 28.01.2011 . Along with
its Application, it filed the Reply dated 04.11.2010 to the Demand Notice,
explaining that the communication dated 05.07.2007, had been issued by its
Northern Region. Subsequently, outstanding dues of ₹68,24,653/-, were
found in the books of its Western Region and adjusted against the excess
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 4 of 49
payment. According to AAI, after this adjustment and refund of
₹78,09,000/-, no further amount remained refundable. A Ledger extract
showing the Bill-wise adjustment, was enclosed with the Reply.
15. The leave to Defend was allowed in favour of the AAI, Vide Order
dated 24.09.2013, by observing that the rival computations required
examination upon evidence and that the Suit could not be decreed merely on
the basis of the communication dated 05.07.2007, issued by one of AAI’s
regional offices.
16. The Defendant, AAI filed its Written Statement raising the
preliminary objections, that the Suit was liable to be dismissed as not having
been signed, verified and filed by a duly authorised person, inasmuch as the
Power of Attorney dated 06.10.2010 , on the basis of which Mr. Shivam
Vikram Singh had signed and filed the Suit, did not disclose or describe who
was delegating the power, or in what capacity, on behalf of the Plaintiff
Company, nor was any Board Resolution placed on record.
17. AAI also claimed that the Suit was barred by limitation , since the
cause of action had arisen on 05.07.2007 or, at the latest, upon the refund of
the excess amount on 21.09.2007, whereas the Suit came to be filed only on
06.10.2010, i.e., after expiry of the period of three years, as prescribed by
law.
18. On merits, AAI explained that for administrative purposes, the air
space had been divided into five regions,namely Northern, Southern,
Western, Eastern and North-Eastern Regions, and that route navigation
facility charges were levied and recovered from aircrafts entering/crossing
Indian air space, under Section 22(1)(b) of the Airports Authority of India
Act, 1994, read with periodic Circulars and Notifications approved by the
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
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RFA 315/2025 Page 5 of 49
Central Government. The Plaintiff, having used the airspace falling within
the Northern, Western and Southern Regions since February 1996, wa s
liable to pay the applicable Route Navigation Facility Charges (hereinafter
referred to as “RNFC”) .
19. AAI disputed the explanation that the Plaintiff was unaware of the
currency in which the Bill was payable, since it had previously made
payments in Indian currency. According to AAI, the amount received was
USD 4,35,525/-, equivalent to ₹1,96,55,110/-, and a further credit of
₹1,74,713/-, was available in the Plaintiff’s account.
20. Against these amounts, AAI claimed to have adjusted ₹37,73,953.29/-
and ₹14,22,216/- towards Northern Region dues , followed by
₹68,24,653.71/- towards Western Region dues, leaving a balance of
₹78,09,000/-, which was refunded to the Plaintiff, on 21.09.2007.
21. It maintained that its Communication dated 05.07.2007 , concerned the
Northern Region and did not account for all outstanding dues of the other
regions.
22. AAI further stated that the adjustments were made towards the
outstanding principal amounts and that interest remained recoverable from
the Plaintiff. According to AAI, the Bills provided for interest at 1.5% per
month, where payment was delayed beyond 15 days. As on 21.09.2007,
interest of ₹23,84,256.91 for the Northern Region, ₹1,17,16,740.42 for the
Western Region and ₹45,93,746 for the Southern Region, was stated to be
outstanding. A further principal amount of ₹25,49,359.27 was also stated to
be due, for the Southern Region.
23. AAI consequently denied its liability to refund ₹68,24,653.71 or to
pay the interest claimed by the Plaintiff. It maintained that the refund of
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 6 of 49
₹78,09,000 was made on 21.09.2007, and not on 08.10.2007, as claimed by
the Plaintiff.
24. On the contrary, AAI stated that an aggregate amount of
₹2,12,44,102.60 remained recoverable from the Plaintiff ,towards principal
and interest.
25. In the Replication , the Plaintiff contended that the Written Statement
was misconceived, having given no explanation or justification for
withholding the admitted amount, and that the Defendant's conduct was
duplicitous; all Invoices issued and delivered to the Plaintiff, having in fact,
been honoured and paid by it.
26. The Plaintiff disputed the alleged outstanding dues and adjustments.
The Plaintiff maintained that AAI‟s defence had changed, over time. The
Ledger extract enclosedwith AAI’s letter dated 04.11.2010, was stated to
be different from Annexure D-3, subsequently filed with its Application
for leave to defend, while the amounts reflected in those documents, were
also stated to be inconsistent with the Invoices actually issued.
27. The Plaintiff stated that, out of the 21 Western Region Invoices
aggregating to ₹68,24,653/-, it had produced documents evidencing payment
of 18 Invoices amounting to ₹61,44,545/-. It maintained that all Invoices
raised and delivered to it had been paid and, therefore, no Western Region
dues remained, against which ₹68,24,653.71 could have been adjusted.
28. The adjustment of ₹37,73,953.29 and ₹14,22,216 towards the
Northern Region dues, was accepted by the Plaintiff. However, it denied
the alleged Western and Southern Region dues, as well as AAI‟s claim for
interest . According to the Plaintiff, AAI’s communication dated 05.07.2007
had already reflected a credit of ₹1,46,33,653.71 in its favour, after making
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 7 of 49
all permissible adjustments. Thus, it was asserted that all Invoices raised and
delivered to it had been paid and no amount remained outstanding, against
which the disputed adjustment could have been made.
29. The challenge to its attorney’s authority and the objection of
limitation, were also denied.It maintained that the Suit had been validly
instituted by Mr. Shivam Vikram Singh , by virtue of the Power of Attorney
dated 06.10.2010.
30. It further stated that the cause of action had arisen again on
08.10.2007, when AAI refunded ₹78,09,000 as part payment, and that the
Suit instituted on 06.10.2010, was within limitation.
31. From the pleadings of the parties, the following Issues were framed
for adjudication, on 11.08.2014:
“ 1. Whether the Plaint is not signed and verified by the
authorized person on behalf of the Plaintiff? OPD
2. Whether the suit is time barred? OPD
3. Whether the Plaintiff is entitled to decree in the sum of
Rs.68,24,653.71/- as claimed in the plaint? OPP
4. If issue no. 3 is answered in affirmative, whether the
Plaintiff is entitled to interest, if any, on the decretal
amount and at what rate? OPP
5. Relief? ”
32. During the pendency of the proceedings, the Application of the
Plaintiff for bringing on record its merger with Air Berlin PLC & Co.
Luftverkehrs KG and for filing an Amended Memo of parties, was disposed
of, vide Order dated 07.11.2015.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
17:15:11
RFA 315/2025 Page 8 of 49
33. The Suit was thereafter, transferred to the District Court and
renumbered as CS No. 9195/2016 . The documents concerning the merger
were taken on record, vide Order dated 21.03.2018.
34. The Plaintiff examined PW-1,Sh. Friedrich Floto, Senior Vice
President (Finance) at Air Berlin PLC & Co. Luftverkehrs KG, who
tendered his evidence by way of affidavit Ex. PW-1/A and proved the
following documents:
Exhibit Document
Ex. PW-1/1 Power of Attorney dated 06.10.2010
Ex. PW-1/2 Power of Attorney dated 23.09.2014
Ex. PW-1/3 Overfly bill raised by AAI
Ex. PW-1/4 LTU’s refund request dated 12.06.2007
Ex. P-1 AAI’s communication dated 05.07.2007
Ex. PW-1/5 Record of refund of ₹78,09,000
Ex. PW-1/6 LTU’s letter dated 21.08.2009 seeking the balance
Ex. PW-1/7 Reminder correspondence
Ex. PW-1/8
Further reminder e-mails
(Colly.)
Ex. PW-1/9 Demand notice dated 30.09.2010 and postal receipt
35. He was cross-examined on behalf of the Defendant, in the course of
which the Resolution dated 09.08.2018 issued on behalf of the Insolvency
Administrator of Air Berlin was exhibited as Ex. PW-1/R.
36. PW-2, Sh. Shivam Vikram Singh, the constituted attorney of the
plaintiff, tendered his evidence by way of Affidavit Ex. PW-2/P and proved
the Plaint as Ex. PW-2/A. The Power of Attorney dated 09.08.2018 executed
in his favour by the Insolvency Administrator, was Ex. PW-2/B.
37. The Defendant examined DW-1 Sh. Vijay Kumar , Joint GM
(Finance), Airports Authority of India, who tendered his evidence by way
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
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RFA 315/2025 Page 9 of 49
of affidavit Ex. DW-1/A, andrelied upon the region-wise account tabulations
as Ex. DW-1/1 and the statement reflecting an alleged outstanding amount
of ₹4,33,178.87 as Ex. DW-1/2. In the course of his cross-examination on
behalf of the Plaintiff, he produced the bills pertaining to the Northern,
Western and Southern Regions as Ex. DW-1/Z (colly).
38. In cross-examination, DW-1 admitted that the figures in the
documents pertaining to the Southern and Western Regions differed in the
Written Statement and the affidavit of evidence ; that the charts Ex. DW-
1/1,did not reflect any principal amount due; that no document had been
placed on record showing the basis on which the Charts were prepared, that
there existed no formal Agreement between the parties, for charging of
interest on RNFC amounts, and that the Statements relied upon, did not
reflect the actual dates on which payments were received from the Plaintiff.
39. The Ld. Trial Court , on Issue No. 1 , held that the Power of Attorney
dated 06.10.2010 in favour of Mr. Shivam Vikram Singh, had not been
discredited during trial; that there was no requirement in law that a
Company's attorney be its employee, and that the Plaint could not be said to
be unsigned or unverified by a duly authorised person, relying on United
Bank of India v. Naresh Kumar , (1996) 6 SCC 660, wherein it was held that
once the Suit is validly instituted, it cannot be dismissed on technical
grounds. The issue was accordingly, decided against the Defendant.
40. On Issue No. 2 , the Ld. Trial Court held that the period of limitation
of three years commenced from 08.10.2007 , being the admitted date on
which the Defendant remitted the part payment of Rs. 78,09,000/-. The Plaint
was initially presented on 06.10.2010 and was returned on the same date, for
removal of objections relating to the vakalatnama , duplicate set, caveat, etc.,
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:30.10.2026
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RFA 315/2025 Page 10 of 49
to be re-filed within a week. Upon re-filing on 08.10.2010, six objections
were marked, including non-payment of court fee on the jurisdictional value,
improper filing of the vakalatnama and non-filing of the duplicate set, which
remained unremoved till 11.10.2010. The objections were removed on
16.10.2010, whereupon the Suit was registered and listed before the learned
Joint Registrar, on 19.10.2010.
41. Relying on Oil and Natural Gas Corporation Ltd. v. Joint Venture of
Sai Rama Engineering Enterprises , 2019 SCC OnLine Del 10456, Sharma
Kalypso Pvt. Ltd. v. Engineers India Ltd. , decided on 17.06.2020, and M/s
Gautam Associates v. Food Corporation of India , decided on 29.07.2009,
the Ld. Trial Court held that the defects were fundamental in nature,
rendering the initial presentation of the plaint non est in law, and that the
date of registration of the Suit, i.e., 16.10.2010, being beyond the period of
limitation expiring on 08.10.2010, held the Suit to be time-barred. Issue No.
2 was accordingly, decided against the Plaintiff.
42. On Issues No. 3 and 4 , taken up together, the Ld. Trial Court held
that the Defendant's admission dated 05.07.2007 acknowledging a sum of
Rs. 1,46,33,653.71/- as payable to the Plaintiff, remained neither denied nor
satisfactorily explained, and that the Account tabulations relied upon by the
Defendant, did not reflect any principal amount due, nor was any document
produced, to substantiate the basis of the alleged adjustments .
43. It was further observed that no Agreement existed between the
parties, for charging of interest on RNFC amounts; such interest being
incapable of unilateral imposition, relying on Vijay Mittal v. M/s Bajaj
Products &Anr. , 2015 SCC OnLine Del 12210. It was accordingly, held
that the Plaintiff had proved its entitlement to the sum of Rs.
Signature Not Verified
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KUMAR BHATT
Signing Date:30.10.2026
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RFA 315/2025 Page 11 of 49
68,24,653.71/- from the Defendant. However, in view of the finding on
Issue No. 2 that the Suit was barred by limitation, it was held that the
Plaintiff was not entitled to recovery of the said amount or any interest
thereon in the present Suit.
44. Accordingly , the Ld. Trial Court, vide Judgment dated 20.12.2021,
while holding the Plaintiff entitled on merits to the sum claimed,
dismissed the Suit as being barred by limitation, with no order as to
costs.
45. Aggrieved thereby , the Appellant has filed the present Regular First
Appeal.
46. The grounds of challenge are that the finding on limitation is
erroneous both on facts and in law, and has been rendered in disregard of
Section 26 and Order IV Rule 1 CPC. A Suit is instituted upon presentation
of the Plaint, and where a Plaint is presented within limitation, the bar does
not apply, merely because it is registered on a later date after removal of the
objections.
47. Reliance in this regard is placed upon Vidyawati Gupta & Ors. v.
Bhakti Hari Nayak & Ors. , JT 2006 (2) SC 278; Alka Kasana v. Indian
Institute of Technology , 222 (2015) DLT 473; D.C. Sankhla v. Ashok Kumar
Parmar & Ors. , 1995 I AD (Delhi) 753 for the proposition that procedural
defects in a Plaint, being curable, relate back to the date of original
presentation for purposes of limitation, and that a Suit must be deemed to
have been instituted on the date the plaint was filed in Court and not the date
on which it was ordered to be registered.
48. The objections raised by the Registry were technical, the Plaint
presented on 06.10.2010 was complete in all respects, and the defects were
Signature Not Verified
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KUMAR BHATT
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removed on 16.10.2010, without any amendment, at the first opportunity
upon the reopening of this Court, after the intervening vacation. The defect
sheet itself permitted the papers to be re-filed within a week, which was
overlooked by the learned Trial Court.
49. It is contended that the Ld. Trial Court failed to appreciate that the
objections raised in filing, first pointed out only by 11.10.2010, could not
have been removed, or even raised, at an earlier point in time, since this
Court was closed for the intervening vacation from 09.10.2010 to
16.10.2010, and that the Appellant, at the first available opportunity upon
reopening of the Court, removed all technical defects on 16.10.2010,
without any amendment whatsoever , pursuant to which the Suit was passed
for hearing, on 19.10.2010.
50. It is further contended that the Ld. Trial Court failed to appreciate that
no tenable objection of limitation was raised by the Respondent, either in its
pleadings or during the course of arguments, and that the onus of proving
the plea of limitation, which lay upon the Respondent, was never
discharged; whether in the pleadings or in evidence.
51. It is contended that the judgments relied upon by the Ld. Trial Court,
being rendered in the context of petitions under Section 34 of the Arbitration
and Conciliation Act, 1996, were inapplicable to the facts and circumstances
of a civil Suit governed by Section 26 and Order IV CPC.
C.M. APPL. 46845/2022, under Order XLI Rule 22 CPC, Cross-
Objections by the Respondent:
52. The Respondent filed Cross-Objections , under Order XLI Rule 22
CPC, assailing the findings returned in the impugned Judgment, on Issue
Nos. 1, 3 and 4.
Signature Not Verified
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KUMAR BHATT
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53. It was submitted that although the Suit had ultimately been dismissed
as barred by limitation, the findings concerning the Authority to institute the
Suit and the Appellant’s entitlement to recover ₹68,24,653.71 with
interest,were erroneous and liable to be set aside.The Respondent, therefore,
sought reversal of those findings, notwithstanding the dismissal of the Suit on
the ground of limitation.
54. The principal challenge to the findings on Issue Nos. 3 and 4 was
that the learned Trial Court had failed to consider the Appellant's admission
regarding receipt of the Western Region bills. The Appellant, in its Reply
dated 11.05.2011 to the Application for Leave to Defend and in paragraph 4
of its Replication, had acknowledged receipt of 18 out of the 21 bills relied
upon by the Respondent, aggregating to ₹61,44,545, while asserting that
payment against those bills, had already been made. According to the
Respondent, Receipt and identification of these bills, having been admitted,
did not require further proof.
55. Reliance was placed upon the Order dated 24.09.2013 granting leave
to defend, wherein this Court had noticed the competing computations filed
by the parties, and observed that the dispute required evidence and could not
be decided merely on the basis of the communication dated 05.07.2007,
issued by the Northern Region. The Respondent maintained that Annexure
D-3 and the corresponding bills formed part of the judicial record and,
having been admitted by the Appellant, were not required to be separately
proved during trial.
56. The Respondent further submitted that Issue No. 3 expressly placed
the onus upon the Appellant to establish its entitlement to ₹68,24,653.71.
Since the Appellant admitted Receipt of 18 bills but asserted that they had
Signature Not Verified
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KUMAR BHATT
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already been paid, the burden of proving such payment rested upon it.
However, the documents filed with its Reply to the Application for leave to
defend in support of payment, were not exhibited during evidence. The
Account tabulation, Ex. DW-1/1, was stated to contain the corresponding
bill numbers, dates and amounts. The learned Trial Court, therefore, erred in
requiring the Respondent to establish afresh that the admitted bills remained
outstanding, despite the Appellant having failed to prove its plea of
payment.
57. The Respondent relied upon its Written Statement, the ledger entries
and the account tabulations, to submit that ₹68,24,653.71 had already been
adjusted against the principal dues of the Western Region . The relevant
records were stated to reflect that the adjustment had been made, as on
21.09.2007.
58. The Respondent maintained that the adjustment of ₹68,24,653.71was
against the principal dues of the Western Region and was distinct from its
separate assertion regarding interest. Since the adjustment had already been
made before the institution of the Suit, no counterclaim was required in
respect thereof.
59. The Respondent also supported the finding that the Suit was barred by
limitation. It was submitted that the Appellant's own pleadings established
the absence of any running account between the parties, and that the Suit, in
terms of Order IV CPC, had not been validly instituted until 16.10.2010,
beyond the period of three years, computed from 08.10.2007.
60. It was additionally contended that the documents filed by the
Respondent, indicated that the Appellant had merged into Air Berlin PLC &
Co. Luftverkehrs KG in 2001, such that no entity by the name of the
Signature Not Verified
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KUMAR BHATT
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Plaintiff was in existence, on the date of institution of the Suit. It was further
submitted that the Resolution dated 09.08.2018 authorised only PW-1 and
not PW-2, thereby, raising a further objection to the authority of PW-2 to
represent the Appellant.
61. In reply to the Cross-Objections, the Appellant maintained that the
findings on Issue Nos. 1, 3 and 4, had been correctly returned. The
Respondent had neither filed a Counter-Claim nor produced reliable
documentary evidence establishing the alleged outstanding dues or the
adjustment of Rs. 68,24,653.71.
62. The Appellant relied upon the communication dated 05.07.2007 , Ex.
P-1, whereby the Respondent had quantified the net excess amount
refundable to it, at Rs.1,46,33,653.71 after adjustment of the outstanding
dues. Upon refund of Rs.78,09,000 on 08.10.2007, a balance of
Rs.68,24,653.71 remained payable. Despite repeated reminders issued
between October, 2009 and July, 2010, the Respondent did not communicate
that this balance had been adjusted against any Western Region dues.
63. The plea of adjustment was raised only in the Respondent's Reply
dated 04.11.2010 to the demand Notice, after institution of the Suit.
64. Furthermore, the Ledger extract enclosed with that communication,
differed from Annexure D-3 subsequently filed with the Application for
Leave to Defend. The amounts appearing in the successive computations
also varied, demonstrating that the Respondent's explanation, had changed
during the proceedings.
65. The Appellant clarified that its acknowledgment of receipt of 18
Western Region bills, did not constitute an admission that those bills
remained unpaid. Its consistent case was that the said bills, aggregating to
Signature Not Verified
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KUMAR BHATT
Signing Date:30.10.2026
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Rs.61,44,545, had already been paid and that all Invoices raised and
delivered to it, stood discharged. The Northern Region dues of
Rs.37,73,953.29 had, even according to the Respondent, already been
adjusted, while the alleged Southern Region Invoices, pre-dated the
communication dated 05.07.2007.
66. It was submitted that the Respondent, having relied upon a completed
adjustment against alleged Western Region dues, was required to prove that
those dues were subsisting on the date of adjustment. The documents
annexed to the Application for Leave to Defend, but not produced and
proved during trial, could not be treated as substantive evidence merely
because the Appellant had referred to them, while disputing their
correctness.
67. Reliance was placed upon the cross-examination of DW-1, who
admitted that he had never personally dealt with the Appellant's accounts;
that Ex. DW-1/2 had not been filed with the Written Statement; that the
Charts did not disclose any principal amount due; and that no Ledger or
Bank Statement showing the payments received from the Appellant, had
been produced. He also admitted that the statements relating to the Northern,
Western and Southern Regions did not reflect the actual dates, on which
payments were received.
68. The Appellant further relied upon DW-1's admission that there was no
agreement between the parties for charging interest on delayed payment of
RNFC and that the amount of interest allegedly due as on 04.04.2006, could
not be discerned from the Statements produced by the Respondent. The
varying figures and absence of their supporting records, were stated to
justify the rejection of the Respondent's defence, by the learned Trial Court.
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KUMAR BHATT
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69. The objection concerning Authority, was also denied. The original
notarised and stamped Powers of Attorney dated 06.10.2010 and
23.09.2014, together with the subsequent authorisations issued on behalf of
the Insolvency Administrator on 09.08.2018, had been produced during the
evidence of PW-1 and PW-2. The Suit had, therefore, been instituted and
continued through duly authorised persons.
70. On limitation, the Appellant, in the Appeal reiterated that the Suit
had been presented on 06.10.2010, before expiry of limitation on
08.10.2010. The objections raised by the Registry were procedural, the
defect sheet permitted their removal within one week, and the High Court
remained closed for vacation from 09.10.2010 to 15.10.2010. The defects
were removed on 16.10.2010, immediately upon reopening of the Court.
Their removal, therefore, related back to the original presentation of the
Plaint.
71. The Appellant accordingly, sought dismissal of the Cross-Objections
and reversal of the finding on limitation in its Appeal, with a consequential
Decree for Rs.68,24,653.71 along with interest.
72. In Rejoinder, the Respondent reiterated its Cross-Objections and
submitted that, although the plaint had been presented on 06.10.2010, the
Suit was duly instituted under Order IV read with Orders VI and VII CPC
only on 16.10.2010 and was, therefore, barred by limitation.
73. It denied having taken inconsistent stands and maintained that the
Appellant was aware of its objections throughout the proceedings. It was
further submitted that the admissions elicited from DW-1, had to be read
with the documentary evidence on record and that its case had been fully
addressed in the Written Submissions filed before the learned Trial Court.
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74. In its Written Submissions, the Appellant reiterated the grounds of
Appeal and its opposition to the Cross-Objections. Additionally, reliance
was placed upon the Full Bench decision of this Court in Pragati
Construction Consultants v. Union of India, 2025:DHC:717-FB, to submit
that defects relating to a vakalatnama, signature or verification and deficient
court fee do not, individually, render a filing non-est . It was argued that such
defects may have that consequence only where their cumulative effect
demonstrates that the initial filing was not intended to be final and was made
merely to arrest limitation; whereas the plaint presented on 06.10.2010 was
complete in its material particulars and disclosed an unequivocal intention to
prosecute the Suit.
75. In its Written Submissions, the Respondent reiterated the Cross-
Objections and further relied upon Sections 101 to 103 of the Indian
Evidence Act, 1872. It was submitted that, once the Appellant admitted
receipt of 18 Western Region bills, but pleaded that they had already been
paid, the burden of proving such payment rested upon the Appellant.
76. Conversely, the Respondent also relied upon the Full Bench decision
in Pragati Construction Consultants (supra), to support the finding on
limitation. It was argued that the defects in the filing dated 06.10.2010,
when considered cumulatively, showed that the Suit had not been duly
instituted under Order IV read with Orders VI and VII CPC, until
16.10.2010.
77. The Respondent additionally objected to the admissibility of the
electronic communications relied upon by the Appellant, particularly Ex.
PW-1/7 and Ex. PW-1/8 (Colly.), on the ground that they were not
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KUMAR BHATT
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accompanied by a valid Certificate under Section 65B of the Indian
Evidence Act, 1872.
Submissions heard and record perused
78. Admittedly, Defendant No. 1, AAI, charges a fee for grant of "air
traffic rights" from foreign airlines, each time their aircraft enter or cross
Indian airspace.The Plaintiff’s aircrafts crossed Indian airspace falling
within the Northern, Western and Southern Regions since February 1996,
wa s liable to pay the applicable Route Navigation Facility Charges
(hereinafter referred to as “RNFC”) on several occasions, for which
charges were raised by AAI and payments were made by the Plaintiff.
79. It is also not disputed that the Appellant had remitted 4,35,540 in US.
Dollars to the Respondent, against a bill of Rs. 4,35,540/-. The Respondent,
by its e-mail dated 05.07.2007, acknowledged a sum of Rs. 1,46,33,653.71/-
as lying to the credit of the Appellant, but refunded only Rs. 78,09,000/- on
08.10.2007. The Appellant claimed the balance of admitted amount of Rs.
68,24,653.71/-, while the Respondent, when asked to refund the admitted
excess amount, asserted that it stood adjusted against the dues of its
Northern and Western Region.
80. The Appellant/Plaintiff in the Appeal, raised the question of
whether the Suit was instituted within limitation.
81. The Cross-Objections raise two questions for consideration: firstly,
whether the Suit was instituted and pursued by duly authorised persons; and
secondly, whether the Respondent was entitled to retain Rs. 68,24,653.71/-
by way of adjustment, against its alleged outstanding dues.
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KUMAR BHATT
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I. Whether the Suit was instituted by a duly authorised persons:
82. The learned Trial Court held that the Plaint was duly signed and
verified by Sh. Shivam Vikram Singh, duly authorised vide Power of
Attorney dated 06.10.2010 in his favour.
83. The Respondent has challenged this finding on the grounds that the
Power of Attorney does not disclose by whom it was executed and no Board
Resolution was produced; that the original Plaintiff had merged into Air
Berlin in 2001 and was not in existence when the Suit was instituted; and
that the authority to continue the proceedings after the appointment of the
Insolvency Administrator, particularly of PW-2 , Sh. Shivam Vikram Singh,
was not established.
84. The Plaint was signed and verified by Sh. Shivam Vikram Singh under
the Power of Attorney dated 06.10.2010, Ex. PW-1/1 .
85. PW-2, Sh. Shivam Vikram Singh , in his affidavit, Ex. PW-2/P, and in
his cross-examination dated 28.11.2018, affirmed that he had signed the
Plaint and the Replication under this Power of Attorney. Nothing was
elicited in cross-examination to discredit its execution or his authority under
it , and no evidence in rebuttal was led by the Respondent.
86. In United Bank of India v. Naresh Kumar , (1996) 6 SCC 660, the
Supreme Court observed as under:
“10. … as a company is a juristic entity, it can duly
authorise any person to sign the plaint or the written
statement on its behalf … A person may be expressly
authorised to sign the pleadings on behalf of the company,
for example by the Board of Directors passing a resolution
to that effect or by a power of attorney being executed in
favour of any individual. In absence thereof and in cases
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where pleadings have been signed by one of its officers a
corporation can ratify the said action of its officer in
signing the pleadings. Such ratification can be express or
implied . The court can, on the basis of the evidence on
record, and after taking all the circumstances of the case,
specially with regard to the conduct of the trial, come to the
conclusion that the corporation had ratified the act of
signing of the pleading by its officer.”
87. A Company which has authorised a person to sign its pleadings by a
power of attorney, without a separate Board Resolution, can duly ratify it
expressly or impliedly. Moreover, PW-1, Sh. Friedrich Floto , deposed in his
affidavit, Ex. PW-1/P, that this Power of Attorney was executed before a
notary by Sh. Helmut Weixler , Managing Director of the original Plaintiff, in
favour of Sh. Shivam Vikram Singh and others.
88. Moreover, as discussed hereinafter, the Suit has been consistently
pursued by the original Plaintiff, its successor and the Insolvency
Administrator, which in any event amounts to ratification of its institution.
89. The plea that the original Plaintiff had ceased to exist in 2001, is
contrary to the record. PW-1 Sh. Friedrich Floto explained, with reference to
the Commercial Register, Ex. PW-1/CR (Colly.), that in 2001 the original
Plaintiff took over another Company, and thus, continued in existence. Its
own merger into Air Berlin PLC & Co. Luftverkehrs KG, took place only in
2011, as admitted by DW-1 himself in his affidavit, Ex. DW-1/A, and as
recorded in the Order dated 21.03.2018.
90. The original Plaintiff was, therefore, in existence when the Suit was
instituted on 06.10.2010. The omission to mention the merger in the
Replication dated 06.05.2014 is of no consequence, since the documents
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regarding the merger was subsequently brought on record vide Order dated
17.11.2015. More importantly, these facts were admitted by the Defendant,
as well.
91. After the merger, a further Power of Attorney dated 23.09.2014, Ex.
PW-1/2 , was executed on behalf of Air Berlin in favour of Sh. Shivam
Vikram Singh and others. After the appointment of the Insolvency
Administrator, PW-1 was authorised by the Resolution dated 09.08.2018,
Ex. PW-1/R, and a separate Power of Attorney of the same dateEx. PW-2/B,
was executed in favour of PW-2, Sh. Shivam Vikram Singh. The objection
that the Resolution authorised only PW-1, overlooks this separate
authorisation.
92. As regards the vakalatnama, PW-2 deposed that it was executed
under the Power of Attorney dated 06.10.2010 and continues unless
withdrawn, and it has not been shown to have been withdrawn at any stage.
The Suit has, thus, been pursued throughout with the authority of the
original Plaintiff, its successor and the Insolvency Administrator.
93. There is, therefore, no infirmity in the finding of the learned Trial
Court on Issue No. 1, and the challenge thereto in the Cross-Objections, is
without merit.
II. Whether the Respondent/Defendant was entitled to retain Rs.
68,24,653.71/- by way of adjustment, against its alleged outstanding dues:
94. On Issues No. 3 and 4 , the learned Trial Court held that the
communication dated 05.07.2007, acknowledging Rs. 1,46,33,653.71/- as
payable to the Plaintiff, had neither been denied nor satisfactorily explained;
that the account statements relied upon by the Defendant did not reflect any
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KUMAR BHATT
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principal amount due, and no document was produced to substantiate the
alleged adjustments; that the documents annexed to the Application for
Leave to Defend had not been proved during trial; and that there was no
agreement for charging interest on RNFC. It, accordingly, held that the
Plaintiff had proved its entitlement to recovery of Rs. 68,24,653.71/-, but
declined relief in view of its finding on limitation.
95. The Respondent/Defendant has assailed this finding, in its Cross-
Objections. It contends that the Appellant, in its Reply Affidavit filed in
answer to the Application for leave to defend and in its Replication,
admitted the receipt of 18 of the 21 bills of the Western Region against
which the balance was adjusted ; that the receipt of these bills, being
admitted, required no proof; that the burden of proving the alleged payment
lay upon the Appellant, which it failed to discharge; and that the absence of
a separate issue on payment, did not relieve the Appellant/Plaintiff of this
burden.
96. Admittedly, on account of currency confusion, a sum of 4,35,540 got
paid to the Respondent in US Dollars,instead of Rupees, resulting in acredit
of a sum of Rs. 1,46,33,653.71/- which was acknowledged by the
Respondent/Defendant, by its e-mail dated 05.07.2007, Ex. P-1 . However,
it refunded only Rs. 78,09,000/-, on 08.10.2007. It is admitted that, out of
the remittance received from the Appellant on 04.04.2006, the Respondent
adjusted Rs. 37,73,953.29/- and Rs. 14,22,216/- towards the dues of its
Northern Region, which adjustment was accepted by the Plaintiff .
97. The Plaintiff claimedthe balance of admitted amount of Rs.
68,24,653.71/-, while the Defendant declined to refund the excess amount,
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KUMAR BHATT
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on the ground that it stood adjusted against the dues of its Western Region,
which is the subject matter of the Suit.
98. The Respondent, AAI, contends that Ex. P-1 related only to its
Northern Region. DW-1, Sh. Vijay Kumar , deposed in his cross-examination
on 11.09.2019 as under:
“Q. Whether the letter dated 05.07.2007 Ex.P1 mentions
figure of Rs. 1,46,330,657.71/- after adjusting all the bills
pertaining to Plaintiff of all the Regions?
Ans. The witness states that this figure is only in respect of
Northern Region.
Earlier all the five Regions of Airport Authority of India
used to do billing with regard to usage of airspace
independent of each other and from the year 2014-15
(approximately), the billing has been centralized and it is
carried out at Delhi.”
99. The bare perusal of e-mail dated 05.07. 07 Ex. P-1, reflects that it was
issued by “ Data Ram, for General Manager (F&A) NR”. On its face, it is
evident that the e-mail pertained only to Northern Region as has been
explained by DW-1, in his cross-examination, as stated above.
100. It does not, therefore, preclude the Respondent from establishing that
dues of its Western Region were also outstanding against the Appellant and
stood adjusted.
101. The Defendant has explained that there were outstanding dues of its
Western Region, against which the balance was adjusted. It was first set out
in its letter dated 04.11.2010, written in reply to the Demand Notice, which
reads as under:
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KUMAR BHATT
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102. The Ledger extract annexed thereto, purports to record that on
21.09.2007, the Western Region applied a credit of Rs. 68,24,653/- received
from the Northern Region against 21 bills dated between 05.02.1996 and
30.03.2003, with the narration: “Being the amount adjusted against the
credit note received from northern region vide letter No.
AAI/NAD/NR/REV/2007-08/1859-60 dated 10.09.07 i.r.o. M/s Luft
Transport”. The Defendant maintained that this adjustment was made
against the principal dues of the Western Region. The Ledger extract is
reproduced as under:
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KUMAR BHATT
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103. The Plaintiff, however, disputed the adjustment of Rs. 68,24,653/-,
against these 21 bills.
104. The Plaintiff, in paragraphs 4 and 6 of the preliminary submissions in
its Replication to the Written Statement, stated as under:
“4 …It is further respectfully submitted that the ledger
extract, details of bills with respect to the Western Region
and Annexure D-3 are not correct; the amounts of certain
invoices mentioned therein are not consistent with the
actual invoices issued to the Plaintiff . It is submitted that
out of the 21 invoices sought to be adjusted amounting to ₹
68,24,653/- (Rupees Sixty Eight Lakh Twenty Four
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KUMAR BHATT
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Thousand Six Hundred and Fifty Three), the Plaintiff has
furnished documents evidencing settlement of an amount
of ₹ 61,44,545/- (Rupees Sixty One Lakh Forty Four
Thousand Five Hundred and Forty Five). In fact, the
Plaintiff has made payment towards all invoices raised and
delivered to it, there is no pending invoice for which any
adjustment was to be made. The letter of the Defendant No.
1 dated November 4, 2010 along with the ledger extract
annexed therewith, reconciliation of the ledger extract and
the documents reflecting the payments made by the Plaintiff
are already a part of this Hon‟ble Court‟s record and the
Plaintiff craves leave to refer to and rely upon the same.
6 …The Defendant is merely trying to muddle the facts and
seeking to demonstrate that it has held back payment of an
admitted amount (which is the subject matter of the instant
Suit) on the basis of certain allegedly outstanding invoices
raised on the Plaintiff in 1996, 1998, 1999, 2001, 2002 and
2003. The duplicitous conduct of the Defendant is apparent
as all the invoices issued and delivered to the Plaintiff
have been honoured and paid by it.”
105. The reconciliation referred to above was annexed to the Reply
Affidavit dated 11.05.2011, as part of Annexure P-1 (Colly.). Therein, the
Appellant set out, against each of 18 of these bills, the date on which it
claimed to have paid it, between 1996 and 2003; for instance, Bill No.
O/60/95/6187 dated 05.02.1996 for Rs. 3,11,175/- is shown as paid on
08.03.1996.
106. Against the remaining three bills, namely Bill No. O/60/98/6215
dated 09.03.1999 for Rs. 2,47,718/-, Bill No. O/60/02/5489 dated
21.08.2002 for Rs. 30,885/- and Bill No. F/60/02/3337 dated 21.08.2002 for
Signature Not Verified
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KUMAR BHATT
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Rs. 4,01,505/-, aggregating to Rs. 6,80,108/-, the Appellant recorded
“Invoice not provided”. The reconciliation is reproduced as under:
107. According to the Defendant, AAI, the payment made by the Plaintiff
on 04.04.2006, pertained to the Northern Region. Thereafter, the Western
and Southern Regions were asked whether anything was due from the
Plaintiff, and on being informed of the dues of the Western Region, the same
were also adjusted from the amount received from the Plaintiff, whereafter
nothing remained due from the Plaintiff.
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KUMAR BHATT
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108. However, DW-1, when confronted with the statements pertaining to
the Northern, Western and Southern Regions, collectively Ex. DW-1/Z,
consistently stated that the amount of interest due and payable by the
Plaintiff on 04.04.2006 could not be discerned from these statements. He
further stated that there were no documents on record from which the
principal amount due for the different regions could be seen. DW-1 admitted
that the Defendant used to issue letters to the airlines when payments were
not received, but was unable to state what steps had been taken by the
Defendant for recovery of the amount allegedly due since 1995. He further
admitted that had the Plaintiff not made the payment of 4,35,540 in US
Dollars instead of Rupees, the Defendant would have had no excess amount
to adjust. He also admitted that he had no personal knowledge of the case
and was deposing only on the basis of the record.
109. DW-1 placed on record the region-wise tabulations, Ex. DW-1/1, and
the statement, Ex. DW-1/2, reflecting an alleged outstanding amount of Rs.
4,33,178.87/-. In his cross-examination, he admitted that he had remained
posted in the Northern Region from 1996 to 2006 and that the accounts of
all the five regions were consolidated at the Headquarters, Rajiv Gandhi
Bhawan, Delhi. The flight movements over Indian airspace were monitored
and recorded by the Air Traffic Controller of the Defendant at the airport
where the airspace was used, and the billing was done by the ATC, which
alone forwarded the bills to the airline operator. He had never personally
dealt with the accounts of the Plaintiff; the Statement Ex. DW-1/1 was not
printed by him but was received from the different regions, while Ex. DW-
1/2 was printed by him from the system.
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KUMAR BHATT
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110. DW-1 admitted that Ex. DW-1/2 did not form part of the list of
documents filed with the Written Statement, and that the figures in the
documents pertaining to the Southern and Western Regions differed between
the set filed with the Written Statement and the set filed with his affidavit,
the difference appearing in the interest column. He explained that Chart Ex.
DW-1/1 had been filed to show the interest due and payable by the Plaintiff,
and did not pertain to the principal amount. He admitted that the bills shown
in the charts did not reflect any principal amount due; that no document had
been placed on record on the basis of which Ex. DW-1/1 was prepared; that
the data received from the regions was believed to be true. He had not
personally verified from any region whether Ex. DW-1/1 had been correctly
prepared.
111. DW-1 further admitted that he was not aware whether any of the
Invoices in the records of the Defendant, bore the signatures of the Plaintiff
in acknowledgement of their receipt, and that the Invoices, Ex. DW-1/Z
(Colly.), pertained to the interest component of RNFC.
112. He also admitted that no interest could have been charged after
04.04.2006, when the payment of USD 4,35,540 was received by the
Defendant. Significantly, there was no agreement between the parties for
charging interest on RNFC for delayed payment. Not only this, DW-1
further admitted that no ledger showing the payments received fro m the
Plaintiff towards the invoices raised, nor any bank statement, had been
placed on record by the Defendant.
113. Admittedly, no counter-claim was filed by the Defendant seeking
recovery either of the alleged outstanding amount or of the alleged interest.
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114. From the cross-examination of DW-1, it thus emerges that no
principal amount was shown to be due and payable by the Plaintiff for any
region,and the claim of the Defendant was, in substance, confined to interest
on delayed payments since 1996, in respect of which no Notice is shown to
have been sent to the Plaintiff. Also, there existed any agreement for
payment of interest @ 12% or 18% per annum, on delayed payments.
115. It was for the Defendant, which asserted that the excess
acknowledged in Ex.P-1 stood adjusted, to prove that an amount of Rs.
68,24,653/- was outstanding towards its Western Region, which it was
entitled to adjust from the excess received from the Plaintiff. The contention
that the Plaintiff admitted the receipt of 18 of the bills does not advance the
case of the Defendant. The Plaintiff, while acknowledging these bills,
consistently asserted that they had been paid, and did not admit that any
amount remained due under them.
116. Though certain ledger accounts and statements of account have been
relied upon by the Defendant, none of them has been proved in accordance
with the rules of evidence, and no Certifica te has been annexed to any of the
statements. DW-1 was the sole witness of the Defendant and he himself had
no personal knowledge of these documents and was unable to explain the
entries made therein. Moreover, he categorically admitted that there was no
principal amount due against the invoices.
117. The learned Trial Court, therefore, rightly held that the Plaintiff had
proved its entitlement to recover Rs. 68,24,653.71/-. The challenge to this
finding in the Cross-Objections is not tenable.
118. The Plaintiff has claimed interest @ 12% per annum from 05.07.2007,
together with pendente lite and future interest at the same rate. No
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agreement for payment of interest on the refundable excess has been shown.
The Demand Notice dated 30.09.2010, Ex. PW-1/9 (Colly.), sent to the
Respondent along with the postal receipt, however, expressly claimed
interest from 05.07.2007.
119. In the present case, the Respondent had acknowledged the excess
lying with it on 05.07.2007, and its retention of the balance of Rs.
68,24,653.71/- has been found unjustified. Having regard to these
circumstances, simple interest @ 6% per annum, which does not exceed the
current rate of interest, on Rs. 68,24,653.71/- from 05.07.2007 until the
institution of the Suit is considered reasonable.
120. The Appellant is, accordingly, entitled to pendente lite and future
interest @ 6% per annum on Rs. 68,24,653.71/- from the date of institution
of the Suit till realisation.
121. The Appellant is, thus, entitled to simple interest @ 6% per annum on
Rs. 68,24,653.71/- from 05.07.2007 till realisation. Issue No. 4 is decided
accordingly.
III. Whether the Suit was instituted within limitation:
122. The most significant question is : whether the Suit is barred by
Limitation. It is not in dispute that an amount of 4,35,540 was claimed in
Rupees but was inadvertently, paid by the Plaintiff/Appellant in Dollars,
leading to an admitted excess payment of Rs. 1,46,33,653.71/-, as reflected
in e-mail dated 05.07.2007Ex.P-1,of the Defendant/Respondent. The
Defendant has remitted Rs. 78,09,000/- on 08.10.2007, but asserted that Rs.
68,24,653.71/- was adjusted towards the dues for Northern Region.
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KUMAR BHATT
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123. The Limitation for filing of the Suit was to be calculated from the date
of part payment, i.e. 08.10.2007, in terms of S.19 Limitation Act, which
reads as under:
“19. Effect of payment on account of debt or of interest on
legacy.—Where payment on account of a debt or of interest
on a legacy is made before the expiration of the prescribed
period by the person liable to pay the debt or legacy or by
his agent duly authorised in this behalf, a fresh period of
limitation shall be computed from the time when the
payment was made:
Provided that, save in the case of payment of interest made
before the 1st day of January, 1928, an acknowledgment of
the payment appears in the handwriting of, or in a writing
signed by, the person making the payment.
….”
124. The period of three years, therefore, expired on 08.10.2010.
125. Though the Plaint was first presented on 06.10.2010, i.e. within the
period of limitation, the defects relating to the vakalatnama, court fee and
duplicate set, were pointed out, which were finally removed and the Suit
was registered on 16.10.2010. The Ld. District Judge held these defects as
making the filing non-est and treated the Suit as having been instituted only
on 16.10.2010, and the Suit was dismissed as barred by limitation.
126. The short question, therefore, is whether the defects in the Plaint
presented on 06.10.2010, were so fundamental that the presentation of plaint
must be treated as non-est , or whether they were curable procedural defects,
upon removal of which, the Suit must be taken to have been instituted on the
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date of its original presentation. It is the nature of the defects and their
effect upon the initial filing, which needs consideration.
127. Pertinently, the Respondent, in its Written Statement, did not dispute
that the Suit was filed on 06.10.2010. Its plea of limitation was confined to
the date on which the cause of action arose, namely 05.07.2007. No plea was
taken in the Written Statement that the initial presentation was non est on
account of the objections raised by the Registry; and this contention was
raised for the first time, during the final arguments.
128. Nevertheless, Section 3 of the Limitation Act, 1963 mandates that a
Suit instituted after the prescribed period of limitation shall be dismissed,
although limitation has not been set up as a defence. The question must,
therefore, be examined on its own merits.
129. The sequence of the filing,as recorded in the impugned Judgment, is
that the Plaint was presented on 06.10.2010 and returned on the same date
for removal of objections relating to the dim / vakalatnama/, duplicate
set/caveat, with the direction, that it be re-filed within a week. It was re-filed
on 08.10.2010, whereupon six objections were marked, which are:
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130. The defect sheet records objections concerning the Suit format and the
filing of original documents or an application for exemption; the duplicate
set of the Plaint; the jurisdictional value and court fee; the caveat report and
proof of service; the presentation of the Plaint for scrutiny; and the
vakalatnama.
131. Section 26(1) CPC provides that every Suit shall be instituted by the
presentation of a Plaint or in such other manner as may be prescribed.
Order IV Rule 1 CPC reads as under:
“1. Suit to be commenced by plaint.
(1) Every suit shall be instituted by presenting a plaint in
duplicate to the Court or such officer as it appoints in this
behalf.
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(2) Every plaint shall comply with the rules contained in
Orders VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted
unless it complies with the requirements specified in sub-
rules (1) and (2). ”
132. Order VI Rule 2 CPC provides that every pleading shall contain only
a statement, in a concise form, of the material facts on which the party
pleading relies for its claim or defence, as the case may be, but not the
evidence by which they are to be proved. Order VI Rule 14 CPC further
provides that every pleading shall be signed by the party and its pleader, if
any. Order VII Rule 1 CPC provides that, in addition to the name of the
Court and the names and places of residence of the parties, the Plaint shall
state the facts constituting the cause of action and when it arose; the facts
showing that the Court has jurisdiction; the relief claimed by the Plaintiff;
and a statement of the value of the subject matter of the Suit for the purposes
of jurisdiction and court fee, so far as the case admits.
133. From a reading of the aforesaid provisions, it emerges that, in order to
constitute a valid Plaint, apart from the names and addresses of the parties,
what must essentially be decipherable from it are the facts which, taken
together, constitute the cause of action, in addition to the statements
regarding jurisdiction, court fee and limitation. In the present case , the
objections taken do not pertain to any of these essential ingredients.
134. From a reading of the aforesaid provisions, it emerges that a valid
Plaint must, apart from the names and addresses of the parties, disclose the
facts which, taken together, constitute the cause of action, the facts showing
that the Court has jurisdiction, the relief claimed, and a statement of the
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value of the subject matter for the purposes of jurisdiction and court fee. The
objections taken in the present case do not pertain to any of these essential
particulars.
135. It may be observed that, traditionally, suits were filed manually; they
were registered, and could thereafter be returned or rejected, if found
deficient. The rules of filing, including e-filing, have evolved subsequently,
and have to be read in conjunction with the procedure provided in the CPC.
The objections taken by the Registry in respect of the caveat, the dim copies,
the vakalatnama and the duplicate set, cannot be said to render the filing of
the Suit on 06.10.2010 non est . These were procedural requirements,
intended to ensure expeditious disposal and to prevent such objections being
taken at a later stage.
136. It also cannot be overlooked that the present was an ordinary suit for
recovery, filed in the year 2010. It was not a commercial suit under the
Commercial Courts Act, 2015, which introduced stringent procedural
provisions, with corresponding amendments to the CPC, solely to ensure the
expeditious disposal of commercial suits. Those amended provisions cannot
be imported while considering the question of limitation in an ordinary
money recovery suit instituted in the year 2010. In the present case, there
was no objection.
137. In Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors ., (2006) 2
SCC 777the Supreme Court considered an Appeal against the decision of the
Division Bench of the Calcutta High Court, which had held a suit to be non
est, since the plaint was not accompanied by an affidavit in support of the
pleadings under Order VI Rule 15(4) CPC. Allowing the appeal, it was
observed as under:
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"49. In this regard we are inclined to agree with the
consistent view of the three Chartered High Courts in the
different decisions cited by Mr. Mitra that the requirements
of Order VI and Order VII of the Code, being procedural
in nature, any omission in respect thereof will not render
the plaint invalid and that such defect or omission will not
only be curable but will also date back to the presentation
of the plaint.
…
In our view, as has been repeatedly expressed by this Court
in various decisions, rules of procedure are made to
further the cause of justice and not to prove a hindrance
thereto. Both in the case of Khayumsab and Kailash,
although dealing with the amended provisions of Order VIII
Rule 1 of the Code , this Court gave expression to the
salubriousprinciple that procedural enactments ought not
to be construed in a manner which would prevent the
Court from meeting the ends of justice in different
situations .
50. The intention of the legislature in bringing about the
various amendments in the Code with effect from 1-7-2002
were aimed at eliminating the procedural delays in the
disposal of civil matters. The amendments effected to
Section 26, Order 4 and Order 6 Rule 15, are also geared to
achieve such object, but being procedural in nature , they
are directory in nature and non-compliance therewith
would not automatically render the Plaint non est, as has
been held by the Division Bench of the Calcutta High
Court.
…In our view, such a stand would be too pedantic and
would be contrary to the accepted principles involving
interpretation of statutes…”
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138. The Supreme Court thus, held that the requirements of Section 26,
Order IV and Order VI CPC, are procedural and directory . Their non-
compliance is a curable irregularity, and does not result in the plaint being
treated as never having been presented and, upon being cured, dates back to
the presentation of the plaint.
139. Following this principle, this Court in Alka Kasana v. Indian Institute
of Technology, 222 (2015) DLT 473, held that, upon removal of the
procedural defects, the relevant date was the date of original presentation
and not the subsequent date of re-filing. Likewise, in D.C. Sankhla v. Ashok
Kumar Parmar & Ors., 1995 I AD (Delhi) 753, the Division Bench declined
to treat re-filing after removal of the defects, as the date of institution for
computing limitation.
140. The learned Trial Court relied upon sub-rule (3) to hold that a Plaint
not accompanied by the vakalatnama , the requisite court fee and a
duplicate set, was not duly instituted. The question is not whether the
Plaint presented on 06.10.2010 complied with every procedural requirement,
on the date of its presentation. It is whether the omissions were of a nature
capable of being cured, so that upon their cure, the original presentation
would stand.
141. The first objection was the non-filing of the vakalatnama with the
Suit. The Supreme Court in Uday Shankar Triyar v. Ram Kalewar Prasad
Singh &Anr., (2006) 1 SCC 75, considered the effect of a defect in the
vakalatnama filed along with a Memorandum of Appeal, and held that an
omission to file the vakalatnama, or a defect in the authority of the person
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signing the memorandum of Appeal, is procedural and can subsequently be
rectified . It observed as under:
"17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or
application or petition for relief should not entail automatic
dismissal or rejection, unless the relevant statute or rule so
mandates. Procedural defects and irregularities which are
curable should not be allowed to defeat substantive rights
or to cause injustice . Procedure, a handmaiden to justice,
should never be made a tool to deny justice or perpetuate
injustice, by any oppressive or punitive use."
142. The significant aspect is that a vakalatnama concerns the authority of
the counsel to appear and act for a party. It does not determine whether the
party has presented its claim before the Court. The Plaint was signed and
verified on behalf of the Plaintiff, by its constituted attorney, Sh. Shivam
Vikram Singh , on the strength of the Power of Attorney dated 06.10.2010,
Ex. PW-1/1. A deficiency in the vakalatnama did not, therefore, take away
the character of the Plaint presented on 06.10.2010, by the Plaintiff.
143. The second objection concerning court fee , is expressly governed
by Section 149 CPC, which reads as under:
“149. Power to make up deficiency of court-fees .—Where
the whole or any part of any fee prescribed for any
document by the law for the time being in force relating to
court-fees has not been paid, the Court may, in its
discretion, at any stage, allow the person, by whom such
fee is payable, to pay the whole or part, as the case may be,
of such court-fee ; and upon such payment the document, in
respect of which such fee is payable, shall have the same
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force and effect as if such fee had been paid in the first
instance . ”
144. The deficiency in court fee on the jurisdictional value is thus, curable,
with retrospective effect, by the express mandate of the statute. The requisite
court fee was paid upon removal of the objections, whereafter the Suit was
registered on 16.10.2010. Upon such payment, in terms of Section 149 CPC,
the Plaint would have the same force and effect as if the fee had been paid at
its original presentation. A deficiency which the law itself permits to be
made good “at any stage” cannot, by itself, render the original presentation
non est.
145. In Mannan Lal v. Mst. Chhotaka Bibi , (1970) 1 SCC 769, the
Supreme Court held that where the deficiency in court fee on a
Memorandum of Appeal was permitted to bemade good under Section 149
CPC, the Memorandum was to be treated as validly presented on the date on
which it was originally filed, and the Appeal could not be regarded as barred
by limitation on account of the subsequent payment.
146. The Full Bench of this Court in Pragati Construction Consultants v.
Union of India & Anr., 2025:DHC:717-FB, examined amongst others, the
defects relating to the vakalatnama and deficient court fee , though
rendered in the context of Section 34 of the Arbitration and Conciliation Act,
1996, observed as under:
“95. In this regard, it needs no emphasis that procedural
defects cannot be allowed to triumph the substantive rights
of a party, particularly since in view of our aforesaid
observations, Section 34 of the A&C Act is the only remedy
for a party aggrieved by an Arbitral Award. The said right,
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therefore, should not be negated on procedural
technicalities and hence, for describing an application
under Section 34 of the A&C Act as non-est, a more liberal
view in favour of the party filing the same should be taken.
Mere procedural errors or defects, thus, would not render
the filing of an application under the Section 34 of the
A&C Act to be treated as a non-est filing. Even in general
law, objections like the pleadings not being properly
signed on each and every page, or there being a defect in
the affidavit, or verification, are treated as procedural and
curable defects. Stand alone, therefore, they cannot be
treated as defects which would make an application filed
under Section 34 of the A&C Act to be declared as non-est.
It is only cumulatively, and that too only after the Court
finds that the above defects have been left by the petitioner
while filing the application under Section 34 of the A&C
Act with a mala fide intent of only stopping the period of
limitation from running, without there being an actual
initial intention of having the application listed before the
Court for hearing, the Court may still find the application
so filed to be non-est. Needless to state, it would surely
depend on the facts and circumstances in each case; and
there cannot be a straight jacket formula to determine
whether any of the above-mentioned defects or
combination thereof or how many such defects would
render an application filed under Section 34 of the A&C
Act to be declared as non-est.
96. Similar are our observations as far as the changes in the
contents of the application under Section 34 of the A&C Act
are concerned. It is only where the Court finds that the
application originally filed by the petitioner has been
substantially changed at the time of removal of defects, that
the Court may form an opinion that the original application,
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as filed, was never intended to be the final application or
one which should be listed before the Court. Hence, making
of minor changes, or even addition or deletion of few facts
or grounds, or adding documents, would not ipso facto
make the application originally filed to be declared as non-
est. Eventually, it would be the intent of the party that would
have to be deciphered by the Court from its conduct. Be that
as it may, if the Court finds that the intent was only to stall
the limitation from running, and, as some Courts have held
that only a „bunch of papers‟ had been filed, that the Court
would be free to declare such filing to be non-est. ”
147. The Full Bench explained that such defects are procedural and must
be considered cumulatively in the circumstances of the particular case. A
filing may be declared non est, only where the defects show that it was made
merely to stop the period of limitation, without any real intention of having
the matter placed before the Court for adjudication. The inquiry is into the
character of the filing and the intention behind it, as discernible from the
conduct of the party, and not a mere count of the objections raised by the
Registry.
148. In Pragati Construction Consultants, (supra) the reference was
answeredas under:
"97.We summarise our answer to the Reference , as under:
a) Non-filing of the Arbitral Award alongwith an
application under the Section 34 of the A&C Act would
make the said application liable to be treated and declared
as non-est, and the limitation prescribed under Section
34(3) of the A&C Act shall continue to run in spite of such
filing;
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b) Mere non-filing of the Statement of Truth or a defect in
Statement of Truth being filed, that is, including with
blanks or without attestation, would not ipso facto, make
the filing to be non-est . However, if accompanied with
other defects, the Court may form an opinion, based on a
cumulative list of such defects, that the filing was non-est;
c) Similarly, non-filing or filing of a defective
Vakalatnama; the petition not being signed or properly
verified; changes in the content of petition being made in
form of addition/deletion of facts, grounds, or filing of
additional documents from arbitral record, or filing with
deficient court fee, each of these defects, individually
would not render to filing of an application under Section
34 of the A&C Act to be treated and declared as non-est.
However, presence of more than one of such defects may, in
the given set of facts involved in a case, justify the
conclusion of the Court that filing of the application was
never intended to be final and therefore, is liable to be
declared non-est."
149. In arriving at its conclusions, the Full Bench drew upon Vidyawati
Gupta (supra) and observed, in paragraph 92, that even a Plaint filed without
a Statement of Truth, suffers only from a curable defect and is not non est.
The principles so explained, apply with equal force to the Plaint in the
present Suit.
150. The other Objections concerning the duplicate set, the caveat
report and proof of service, the Suit format and the filing of original
documents, are matters of procedure . These defects are capable of
compliance, without any alteration in the Plaint. The objection regarding
original documents expressly contemplated the alternative of an Application
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for exemption. None of these Objections touched the substance of the
Plaint.
151. The learned Trial Court relied upon Oil and Natural Gas Corporation
Ltd. (supra), Sharma Kalypso Pvt. Ltd . (supra) and M/s Gautam Associates
(supra), rendered in the context of arbitration proceedings, to hold that the
absence of the vakalatnama and court fee, rendered the Plaint non est .
These decisions, however, distinguish between defects which are
fundamental to the institution of the proceedings and those which are merely
formal, and require the filing to be assessed as a whole.
152. The learned Trial Court did not consider that these were only
procedural requirements, intended to curtail delays in effecting service and
do not in any manner, touch on the validity of the Plaint, which was
complete in all aspects; was duly signed and supported with the affidavit.
The time taken to remove a defect, was merely for conformity with the
procedural requirements and not the Plaint itself. In any case, the question
whether such defects render a filing non est, has since been settled by the
Full Bench of this Court.
153. In the present case, the learned Trial Court did not find that the Plaint
presented on 06.10.2010, lacked the material facts constituting the cause of
action, failed to disclose the parties or the relief claimed, or was otherwise
incomplete or unintelligible. Nothing on record suggests that the Plaint
registered on 16.10.2010, differed in substance from the Plaint presented on
06.10.2010. No amendment to the averments, the cause of action or the
relief has been shown to have been made upon re-filing.
154. Nor does the record suggest that the Plaint was presented merely to
arrest limitation, without any intention to prosecute the Suit. The Plaint was
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re-filed on 08.10.2010, within two days of its return and itself within
limitation. The objections then marked, were removed on 16.10.2010, and
the Suit was listed before the learned Joint Registrar on 19.10.2010.
155. In this context, it is also pertinent to note that the Suit was filed on
06.10.2010, while the period of limitation was to expire on 08.10.2010, i.e.
well within the period of limitation. As already observed, none of the
objections taken at the stage of registration can render the filing non est , a
concept which has evolved through judicial pronouncements, essentially in
the context of commercial litigation, and more so in regard to petitions under
Sections 34 and 37 of the Arbitration and Conciliation Act, 1996. Such
principles cannot be ipso facto imported into a civil suit filed much prior to
the enactment of the Commercial Courts Act, 2015.
156. Section 4 of the Limitation Act, 1963 provides that where the
prescribed period expires on a day when the Court is closed, the suit, appeal
or application may be instituted, preferred or made on the day the Court
reopens. The introduction of e-filing cannot, by itself, dilute the statutory
protection where its conditions are satisfied.
157. In the present case, however, limitation expired on 08.10.2010, before
the stated closure from 09.10.2010 to 15.10.2010. The intervening vacation
is, therefore, relevant to the explanation for the time taken to remove the
objections. The Appellant has explained that the objections were removed
on the first day of reopening, i.e., 16.10.2010, whereafter the Suit was
registered and directed to be placed before the learned Joint Registrar on
19.10.2010. The Plaint had already been presented on 06.10.2010, within
limitation, and the objections, being curable procedural defects, did not
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render that presentation non est. Their subsequent removal related back to
the original presentation.
158. The explanation of the Appellant that the intervening period from
09.10.2010 to 15.10.2010, was the Court vacation, should have been given
due weightage. The time taken for removal of the objections was neither
inordinate nor unexplained, and this conduct is not suggestive of a filing
never intended to be final .
159. Consequently, the bar under Section 3 of the Limitation Act was not
attracted, and the learned District Judge erred in dismissing the Suit as
barred by limitation.
160. The observation of the learned Trial Court that the Plaintiff, despite
knowing that limitation was expiring on 08.10.2010, did not file a proper
plaint, are thus, not sustainable. A party is entitled to institute its Suit on any
day, within the period of limitation.
161. In view of the foregoing discussion, the objections raised by the
Registry, whether considered individually or cumulatively, were curable
procedural defects. They did not deprive the Plaint presented on 06.10.2010,
of its character as a plaint. Their removal did not amount to the institution of
a fresh Suit on 16.10.2010, and the Suit must be taken to have been
instituted on 06.10.2010.
162. The Suit, having been instituted on 06.10.2010, before the expiry of
limitation on 08.10.2010, was within limitation. The finding of the learned
Trial Court on Issue No. 2 cannot be sustained, and are hereby, set
aside.
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Conclusion:
163. In view of the foregoing discussion, the Suit, having been instituted
on 06.10.2010, was within limitation. The finding of the learned Trial Court
on Issue No. 2 that the Suit was barred by limitation is, accordingly, set
aside. The finding on Issue No. 1 that the Suit was instituted and pursued
through duly authorised persons is upheld.
164. The finding of the learned Trial Court on Issue No. 3, that the
Plaintiff had established its entitlement to recover Rs. 68,24,653.71/-, is
upheld. On Issue No. 4, the Plaintiff is entitled to simple interest @ 6% per
annum on the said amount from 05.07.2007 till realisation, as determined
above.
165. Accordingly, the Appeal is allowed. The impugned Judgment and
Decree dated 20.12.2021, insofar as it dismissed the Suit as barred by
limitation, is set aside. The Suit is decreed in favour of the
Appellant/Plaintiff and against the Respondent/Defendant for Rs.
68,24,653.71/-, along with simple interest @ 6% per annum from
05.07.2007 till realisation.
166. The Cross-Objections, C.M. APPL. 46845/2022, are dismissed.
167. The pending Application(s), if any, also stand disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 30, 2026/ R
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