Air France vs K. Kishinchand And Airlines Agency

Leave granted.

Heard learned counsel for the parties.

The High Court by the impugned judgment has granted leave to the defendant to contest suit subject to following:

"Leave is granted to the Defendant to contest the suit subject to:-

(i) The Defendant depositing in this Court a sum of Rs.1.59 Crores + Rs.1.13 Crores aggregating to a total of Rs.2.72 Crores within a period of 12 weeks from today;

(ii) If the aforesaid deposit is made within the stipulated period, this suit shall be transferred to the list of Commercial Causes and the Defendant shall file its Written Statement within a period of eight weeks from the date of deposit;

(iii) It these amounts or any part thereof are deposited by the Defendant, the plaintiff shall be entitled to withdraw a sum of Rs.1.59 Crores or any part thereof, on the Plaintiff furnishing a bank guarantee of the said amount. The Plaintiff shall also file an undertaking in the Court that in the event the Plaintiff fails in the suit, it shall bring back this amount together with interest at such rate as may be decided by the Court at the hearing of the suit;

(iv) If this conditional order of deposit is not complied with within the stipulated period as mentioned earlier, the Plaintiff shall be entitled to apply for an ex-parte decree against the Defendant after obtaining a non-deposit certificate from the Prothonotary and Senior Master of this Court.

The Summons for Judgment is disposed of in the aforesaid terms. However, in the facts and circumstances of the case there shall be no order as to costs."

Learned counsel for the appellant raised submissions on merits and contend that the direction to deposit amount of Rs.1.59 crores was not correct. He further submits that the bills and invoices submitted by respondent were excessive.

We are of the view that leave having been granted all issues have to be heard on merits in the suit. The respondent has been permitted to withdraw an amount of Rs.1.59 crores or any part thereof on the plaintiff furnishing a bank guarantee of the said amount. The said direction protect the interest of the appellant.

We, however, are of the view that in direction no.1 the direction to deposit be confined to Rs.1.59 crores only. The direction no.1 is thus modified to the extent that the deposit shall be made of Rs.1.59 crores instead of Rs.2.72 crores.

The appeal is partly allowed to the above extent.