TaxTMI 
TaxTMI 
2023 (10) TMI 1387
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...., W.P.(C) 7369/2023, CM APPL. 38321/2023 & CM APPL. 36931/2023, W.P.(C) 7773/2023 & CM APPL. 36891/2023, W.P.(C) 8088/2023, CM APPL. 36928/2023 & CM APPL. 45187/2023 & CM APPL. 47072/2023, W.P.(C) 9594/2023 & CM APPL. 39368/2023, W.P.(C) 9900/2023, W.P.(C) 9901/2023, W.P.(C) 10327/2023 & CM APPL. 39992/2023, W.P.(C) 10386/2023 & CM APPL. 40199/2023 For the Petitioner : Mr. Nitin Sarin & Mr. Mukul Katyal, Ms. Priyam Jinger, Advocates., Mr. Kevic Setalvad, Sr. Adv. with Mr. Nimish Vakil, Mr. Pai Amit, Ms.Bhavana Buhoon and Mr. Abhiyudaya Vats, Advs., Mr. Satvik Varma, Sr. Adv. with Mr. Ajay Kumar, Mr. Sunil Gonsalves, Mr. Ghazal Ghai and Mr. Hetaram Bishnoi, Advs., Mr. Ravi Nath, Mr. Ankit Garg, Mr. Ankur Mahindra, Mr. Rohan Taneja & Mr. Aditya Kapur, Advocates., Mr. Vaijayant Paliwal, Ms. Medha Sachdev, Ms. Riya Basu, Ms. Meghna Rajadhyaksha, Mr. Rishabh Jaisani Mr. Harit Lakhani, Mr. Ajay Kumar, Ms. Snigdha, Advs., Ms. Marylou Bilawala, Mr. Pranaya Goyal, Mr. Dhruv Khanna, Ms. Sharleen Lobo, Mr. Chiranjivi Sharma, Ms. Priya Desai, Ms. Apoorva Kaushik, Mr. Vasu Gupta, Ms. Saakshi Malpekar, Ms. Nehal Gupta & Mr. Uday Mathur, Advocates., Ms. Marylou Bilawala, Mr. Pranaya Goyal, Mr.....
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....ives shall be permitted by the Respondent/DGCA and the appropriate Airport Authorities to access the Airport(s) where the 30 Aircrafts are parked [details of the Aircraft(s) is reproduced in the table in paragraph 3.2 herein] inter alia to inspect their respective Aircrafts, within the next 3 days; (ii) The Petitioners, their employees, agents, officers and/or representatives shall be permitted to carry out inspection and all maintenance tasks of the Aircraft, its engines and other parts and components, of all 30 Aircrafts [as are set forth in table at paragraph 3.2 herein],at least twice every month, until the final disposal of the Writ Petitions; (iii) Respondent/GoAir, its directors, employees, agents, officers and or representatives or the IRP/RP(s) or any person acting on their behalf, are hereby restrained from removing, replacing, taking out any accessories, parts, components or spares, etc. or any relevant operational or other Manuals /records, documentation from any of the 30 Aircraft, except with prior written approval of the Lessor of such Aircraft...." 3. Paragraph 20.1 of the 05.07.2023 Order, was modified by a Division Bench of this Court by its o....
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....s, learned Counsel appearing on behalf of the Other Lessors have submitted that they are adopting the arguments made by the Petitioners/Lessors in W.P.(C) Nos.7774/2023, 7663/2023 and 9432/2023 in these Applications. 7. The submissions made by Mr. Kevic Setalvad, Senior Advocate in CM Appl. 47071/2023, Mr. Satvik Varma, Senior Advocate in CM Appl. 47257/2023 and Mr. Nitin Sarin, Advocate in CM Appl. 45749/2023 on behalf of the Petitioners/Lessors include: (a) By orders passed by this Court, the Petitioners/Lessors were granted orders of inspection and maintenance of their Aircraft leased with the Respondent/Go Air. The Respondent/RP of Go Air was also restricted from removing, replacing, taking out any accessories, parts, components or spares, etc. or any relevant operational or other Manuals/records, documentation from the Aircraft, except with prior written approval of the Petitioners/Lessors of the Aircraft, to prevent cannibalization and preserve their value and integrity of these highly complicated machines. (b) The attention of the Court has been drawn to the Lease Agreements entered into between the Petitioners/Lessors and the Respondent/Go Air to lease ....
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....performed on 31st Aug, with the below summary... - Onsite GOW representative (Sujith) informed that no maintenance has been carried out on aircraft since August 3rd 2023, same was due non payment of staff salaries. Same was received two days ago. - Aircraft was initially under parking more than one month in flight ready condition. - No non-revenue flight conducted or planned - The program is now being shifted to storage up to one year. Storage task has only commenced yesterday 31st August. - After discussion with onsite person it was told that TD has been obtained from OEM to carry out this shift after a months gap of no maintenance documents were not shared to confirm. Physically aircraft was in worse condition comparatively since our last inspection: The top fuselage had a greenish deposit formed on top and completely dirty. - Corrosion was observed at places like brake hoses, brakes and RH TAT probe (cover clip corroded). Refer images below. - The blanking's/protective covers were removed before DAE inspectors arrival as Engine Runs were being carried out. - No covers were inst....
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.... (b) The 05.07.2023 Order has been subsequently modified by the DB Order and the DB Order has attained finality after the Special Leave Petition of the Respondent/RP of Go Air was dismissed by the Supreme Court. Since, the 05.07.2023 Order has merged with the DB Order, this Court should not modify/clarify the 05.07.2023 Order as any modification would now be dealt by the Division Bench of this Court. Reliance is placed on the judgment of the Supreme Court in the case of Kunhayammed v. State of Kerala (2000) 6 SCC 359 , that once a Order is modified by a Superior Court, it can only by varied by such Court as follows: "12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under....
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....all maintenance tasks of the thirty subject aircrafts, their engines and other parts and components, which are parked at various airports, with due permissions mandated under extant rules/ law. The Lessors are also free to carry out periodic monthly inspections of the aforesaid aircrafts in accordance with law." (b) The Petitioners/Lessors in WP(C) 7663/2023 have categorically submitted that the objection of the Respondent/RP of Go Air in relation to the similar prayers being made before the NCLT is without any basis, as the same were not pressed and was dropped by the Petitioners/Lessors in the Rejoinder that was filed before the NCLT. In this regard, the Petitioners/Lessors rely on the extract of the Rejoinder filed before the NCLT, which reads as follows: "9. It is respectfully submitted that the prayer clauses (b) to (h) of the present Intervention Application relate to the issues contemplated and covered by the Supreme Court Order dated 7th August 2023. In the circumstances, without prejudice to all its rights and contentions, the Applicant is, for the present limiting its relief to Prayer (a) of the Intervention Application with liberty to agitate the other ....
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....s contended by Respondent/RP of Go Air that since the 05.07.2023 Order did not specify that documentation of Aircraft, is to be given, it was not granted to the Petitioners/Lessors. Additionally, these Aircraft Documents are lying in escrow and obtaining the same would be onerous and time consuming. 13. The Lease Agreements executed between the Petitioners/Lessors and the Respondent/Go Air has defined Aircraft and Aircraft Documents. The term Aircraft has been defined in the Lease Agreements to mean the Airframe, engines, all parts and components and Aircraft Documents is defined to include maintenance and inspection records pertaining to the Aircraft including the items set out in Exhibit B to the Lease Agreements. 13.1 Exhibit B which forms part of the Lease Agreements sets forth the Aircraft Documents in extensive detail [running into more than 8 pages], which include documents with respect to Aircraft maintenance records and summaries, engine records, certificates of worthiness, FAA approved Aeroplane Flight Manuals and other engineering documentation. These form part of the statutory compliances and are a requirement of the Aviation Authority i.e. Respondent No.3/DGCA. ....
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....ion. For a merger to operate, the superior court must examine the issues and record findings on merits. 16.1 The Kunhayammed case 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) 20 SCC 705 has reiterated this and clarified that the merger principle is applicable to a decision on merits. The relevant extract is below: "53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding(s) one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of the subordinate court would continue to hold the field(see S. Shanmugavel Nadar v. State of T.N. [S. Shanmugavel Nadar v. State of T.N., (2002) 8 SCC 361] ). 54. In our view, this Court while disposing of the appeals by its order dated 4-8-1998 [Union of India v. P.T. Anklesaria, (2014) 14 SCC 204, 211 (footnote 6)] , did not go into the merits of the various conte....
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....23 Order, to maintain the Aircraft, to preserve their value and integrity. This intent was reflected by the DB Order as well. The extent that these directions are being complied with, will require examination. 18. It is clear from the aforesaid discussion that the term Aircraft includes Aircraft Documents, the inspection granted to the Petitioners/Lessors would necessarily have to include Aircraft Documents to facilitate and make the inspection of the Aircraft meaningful. 19. 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 valuable equipment during the pendency of the present case. 19.1 It is also deemed necessary that the Petitioners/Lessors be permitted to contract a 24 hour security services for all the Aircraft, to be provided at the expense of the Petitioners/Lessors. 20. In view of the aforegoing discussions, the following....
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....Vs. UOI & ORS Airbus A320-271N MSN 11160 IRM VT -WDD Airbus A320-271N MSN 11052 IRM VT -WDA 6 WP(C) 7773/2023- SFV AIRCRAFT HOLDINGS IRE 9 DAC LIMITED Vs. UOI THROUGH DGCA& ORS. Airbus A320-271N MSN 11130 IRM VT-WDC 7 WP(C) 7774/2023- ACG AIRCRAFT LEASING IRELAND LIMITED Vs. UNION OF INDIA & ORS. Airbus A320-271N MSN 7594 IRM VT-WGI Airbus A320-271N MSN 7737 IRM VT-WGJ Airbus A320-271N MSN 7753 IRM VT-WGK Airbus A320-271N MSN 7859 IRM VT-WGM 8 WP(C) 8088/2023- GY AVIATION LEASE 1722 CO LIMITED & ORS. Vs. UOI Airbus A320-271N MSN 7813 IRM VT-WGL Airbus A320-271N MSN 8146 IRM VT-WGP Airbus A320-271N MSN 8152 IRM VT-WGQ Airbus A320-271N MSN 8209 IRM VT-WGR Airbus A320-271N MSN 8273 IRM VT-WGS Airbus A320-271N MSN 8382 IRM VT-WGT Airbus A320-271N MSN 8458 IRM VT-WGV Airbus A320-271N MSN 8464 IRM VT-WGW Airbus A320-271N MSN 8482 IRM VT-WGX Airbus A320-271N MSN 8503 IRM VT-WGZ 9 W.P.(C) 9432/2023 BOC AVIATION (IRELAND) LIMITED v DGCA Airbus A320NEO MSN 9332 IRM T-WJO 10 W.P.(C) 9594/2023 JACKSON SQUARE AVIATION IRELAND LIMITED v DGCA Airbus A320NEO MSN 7172 IRM VT-WGC Airbus A320NEO M....