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TMI Blog2023 (8) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... ugam Taneja and Mr. Deepak Joshi, Advocates. For the Respondents : Mr. Rajesh Gogna, CGSC with Ms. Avshreya Pratap Singh Rudy, Advocate for DGCA/UOI. Mr. Dheeraj Nair, Ms. Vishrutyi Sahan and Mr. Angad Baxi, Advocates for Intervenor. Mr. Arun Kathpalia, Senior Advocate with Mr. Vaijyanath Paliwal, Ms. Medha Sachdev, Ms. Riya Basu, Ms. Meghna Rajadhya, Mr. Rishabh Jaisani, Ms. Salnoni Kulkarni, Mr. Hari Lakhani, Mr. Ajay Kumar, Ms. Deeksha Gupta, Mr. Kshitij Wadhwa, Advocates for Lessor Pembroke. Mr. Rajiv Nayar, Mr. Amit Sibal, Senior Advocates with Ms. Marylou Bilawala, Mr. Pranaya Goyal, Mr. Chiranjivi Sharma, Mr. Apoorva Kaushik, Ms. Neetika Sharma, Mr. Girish Shankar and Ms. Manjira, Ms. Vinamra Kopariha, Advocates for R-1 to 5. Mr. Chetan Sharma, ASC with Mr. Apoorva Kurup, CGSC with Ms Apoorva Jha and Mr. Akhil Hasija, Advocates for UOI. ORDER 1. This common order shall dispose of the aforenoted appeals which arise from a common interim order dated 05th July, 2023, passed by learned Single Judge in writ petitions preferred by the Respondents herein [referred to as "impugned judgement"]. 2. To provide a brief overview, the Appellant - Go Airlines India Limited [hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess the airports where the Aircraft are parked inter alia to inspect their Aircraft; (d) direct Respondent Nos.1 to 8 not to permit Respondent No.9 / its directors, employees, agents, officers and / or representatives, entry or access in any manner to the Aircraft nor any permission to operate or fly the Aircraft, save and except to conduct mandatory maintenance / engine runs of the Aircraft; (e) direct Respondent Nos.1 to 8 not to permit Respondent No.9 / its directors, employees, agents, officers and / or representatives, to remove and/ or take out and/ or replace any parts, components, spares, etc. from the Aircraft, save and except to conduct mandatory maintenance of the Aircraft; (f) direct Respondent No. 2 to permit Respondent No.9 to carry out the mandatory maintenance / engine runs of Aircraft MSN 6072 on an urgent basis until the de-registration of Aircraft MSN 6072; (g) direct Respondent No.9 to return to the Petitioners the records and documents (original or copies thereof, as applicable) and manuals relating to the Aircraft; (h) for interim and ad-interim orders in terms of prayers (a) to (f) above;" 4. The learned Single Judge, while considering Lessors' app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions is founded on several grounds, but the same need not be elaborated upon, for reasons noted hereinafter. Nonetheless, it would be sufficient to record the primary contentions raised by Mr. Neeraj Kishan Kaul as well as Mr. Ramji Srinivasan, learned Senior Counsel for GoAir, which are encapsulated hereunder: 6.1. The learned Single Judge has failed to appreciate the effect of the moratorium persisting under Section 14 of IBC, which saves recovery of any property occupied by or in the possession of corporate debtor, by an owner or lessor under Section 14(1)(d). The relief of de-registration of the aircrafts, sought by the Lessors in writ petitions would effectively allow them to recover/ re-possess the aircrafts, which is expressly prohibited during the moratorium. Reliance is placed on the judgement of the Apex Court in Rajendra K. Bhutta v. Maharashtra Housing and Area Development Authority and Anr., (2020) 13 SCC 208 to submit that the expression 'occupied by' would cover the leased aircrafts which are in GoAir's physical possession. 6.2. The termination of lease agreements between 02nd to 04th May, 2023 by the Lessors was motivated by filing of application under Section 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aircrafts with regard to which Leases in favour of the Corporate Applicant were terminated prior to admission of Section 10 Application, which Application need to be considered and decided by the Adjudicating Authority in accordance with law. (4) The Appellant(s) and the IRP are also at liberty to make an appropriate Application under Section 60, sub-section (5) with regard to claim of possession and other respective claims of both the parties relating to the aircrafts in question, which need to be decided by the Adjudicating Authority in accordance with law." 6.4. Thus, the NCLAT refrained from deciding the questions of validity of termination of the lease agreements, application of moratorium to the concerned aircrafts and re-possession thereof by the Lessors, and instead, permitted the Lessors to file appropriate applications before the NCLT for determination of said issues. This liberty has been utilised by certain lessors who have already approached the NCLT for this purpose. Consequently, the NCLT, being the Adjudicating Authority under Section 60(5) of the IBC, has the exclusive jurisdiction to decide questions pertaining to termination of lease and effect thereof; the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions to DGCA to de-register the aircrafts. Nonetheless, on instructions, he submits that the Lessors would be agreeable to the deletion of words "and all maintenance tasks" occurring in direction (ii) of paragraph No. 20.1 of the impugned judgement. However, as regards directions No. (i) and (iii), he argues that the same are necessary for preservation of the aircrafts. 8. Learned Senior Counsel appearing for the Lessors, as mentioned in the appearance above, have re-joined Mr. Nayar's afore-noted contentions. Analysis 9. We have patiently heard learned Senior Counsel for the parties who have both presented compelling arguments. The core of the instant dispute revolves around the interplay between the provisions of IBC, particularly the moratorium envisaged under Section 14, and parties' legal obligations and rights derived from the Aircraft Rules as well as the lease agreements. 10. Learned Single Judge has, on a prima facie basis, observed that the Interim Resolution Professional is not required to take control of the aircrafts under the provisions of IBC. Consequently, it has been observed that thirty subject aircrafts are the Lessors' assets. Learned Single Judge has opine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e achieved only after the writ petitions are conclusively heard and decided. A judgement on the complexities inherent in the present appeals - the high-value assets involved, regulatory permissions required, questions around maintainability of the writ petitions - would have potentially far-reaching implications on the proceedings pending before the learned Single Judge. An additional consideration that impels us to refrain from deciding the appeals at this stage is the impending scheduled date of hearing of the writ petitions (i.e., 03rd August, 2023) before the learned Single Judge. 14. The impugned interim directives primarily pertain to the inspection and maintenance of the aircrafts, which are designed to prevent cannibalisation and preserve their value and integrity. In our opinion, no severe prejudice would be inflicted upon GoAir in the event the matter is relegated to the learned Single Judge for final disposal of the writ petitions, especially in light of the fact that DGCA would require a minimum of fifteen days to decide on re-commencement of GoAir's flights. We thus deem it appropriate in the interest of justice to refrain from entertaining the appeals at this junctur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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