N.D.H. Kamath Vs Chowgule and Co. (Hind) P. Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO.483 OF 1984

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N.D.H.Kamath.. Plaintiff

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Versus
Chowgule & Co.
(Hind) Pvt.Ltd... Defendant

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Mr.A.M.Vernekar for plaintiff

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Mr.A.N.Jakhadi for defendant

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CORAM :S.C.DHARMADHIKARI, J.
DATE:23rd March 2009.

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P.C.

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.Mr.Jakhadi, learned Advocate appearing

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for defendants states that from July 2007 and
even prior thereto, defendant was contacted by

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him. Defendant is a company having its
registered offices at Mumbai and letters were
forwarded by personal courier on 8th August 2008
and 24th September 2008. Mr.Jakhadi states that
he has personally spoken to the concerned
officers but there has been no response.

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2.Mr.Jakhadi does not deny that he has
received affidavit of documents and evidence.
However, despite bringing the same to the notice
of defendants, they have not come forward to give
instructions. In these circumstances, for want
of instructions, Mr.Jakhadi prays that he is
unable to proceed with the matter and should be
relieved from the proceedings.

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3.In all fairness, Mr.Jakhadi states that
the suit is of the year 1984. Plaintiff is a
senior citizen and the matter has been adjourned
earlier. He does not dispute that the affidavits
have been duly received. In these circumstances,

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any further adjournment of these proceedings
would not be in the interest of justice. Prayer
for adjournment orally made is rejected and
Mr.Jakhadi is discharged as Advocate for
defendants. Copies of the letters addressed by
Mr.Jakhadi to the defendants are taken on record
and marked "X" for identification.

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4.The plaintiff has filed this suit for an
order and decree in the sum of Rs.61,815.50
together with interest on the principal amount.

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5.The suit claim arises on the basis that
the plaintiff joined the service of defendant
with effect from 2nd May 1973 as General Manager,
Pharmaceutical Division. It is in pursuance of a
contract as evidenced by Annexure A. What is
sought to be relied upon is that the terms and
conditions which postulates that the parties will
have to give six months notice before termination
of the contract. It is stated that plaintiffs

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duly served the defendants and submitted his
resignation as on 1st June 1983. He relies upon
the terms and conditions of the letter of
confirmation dated 27th August 1973 stipulating
six months notice and states that the contract
could not have been abruptly terminated.
However, it was abruptly terminated and on 13th
June 1983, he was relieved from the service. The
contract stipulated six months notice either
side, which means from the date of receipt of his
resignation, he should not have been relieved for
six months.

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6.Since, he was so deprived by relieving
him abruptly, the suit is filed to recover
differential amount.

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7.In the written statement, there is no
denial of the appointment and all the terms and
conditions. However, reliance is placed upon the
fact that the plaintiff himself approached the

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defendant and stated that he should be relieved
because he wants to start his own business.
Having regard to his desire, a telegram was sent
to him and he was relieved from the service. For
all these reasons, the reliance placed upon
clause 2 of the confirmation letter is misplaced
and the claim cannot be awarded, is the
submission.

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8.Once there is no dispute about the
contract and the terms of employment, then, I do
not see any impediment in considering the case of
plaintiff. More so, when he has filed original
letter of appointment, letter of confirmation and
original letters which are addressed by the
defendants to him. He has also produced copies
of such of the letters which had been addressed
by him to the defendants but duly acknowledged by
them. In his affidavit in lieu of evidence, he
has confirmed the plaint averments.

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9.Today, the matter was placed for
recording evidence and as noted above, the
defendants have been duly forwarded the documents
compiled by the plaintiff so also the affidavit
in evidence. The plaintiff is personally present
in Court. He confirms that the affidavit
affirmed on 11th November 2008 bears his
signature. He confirms each of the statements
made therein. He states that the affidavit fully
reflects the version set out by him in the
plaint. He also confirms the contents of the
documents and states that they are true and
correct.

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10.In this view of the matter and
requirements of Order XVIII Rule 4 of C.P.C.
being complied, this affidavit is taken on record
and shall be treated as his examination in chief.

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11.Mr.Jakhadi has already been discharged as
Advocate for the defendants. None is present on

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behalf of defendants to cross examine plaintiffs
on the version as set out in the plaint. In
other words, on plaintiffs’ version also there is
no cross examination. The contents of the
documents are also not disputed. In these
circumstances, the documents are taken on record
and marked as Exh.P-1 to P-24. The defendant has
not participated in the suit beyond filing
written statement. Thus, not only it has failed
to controvert the case of plaintiff but has not
led any evidence on the pleas raised in the
written statement.

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12.In these circumstances, it can safely be
concluded that the plaint averments are proved.
The case is substantiated with documents and oral
evidence.

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13.Mr.Vernekar, learned Advocate appearing
for plaintiff, therefore, urges that the decree
be passed as prayed. He states that as far as

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interest at the rate of 18% that is claimed on
the basis of the notice, which has been given by
the plaintiff. He relies upon a letter dated
January 4, 1984, which is sent by R.P.A.D. to
the defendant. This is an Advocate’s letter and,
there interest is claimed at 18%. This is a
notice under the Interest Act, 1978. Therefore,
interest at this rate be awarded till the date of
the suit and from the date of suit till the date
of judgement and, thereafter, the Court may
determine the appropriate rate.

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14.Considering the fact that the plaintiff
was ready and willing to serve the defendant for
the period specified in the terms and conditions
and there is no breach on his part but he was
wrongfully prevented from doing so, interest of
justice would be sub-served if the following
order is passed:-

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(a)The suit stands decreed to the

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extent that plaintiff would be entitled
to recover the principal amount of
Rs.54,776.67 with interest at 15% from
the date of suit till the date of decree.
However, from the date of decree/
judgement till realisation, the plaintiff
would be entitled to recover the interest
at 6%. Advocates cost be quantified as
per rules. Decree be drawn for the above
sums together with costs. All concerned
to act on an authenticated copy of this
order. Leave under Rule 314 of Bombay
High Court (O.S) Rules is granted."

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(S.C.Dharmadhikari, J)

N.D.H. Kamath v. Chowgule and Co. (Hind) P. Ltd.

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N.D.H. Kamath v. Chowgule and Co. (Hind) P. Ltd.

Case brief

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