Final Order 1

Order Details: Other
Pdf Text: MHCC010014882018 Presented on 29/01/2018
Registered on 29/01/2018
Decided on 16/11/2024
Duration 06Y: 09M: 18D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 20 OF 2018
IN
SUMMARY SUIT NO. 738 of 2017
Mr. Abhijit R. Parasnis ]
Residing at 103, F9, New Brahmand, ]
Phase 7, Off.Ghodbunder Road, ]
Near Azad Nagar, Thane (West), ]
Mumbai-400 063. ]...Plaintiff
Vs.
1. BHN Offshore Services Pvt. Ltd. ]
Having its address at 104-B, ]
Mittal Tower, Nariman Point, ]
Mumbai-400 021. ]
2. Mr. Aamir Sayed, Director, ]
BHN Offshore Services Pvt. Ltd., ]
Having its address at 104-B, ]
Mittal Tower, Nariman Point, ]
Mumbaiu-400 021. ]...Defendants
Ld. advocate Kishorekumar Shetty for the plaintiff.
Defendants absent.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 16/11/2024.
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ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants. They have filed reply to the summons for judgment and
resisted it and prayed for unconditional leave to defend the suit.
02] As per the plaintiff, defendant No.1 is private limited
registered company and defendant No. 2 is a Director of defendant
No. 1. Further, defendant No. 1 carries on business to provide Seafarers
to Vessels as per requirement in the Vessels by entering into contract
with Seafarer. Plaintiff entered into contract with defendant No. 1 on
09/03/2016 for a period of 90 days and he was posted on Vessel known
as Malaviya Twenty Seven. Further, as per said contract plaintiff was to
get remuneration of Rs. 1,26,000/- per month and additional amount of
Rs.14,000/- per month on successful completion of contract as contract
bonus. As per plaintiff, he had sent letter dated 09/05/2016 to
defendant No. 1 and called upon to pay wages due on it. Further, on
10/05/2016, plaintiff sent a relief request through the Master, a one
month reminder for contract completion. Defendant replied to said
letter vide email. On 28/05/2016, the plaintiff sent second reminder for
his relief through Master, again sighting domestic limitations. On
22/06/2016 and 23/06/2016 plaintiff had fallen sick therefore, went
to Doctor on 24/06/2016 and he was declared unfit. Accordingly, unfit
certificate was sent to defendant No. 1. Plaintiff received payment for
the month of March and April, 2016 i.e 07/07/2016 and 09/08/2016
respectively. Further, plaintiff has also completed contract. However, he
has been deprived of two months and 1 day salary of Rs. 2,56,200/-. He
is also entitled for bonus of Rs. 14,000/- per month. Even, he has
worked for a period additional 20 days. Thus, he is entitled for an
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Sum SU No.738/2017
amount of Rs. 2,56,200/- towards salary, Rs. 52,267/- (52,266.67
rounded off as Rs. 52,267/-). Thus, plaintiff is entitled for total amount
of Rs. 3,08,467/- and he is also entitled for interest at the rate of 18%
p.a. hence, this suit.
03] It is submitted that plaintiff has relied on documents filed
vide list Exh.03. It is further submitted that as per clause 3 employer
has to pay wages not Vessel owner. Further, all clauses of agreement are
in favour of defendants. It appears from page No. 16 of agreement that
plaintiff was relieved on 02/07/2016. As defendants have no wages
plaintiff had demanded vide letters and reminders filed on record.
Plaintiff has also filed Medical Certificate to show that he was not
keeping well. It is further submitted that defendants have relied on
Clause 3(k) of agreement in para 4 of reply that payment will be
remitted to your bank on receipt of funds from ship owners.
Defendants have not informed about Admiralty Suit to plaintiff. On the
contrary, defendants have admitted that yet wages are to be paid from
January, 2016. It is further submitted that plaintiff has filed original
documents on record to show that he is entitled for outstanding amount
from the defendants. Defendants have not raised any substantial
defence or raised any triable issues. Therefore, plaintiff is entitled for
the judgment. Hence, summons for judgment may be allowed.
04] On the other hand, it is submitted by defendants that
defendant No.1 is a company acts as a manning agents for various
shipping companies including GOL Offshore Limited, owners of the
Vessel on which the plaintiff was referred and subsequently posted.
Therefore, there is no cause of action against defendant No. 1. Plaintiff
has to seek relief against Shipowners and not defendants. It is not
disputed that plaintiff and defendants entered into contract on
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09/03/2016. Defendants rely on clause 3(k) of agreement that wages
will be paid after received from ship owners. Plaintiff has not come
before the Court with clean hands. Defendant No. 1 had filed Admiralty
Suit (L)No. 218/2017 for recovery of outstanding amounts including
the wages of the Seafarers against ship owners. As wages of plaintiff
was due therefore, he was made party to said suit and his authorization
was required to proceed with plaintiff's claim by defendant No. 1 in said
suit. However, plaintiff refused to provide for authorization to
defendants to proceed with said suit. Further, Shipowners were having
responsibility to make payment of Seafarer and defendants have not
received funds from Shipowners with regards to plaintiff's wages.
Further, defendant No.1 being managing agent could only raise
plaintiff's claim with Ship owners. Defendant No. 1 sent email dated
29/09/2016 (Exh. B of reply) to Shipowners to make payment of
Seafarers. However, Shipowners vide reply dated 01/10/2016 (Exh. C
of reply) sought time to pay dues. Further vide email dated 28/02/2017
(Exh.D of reply) defendant No.1 called upon Shipowners to pay
outstanding dues. Ship owner replied (Exh. E of reply) to said email
and sought more time. Therefore, defendant No. 1 had filed Admiralty
suit against Shipowners and informed to plaintiff vide email dated
30/03/2017 (Exh. F of reply) to provide power of attorney however,
plaintiff did not co-operate. Therefore, defendant No. 1 again sent email
dated 01/08/2017 (Exh. G of reply) and asked for required documents
however, plaintiff did not provide it. Therefore, defendants are not
liable to pay any wages to plaintiff and it is Shipowners. The defendants
have raised substantial defence. Thus, defendants are entitled for
unconditional leave to defend the suit. Hence, summons for judgment
may be dismissed with costs.
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05] Perused summons for judgment, reply of the defendants
and documents on record. Heard Ld advocate for the plaintiff. It is not
disputed that plaintiff and defendant No.1 entered into agreement
dated 09/03/2016 (Exh. A of reply) for a period 90 days. As per
Plaintiff, he was supposed to get remuneration of Rs. 1,26,000/- per
month and additional amount of Rs. 14,000/- per month on successfully
completion of contract as contract bonus. Plaintiff has received salary of
month of March and April, 2016 and also completed contract
successfully. Therefore, plaintiff is entitled for 2 months salary of
Rs. 2,56,200/- and contract bonus of Rs. 52,267/- total amounting to
Rs. 3,08,466/-. The plaintiff has made correspondence for the same and
relied on letter dated 09/05/2016 (Exh. B of plaint) to defendant No. 1
and called upon to pay wages due to him. Further, on 10/05/2016
(Exh. C of plaint), plaintiff sent a relief request through Master, a one
month reminder for contract completion. Defendant replied to said
letter vide email (Exh. D of plaint). On perusing said email, it appears
that defendant No. 2 replied that they will endeavor accordingly. Again
on 28/05/2016 (Exh. E of plaint) sent second reminder for his relief
request through Master, again sighting domestic limitations.
06] It is pertinent to note that defendants have not disputed
that yet wages of plaintiff's are to be paid however, only stand of
defendants is that they are not liable to pay wages to plaintiff however,
Shipowners will pay to plaintiff. Defendants relied on Clause 3K of
agreement which reads as '
your wages will be remit to your nominated
bank upon receipt of funds from shipowners/managers.' Further,
defendants have filed on record correspondence made to Shipowner
vide email on 29/09/2016 and 28/02/2017 (Exh. B and D of reply). On
perusing said emails, it appears that defendants have called upon
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Shipowner to make payment of wages of Seafarers. However, it appears
that Shipowner has replied to said email on 01/10/2016 and
28/02/2017 (Exh. C and E of reply). On perusing said reply, it appears
that shipowner has sought time to make payment.
07] Defendants have brought on record that as Shipowners not
made payment therefore, defendant No. 1 had filed Admiralty Suit
(L)No. 218/2017 for recovery of outstanding amounts including the
wages of the Seafarers against Shipowners. As per defendants, as wages
of plaintiff was due therefore, he was made party to said suit. Further,
to proceed in said suit authorization of plaintiff was required with
respect to plaintiff's claim by defendant No. 1 and also required some
documents. Therefore, sent email on 30/03/2017 and 01/08/2017
(Exh.F and G of reply). However, plaintiff refused to provide for
authorization and required documents. Thus, it appears that defendants
have not denied that wages of plaintiff are due however, they could not
pay as they have not received funds from Shipowners. Therefore, I am
of the view that defendants have raised substantial defence that wages
will be paid to plaintiff after receipt of funds from Shipowner.
Therefore, I am of the view that defendants are entitled to
unconditional leave to defend the suit. Hence, I proceed to pass
following order.
ORDER
1) Summons for judgment No.20/2018 in Summary Suit
No. 738/2017 is disposed off as follows:
(a) Unconditional Leave to defend the suit is granted to the
defendants and they will be at liberty to file their written
statement on record within 30 days from the date of order.
2) No order as to costs.
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3) Summons for judgment No.20/2018 is disposed off
accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date:16/11/2024 Court Room No.81
Dictated on : 16/11/2024
Corrected & signed on : 19/11/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
19/11/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 16/11/2024
JUDGMENT/ORDER signed by P. O. on 19/11/2024
JUDGMENT/ORDER uploaded on 19/11/2024
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