Interim Order 1

Order Details: Other
Pdf Text: SJ 109/19 IN SUM. ORDER 1
EXHIBIT
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.109 OF 2019
( CNR No.MHCC010031762019 )
IN
SUMMARY SUIT NO. 1223 OF 2018
Mr. Roshan Premabhai Patel
Aged 49 years, Occupation :Business,
Residing at Flat No. 17, Kot Mahal Cooperative
Housing Society Ltd, Plot no. 148, Garodia
Nagar, Ghatkopar East, Mumbai 400077. … Plaintiff
Vs.
1. M/s. Prism Cybersoft Pvt Ltd.
Having address at D1/D2, Sidhpura Industrial
Estate, Amrut Nagar, L.B.S. Marg, Ghatkopar
West, Mumbai – 400086.
2. Mr.Jayesh Babulal Shah
Aged 50 years, Indian Inhabitant
Residing at 910, 2 nd floor, Prabhat Building,
Sainath Nagar Marg, L.B.S. Road,
Ghatkopar (West), Mumbai 400086,
Office : M/s.Prism Cybersoft Private Limited,
at D1/D2, Sidhpura Industrial Estate,
Amrut Nagar, L.B.S. Marg, Ghatkopar (West),
Mumbai – 400086.
3. Mr.Dhaval Rajnikant Khokhani Aged 42
years, Indian inhabitant, Residing at 32, Saras
Marg, Yashwanth Rao Chavan Marg, Deonar,
Mumbai 400086.
Office : M/s.Prism Cybersoft Private Limited,
at D1/D2, Sidhpura Industrial Estate,
Amrut Nagar, L.B.S. Marg, Ghatkopar (West),
Mumbai – 400086. ..Defendants
Advocate Ms.Sneha Sonawane for the plaintiff.
Advocate Mr.Siddiqui for Defendants .
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SJ 109/19 IN SUM. ORDER 2
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 4th May, 2022
JUDGMENT
1. The plaintiff has filed this Suit for recovery of unpaid salary of
July and August 2017 that is of Rs.3,77,349/. The plaintiff has also
claimed gratuity amount deducted by defendant/Company during the
serving period of the plaintiff with defendant/Company that is of
Rs.2,25,346/. The plaintiff has claimed 21% p.a. interest on Salary plus
gratuity amount that is in total amount of Rs.6,02,695/ from 1/9/2017
till realisation of the amount.
2. The plaintiff was serving with defendants as Software Support
Engineer. The defendant No.1 is Private Limited Company registered
under the Companies Act, 1956. Defendant No.2 and 3 are directors of
defendant no.1. Defendant no.2 and 3 are looking after the day to day
affairs of Defendant no.1. The plaintiff was appointed by letter dated
5/4/2010 and he has separated by letter dated 31/5/2017 issued by
defendants. Defendants have guaranteed payment of balance salary
amount and gratuity amount. The defendants were fully satisfied with
service of plaintiff till the plaintiff left the service. The defendants
neglected to pay salary, gratuity and other benefits to which the
plaintiff is legally entitled. In the appointment letter dated 5/4/2010
necessary terms and conditions of the appointment are mentioned. The
plaintiff has served for period of 7 years and 5 months with defendant
Company without blemish and has devoted all his time on defendants
for rightly and highly appreciated work of the plaintiff by defendants. In
May 2017 defendant and plaintiff after discussion decided amicably to
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SJ 109/19 IN SUM. ORDER 3
part ways. Accordingly defendant no.1 has issued separation letter
dated 31/5/2017 with contents that the plaintiff leaving the job on
31/8/2017. The said period was including notice period that is from
01/06/2017 to 31/8/2017. Therefore, after 31/5/2017 till 31/8/2017
the plaintiff was working with defendants and from 31/8/2017 his
resignation become final. As per statement of the plaintiff the last salary
was of Rs.1,80,000/ per month. However time to time the defendants
have also deducted gratuity amount from the salary of plaintiff. On
28/8/2017 the plaintiff has handed over all the property to the
defendants. The defendants have acknowledged receipt of all the
property to the defendants. The defendants have acknowledged receipt
of all properties while leaving of the job by plaintiff has become final.
Therefore, plaintiff is entitled for salary, gratuity and other benefits as
per law.
3. The plaintiff further submitted that as per payment of Gratuity
Law 1972, it is necessary for defendants of obtain compulsory insurance
but defendants have failed to obtain compulsory insurance or gratuity.
Now, defendants are neglecting to pay necessary dues to the plaintiff.
The plaintiff has filed suit and tendered Summons for Judgment and
asking reliefs in the Summons for Judgment.
4. The defendants have filed reply and denied contents of the plaint.
As per statement of defendant the suit/ Summons for Judgment is false
frivolous and liable to be dismissed with costs. As per statement of
defendants the defendant no.1 is doing business of Computer Software
Programme. As per Programme of the defendant secrecy and
confidentiality is of the paramount importance. The plaintiff joined
defendant no.1 Company on 142010. The plaintiff has received all
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SJ 109/19 IN SUM. ORDER 4
remunerations and benefits as entitled. Plaintiff has been in breach of
terms and conditions of the employment. Consequently, the said act of
the plaintiff caused loss to the defendant/Company. Plaintiff was
working outside office on private arrangement basis in the area of Data
Entry. Actually by appointment letter the plaintiff has undertaken that
he will not involve in direct or indirect business any other causes but
the plaintiff has involved in private Data Entry area. Therefore, this
resulted in his resignation dated 31/5/2017. However, without giving
proper resignation to the defendant the plaintiff stopped reporting
duties to the defendant from 31/8/2017. The plaintiff was sharing data
of the defendant with outside clients. Plaintiff has committed breach of
the terms and conditions of the appointment and therefore, just to save
future, Carrier and positive profile of the plaintiff, defendant asked oral
clarification of the plaintiff about act committed by him. Actually, it was
necessary for plaintiff to train and handover the current responsibilities
but he failed to do so because of that the defendant was required to
arrange for completion of the work left by plaintiff. Ultimately, it caused
financial implication.
5. As per rules of appointment of Gratuity Act, 1972 the employer is
entitled to forfeit the gratuity of the employee if employees commit any
breach of the terms and conditions of the employment. With this
submission the defendants have denied contents of Summons for
Judgment as well as suit and requested to dismiss the suit. The
defendants submitted that they have good case on merit. They have
raised triable issue. Therefore, leave to defend the suit be granted to
them unconditionally.
6. Plaintiff has tendered documents of Tax return, last paid salary,
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SJ 109/19 IN SUM. ORDER 5
Gratuity Rules and some documents compiled alongwith plaint.
Defendants have also tendered some documents below Exhibit 5 to
show that plaintiff has committed breach of terms and conditions of
appointment.
7. Heard advocate of plaintiff as well as defendant. From pleadings
and documents on record following points arise for consideration to
which I have given reasons before them:
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for relief sought in
the summons for judgment ?
Partly Affirmative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Negative
3 What Order ? Summons for
Judgment is allowed
R E A S O N S
AS TO POINT NOS.1 AND 2:
8. First submission of the plaintiff that by appointment letter dated
5/4/2010 he was appointed as Software Support Engineer with
Defendant/Company. Defendants have admitted this fact in the reply.
As per statement of plaintiff on 31/5/2017, it was decided amicably
that the plaintiff will leave the office from 31/8/2017. Accordingly on
31/8/2017 the plaintiff has given charge to the officials of defendants.
As per statement of defendant the plaintiff has not submitted proper
resignation to them but he has stopped reporting duties from
31/8/2017. From the statement of defendants, it appears that from
31/8/2017 plaintiff is not attending the duties for the defendants. As
per statement of defendant and even in the arguments advocate of
defendant submitted that till now the job of plaintiff is continued in
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their company. The plaintiff has not attended any duty without
submitting proper resignation to the defendants.
9. Apart from that whether amicable settlement dated 31/5/2017
will be treated as resignation or not but when the plaintiff is not
attended duty from 31/5/2017 then it is not understood as to why till
statement in reply the defendants have not taken any action against the
plaintiff. This shows that from 31/8/2017 the plaintiff has not attended
duty of the defendants. However question of whether it was resignation
or not shall be tested on merit. The plaintiff has asked salary of two
months that is July2017 and August2017. In the reply the defendants
have denied the said statement of plaintiff but on the contrary, it is their
submission that the plaintiff has committed breach of terms and
conditions of the appointment and therefore, it shows that defendants
have not paid Salary of July and August 2017. When the plaintiff has
given service to defendants in the month of July 2017 and August 2017,
then. Certainly, the plaintiff is entitled for the said amount without
accuracy further or without any hurdle.
10. Plaintiff has also asked gratuity amount. As per statement of the
plaintiff the defendants have deducted from time to time gratuity from
the salary of the plaintiff. Plaintiff submitted that insurance is necessary
under the payment of gratuity Act. The defendants failed to obtain
insurance for gratuity amount. However, the defendants submitted that
when there is breach of conditions in service then the employer is
entitled to held up gratuity. At the time of argument both the parties
have submitted that plaintiff has filled the Form No.I. Actually, Form N
is necessary for claiming amount. In the reply, the defendants have not
denied that they have deducted amount from the salary of plaintiff.
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Whether FormI or FormN is necessary can be certainly settled by letter
communication between the parties. As per statement of the defendant
formN is necessary then they can ask the plaintiff to fill up Form No.N.
The amount deducted from the salary of plaintiff is not necessary to be
held up. Plaintiff has submitted Salary Slip. Prima facie, the amount is
shown to be deducted. As the amount is deducted from the Salary that
time plaintiff was giving service to the defendant and has also claimed
21% p.a. interest from 1/9/2012 on Salary and gratuity amount. Here
the defendants have raised dispute of resignation. The defendant
further submitted that the plaintiff has committed breach of terms of
service. The plaintiff has claimed interest. But, considering nature of
dispute the question of the interest would be decided on merit. At this
stage, considering the nature of the suit plaintiff is entitled for Salary
amount of Rs.3,77,349/ and gratuity amount of Rs.2,25,346/ in total
of Rs.6,02,695/.
11. Defendants also relied upon following Judgments of Hon'ble Apex
Court :
1. Sudin Dilip Talaulikar Vs. Polycap Wires Pvt.Ltd. And ors. Civl
Appeal NO. 5528/19 of Hon'ble Supreme Court.
2. Mechelec Engineers and Manufacturers Vs. M/s.Basic
Equipment Corporation 1977 SCR (1) 1060,
In both the cases Hon'ble Supreme Court has held that when from
the defence triable issues came on record the defendant is entitled to
defend the suit unconditionally. Here plaintiff is entitled for his own
amount that is Salary of July and August 2017, and gratuity amount
deducted from his salary. From defence the defendants have not raised
triable issue. Accordingly, I answer point no.1 in the affirmative, point
no.2 in the negative and proceed to pass following order:
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SJ 109/19 IN SUM. ORDER 8
O R D E R
1. Summons for Judgment No.109/19 is allowed.
2. Leave to defend the suit is granted to the defendants, subject to
deposit of amount of Rs.6,02,695/ (Rupees Six Lacs, Two Thousand
Six Hundred and Ninety Five) in the Court within 30 days from the date
of this order.
3. If defendant fails to deposit the amount within stipulated period
then the plaintiff shall proceed with the suit ,as if there is no defence.
4. The Summons for Judgment No.109/2019 is disposed of
accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 04.05.2022 Gr.Mumbai.
Dictated on: 04.05.2022
Typed on : 05.05.2022
Signed on : 09.05.2022
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SJ 109/19 IN SUM. ORDER 9
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload
Date
Upload Time Name of Stenographer
09/05/2022 3.30p.m. Mrs. Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 15)
Date of Pronouncement of JUDGEMENT
/ORDER
04/05/2022
JUDGEMENT /ORDER signed by P.O. on 09/05/2022
JUDGEMENT /ORDER uploaded on 09/05/2022
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