Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.943 OF 2018
In
SUIT NO.2622 OF 2017
Mr. Shanker Gupta ...Plaintiff.
V/s.
M/s. Loyd's Register Group Limited & anr. ...Defendants.
Appearances:
Ld. Adv. Mr. Shiddharth Chandrashekar for plaintiff.
Ld. Adv. Mr. K. P. Gaud for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 1st April,2019
ORDER
By way of this notice of motion defendant Nos.1 and 2 prayed
that suit be dismissed being barred by law of limitation and principle of
estoppel and pending the hearing and final disposal of the suit plaintiff
be directed to refund an amount of Rs.20,42,510/ with interest @ 12%
per annum.
2. In supporting affidavit of Mr.Rajendra Sriram Apte, defendants
submitted that plaintiff was on Long Term International Assignment
(LTIA assignment) in Nigeria. Defendants terminated his assignment
from 31.05.2013 and plaintiff returned to India rolls from 01.06.2013.
Since no suitable equivalent position was found in India for him,
plaintiff was rendered redundant. Defendants, therefore, decided to
put an end the contract by giving him requisite notice pay in lieu of
MHCC01-003196-2018
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notice. Plaintiff initiated discussions requesting for extending benefits
of early retirement, which was not granted. He further submitted that
ultimately plaintiff agreed to resign from the services of defendant No.2
and to receive additional compensation. Therefore, considering the
negotiations and legal dues entitled by plaintiff, he was paid
Rs.40,47,865/ and submitted a declaration dt.28.06.2013 to defendant
No.2, which considered as full and final settlement. In the said
declaration plaintiff has stated that, he shall have no claim of
whatsoever nature against the company either monetary or otherwise.
But as the plaintiff resigned from the service of the company with effect
from 31.05.2013, in view of his resignation accepted question of filing
of the suit by plaintiff does not arise.
3. Defendants submitted that, as the plaintiff was already received
pension of Rs.20,42,510/ which needs to be returned back to
defendants and therefore, they prayed that notice of motion to that
effect be made absolute. Even suit is barred by law of limitation and it
is also barred by principle of estoppel, disentitles plaintiff to claim
anything. Therefore, suit deserves to be dismissed and prayed that
notice of motion be made absolute.
4. Plaintiff Shankar Gupta tendered his replyaffidavit and denied
each and every contentions raised by defendant in the notice of motion.
He submitted that suit is filed within limitation and question of estoppel
does not arise. On the other hand he has put forth his entire case in his
plaint as to how defendants unfair and unjustly discriminated in giving
his early retirement benefits and therefore, he raised voice for his right.
Due to which Officers of defendants became aggrieved and started
harassing him and in view of this his service showing to be no longer
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required was terminated by defendants. Thus, question of refund of
any amount, as claimed by defendants, does not arise, nor defendants
can seek dismissal of the suit on the grounds put forth by plaintiff.
Therefore, he prayed that notice of motion be dismissed.
5. Heard learned Advocate for both the sides. Perused the record
and submissions.
6. The service of plaintiff with defendant No.1, of which defendant
No.2 is a subsidiary company, is not disputed. Even it is not disputed
that plaintiff was holding the post of Marine Engineer Surveyor and was
given certificate of exemplary service by then Consultant of the
defendant/company. Plaintiff in the plaint in detail specifically
mentioned that in early 2010, letter for Long Term International
Assignment (LTIA) dt.10.03.2010 signed by Mr. Joe Watson – the then
Area Marine Manager for Middle East Africa (MEA) of the defendants
and Ms. Natalia Matheson – the then MEA area HR Manager of
defendants assigned the plaintiff to work in Nigeria on a LTIA as
defendants' Nigeria Counter Manager. Plaintiff agreed to the offer and
relocated to Nigeria in June,2010 on a four year LTIA. During his
posting in Nigeria, plaintiff learn that his predecessor Mr. Rajiv Verma,
who was also an Indian National, had been paid a higher salary and
better perks than him although he was appointed to the same post and
had to perform the same functions. As compared to earlier person, his
salary was much less. Besides Mr. Rajiv Verma was given 65 days
annual leave as against 35 days only leave to this plaintiff. Therefore,
plaintiff was upset at this discrimination against him, although he was
senior in service to his said predecessor. Hence, he addressed via E
mail on 26.08.2010 to his Manager Mr.Joe Watson who replied
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immediately saying that he would look into the matter. But through
out his 3 years assignment in Nigeria plaintiff did not get the higher
salary or additional days of leave given to his predecessor. Therefore,
he visited Mr. Willem Moelkar, who was then acting MEA Manager, at
Dubai on 19.11.2012 and put forth his grievances. But it was of no use.
7. Therefore, again plaintiff had correspondence through Email
with defendants, which was not work out. On the other hand the
company has changed their strategy in employment and therefore,
when plaintiff has pointed to the then HR Manager that the position in
Nigeria was not advertised and that he had not applied for it. Even
though the then MEA Marine Manager had offered plaintiff a role which
he accepted as a challenge to serve defendant in a country not many
were willing to travel to and that he was being asked to repatriate back
to India citing restructuring of business which events were not of his
making but he was the one paying the price for no fault on his part. As
defendants has not considered his request and committed unjust and
unfair approach, he was asked to retire early irrespective of his
superannuation age of 62 years and therefore, his services came to an
end from 31.05.2013 by making his signature over the declaration
dt.28.06.2013 by playing fraud upon him making it as resignation
letter. Therefore, he submitted that he is entitled for the said perks,
salary and early retirement benefits option. With this plaintiff prayed
that his notice of motion be made absolute in terms of prayer sought
and the notice of motion filed by the defendants be dismissed.
8. Learned counsel for defendants have categorically submitted that,
in view of terms and conditions accepted for LTIA. The condition of
'next position' is reproduce here that :
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“Next Position : On completion of your longterm international
assignment Lloyd's Register will either offer you a long term / short
term intentional assignment in another location / country or reinstate
you in a substantially equivalent position in a location in India.
A substantially equivalent position is one in which the nature of the
work, level of responsibility and base salary are approximately the same
as you will hold during your assignment in Nigeria or the same as a per
in India.
Substantially equivalent also means that an identified assignment
position is in a location / country where the organization conducts
normal business operations.” As per the submission as plaintiff did not
found fit for the post in Indian his services came to be terminated.
9. The question of limitation as raised by defendants is the question
of facts and law. Therefore, unless and until testimony of both the sides
are recorded, we cannot arrive on a specific conclusion. Even for the
principle of estoppel also there is requirement of averments and
evidence to be adduced before this Court to hold that suit be dismissed
in view of bar of estoppel as raised. As I have already discussed, at this
stage we cannot decide the question of refund of amount by plaintiff.
But in view of the fact as come forward, it is plaintiff who under full
and final settlement/ declaration have received the amount, it is again a
fact needs to be verified on the touchstone of the evidence to be
adduced by both the sides under which circumstances it was executed.
Till then it is too early to reach to any conclusion.
10. In view of above discussion, at this stage notice of motion
deserves to be dismissed. In such circumstances, it is proper to direct
parties to bear their costs and hence, I proceed to pass the following
order :
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O R D E R
1. Notice of Motion No.943 of 2018 in Suit No.2622 of 2017
stands rejected.
2. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 01/04/2019 City Civil Court, Gr. MUMBAI
Dictated on : 01.04.2019
Transcribed on : 02.04.2019
Signed on : 02.04.2019
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
03.04.2019 at 2.48 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 02.04.2019
Judgment/order signed by P.O. on 03.04.2019
Judgment/order uploaded on 03.04.2019
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