Final Order 1

Order Details: Other
Pdf Text: MHCC010057422018 Presented on 26/04/2018
Registered on 26/04/2018
Decided on 18/07/2024
Duration 06Y: 02M: 22D
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMONS FOR JUDGMENT NO. 148 OF 2018
IN
SUMMARY SUIT NO. 630 of 2017
Sujit Shetty ]
Aged 38 years, Occupation Services ]
having his address at Kavi Apartments, ]
Flat No. 14, Dr. R. G. Thandani Road, ]
Worli, Mumbai - 400030. ]...Plaintiff
VERSUS
1. Graviss Hospitality Ltd. ]
A company incorporated under the ]
provisions of the Companies Act, 1956 ]
having its registered office at J-177, ]
MIDC, Industrial Area, Bhosari, ]
Pune-411 026 and Corporate office at ]
254-C, Dr. Annie Besant Road, ]
Worli, Mumbai-400 030. ]
2. Mr. Manas Krishnamoorthy ]
Aged 40 years CEO, The Mayfair Banquets ]
having its office at Opp. Sasmira Collage, ]
254-C, Dr. Annie Besant Road, ]
Worli, Mumbai - 400003. ]
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3. Mr. Suresh Srinivasan ]
Aged 55 years, Occ. Chief People’s Officer ]
The Mayfair Banquets having its office ]
at Opp. Sasmira Collage, 254-C, ]
Dr. Annie Besant Road, Worli, ]
Mumbai - 400003. ]...Defendants
Appearance:-
Ld. Advocate Ratna Bhargavan with Adv. Hetvi Mota for plaintiff.
Ld. Advocate Girish Joshi for defendant No.1.
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 18/07/2024.
ORDER
( Dictated and pronounced in open Court)
01] The plaintiff has filed this summons for judgment against
defendants on 24/04/2018. Defendant No. 1 has filed their affidavit in
reply to the summons for judgment and resisted it and prayed for
unconditional leave to defend the suit. On perusing affidavit of service
of Summons for judgment of defendants No.2 and 3, it appears it is
served on the said defendants. They have not filed their reply to the
summons for judgment. Even, no adverse order is passed against them.
However, as no reply filed by the defendants No.2 and 3 to summons
for judgment, it is necessary to proceed summons for judgment against
them without their reply.
02] As per the plaintiff, he is engaged in business of hospitality
in Banqueting. Further, it is submitted that defendant No.1 is a company
engaged in business of hospitality and defendants No.2 is Chief
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Executive Officer and defendant No.3 is Chief People's Officer of
defendant No.1 company. Plaintiff was appointed on post of Vice
President for utilizing his services as expertise for it banquet operations
at Mumbai. Plaintiff was appointed on retainer basis as per Retainership
Agreement dated 01/03/2014 for a period of 13 months from
01/03/2014 for financial year 2014-2015. The said Retainership
Agreement was further renewed on 10/08/2015 for financial year 2015
to 2016 and extended to April 2016. As per terms and conditions of said
agreement, more specifically Clause No. 4, plaintiff was entitled to
receive a Performance Incentive over and above other emoluments
amounting to Rs. 6,00,000/- per financial year. Further, said incentive
was payable as per parameters set for achieving the AOP/EBIDTA for
both financial year. The said agreement on mutual discussion it came to
an end and settled all his dues. There was no target fixed for the
financial year 2014-2015 and 2015-2016. Further, it is submitted that
sales of Mayfair Banquets for financial year 2014-2015 was
Rs.16,09,00,000/- and for 2015-2016 it was Rs.13,82,00,000/-. Plaintiff
had requested to pay said incentive of Rs.6,00,000/- each year total
amounting to Rs.12,00,000/- however, defendants failed to pay.
Therefore, sent email dated 29/04/2016 prior to expiry of second
Retainership Agreement and called upon defendants to pay said
amount. However, plaintiff was asked to sign letter dated 04/05/2016
for full and final settlement amounting to Rs. 2,06,911/- for all dues of
period of contract. The plaintiff had signed said letter under protest.
Thereafter, plaintiff sent email dated 15/05/2016 and legal notice dated
02/06/2016 to defendants and called upon to pay outstanding amount
with interest. Defendants replied on 16/06/2016 and denied the
liability and alleged that sales figure for financial year 2014-2015 and
2015-2016 were short of the target given to the plaintiff which was pre-
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condition for the same. In fact no such target was given to the plaintiff.
Plaintiff replied to said reply on 29/06/2016 and contended that
incentive was to be paid on the parameters set out for achieving
AOP/EBIDTA. Further, Key Result Area (KRA) contains multiple
parameters and it was not a part of agreement. Plaintiff has performed
in spite of bad market conditions and lack of staff. Therefore, plaintiff is
entitled for incentive amount as prayed. Defendants have not raised any
substantial defence or any triable issues. Hence, summons for judgment
may be allowed.
03] On the other hand, it is argued on behalf of the defendant
No.1 that defendants No.2 and 3 left their job with defendant No.1
company. It is further submitted that so far as contention of
Retainership Agreement and plaintiff was designated as Vice President
is admitted. It is further submitted that AOP for sales and operation was
set by the company for financial year 2015-2015 as Rs. 1929/- lacs and
achieved was Rs. 1527/- lakhs. The plaintiff was aware about the target
however, he has not achieved target as pointed out in KRA and
therefore, question of paying performance incentive does not arise.
Plaintiff has given reasons for not achieving target however, same were
never raised by him prior to it. Further, plaintiff has signed settlement
for an amount of Rs. 2,06,911/- though, it is received 'under protest'.
The plaintiff has not made clear as to why he had protested in respect of
final claim. The plaintiff has claimed said incentive for first time by
letter dated 29/04/2016 and he had not claimed incentive for first
financial year. Defendant No.1 has not admitted alleged liability as
claimed by the plaintiff. Therefore, these issues needs to be decided on
merit after adducing evidence. Thus, defendant No.1 is entitled for
unconditional leave to defend the suit. Hence, summons for judgment
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may be dismissed.
04. Perused summons for judgment, reply of the defendants
and document No. 1 on record. It appears from pleadings of the parties
that it is not disputed that plaintiff was appointed as per Retainership
Agreement for the financial year 2014-2015 and 2015-2016 however, it
was extended up to April 2016 as per the terms and conditions
mentioned in said agreement (Exh. A). It is also not disputed that said
agreement came to an end and and dues as settled as per letter dated
04/05/2016 (Exh.B). It appears that plaintiff had received cheque
under protest (Exh. D). It is pertinent to note that it is mentioned in
said letter that cheque of Rs. 2,06,911/- dated 30/04/2016 is towards
full and final settlement of all dues for the period of contract with
defendant No. 1. Though, plaintiff has mentioned that 'received under
protest' however, he has not specifically mentioned an amount of
incentive is not received. There is no dispute that as per Clause 4,
para 2 of Retainership Agreement, '
A performance Incentive of Rs. 6
Lakhs be payable and the payout will be determined as per parameters
for achieving the AOP/EBIDTA for the period April 2014 to March
2015.' Further, same clause was for agreement for the year 2015-2016.
05. Thus, it shows that plaintiff was entitled for incentive
however, it was subject to determine as per parameters for achieving
the AOP/EBIDTA for respective financial year. As per the plaintiff there
was no target given by the defendant No.1 to him for any financial year.
On the contrary, it is the contention of the defendant No.1 target was
given to the plaintiff as set out in Key Results Areas (Exh. I) for
respective financial year and plaintiff has failed to achieve the same. It
is the contention of the plaintiff that KRA was not a part of Retainership
Agreement for any financial year. Thus, it appears to be triable issue
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whether KRA was part of Retainership Agreement or not. Further,
plaintiff has not pleaded what were parameters set for achieving the
AOP/EBIDTA for respective period. Therefore, it is necessary to decide
what were parameters and whether plaintiff has achieved it to be
entitled to claim incentive. Thus, I am of the view that defendant No. 1
has raised triable issues and it needs adjudication on the basis of
evidence. Moreover, as per email dated 29/04/2016 (Exh. C) plaintiff
has claimed incentive amount from the defendant No. 1 however, even,
in said email, it is not mentioned what were the parameters and he has
achieved the same. Therefore, I am of the view that defendant No. 1
has brought material on record to show that there are triable issues.
The summons for judgment is proceeded without reply against
defendants No.2 and 3. It is pertinent to note that there is no single
avernment either in the plaint or summons for judgment how
defendants No. 2 and 3 are liable to pay an outstanding amount to the
plaintiff. Therefore, I am of the view that defendants No.2 and 3 cannot
be directed to deposit outstanding amount as claimed by the plaintiff.
Thus, I am of the view that defendant No.1 is entitled for unconditional
leave to defend the suit. Hence, I proceed to pass following order.
ORDER
1) Summons for judgment No.148/2018 in Summary Suit
No. 630/2017 is disposed off as follows:
(a) Unconditional Leave to defend the suit is granted to the
defendant No.1.
(b) The defendant No.1 will be at liberty to file its written
statement on record within 30 days.
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(c) Unconditional leave to defend the suit is granted to
defendants No. 2 and 3 and they are directed to file their written
statement within 30 days.
2) No order to costs.
3) Summons for judgment No.148/2018 is disposed off
accordingly.
(Sangram S.Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai.
Date: 18/07/2024 Court Room No.81
Dictated on : 18/07/2024
Corrected & signed on :19/07/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
19/07/2024 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 18/07/2024
JUDGMENT/ORDER signed by P. O. on 19/07/2024
JUDGMENT/ORDER uploaded on 19/07/2024
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