IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1221 of 2008 . NOTICE OF MOTION NO.1221 of 2008 . NOTICE OF MOTION NO.1221 of 2008 . IN IN IN SUIT NO.1912 of 2004. SUIT NO.1912 of 2004. SUIT NO.1912 of 2004. Dilip Kumar Ghosh ..Plaintiff versus Tata Consultancy Service & Another ..Defendants Ms. Amita Cartelinho i/b. R.S.Dias for the Plaintiff Mr.D.J.Khambatta with A.S.Doctor i/b. Doijode Associates for the Defendant No.2. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 4th August, 2008. DATED : 4th August, 2008. DATED : 4th August, 2008. JUDGMENT. 1. This Notice of Motion was taken out by the defendant No.2 in the month of March 2008. On 21.7.2008 some discussion with reference to Notice of Motion took place in the Court and thereafter the Notice of Motion was adjourned to 29.7.2008. On that date learned Advocate for the plaintiff had indicated to this Court that the plaintiff is interested in taking out a Chamber Summons. However, the said Chamber summons was not before the Court. At that time itself, the learned Advocate for the plaintiff was informed that the Court would be taking up the hearing of the motion -2- first as it is first in point of time. On 29.7.2008, the matter was adjourned as both sides had some difficulty and it was adjourned to 31.7.2008. On 31.7.2008 the learned Advocate appearing on behalf of the plaintiff informed the court that the plaintiff had taken out the Chamber Summons for amendment of the plaint and in reply to the Court’s query the learned Advocate for the plaintiff informed the Court that the said Chamber Summons is lodged but not numbered. On hearing this the learned Advocate for the plaintiff was reminded about the earlier observations of this Court that the Notice of Motion would be taken up for hearing and that is how the hearing of Notice of Motion was conducted by this Court on 31.7.2008 and the motion was adjourned to today for order and the Motion is being decided accordingly. 2. The present suit is filed by the plaintiff against M/s. Tata Consultancy Services-Defendant No.1 and Mr. Ratan Tata-Defendant No.2 so as to seek damages to the tune of Rs.30,00,000/-. By prayer clause (b) the plaintiff has also sought direction directing the defendants to disclose to this Court the facts and circumstances clarifying -3- the discrepancies and contradictions in the matter of unnatural death of plaintiffs son Randip Ghosh in Denver, USA on 21.3.2000. 3. The suit summons came to be served upon both the defendants and thereafter the defendants have filed written statement. 4. The defendant No.2 has taken out this motion and by prayer clause (a) defendant No.2 has prayed that the plaint be rejected so far as he is concerned. The defendant No.2 has also prayed for costs of this motion. The affidavit in reply came to be filed to which rejoinder was filed and on the last occasion when the hearing of the motion commenced the sur-rejoinder has ben filed by the plaintiff. 5. Few facts necessary for disposal of this notice of motion are as under: . Defendant No.1 had appointed Randeep Ghosh (since deceased hereafter referred to as Randeep) i.e. son of the present plaintiff as its employee and said Randeep was posted at Denver (USA) on -4- deputation in terms of Deputation Agreement dated 23.2.2000. Said Randeep started working at his place of deputation and on 21.3.2003 said Randeep is said to have met with an accident at about 6.53 p.m. Denver time U.S.A. while crossing S. Quebec Street. The Plaintiff received news about the accident, and the plaintiff went to U.S.A. and attended to the matters arising out of the aforesaid development. The plaintiff has thereafter filed this suit in the month of March 2004 for the reliefs as aforesaid. 6. Defendant No.2 ha taken out this notice of motion on the grounds that the reading of the plaint does not disclose any cause of action against the defendant No.2 and therefore the plaint should be rejected under Order 7 Rule 11 of CPC so far as defendant No.2 is concerned. 7. I have with the assistance of the learned advocates on both sides perused the record. It is well settled principle that whether the plaintiff has been able to make out cause of action against a particular person or a party who is joined as defendant can be decided on the basis of the -5- averments in the plaint and not on the basis of any other document. 8. It is noticed that after the last rites of Randeep were attended to by the plaintiff, the plaintiff came to India and the plaintiff addressed various letters either to defendant No.1 being the company with whom said Randeep was employed or to defendant No.2 praying for active participation on part of the defendant No.1 and or defendant No.2 for the purpose of carrying out further and vital investigation in so far as the death of said Randeep in the incidence which was being treated as accident. A perusal of said correspondence would go to show that the plaintiff wanted to suggest that the circumstances in which said Randeep expired were suspicious and the information given to the plaintiff that the said Randeep died in car accident was not acceptable to the plaintiff. 9. The plaintiff in his capacity as father of said Randeep since deceased attempted to persuade the defendant No.1 and 2 to help him to find out the real facts. At this juncture itself it is required to be mentioned that the plaintiff has not -6- filed any complaint with the police authorities in U.S.A. putting up his case that death of said Randeep was not on account of accident but on account of of something else meaning thereby the death took place in suspicious circumstances. In the course, of arguments the learned advocate for the plaintiff suggested that because the defendant no.1 was the master of the said Randeep, a primary duty was cast upon defendant no.1 to lodge complaints with the appropriate authorities as regards death of said Randeep and or in any case assist the plaintiff in the matter of investigation of the said cause of death. She had submitted tht Defendant No.2 in his capacity as Chairman of Defendant No.1 was also duty bound to file complaint. 10. At this juncture it is required to be mentioned that in the plaint the defendant No.2 is referred to as Chairman of Tata Industries. It is factually incorrect. Learned advocate for defendant No.2 conceded that the defendant No.2 happens to be the chairman of defendant No.1 and he also indicated that defendant No.2 is not interested in raising a technical plea as regards -7- wrong description of defendant No.2 as Chairman of Tata Industries. It was sought to be clarified by the learned Counsel for defendant No.2 that defendant No.2 happens to be a non-executive chairman of defendant No.1 and to that extent there is no dispute. 11. I have perused the plaint and paragraphs 1 to 24 are drafted in such a way that everywhere it refers to something with reference to defendant No.1 and there is no reference to defendant No.2. For the first time in paragraph 24 a reference is found to defendant No.2 and in particular letters which came to be addressed to defendant No.2 which are at Exhibit J Collectively. First letter at Exhibit J collectively is at page 84 wherein a request was made so as to seek appointment of defendant No.2 on sympathetic ground. Another letter is at page 85 dated nil where it is sought to be suggested that the good offices of the defendant NO.2 are to be used for the purpose of getting peace by the present plaintiff. Further correspondence also goes to indicate that the plaintiff wanted to use the good office of the defendant No.2 for the purpose of getting further -8- and better particulars about the sad demise of said Randeep. Then comes paragraph 25 wherein the allegations are made against the defendant No.1 as regards the callous attitude on the part of the defendants and general reference is made to both the defendants by using the word "defendants". Thereafter comes the averment in paragraph 26 where allegations are levelled against defendant Nos.1 and 2 and the relevant averment is as follows: "The plaintiff ultimately addressed legal notice dated 21.3.2003 to the defendant Nos.1 & 2 setting out the above facts and called upon the defendant to make payment of compensation for the negligence, callous attitude and failure on the part of the defendants to conduct the necessary and required investigation and enquiry in the matter of death of late Randeep Ghosh" Then comes the averment in paragraph 29 and the relevant averment is follows: "The plaintiff states that the defendants are wholly and solely responsible for the -9- day to day affairs of their company. The defendants are also legally and morally duty bound to look into the problem and difficulties faced by their employees. However, till today the defendants have avoided and evaded to look into/resolve/consider/answer the grievances and/querries raised by the plaintiff about the discrepancies and contradictions in the facts and circumstances surrounding the death of his son" Then comes the averment in paragraph 30 wherein a similar allegation is made and the relevant paragraph is as under: "The plaintiff is entitled to claim and receive compensation not only for the loss of his son but also for the callous, careless and un cooperative conduct of the defendants in the matter of the untimely death of the plaintiff’s son" If these relevant paragraphs and the allegations are perused it will be clear that the plaintiff -10- expected the defendants to co-operate with the plaintiff for the purposes of investigating the circumstances under which said Randeep expired. It is material to note that the case of the plaintiff that said Randeep died in mysterious circumstances is required to be seen with caution in the wake of specific averment in paragraph 29 where the plaintiff himself has conceded that said Randeep died in a fatal accident. The relevant part of paragraph 29 is as under: "The plaintiff states that his son was on a deputation to Denver, USA for work of the defendants when he lost his life in a fatal accident" With these averments it is seen that the plaintiff avers the cause of action against the defendant No.1 as an employer of said Randeep and against defendant No.2 in his capacity as chairman of defendant No.1. 12. Since the notice of motion is taken out by the defendant No.2 and not by defendant No.1, I do not wish to go into question whether the defendant -11- No.1 would be liable to pay damages. The question is whether the plaintiff has made out against the defendant No.2. If the plaintiff is successful in showing that a prima facie case is made out against defendant No.2 then the claim of defendant No.2 that the plaintiff does not disclose cause of action against the defendant No.2 will have to be rejected and the motion will have to be dismissed. With this, I have considered the rival submissions. 13. Learned Advocate Ms.Castelinho appearing on behalf of the plaintiff had submitted that defendant No.2 was liable for all the acts of the company i.e. defendant No.1 and that is how defendant No.2 is liable to pay damages. In this case, even if we assume for a moment that defendant N.1 would be liable to pay damages to the plaintiff, I am inclined to observe that merely because defendant No.2 happens to be the Chairman of defendant No.1, he cannot be liable for all the actions which defendant No.1 ought to have taken and has not infact taken. It is just difficult to accept that the Chairman of a company is liable for all the actions of a company unless it is specifically shown that a particular overt act on -12- the part of the company is of such a nature that the Chairman of the said company is required to be made liable. In the present case right from the beginning the attitude of the plaintiff towards defendant No.2 was of such a nature that the plaintiff wanted defendant No.2 to intervene in the matter and help plaintiff. Plaintiff has not been able to show as to how defendant No.2 would be personally liable for the actions of defendant No.1 if at all actions of defendant No.1 are to be treated as tortious. In my view, merely because defendant No.2 happens to be a chairman of defendant No.1 cannot be a ground to make defendant No.2 liable and to that extent no cause of action is disclosed against the defendant No.2. 14. Learned Advocate Ms.Castelinho had submitted that the plaintiff alleges that tort of negligence has been committed by defendant Nos.1 and 2. Various averments which have been quoted above would clearly go to show that no specific allegations are levelled against defendant No.2 so as to see that defendant No.2 has committed tort of negligence. It is required to be noted that the plaintiff has admitted that said Randeep died in -13- fatal accident. The reading of plaint goes to show that the plaintiff feels that the death of said Randeep took in suspicious circumstances. An attempt was made by the learned advocate for the plaintiff to take me through the letters at Exhibit J being letter dated 19.9.2001 to show that there are various points which show that said Randeep died in suspicious circumstances. Having accepted in paragraph 29 that the death of said Randeep was due to fatal accident, it would be difficult to accept the case of the plaintiff at this stage, atleast for the purpose of determining whether there is any cause of action against defendant No.2 that the death of Randeep took place in suspicious circumstances. These allegations levelled against defendant No.2 which are quoted above do not make out a cause of action against the defendant No.2. 15. Learned Advocate Ms. Castelinho had submitted that the defendant No.2is vicariously liable for the acts of commission or omission on part of the defendant No.1. In so far as this aspect is concerned, the plaint is totally silent in what way the defendant No.2 has made himself vicariously liable. Merely because defendant No.2 -14- happens to be the Chairman of defendant No.1 is not sufficient to attract the principle of vicarious liability. 16. In order to make defendant No.2 liable in his capacity as Chairman it was necessary for the plaintiff to make out a case that a duty was cast upon the defendant No.2 to investigate the case as regards the death of said Randeep. It is true that said Randeep died at USA while he was on deputation. The said Randeep, according to the plaintiff himself has died in a fatal accident. In such a case it is difficult to accept the submissions of the learned advocate for the plaintiff that the duty was cast upon the defendant NO.2 in particular to see that the investigation is carried out at the instance of defendant No.2 in USA to ascertain the real cause of death. It is also required to be noted that the plaintiff who claims that said Randeep died in the suspicious circumstances ought to have filed a complaint with appropriate authorities in USA in order to claim that the death was in suspicious circumstances. In my view, merely because defendant No.1 happens to be employer of said Randeep and defendant NO.2 -15- being the Chairman of defendant NO.1 is not sufficient to say that the duty was cast upon the defendant No.2 to investigate the matter as regards the death of Randeep. In the absence of such a duty being shown, the defendant No.2 cannot be made liable. 17. It is required to be mentioned that in affidavit in reply at paragraph 6(c) an attempt is made by the plaintiff to show that the acts of commission and commission on the part of the officers of defendant No.1 were at the instance and direction of defendant No.2, the Chairman of the Company. It is required to be mentioned that such an averment or an averment similar to this is not found anywhere in the plaint. The learned advocate for the plaintiff could not show the averments in the aforesaid terms in the plaint so as to allege that there was nexus between the defendant No.2 and defendant No.1 with reference to the directions being issued by the defendant No.2 to defendant No.1. In the course of arguments the Court was informed that substantial assistance was given by the defendant No.1 to the plaintiff for the purpose of reaching USA and attending to the further -16- matters at USA. If this is so, it was expected of the plaintiff to make averment to show as to how defendant No.2 committed positive acts which according to the plaintiff constituted the tort or as to how the defendant No.2 omitted to do certain acts which he was duty bound to perform and which omissions amounted to tort. 18. Learned Advocate Mr. Khambata had submitted that though in affidavit in reply some attempt is made by the plaintiff to show how the cause of action arose to the Plaintiff. In particular he had drawn my attention to paragraph 7(c) and 7(f) by which plaintiff wanted to suggest that the plaintiff has made out a cause of action against Defendant No.2. I have already indicated in the earlier part of the judgment that whether a cause of action is made out against a particular party can well be judged only on the plaint. The attempt on the part of the plaintiff to put up his case in affidavit in reply cannot be accepted. In the plaint specific pleadings as regards the liability of Defendant NO.2 on the principle of vicarious liability are absent and hence that point is against the plaintiff. -17- 19. It is well settled principle that plaintiff has to mention in the plaint the particulars of cause of action against the particular defendant and also mention the date on which the said cause of action accrued to the plaintiff for the fist time. In the present case the plaintiff has not in specific terms stated the details of cause of action against Defendant No.2 and has also not stated the first date when the cause of action arose to the plaintiff. These ommissions will have to be viewed against the plaintiff. 20. Learned Advocate Mr. Khambatta appearing on behalf of the defendant No.2 had submitted that if the plaint does not disclose any cause of action then the Court should, pass appropriate Order in terms of Order 7 Rule 11 of C.P.C. thereby rejecting the plaint. According to learned Advocate Mr. Khambatta, in the absence of specific cause of action made out by the plaintiff against the defendant No.2 , the defendant No.2 should not be made to face the litigation. Learned Counsel Mr. Khambatta in support of his submission relied upon the judgment in the case of T.Arivandandam vs. T.Arivandandam vs. T.Arivandandam vs. -18- T.V.Satyapal & Anr. reported in AIR 1977 SC 2421 T.V.Satyapal & Anr. reported in AIR 1977 SC 2421 T.V.Satyapal & Anr. reported in AIR 1977 SC 2421 where the Supreme Court in paragraphs 6 & 7 has indicated as to how the Courts should be vigilant in the matter of rejecting the plaint if the plaint does not disclose the cause of action. 21. For the reasons mentioned aforesaid, I observe that the plaint discloses no cause of action against the defendant No.2. In view of the judgment of the Supreme Court in the case of T. Arvindam (Supra), I am inclined to accept the submission of Mr. Khambatta that in the absence of a specific cause of action made out in the plaint, the plaint deserves to be rejected so far as the defendant No.2 is concerned by using the provisions of Order VII Rule 11 of C.P.C. 22. The learned Advocate for the plaintiff submitted that the plaint came to be filed in the year 2004 and the defendant No.2 filed written statement in May 2006. The learned Advocate for the plaintiff had submitted that the present notice of motion has been taken out by the defendant No.2 practically after about two years after filing of the written statement and therefore the Notice of -19- Motion should be dismissed. With regard to this submission, learned advocate Mr. Khambatta appearing on behalf of the defendant No.2 had relied upon the judgment in the case of I.T.C.Limited vs.Debts Recovery Appellate Tribunal I.T.C.Limited vs.Debts Recovery Appellate Tribunal I.T.C.Limited vs.Debts Recovery Appellate Tribunal & Ors. reported in AIR 1998 SC 634 & Ors. reported in AIR 1998 SC 634 & Ors. reported in AIR 1998 SC 634. He submitted that the Supreme Court has observed that the plaint can be rejected even at the later stage i.e. even after the issues are framed. He had drawn my attention to paragraph 30 of the said judgment where the Supreme Court had referred to the judgment in the case of Azhar Hussein vs. Rajiv Gandhi 1986(supp)SCC 315 (p.324) wherein the Supreme Court has observed " The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy time of the Court". Keeping in view the observations of the Supreme Court in the case of I.T.C. Ltd. vs. Debts Recovery Tribunal. I am inclined to observe that the Notice of Motion is maintainable. 23. Before I part with this judgment, I would like to indicate two things. In the course of hearing I had enquired with the learned Advocate -20- for the plaintiff as to the type of tort which the plaintiff is alleging against the defendant No.2. The Plaintiff’s advocate had indicated that the facts of this case involves the tort of negligence. I have indicated my observations about it atleast so far as defendant No.2 is concerned. The second type of tort sought to be named by the learned Advocate for the plaintiff was tort of fraud. Perusal of the plaint goes to indicate that the plaintiff has not alleged or averred a single line which would go to say that tort of fraud is said to have been committed by defendant No.2. I am saying so because no such averment was pointed out by the learned Advocate for the plaintiff. There is one more point which is required to be noted. The plaintiff has apart from the claim of damages sought the relief from the Court in terms of prayer clause (b) and it would be proper to quote prayer clause (b) which reads as under: "That this Hon’ble Court be pleased to direct the defendants to this Hon’ble Court the facts and circumstances and clarify the discrepancies and contradicting in the matter of unnatural death of the -21- plaintiff’s son Randeep Ghosh in Denver USA on 21.3.2000." The perusal of this prayer clause would go to show that the plaintiff is seeking the directions from the Court against the defendants to disclose to this Court (and ofcourse to the plaintiff) the facts and circumstances and clarify the discrepancies and contradictions in the matter of unnatural death of the plaintiffs son Randeep Ghosh in Denver USA on 21.3.2000. The close perusal of this prayer clause would clearly go to show that the plaintiff who alleges that the death of Randeep was in suspicious circumstances, himself is not posted with various facts and circumstances and wants this Court to direct the defendants including the defendant No.2 to disclose