1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.483 OF 1984 N.D.H.Kamath .. Plaintiff Versus Chowgule & Co. (Hind) Pvt.Ltd. .. Defendant Mr.A.M.Vernekar for plaintiff Mr.A.N.Jakhadi for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd March 2009. P.C. . Mr.Jakhadi, learned Advocate appearing for defendants states that from July 2007 and even prior thereto, defendant was contacted by 2 him. Defendant is a company having its registered offices at Mumbai and letters were forwarded by personal courier on 8th August 2008 and 24th September 2008. Mr.Jakhadi states that he has personally spoken to the concerned officers but there has been no response. 2. Mr.Jakhadi does not deny that he has received affidavit of documents and evidence. However, despite bringing the same to the notice of defendants, they have not come forward to give instructions. In these circumstances, for want of instructions, Mr.Jakhadi prays that he is unable to proceed with the matter and should be relieved from the proceedings. 3. In all fairness, Mr.Jakhadi states that the suit is of the year 1984. Plaintiff is a senior citizen and the matter has been adjourned earlier. He does not dispute that the affidavits have been duly received. In these circumstances, 3 any further adjournment of these proceedings would not be in the interest of justice. Prayer for adjournment orally made is rejected and Mr.Jakhadi is discharged as Advocate for defendants. Copies of the letters addressed by Mr.Jakhadi to the defendants are taken on record and marked "X" for identification. 4. The plaintiff has filed this suit for an order and decree in the sum of Rs.61,815.50 together with interest on the principal amount. 5. The suit claim arises on the basis that the plaintiff joined the service of defendant with effect from 2nd May 1973 as General Manager, Pharmaceutical Division. It is in pursuance of a contract as evidenced by Annexure A. What is sought to be relied upon is that the terms and conditions which postulates that the parties will have to give six months notice before termination of the contract. It is stated that plaintiffs 4 duly served the defendants and submitted his resignation as on 1st June 1983. He relies upon the terms and conditions of the letter of confirmation dated 27th August 1973 stipulating six months notice and states that the contract could not have been abruptly terminated. However, it was abruptly terminated and on 13th June 1983, he was relieved from the service. The contract stipulated six months notice either side, which means from the date of receipt of his resignation, he should not have been relieved for six months. 6. Since, he was so deprived by relieving him abruptly, the suit is filed to recover differential amount. 7. In the written statement, there is no denial of the appointment and all the terms and conditions. However, reliance is placed upon the fact that the plaintiff himself approached the 5 defendant and stated that he should be relieved because he wants to start his own business. Having regard to his desire, a telegram was sent to him and he was relieved from the service. For all these reasons, the reliance placed upon clause 2 of the confirmation letter is misplaced and the claim cannot be awarded, is the submission. 8. Once there is no dispute about the contract and the terms of employment, then, I do not see any impediment in considering the case of plaintiff. More so, when he has filed original letter of appointment, letter of confirmation and original letters which are addressed by the defendants to him. He has also produced copies of such of the letters which had been addressed by him to the defendants but duly acknowledged by them. In his affidavit in lieu of evidence, he has confirmed the plaint averments. 6 9. Today, the matter was placed for recording evidence and as noted above, the defendants have been duly forwarded the documents compiled by the plaintiff so also the affidavit in evidence. The plaintiff is personally present in Court. He confirms that the affidavit affirmed on 11th November 2008 bears his signature. He confirms each of the statements made therein. He states that the affidavit fully reflects the version set out by him in the plaint. He also confirms the contents of the documents and states that they are true and correct. 10. In this view of the matter and requirements of Order XVIII Rule 4 of C.P.C. being complied, this affidavit is taken on record and shall be treated as his examination in chief. 11. Mr.Jakhadi has already been discharged as Advocate for the defendants. None is present on 7 behalf of defendants to cross examine plaintiffs on the version as set out in the plaint. In other words, on plaintiffs’ version also there is no cross examination. The contents of the documents are also not disputed. In these circumstances, the documents are taken on record and marked as Exh.P-1 to P-24. The defendant has not participated in the suit beyond filing written statement. Thus, not only it has failed to controvert the case of plaintiff but has not led any evidence on the pleas raised in the written statement. 12. In these circumstances, it can safely be concluded that the plaint averments are proved. The case is substantiated with documents and oral evidence. 13. Mr.Vernekar, learned Advocate appearing for plaintiff, therefore, urges that the decree be passed as prayed. He states that as far as 8 interest at the rate of 18% that is claimed on the basis of the notice, which has been given by the plaintiff. He relies upon a letter dated January 4, 1984, which is sent by R.P.A.D. to the defendant. This is an Advocate’s letter and, there interest is claimed at 18%. This is a notice under the Interest Act, 1978. Therefore, interest at this rate be awarded till the date of the suit and from the date of suit till the date of judgement and, thereafter, the Court may determine the appropriate rate. 14. Considering the fact that the plaintiff was ready and willing to serve the defendant for the period specified in the terms and conditions and there is no breach on his part but he was wrongfully prevented from doing so, interest of justice would be sub-served if the following order is passed:- (a) The suit stands decreed to the 9 extent that plaintiff would be entitled to recover the principal amount of Rs.54,776.67 with interest at 15% from the date of suit till the date of decree. However, from the date of decree/ judgement till realisation, the plaintiff would be entitled to recover the interest at 6%. Advocates cost be quantified as per rules. Decree be drawn for the above sums together with costs. All concerned to act on an authenticated copy of this order. Leave under Rule 314 of Bombay High Court (O.S) Rules is granted." (S.C.Dharmadhikari, J)