Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 862 (KAR)

Tata Consulting Engineers v. B. S. Shankar

2016-11-15

K.S.MUDAGAL, S.ABDUL NAZEER

body2016
JUDGMENT : S. Abdul Nazeer, J. This is a defendant's appeal challenging the legality and correctness of the judgment and decree in O.S. No. 4576/1995 dated 28.11.2006 on the file of the XIV Addl. City Civil Judge at Bangalore. The respondent is the plaintiff in the suit. 2. For the sake of convenience, parties are referred to by their respective rank before the trial Court. 3. The plaintiff filed the aforesaid suit against the defendant for recovery of a sum of Rs. 2,39,597/- with interest @ 21% p.a. It is the case of the plaintiff that he had joined the services of the defendant-Company as an Engineer and was working in their Bangalore branch throughout his tenure. The defendant is doing the business of consultancy pertaining to Engineering Services. The defendant as part of their business, takes up work overseas also. One such project was being taken by the defendant at Gillan, Iran. The plaintiff was directed to go to Gillan, to carry out the project of the defendant. As per the directions of the defendants, the plaintiff left to Iran on 17.04.1992 and completed the work within three months and returned to Bangalore. Plaintiff left the services of the defendant and he was relieved of his services on 15.12.1994. The defendant had laid down a policy regarding the allowances payable to the officials going on overseas. The defendant issued a circular dated 31.10.1991 providing the rate of allowances to different group of officials who go on overseas assignment. The plaintiff falls under group-IV. He was paid U.S. $ 432 at the time of departure to Iran by the defendant. Except the said payment, management had not paid him any other amount. He is entitled for allowances @ U.S.$ 65 a day. Towards boarding charges for two days at Teheran the plaintiff is entitled for U.S.$130. He stayed at a : Hotel at Gilan site from 19.04.1992 to 23.04.1992 and at Gilan up to 16.07.1992. As per the circular, he is entitled for payment of full allowances for first 30 days and for the next 30 days he is entitled to 80% of the allowance and for the period from 61 to 90 days the plaintiff is entitled to 60% of the allowance subject to a minimum of U.S.$ 58 per day. Thus, in all the plaintiff is entitled to total allowance of U.S. $ 5099. Thus, in all the plaintiff is entitled to total allowance of U.S. $ 5099. Despite repeated requests, the defendant has failed to pay the aforesaid amount. According to the plaintiff, he is entitled for the amount as under: (1) The difference of allowances payable for the assignment of Gilan, Iran Project : Rs. 1,44,677/- (2) Interest thereon at 21% p.a. up to date : Rs. 90,720/- (3) Leave encashment benefit : Rs. 4,000/- (4) Notice charges : Rs. 200/- TOTAL Rs.2,39,597/- 4. The defendant has filed the written statement denying the averments made in the plaint. It is admitted by the defendant that plaintiff was posted to Iran to carry out certain project work. His stay at Iran as contended by the plaintiff was admitted. It is the case of the plaintiff that the circular referred to by the plaintiff is irrelevant for the present case as the said circular was meant for circulation amongst Senior Managers of the Company. The Company has a practise of publishing allowances and service conditions by issuing routine orders (notice) every week for the information of the employees. The overseas allowances that were notified for the information of the employees were also published by issuing Routine Order No. 52/91 for the week ending 27.12.1991. The allowances mentioned therein were in respect of business visits/short terms posting abroad for a period not exceeding 6 months as per the posting order. Therefore, the circular dated 31.10.1991 is not applicable. The plaintiff was aware of the routine order issued by the Company. The plaintiff was paid U.S. $ 432 at the time of departure to Iran. It is contended that the plaintiff is not entitled for any other allowances as claimed in the plaint. Hence, sought for dismissal of the suit. 5. On the basis of the pleadings of the parties, the Court below has framed the following issues: (1) Whether the plaintiff proves that he is entitled for allowances as per circular of the defendant bearing No. TCE/9380-A/80 dated 31.10.1991 during his overseas assignment at Gilan, Iran Project? (2) Whether the defendant proves that the plaintiff is only entitled for allowances as per posting order dated 31.3.1992 and not the circular No. TCE/9380-A/80 dated 31.10.1991? (3) Whether the plaintiff is entitled for leave encashment benefit? (4) Whether the plaintiff is entitled for the suit claim? (5) Whether the plaintiff is entitled for 21% interest? (2) Whether the defendant proves that the plaintiff is only entitled for allowances as per posting order dated 31.3.1992 and not the circular No. TCE/9380-A/80 dated 31.10.1991? (3) Whether the plaintiff is entitled for leave encashment benefit? (4) Whether the plaintiff is entitled for the suit claim? (5) Whether the plaintiff is entitled for 21% interest? (6) What order or decree? 6. Plaintiff filed his affidavit of chief-examination and Exs.P.1 to P.7 were marked on his behalf. The defendant has not cross-examined the plaintiff nor did the defendant lead evidence. 7. On the basis of the appreciation of the materials on record, the Court below has decreed the suit by directing the defendant to pay Rs. 1,25,302/- with interest @ 10% p.a. on the said amount from 17.4.1992 up to the date of filing of the suit. 10% interest is also levied over the said amount from the date of suit till its recovery. 8. I have heard the learned counsel for the appellant. Though the respondent is served, he has remained unrepresented. 9. The contention of the learned counsel for the appellant is that the plaintiff was examined-in-chief on 03.06.2003. Since, he was not cross-examined the case was posted for arguments on 12.06.2003. On 12.06.2003 an application was filed for recalling of the order dated 3.6.2003. Accordingly, the order was recalled and the case was posted for cross-examination of PW1 on 17.07.2003. At the request of the learned counsel for the defendant, the case was adjourned from time to time. On 5.9.2005 when the case was posted for cross-examination of PW1, he was absent. There was no representation on his behalf. Therefore, further evidence of the plaintiff was taken as nil without prejudice to the right of the defendant. Thus, when the plaintiff was not available for cross-examination, question of considering his chief-examination does not arise. The entire evidence of the plaintiff could not have been taken into consideration by the trial Court. The plaintiff has failed to establish his case. Therefore, the court below was not justified in decreeing the suit on the basis of the evidence of PW1. In this connection, he has relied on the decision of the Supreme Court in Vidhyadhar v. Manikrao and another ( (1999) 3 SCC 573 ). 10. We have carefully considered the arguments of the learned counsel for the appellant. Therefore, the court below was not justified in decreeing the suit on the basis of the evidence of PW1. In this connection, he has relied on the decision of the Supreme Court in Vidhyadhar v. Manikrao and another ( (1999) 3 SCC 573 ). 10. We have carefully considered the arguments of the learned counsel for the appellant. It is evident from the order-sheet maintained by the Court below that plaintiff was examined-in-chief on 03.06.2003. The affidavit of chief-examination was filed on behalf of the plaintiff. Exs.P.1 to P.7 were marked in his evidence and the case was posted for arguments on 12.06.2003. On 12.06.2003 learned Advocate for the defendant filed an application for recalling of the order dated 03.06.2003. Accordingly, the said order was recalled and the case was posted for cross-examination of PW1 on 17.07.2003. On 12.09.2003, PW1 was present. At the request of the learned advocate for the defendant, the case was posted on 11.11.2003. Thereafter, the case was adjourned from time to time. On 04.08.2005, counsel for the plaintiff was absent and counsel for the defendant was present. The case was posted to 05.09.2005. On that day, when the case was called PW1 was absent. When it was called again, PW 1 was absent and no representation was made on behalf of the plaintiff. Even, when the case was called for the third time, PW 1 was not present. Hence, further evidence of the plaintiff was taken as 'nil' without prejudice to the right of the defendant. 11. Hon'ble Supreme Court in Vidyadhar's case (supra) has held that where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. 12. It is no doubt true that the defendant has not let in any evidence. It is well established that plaintiff has to succeed on the strength of his own case and not the weakness of the defendant. Merely because the defendant has not let in its evidence, the plaintiff cannot succeed. Though the plaintiff was examined-in-chief, he was not available for cross-examination. Thus his Chief-examination cannot be taken into consideration for decreeing the suit. A presumption has to be drawn that the case set-up by him is not correct. Merely because the defendant has not let in its evidence, the plaintiff cannot succeed. Though the plaintiff was examined-in-chief, he was not available for cross-examination. Thus his Chief-examination cannot be taken into consideration for decreeing the suit. A presumption has to be drawn that the case set-up by him is not correct. In our view, the Court below was not justified in decreeing the suit of the plaintiff. 13. In the result, the appeal succeeds and it is accordingly allowed. The judgment and decree in O.S. No. 4576/95 dated 28.11.2006 on the file of XIV Additional City Civil Judge, Bangalore is hereby set aside and the aforesaid suit filed by the plaintiff is dismissed. The bank guarantees furnished by the appellant pursuant to the interim order of this Court dated 31.07.2007 stands discharged. Having regard to the facts and circumstances of the case, parties to bear their own costs.