Mr. Sanjay Pal, Adv. v. CAPT. A.K.CHOWDHARY ......

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL)

1. The matter was passed over on the first call as no one was appearing for the respondent. Even on the second call no one appears for the respondent. I have therefore heard the learned counsel for the appellant and after perusing the record am proceeding to dispose of the appeal. I note that even on the last date of hearing no one appeared for the respondent.

2. This Regular First Appeal under Section 96 CPC was filed challenging the judgment and decree of the Trial Court dated 31.7.2006 by which the suit of the appellant/plaintiff was dismissed although it was found that the respondent was liable to pay an amount of Rs.1,15,000/- 2011:DHC:4335 with simple interest at 6% per annum. The suit was dismissed as the authorized filing for the suit was not proved.

3. This Court during the pendency of the appeal on 16.9.2010 allowed an application under Order 41 Rule 27 CPC and permitted the appellant/plaintiff to lead additional evidence to prove the due filing of the suit, and which was issue no.2 as framed by the Trial Court. The matter was remanded back to the Trial Court for leading additional evidence on this limited aspect and the appellant has thereafter led the additional evidence and the matter has now been sent back to this Court.

4. I have perused the additional evidence which has been led by the appellant/plaintiff in the Trial Court by filing additional affidavit by way of evidence of PW[2]. PW[2] was cross-examined. A reference to the affidavit shows that the Board of Directors’ resolution dated 11.4.1997 has been proved and exhibited as EX.PW2/1 and even the original leaves of the minutes above have been proved and exhibited as Ex.PW2/2A to PW2/2F. The authorization given to Sh. Gautam Sarkar has been exhibited as Ex.PW2/2C. Nothing material has been elicited in the crossexamination of this witness and therefore it is proved that the appellant company has duly filed the suit. In any case, the suit was filed through Sh. Gautam Sarkar who was then Commercial Manager of the appellant/plaintiff, and who is therefore a principal officer in terms of Order 29 Rule 1 CPC. The suit was therefore, in any case, validly filed and instituted in view of Order 29 Rule 1 CPC. I therefore hold that the suit was validly instituted and filed on behalf of the appellant/plaintiff.

5. The Trial Court has already given a finding with respect to issue no. 3 in favour of the appellant/plaintiff by holding the respondent liable to pay a sum of Rs.1,15,000/- being a gross salary for one month notice period, and which one month notice was not given before the respondent left the service. The Trial Court has given detailed findings and conclusions with regard to admissions made by the respondent/defendant with respect to the terms and conditions of employment which have been exhibited as Ex.PW1/2 and these terms and conditions show that if the respondent/employee/pilot leaves the service without giving a notice of one month, then the appellant will be entitled to an amount of one month’s gross salary for failure to give the said notice. Admittedly no notice was given by the respondent before leaving the services of the appellant. No cross objections have been filed by the respondent/defendant to findings on issue no.3. I accept the findings of the Trial Court with respect to issue no.3.

6. The upshot of above discussion is that the suit of the plaintiff/appellant is decreed against the defendant/respondent for a sum of Rs.1,15,000/- with pendent lite and future interest at 6% per annum till realization. Parties are left to bear their own costs. Decree sheet be prepared. Trial Court record be sent back.

AUGUST 25, 2011 VALMIKI J. MEHTA, J. ak