Karnataka High Court
Mr. Yeshwant Raghunath Mulay vs M/S. Motor Industries Company Limited on 6 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 2160
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
R.F.A. No.356 OF 2013
BETWEEN:
Mr. Yeshwant Raghunath Mulay
S/o. Raghunath Laxman Mulay
Aged about 49 years,
R/at No.2, Niwas Park,
Dadoji Konddeo Nagar,
Near Nirmala Convent School,
Opp: Gangapur Road,
Nasik - 422 013.
...Appellant
(By Sri.S.S. Mahendra, Advocate)
AND:
M/s. Motor Industries Company Limited
Adugodi, Hosur Road,
Bangalore - 560 030.
Rep. by its Managing Director,
Mr. Albert Hieronymus.
...Respondent
(By Sri. J. Pradeep Kumar for
Smt.K. Subha Ananthi for
M/s. Kasturi Associates)
****
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and
R.F.A.No.356/2013
2
decree dated 02-11-2012 passed in O.S.No.132/2007 on the
file of the XXXI Additional City Civil Judge, Bangalore City,
(CCH-14), dismissing the suit of the plaintiff for recovery of
money.
This Regular First Appeal having been heard and
reserved on 27-08-2019, coming on for pronouncement of
judgment, this day, the Court delivered the following:
JUDGMENT
The plaintiff, whose suit bearing O.S.No.132/2007 filed against the defendants for recovery of money in the Court of the XXXI Additional City Civil Judge, Bangalore City, (CCH-14) (hereinafter for brevity referred to as "Trial Court") wherein during the pendency of the suit, defendant Nos.2 and 3 came to be deleted, was dismissed by the Trial Court by its impugned judgment and decree dated 02-11-2012. It is against the said judgment and decree, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the Trial Court was that, he was working in the defendant R.F.A.No.356/2013 3 (the present respondent) - Company as a Manager. The defendant - Company selected him and fourteen others for receiving advanced training including in particular to study, acclimatise and gain the required skill and knowledge for the implementation of System Application and Products (SAP) Project in its parent Company - Robert Bosch GmbH, Germany, for a period of six months. He was asked to execute a Bond towards the said training, undertaking that he shall diligently undergo and complete the training and would return to India immediately upon completion of the training and support the defendant - Company for the SAP Project. The training period was for a period of six months. The knowledge imparted to him in the training was required to be implemented in India by him in his work in SAP Project. It was also mentioned in the Bond that after acquiring such skills, if the employee deserts the Company, he shall be liable for the amount mentioned R.F.A.No.356/2013 4 in the Bond. Accordingly, the plaintiff left India on 06-03-2005 to Germany on deputation to undergo training.
It was further the case of the plaintiff that, while he was under training in Germany, he was abruptly called back on 29-04-2005/14-05-2005 (the plaintiff has mentioned both these dates as the dates of calling him back abruptly from Germany) within two months of his going to Germany by the defendant - Company, thereby, it did not allow him to complete the period of deputation and to undergo complete training. The remaining members of the team successfully underwent training for six months of their deputation. After his return to India, he was not allotted a suitable work by the defendant - Company, which harassment and humiliation and ill- treatment he had to tolerate. However, by the suffocating environment created with this respect in the defendant-Company, he tendered his resignation from R.F.A.No.356/2013 5 the services of the defendant -Company vide his resignation letter dated 28-04-2006, wherein he requested the defendant - Company to relieve him on 03-05-2006 and to allow him to encash all his leaves, medical balance in the kitty. The defendant Company having acknowledged the receipt of the same insisted for recovery of Bond amount. He requested the defendant Company to waive the Bond as it was not acted upon. His request was turned down. The plaintiff reserving his right to take other recourse and under protest, paid a sum of `10,00,000/- to the defendant - Company. At last, he was relieved from the services of defendant - Company on 17-05-2006. Calling the said act of the defendant - Company as breach of Bond conditions, arbitrary and illegal, the plaintiff instituted the present suit before the Trial Court for recovery of a sum of `10,00,000/- with costs and interest in total `11,08,000/-.
R.F.A.No.356/20136
3. The defendant - Company filed its Written Statement through its counsel wherein it contended that, there was no discrimination between the plaintiff and other members of the Project and all were treated equally. The defendant contended that due to business need, the plaintiff's deputation period was reduced. It also contended that the plaintiff submitted his resignation letter dated 28-04-2006 which was within a period of seventeen months from the date of deputation (i.e. 06-03-2005) and as per condition No.3 of the Bond, the plaintiff was required to pay 100% of the cost of deputation. The plaintiff ought not to have resigned during the period when the Bond was subsisting.
It was further contended that the plaintiff was liable to pay the liquidated damages for the breach of the terms of the Bond conditions. The deputation for training was based on the business requirement. The plaintiff had no inalterable right to be continued for six R.F.A.No.356/2013 7 months training at Germany. It was also contended that no harassment was caused to the plaintiff at any time when he was in the services of the defendant - Company. It further stated that the plaintiff had violated the terms of the Bond and just because the defendant insisted for the terms of the Bond conditions, the plaintiff has made unwarranted allegations to wriggle out of the contract signed by him.
It was further contended that the money demanded from the plaintiff was the amount spent by the Company towards deputation cost including the expenses during his stay at Germany. The defendant also contended that the Company was specifically empowered to extend or reduce the period of deputation depending upon the specific business need.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration: R.F.A.No.356/2013 8
"1] Whether the plaintiff proves that the defendant by committing breach of conditions in the Bond dated 5.3.2005 had recovered a sum of `10 lakhs from him?
2] Whether the plaintiff proves that he is entitled to claim interest at the rate of 21% p.a. from the date of recovery of the said sum till date of the suit which amounted to `1,05,000/-?
3] What order or decree?"
In order to prove his case, the plaintiff got himself examined as PW-1 and got produced and marked documents from Exhibits P-1 to P-17. The defendants in the Trial Court got examined two witnesses as DW-1 and DW-2 and got produced and marked documents from Exhibits D-1 to D-20.
5. After hearing both side, the Trial Court by its impugned judgment and decree dated 02-11-2012 answered issues No.1 and 2 in the 'negative' and dismissed the suit of the plaintiff. It is against the said R.F.A.No.356/2013 9 judgment and decree, the plaintiff has preferred the present appeal.
6. Lower Court records were called for and the same are placed before this Court.
7. Heard the arguments of the learned counsels from both side and perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
8. For the sake of convenience, the parties would be henceforth referred to with the ranks they were holding before the Trial Court respectively.
9. In the light of the materials placed and the arguments addressed by the parties, the points that arise for my consideration in this appeal are:
1] Whether the plaintiff has proved that the defendant has committed breach of the conditions of the Bond dated 05-03-2005 by recovering a sum of `10,00,000/- from him?R.F.A.No.356/2013 10
2] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?
10. The plaintiff as PW-1 in his Examination-in- chief in the form of Affidavit evidence has reiterated the contentions taken up by him in his plaint. Stating that he had issued a legal notice to the defendant - Company on 04-10-2006, the plaintiff got the said legal notice marked at Ex.P-1. To show that notices were served upon the defendants, he produced the postal receipts and postal acknowledgments and got them marked at Exs.P-2 to P-9. He marked a copy of his resignation letter dated 28-04-2006 at Ex.P-10. Copies of his various letters on different dates from 11-05-2006 to 17-06-2006 which were addressed to the defendants were marked by PW-1 from Exs.P-11 to P-15. A copy of the Performance and Potential review for a period from January-2005 to December-2005 was marked as Ex.P-16 R.F.A.No.356/2013 11 by him. A similar report for a period from January-2004 to December-2004 was marked at Ex.P-17.
In his cross-examination, the deputation letter pertaining to the plaintiff's deputation for training to Germany was got marked as Ex.D-1; the Bond said to have been executed by the plaintiff in that regard was confronted and got marked at Ex.D-2 and the defendant's reply to the legal notice of the plaintiff and dated 24-11-2006 was got marked at Ex.D-3.
11. On behalf of the first defendant - Company, its Deputy Manager (Human Resources), one Sri.K.R. Ganesh Shenoy was examined as DW-1.
The said witness also in his Examination-in-chief in the form of Affidavit evidence has reiterated the summary of the contentions taken up by the defendants in their Written Statement. Though he admitted that, the plaintiff was working as a Manager in their Company i.e. MICO at Audugodi, Hosuru Road, Bengaluru and was R.F.A.No.356/2013 12 deputed for SAP training at Germany, in which regard a letter dated 04-03-2005 was issued by the defendant - Company, he contended that since the plaintiff committed breach of the Bond dated 05-03-2005, the defendant - Company was justified in recovering the liquidated and ascertained damages of `10,00,000/- from him. He also said as per the Bond, depending upon the duration of the service the employee has rendered, the liquidated damages was fixed accordingly. The plaintiff was liable to pay a sum of `10,00,000/- which was subsequently recovered from him. He got marked five letters of different dates exchanged between the parties as Exhibits D-4, D-5, D-6, D-7, and D-8. A Special Power of Attorney said to have been executed by the Managing Director of the defendant - Company was marked as Ex.D-9. Four more letters bearing different dates were confronted to DW-1 in his cross-examination and they were marked as Exhibits D-10 to D-13. In his R.F.A.No.356/2013 13 detailed cross-examination, DW-1 adhered to his original version.
12. One Sri.A. Abraham - the Vice President of the defendant - Company (SAP Information Motor Industries Limited) was examined as DW-2. He filed his Affidavit evidence as Examination-in-chief and subsequently filed an additional Affidavit evidence also.
This witness apart from corroborating what DW-1 has stated, has also stated that, the deputation letter at Ex.D-1 also forms part of contract between the plaintiff and defendant Company and that both have signed Ex.D-1. It is for the said reason, the defendant was entitled to recover the Bond amount, which it has done.
In his additional evidence in the form of Affidavit, he submitted that the plaintiff exhibited some behavioural problems during his stay at Germany which were communicated to the defendant Company by way of E-mails of different dates. Due to his behavioural R.F.A.No.356/2013 14 problems, it was not possible to permit him to continue in the SAP implementation Project at Germany. At Germany, he was becoming a great risk to the Project and having regard to all the complaints received from Germany, the period of deputation of the plaintiff was reduced. He further stated that even after his calling back to India, the plaintiff could have continued to serve the defendant Company for a period of at least two years from the date of deputation which also he did not do. On the other hand, he resigned from the job with the defendant Company before the time lapsed, and being aware of the terms and conditions of the deputation letter dated 04-03-2005 and the Bond dated 05-03-2005, the witness has given split-up figures of the amounts said to have been spent by the Company towards conveyance, boarding, lodging, air tickets and training cost of the plaintiff at Germany. He got those E-mails and air tickets marked from Exs.D-10 to D-20 R.F.A.No.356/2013 15 (there is duplication of Exhibits from D-10 to D-13). He was subjected to a lengthy cross-examination where the witness has given more details about the complaints received against the plaintiff and the expenses incurred by the Company during the stay of the plaintiff in Germany.
13. In the light of the above, the first argument of the learned counsel for the appellant/plaintiff was that, the Bond at Ex.D-2 is a reciprocal contract as contemplated under Section 54 of the Indian Contract Act, 1872. As such in order to insist the conditions of Ex.D-2 - Bond, primarily, the defendant/respondent has to fulfill its part of obligations by performing the promise made therein, as such, it ought not to have cut short the period of deputation.
He further contended that the act of the defendant in calling back the plaintiff within the deputation period of six months amounted to breach of contract committed R.F.A.No.356/2013 16 by the defendant - Company. The Bond at Ex.D-2 has to be independently read and interpreted and it cannot be read in relation to the deputation letter at Ex.D-1.
In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of Sarupuri Narayanamma and others Vs. Kadiyala Venkatasubbaiah and others reported in AIR 1973 Supreme Court 2114.
Further contending that Ex.D-2 is an invalid contract, he relied upon the judgment of the Bombay High Court in the case of Kilburn Engineering Ltd. Vs. Oil and Natural Gas Corporation Ltd. and another reported in AIR 2000 Bombay 405.
He also submitted that, the E-mails at Exs.D-10 to D-13 are the personal E-mails between DW-2 and one Ms. Heinz Ulrike. As such, the same ought not to have been considered by the Court below.
R.F.A.No.356/201317
With this, he submitted that recovery made by the defendant is not sustainable and as such, the appeal deserves to be allowed.
14. Learned counsel for the defendant in his written arguments contended that, the very act of the plaintiff requesting the defendant to waive the Bond itself would go to show that there was a valid Bond signed by the plaintiff. He contended that as per Clause 3 of the said Bond dated 05-03-2005 read with Clause 12 of the deputation letter dated 04-03-2005, the plaintiff was required to serve the defendant - Company at least for a period of two years from the date of deputation. Since he has resigned earlier to the said period, the defendant - Company can recover the amount as per the Bond. He also contended that since the parties have executed the Bond, though on different dates, still, it binds the parties to it.
R.F.A.No.356/201318
He also submitted that Exs.D-1 and D-2 have to be read together since they pertain to the very same act of deputing the plaintiff for training and the terms and conditions of deputation. Since the plaintiff has accepted the terms and conditions of Exs.D-1 and D-2, the defendant- Company has recovered the amount from the plaintiff for which the defendant Company was entitled to.
He submitted that, appreciating all these aspects in its proper perspective, the Trial Court has rightly dismissed the suit of the plaintiff.
15. Regarding the first point of argument of the learned counsel for the appellant/plaintiff that the contract between the parties was a reciprocal promise, as such, the defendant - Company ought not to have recalled the plaintiff within six months' time period, as such, the breach of the contract is by the defendant - Company itself, is concerned, it has to be noticed that R.F.A.No.356/2013 19 the alleged reciprocity can be inferred from Exs.D-1 and D-2. Admittedly, Ex-D-1 is the order of deputation where under, the plaintiff was deputed for a period of six months only from 05-03-2005 which was extendable or reduced depending upon the specific need of the defendant - Company. In continuation of the said deputation of the plaintiff to the training to be imparted at Germany, which deputation was accepted by the plaintiff with all the terms and conditions of deputation, which can be seen through the signature of acceptance made by the plaintiff in Ex.D-1, the Bond came to be executed by the plaintiff which is dated 05-03-2005 in favour of the defendant - Company and marked at Ex.D-2. As per the terms of deputation order at Ex.D-1, the promise made on behalf of the defendant as an employer was that the plaintiff/employee would be entitled for allowances as per Travel Rules - Abroad which included living allowances, lodging allowance and R.F.A.No.356/2013 20 kit allowance. According to the defendant and also DW-2, the defendant - Company has spent a sum of `54,511/- towards air line ticket, to and fro from Bengaluru to Stuttgart, Germany, a sum of `4,25,476/- towards boarding, lodging, conveyance and other expenses for a period from 07-03-2005 to 13-05-2005, towards SAP Certification training prior to deputation at `2,15,000/- and training cost for the entire team of twenty-eight candidates amounting to Euros 82,110, which, per person in Indian Rupee comes to `1,60,000/-. Thus, what are all the promises the defendant - Company was alleged to have made under Exs.D-1 and D-2 are fulfilled.
16. On the other hand, in Ex.D-1, i.e. the order of deputation, at Clause 12, it is clearly mentioned that after his return to India, immediately after his deputation, the Company expects that the expertise of the plaintiff which he has gained because of his R.F.A.No.356/2013 21 training/deputation in Germany, is to be made available to the Company for a period of at least two years from the date of his deputation. The plaintiff has agreed to the same by specifically mentioning that he has accepted those terms and conditions and thereafter subscribed his signature to the said document. As such, there is an undertaking which is a promise yet to be performed from the plaintiff's side to serve the defendant - Company, at least for a period of two years after his return to India from Germany. The said condition only shows that the liability of the plaintiff/employee to serve the defendant Company for two years arises not necessarily after completion of six months complete training, but immediately after plaintiff's/employee's return to India after his deputation. The Clause 1 of the very same deputation order at Ex.D-1 clearly and specifically mentions that the period of deputation which is for a period of six months can be extended or reduced R.F.A.No.356/2013 22 depending upon the specific need of the Company. In the case of the plaintiff, the said duration was reduced, which according to the defendants was as per the Company's need. Therefore, the contention of the appellant/plaintiff that the defendant - Company had an obligation to impart minimum six months' training at Germany to the plaintiff and that the Company had no authority or right to reduce the said period, finds no basis in it. As such, the argument of the learned counsel for the appellant/plaintiff that there is breach of the reciprocal promise from the defendant - Company's side, is not acceptable. On the contrary, the resignation of the plaintiff within two years of his return from Germany would clearly go to show that he has committed breach of Clause 12 of deputation order at Ex.D-1.
17. It is also the case of the appellant that the Bond at Ex.D-2 must be read independent of Ex.D-1 and R.F.A.No.356/2013 23 it has to be interpreted on the wordings of that document itself.
In that regard, he relied upon a decision of the Hon'ble Apex Court in Sarupuri Narayanamma's case (supra). In the said case, the Hon'ble Apex Court at para-3 of its judgment was pleased to observe that, it is a principle settled beyond the dispute that each document has to be interpreted on the words of that document itself and the other documents interpreted in earlier decisions cannot provide a binding precedent in interpreting a document.
In the instant case, since the defendant - Company, in no manner, is relying upon any other interpretation upon Ex.D-1 or Ex.D-2, referred to in earlier decisions, the judgment relied upon by the appellant/plaintiff would not enure to his benefit.
In Sarupuri Narayanamma's case (supra), the Hon'ble Apex Court has held that interpretation must be R.F.A.No.356/2013 24 on the words of that document and the other documents interpreted in earlier decisions cannot provide a binding precedent.
In the instant case, neither party is relying upon any interpretation of either Ex.D-1 or Ex.D-2 in the earlier decisions. As such also, the said judgment would not enure to the benefit of the plaintiff/appellant.
18. The second point of argument of the learned counsel for the appellant/plaintiff was that Ex.D-1 and Ex.D-2 have to be read separately and in isolation and they cannot be read together. The said argument also is not acceptable for the reason that as already observed, Ex.D-1 is the deputation letter communicating the deputation of the plaintiff for a training at Germany along with prescribing the terms and conditions of deputation and admittedly, the plaintiff has accepted the terms and conditions mentioned in the said order communicated to him by subscribing his signature to it R.F.A.No.356/2013 25 with an acceptance endorsement. As observed above, the said document mentions that the plaintiff who is deputed for training at Germany was required to serve the defendant - Company for a period of at least two years after his deputation and return to India. Ex.D-2 which is a Bond executed by the plaintiff in favour of defendant - Company, undertaking to reimburse the expenses to the Company, in case, he commits any breach, clearly says at page 2 that the parties to the Bond who are the plaintiff and the defendant herein, acknowledge and recognize that pursuant to the deputation, the employee will acquire new skills required for implementation of the SAP Project and thereby enhance his knowledge and expertise and any separation of the employee during the Project will adversely affect the implementation of the SAP Project, jeopardise the business interest of the Company resulting in significant economic loss to the Company. (emphasis supplied). R.F.A.No.356/2013 26
The said agreement between the parties makes it very clear that the Bond at Ex.D-2 refers to the order of deputation at Ex.D-1 and that it is in pursuance to the said deputation order only, the Bond came to be in existence. When Ex.D-1 deals with the deputation and terms and conditions of deputation of an employee, including the allowances for which the deputed employee is eligible, the Bond at Ex.D-2 as a continuation of the order of deputation at Ex.D-1 and as a consequence of the employee/plaintiff accepting the deputation to Germany, has come into existence and the employee/plaintiff recognising the economic loss and other inconveniences which the defendant Company would incur in case the employee leaves the defendant Company within the prescribed time, has executed the Bond as per Ex.D-2. As such, it is for the said reason Ex.D-2 specifically mentions that the Bond has come pursuant to the deputation order. Therefore, Ex.D-1 and R.F.A.No.356/2013 27 Ex.D-2 have to be read together and Ex.D-2 cannot be separated from Ex.D-1 and read in isolation. Thus, the argument of the learned counsel for the appellant/plaintiff on the said point also is not acceptable.
19. Learned counsel for the plaintiff/appellant in his argument also canvassed a point that, Ex.D-2 is an invalid contract and the very inception of the contract is with a mala fide intention of keeping the plaintiff bonded under the guise of deputation. He submitted that the contract was not signed by all the signatories in it on the very same day in their mutual presence, as such, the Bond at Ex.D-2 lacks certainty, commitment and communication. Therefore, it is an invalid contract.
In his support, learned counsel for plaintiff/appellant relied upon a judgment of the Bombay High Court in Oil and Natural Gas Corporation's case (supra). In the said case, the Bombay High Court was R.F.A.No.356/2013 28 pleased to observe that as per Section 7 of the Indian Contract Act, 1872, acceptance of an offer must be absolute and it must be absolute and unqualified and it should be expressed in some usual and reasonable manner unless they tender prescribed by any other manner in which it should be accepted. The cardinal principle, in the light of the Section 7 of the contract Act is that the offer and acceptance of an offer must be absolute without giving any room of doubt. It was further observed in the judgment that it is well settled that the offer and acceptance must be based or founded on three components, i.e., certainty, commitment and communication. If any one of these components is lacking, either in the offer or in the acceptance, there cannot be a valid contract.
In the instant case, the appellant canvassed a point that DW-2 admitted in his cross-examination that, he was not there at Germany at the relevant time when R.F.A.No.356/2013 29 signatures were obtained on Bonds and deputation letters.
The appellant also relies upon another portion of the cross-examination of DW-2, wherein he has stated that, he has no personal knowledge about it. The Bonds and deputation letters were signed by the concerned at Germany at the first instance and thereafter the Bonds and deputation letters were brought to Bangalore for his signature and for the signature of Kulkarni (Divisional Manager - HRD). The witness has stated that he is also one of the signatories to the Bonds along with Kulkarni. Based on this, the learned counsel for the appellant/ plaintiff canvassed that the agreement was not signed on the date shown upon it.
20. However, a careful perusal of the cross- examination of DW-2 would go to show that, just before making the above referred statements, the very same witness has admitted a suggestion as 'true' that they R.F.A.No.356/2013 30 obtained the signatures of some of the employees before their deputation to Germany during the end of March 2005 or first week of April 2005. Thus, from the plaintiff's side itself, it was suggested to the witness that the signatures of some of the employees were obtained before they were deputed to Germany which was during the end of March 2005 or first week of April 2005. DW-2 has admitted the said suggestion as 'true'. When it is the case of the defendant - Company that the plaintiff has executed Ex.D-2 - Bond on 05-03-2005 and admittedly, the plaintiff has left for Germany only thereafter, therefore, unless and until the plaintiff has placed any material or at least the statements from DW-1 or DW-2 to the effect that, the execution of Ex.D-1 and D-2 by the plaintiff was at Germany, it cannot be presumed that the plaintiff has not executed Ex.D-1 and Ex.D-2 at Bengaluru and it cannot be presumed that Ex.D-2 was not executed on 05-03-2005.
R.F.A.No.356/201331
At the cost of repetition, it is again observed that the plaintiff himself has suggested to DW-2 that some of the employees have executed those documents in the last week of March 2005 and first week of April 2005. If that is the case, it was for the plaintiff to show that his execution of those documents were not on the dates shown in those documents. Further, no such plea has been taken by the plaintiff anywhere in his plaint nor any evidence is there in his evidence as PW-1.
21. For all these reasons, the document at Ex.D-2 cannot be called as an invalid contract. As per Oil and Natural Gas Corporation's case (supra), though a contract cannot be called as a valid contract, unless there is certainty, commitment and communication in it, but the plaintiff/appellant has failed to show that any of those ingredients are lacking in the case on hand, more particularly, in Ex.D-2. As such also, the contention of R.F.A.No.356/2013 32 the learned counsel for plaintiff/appellant that Ex.D-2 is not a valid contract, is not acceptable.
22. When the execution of Ex.D-1 and D-2 and more particularly, the Bond at Ex.D-2 has been proved, one of its conditions, which is at Sl.No.3 in the said Bond at Ex.D-2 reads as below:
3. If the Employee should sever his employment with the Company or desert the services or violate or commit breach of any one or more of the undertakings aforesaid, then the Employee shall pay to the Company the following sum as and by way of liquidated and ascertained damages and not as penalty:
Amount of Duration of the project/ liquidated Time of separation damages Phase I to Phase III:
- 0 to 17 months `10 lakhs Phase IV : (>18 to 24 months)
- 18 months to 20 months `7.5. lakhs
- 21 months to 24 months `5 lakhs R.F.A.No.356/2013 33
23. Admittedly, in the case on hand, the plaintiff has resigned from his job within seventeen (17) months of his deputation to Germany. The defendant -
Company in its Written Statement as well DW-2 in his evidence have given a detailed account as to the expenses incurred by the defendant Company in carrying SAP training to the plaintiff (both at Bengaluru and a portion of training at Germany) and the expenses incurred by it towards air fare, lodging, boarding, conveyance, training fee, etc. DW-2 has supported those expenditure by producing the relevant documents including the statement of expenses and air travel which are at Exs.D-14, D-15, D-16 and D-17.
24. Further, though it was not incumbent upon the defendant - Company to have shown the reason for reducing the period of training so far as the plaintiff is concerned and calling him back, since such a right has expressly been reserved by the defendant - Company R.F.A.No.356/2013 34 under Ex.D-1, still, DW-2 in his evidence has given a detailed account as to what made the defendant - Company to call back the plaintiff at an early date.
In his support, he has produced the E-mail correspondences that have taken place between the defendant - Company and their counter part at Germany which are at Exs.D-10 to D-13. Thus, the act of the defendant - Company in calling upon the plaintiff/ employee within six months back to India would not be considered as a breach of the contract from the defendant's side. On the other hand, the plaintiff himself has committed the breach of the conditions of deputation and the Bond at Exs.D-1 and D-2 for which, as per the terms of the Bond, as observed above, the defendant was justified in recovering the liquidated damages of agreed amount of `10,00,000/- from the plaintiff.
25. Since the Trial Court has come to the same conclusion after appreciating the materials placed before R.F.A.No.356/2013 35 it, I do not find any error in its conclusion. Accordingly, I do not find any reason to interfere in the said judgment and decree passed by the Trial Court.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal is dismissed;
[ii] The judgment and decree dated
02-11-2012 passed by the learned XXXI
Additional City Civil Judge, Bangalore City, (CCH-14) in O.S.No.132/2007, is hereby confirmed;
Registry to transmit a copy of this judgment along with the Lower Court records to the concerned Trial Court, without delay.
Sd/-
JUDGE BMV*