Clarinda Dsouza vs McCann Erickson India Limited & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 1223

IN THE HIGH COURT OF BOMBAY
Vazifdar S.J., J.
Clarinda DSouza .... Plaintiff.
Versus
McCann Erickson India Limited others.... Defendants.
Chamber Summons Nos. 1063, 1064 1065 of 2000 in Suit No. 2507 of 2000, decided on 20-11-2002.
Advocates appeared :
Anand Grover with Ms. Moosa i/b. S. Udeshi Co., for plaintiff.
P.K. Samdani i/b., M.S. Motiwala, for defendant No. 1.
G.S. Patel, i/b. D.H. Nanavati, for defendant No. 2.
Shyam Pamnani, for defendant Nos. 3 4.
Janak Dwarkadas i/b. M.S. Motiwala, for defendant No. 5.
Ravi Kadam i/b. M.S. Motiwala, for defendant Nos. 6 7.
I.M. Chagla i/b. M.S. Motiwala, for defendant No. 8.

Headnote:Civil Procedure Code, 1908 - Order I, Rule 10(2), Order VII, Rule 11 - Deletion of names - Material facts suppressed - Ground taken that no cause of action discloses their names - Plaintiffs also did not disclose certain facts which disentitle her to such a relief - Held - Suppression of facts by her is immaterial for deciding case under Order I, Rule 10(2) - Case under Order I, Rule 10(2) not of any help to respondents. - There is no doubt that the transcript and the fact of the plaintiff having left messages the nature of which, was extremely important material which the plaintiff ought to have produced before the Court. It is true that there is not even a reference by the plaintiff to having left such messages. It is an aspect directly and substantially relevant to the issues which arise in the suit. Mr. Grover stated that he was not aware of the same. Mr. Grover ought to have been in a position to either admit or deny the transcript. This is something which was to the personal knowledge of the plaintiff and there could be no question of her not admitting the same. However, an issue of suppression of material facts and documents is not relevant while deciding an application under Order I, Rule 10(2). It may disentitle the plaintiff to interim reliefs. It may well entail the dismissal of the suit. But it does not entitle defendant Nos. 5 to 8 to succeed in their Chamber Summons
Civil Procedure Code, 1908 Order I, Rule 10(2), Order VII, Rule 11 - Cause for deletion of names - As no cause of action arose against them - These are senior executives of company - Having no direct control over affairs of company - Held deletion on this ground has to be seen with great circumspection and restraint - Not a clear case for striking out names - It will not be fair to assume that evidence will not be establishing case - Names cannot be struck off under Order I, Rule 10(2). - However, strong and well founded, such a view must necessarily at the stage of such an application be only prima facie. It would therefore be neither fair nor permissible for the Court to presume that the evidence will not establish the case pleaded. It would be setting an extremely dangerous precedent to strike out the name of a defendant under Order I, Rule 10(2) on the ground that the plaintiff has no cause of action. While under Order VII, Rule 11(a) the power of the Court to reject the plaint is limited to cases where it does not disclose a cause of action the language of Order I, Rule 10(2) does not expressly contain any such limitation. However, the effect of such an order is really to dismiss the claim against the defendant without permitting the plaintiff an opportunity of leading evidence to prove his case. It is a power which by virtue of its very nature must be carefully circumscribed. Court would exclude from its scope the power of a Court to strike out the name of a defendant on the ground that the plaintiff has no cause of action against him.

JUDGMENT - VAZIFDAR S.J., J.:---The above chamber summons have been taken out by defendant Nos. 5, 6 and 7 and 8 respectively to have their names deleted from the plaint and proceedings of the above suit.

It is not without hesitation that I have decided to dismiss the chamber summons. The decision is notwithstanding my inability to disagree with the submissions of the learned Counsel appearing on behalf of defendant Nos. 5 to 8 on merits. It is based entirely on the limited scope of Order 1, Rule 10(2) of the Code of Civil Procedure, 1908.

2. The plaintiff was an employee of defendant No. 1. Defendant No. 2 is the Chairman and Chief Executive Officer of defendant No. 1. Defendant No. 3 is the Senior Vice President and General Manager of defendant No. 1. Defendant No. 4 is the President and Chief Operating Officer of defendant No. 1.

Defendant No. 1 is a subsidiary of defendant No. 8. Defendant No. 8 holds over 90% shares in defendant No. 1. Defendant No. 5 is the Executive Vice President Worldwide, Regional Director-Asia Pacific of defendant No. 8. Defendant No. 6 is the Worldwide Human Resource Director of defendant No. 8. Defendant No. 7 is the Vice Chairman and Chief Creative Officer and Director Global Brands as Manager of defendant No. 8.

3. The plaintiffs main grievance is, against defendant No. 2 in respect of their personal relationship which had nothing to do with either defendant No. 1 or defendant No. 8 or any of the other defendants. This is not disputed. The plaintiffs case is that she developed an intimate relationship with defendant No. 2 who pledged a life-time commitment to her. Based on certain representations, defendant No. 2 induced her to join defendant No. 1. The plaintiff was employed as the Vice President Creative Director, Bombay of defendant No. 1 on 19th July, 1996. From the plaint, documents and correspondence on record it is clear that the plaintiff is outraged with and has an enormous grievance against defendant No. 2 for cheating her by not carrying the relationship further. I should have thought this to be purely a personal matter between the plaintiff and defendant No. 2. I will shortly set out the plaintiffs case against the remaining defendants and especially defendant Nos. 5 to 8 for it is that which is relevant for deciding the present chamber summons.

4. According to the plaintiff, from March 1997, as a result of their relationship having soured, the conduct of defendant No. 2 towards her, became hasty and unprofessional.

The plaint thereafter refers to the correspondence between the plaintiff and defendant No. 2 and the police complaint lodged by defendant No. 2. The same also indicates that upto this stage the grievance of the plaintiff was in respect of the personal relationship that she had with defendant No. 2. None of the other defendants come into the picture upto this stage.

5. From May 1999 and till the suit was filed, according to the plaintiff, defendant Nos. 3 and 4 upon instructions of defendant No. 2 continuously harassed her. The manner in which the plaintiff claims to have been harassed is set out in paragraph 3(i) of the plaint which I shall set out verbatim:

"i) Verbally abusing the plaintiff in front of office staff and her co-workers;

ii) ridiculing the plaintiff, and talking about her physical appearance and defects in front of office staff and her co-workers;

iii) making references to the plaintiffs sexual practice in public;

iv) sending messages, mail with sexual contents during working hours in the premises of the defendant No. 1 company; making unwarranted sexual advances towards the plaintiff in the premises of the defendant No. 1;

v) stereo-typing the plaintiff in gender-specific roles;

vi) making and fabricating false allegations and threatening the plaintiff with legal actions based on those allegations;

vii) undermining the plaintiffs professional suggestions or proposals; under grading her work inputs; marginalising her presence in the organisation as well as i

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