- (1.) This first appeal is at the instance of the defendants in a suit for declaration and recovery of money and is directed against the judgment and decree dated June 26, 2009 passed by a learned Single Judge of this Court by which His Lordship passed a decree of Rs.10,77,240/- and further, a declaration that the plaintiff/respondent has a right to receive, during his lifetime, the pension from the defendants under the superannuation scheme that was prevalent as on 24th June, 2002 @ Rs.29,700/- a month with effect from July, 2002 with interest @ 12% per annum on the amount decreed. Being dissatisfied, the defendants have come up with the present appeal. The respondent before us filed against the appellants a suit out of which the present appeal arises thereby praying for the following relief: " a) Declaration that the plaintiff has a right to receive during his life time pension from the defendants under the latter's Superannuation Scheme that was prevailing as on 24th June, 2002 at the rate of Rs. 29,700/- per month with effect from July 2002; b) Decree for Rs.10,77,640/- as pleaded in paragraph 36 of the plaint; c) Decree of mandatory injunction directing the defendants to pay to the plaintiff pension at the rate of Rs.29,700/- per month from March 2005 and to continue to pay such sum per month during the entire life time of the plaintiff; d) Decree of mandatory injunction directing the defendants to purchase annuity from the Life Insurance Corporation of India of such value as would yield sufficient returns for the payment of the plaintiff's past dues as well as future entitlement on account of pension; e) Further interest and interest on judgment at the rate of 18% per annum;" The case made out by the plaintiff may be summarized thus: a) By an instrument dated April 29, 2000, WPIL, the defendant No.1, created a Superannuation Fund for its employees. The plaintiff had been working with the defendant No.1 from April 16, 1980 and ultimately, retired as the Managing Director. By an instrument dated July 12, 2001 certain clauses of the instrument dated April 29, 2000 were amended. b) The plaintiff retired from WPIL on June 24, 2002 and on such retirement, he became entitled to pension according to rules and regulations of the Fund @ 29,700/- a month from July, 2002. c) As the defendants did not pay such amount, the plaintiff wrote several letters to the defendants claiming the amount of pension and by a letter dated March 17, 2003 WPIL acknowledged its liability and requested him to bear with them on the ground that it was incurring losses and having negative cash-flows. d) In a meeting held on June 11, 2003 the then Managing Director of WPIL proposed for the first time to apply a case of revised Superannuation Scheme upon the plaintiff. It was decided that according to revised scheme, an annuity would be purchased by investing Rs.15,00,000/- for ensuring the pension of the plaintiff and that he would be paid a sum of Rs.5,00,000/- on an adhoc basis. Such proposal was not acceptable to the plaintiff, as according to him, he was entitled to pension according to the scheme that was in force at the time of his retirement. e) In such circumstances, the plaintiff filed an application for winding up of WPIL. By an order dated June 28, 2004, the application was disposed of by directing the plaintiff to accept pension offered by WPIL without prejudice to his rights and relegating him to appropriate proceedings for realization of his balance claims. f) For the period from July, 2002 to June, 2004 the defendant did not pay any pension at all and for this period, the plaintiff was entitled to at the rate of monthly pension of Rs.29,700/- with interest @ 18% per annum. The plaintiff further claimed that from July, 2004 to February 28, 2005 the defendants paid him a monthly pension of Rs.14,155/- though he was entitled to pension of Rs.29,700/- a month, and therefore, he was entitled to the unpaid amount with interest @ 18% per annum and, thus, on March 1, 2005 he became entitled to Rs.10,77,640/-as detailed in the plaint.
(2.) The suit was contested by the defendants by filing a joint written statement and their defence is as follows: a) The plaintiff had no cause of action. The claim was barred by limitation. The suit was bad for misjoinder and non-joinder of parties. The plaintiff had no right to sue WPIL. The trust was not a party to the suit. b) The instruments relied on by the plaintiff were amended with effect from April 1, 2002 by an instrument dated October 30, 2003 and the plaintiff is entitled to pension in accordance only with Clause 8(b) of the instrument dated October 30, 2003 and in terms of the provisions of the said clause, the trustees of the trust have purchased an annuity from LICI, and out of such annuity the plaintiff is getting his pension from LICI. The WPIL has paid in excess of what the plaintiff is entitled to under the agreement. Since March 17, 2003 the pension was given to the plaintiff by the trustees for the trust. c) The plaintiff himself was instrumental in execution of the instrument dated July 12, 2001, and hence, he had no right to rely on the said instrument. It was executed in breach of fiduciary duty owed by the plaintiff to WPIL. The said instrument was not binding upon WPIL. At the time of hearing of the suit, the plaintiff examined himself as the sole witness in support of his case and various documents were marked as exhibit on behalf of the plaintiff being Exhibits A to R. The defendants, however, did not examine any witness nor did they produce or prove any documents in support of their case made in their written statement. The instruments dated April 29, 2000, July 12, 2001 and October 30, 2003 have been marked as Exhibit G, H and R respectively and the agreement dated February 26, 2002 and the letter dated March 17, 2003 have been marked as Exhibits D and K respectively.
(3.) As pointed out earlier, the learned Trial Judge on consideration of the materials on record, came to the conclusion that the subsequent agreement dated October 30, 2003 which has been given effect to retrospectively from April, 2002 was not binding upon the plaintiff as by a subsequent scheme, the right of the plaintiff cannot be curtailed in his absence. The learned Trial Judge further found that the learned advocate appearing on behalf of the defendants, at the time of final hearing, even did not press the case made out in the written statement.;