Delhi District Court
M/S Nirman Construction And Anr vs M/S Epfo Delhi South Region And Ors on 24 February, 2024
Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
IN THE COURT OF MS. SWAYAM SIDDHA TRIPATHY,
CIVIL JUDGE-02, SOUTH DISTRICT, SAKET COURT,
DELHI
Case No. : Misc. SCJ 69/2021 &
CS SCJ 668/2018 (Old Number)
CNR No. : DLST03-002187-2017
IN THE MATTER OF:
M/S NIRMAN INDIA CONSTRUCTIONS PVT. LTD.
2-A /B, Sainik Firm, New Delhi
Through its Authorised Representative
Shri Suhail Zaidi ...............Plaintiff
Versus
1. EMPLOYEE PROVIDENT FUND ORGANIZATION
Through its Regional Commissioner,
14-Bikaji Cama Place, New Delhi
2. SHRI ASHWANI KUMAR (A.P.F.C.)
Employee Provident Fund Orgainization,
(DELHI-SOUTH), Plot No. 23,
Sector-23, Dwarka, New Delhi ............Defendants
****
SUIT FOR MANDATORY INJUNCTION
****
Date of Institution of suit : 23.07.2018
Date of Reserving of Judgment : 07.02.2024
Date of Pronouncement of Judgment : 24.02.2024
****
Digitally signed
SWAYAM by SWAYAM
SIDDHA
SIDDHA TRIPATHY
TRIPATHY Date: 2024.02.24
16:18:26 +0530
(Swayam Siddha Tripathy),
Civil Judge-02(South)
Saket Courts, New Delhi
24.02.2024 (Page 1 of 18)
Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by the plaintiff seeking mandatory injunction against the defendants.
PLAINT
2. Briefly stated the case of the plaintiff is that the plaintiff is a private limited company incorporated under the Companies Act, 1956. The present suit is filed through Authorized Representative who is fully conversant with the facts of the case.
3. That the defendant no. 1 is a government organization providing social securities to industrial employees and defendant no. 2 is a public officer working with defendant no. 1 and designated to deal with the transactions of the plaintiff. The plaintiff company has been registered with the defendant no. 1 since 01.04.2005 vide EPF Code No. DSNHP-31866 and have been depositing regular monthly contributions and returns in time.
4. That in spite of timely submissions of contributions and returns, the defendants never issued Employee Annual Accounts Statement in Form 32 as per the provision of EPF and MP Act.
5. That after implementation of online system in the defendant no. 1 organization in March 2012, the plaintiff found that its employees records from 01.04.2005 to 31.03.2012 were not available online. In this connection, the plaintiff submitted an application to defendant no. 2 on SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:18:34 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 2 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
27.11.2014 on online updation of employee records and issuance of annual account statement. However, defendant no. 2 failed to do so and also made short payment for the periods 2009-10, 2010-11 and 2011-12. The plaintiff has also submitted a complaint on 01.12.2017 regarding the short payment of its following employees:
i. Deepak Singh Bisht - EPF A/C No. DL-31866- 184 - Rs.45,680/- + up to date interest ii. Ramesh Kumar - EPF A/C No. DL-31866-66 -
Rs.42,026/- + up to date interest iii. Vasudeva - EPF A/C No. DL-31866-240 -
Rs.16,400/- + up to date interest
6. That the plaintiff wrote various letters to defendant no. 1 alongwith applications under RTI Act dated 27.09.2016, 18.08.2017, 01.12.2017 and 18.12.2017. The plaintiff also wrote to the Secretary, Ministry of Labour and Employment about the conduct of defendants. Thereafter, the plaintiff received a letter from defendant no. 1 whereby defendant no. 2 was directed to take further action upon the complaint of the plaintiff. However, the said complaint is still pending.
7. That the plaintiff on several occasions visited the office of defendant no. 1 and showed the acknowledged contribution, returns, proof of short payment, however, defendant no. 2 did not entertain him. The employees of the plaintiff have also submitted written requests on 09.03.2017 for release of balance payment alongwith interest. The defendant no. 2 showed them that no Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:18:43 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 3 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
contribution was available in their favour for the period of 2009-12. Accordingly, plaintiff filed an online complaint on 10.10.2017 bearing no. CEPFO/P/2017/04160.
8. That in spite of submissions of bank challans and bank certificate as proof of contribution of its employees for the period of 2009-12, the defendant no. 2 failed to release the short payments or update the data online. The plaintiff employees made regular demands of their dues but defendant no. 2 avoided the payment on one pretext or the other. The plaintiff is being harassed by the defendants since November 2014 and withholding the money of its employees malafidely. Hence, the present suit.
WRITTEN STATEMENT
9. After institution of the suit, summons were issued to defendants who appeared before the court after service. WS was filed on behalf of defendant no. 2 on 22.11.2018 thereafter on 28.03.2019, the said WS was adopted by defendant no. 1.
10.In their WS, the defendants have denied that plaintiff deposited employer and employee contribution in time. There were several months from year 2006 onwards where the plaintiff failed to pay the contributions in time. The plaintiff also failed to submit Form 3A and 6A in time even for the year 2010-11 and 2011-12. The annual account of the plaintiff is updated upto Financial Year 2017-18, except 2009-10, 2010-11 and 2011-12 due to technical reasons. The National Data Center of defendant no. 1 which maintains the electronic data has been Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY (Swayam Siddha Tripathy), 16:18:49 +0530 Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 4 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
requested to update the annual accounts of the plaintiff but the same has not been updated as no tool or access has been provided by the National Data Center to defendant no. 2. Therefore, plaintiff is required to file ECR for the said period to update the annual accounts as new application software updates the accounts on the basis of ECR filed by the establishment.
11.That after introduction of Electronic Challan-cum-Return (ECR) with effect from 01.04.2012, issuance of annual accounts statement has been discontinued and the same is being sent to the registered email ID of the establishment. A tool namely Member E-Seva has also been provided wherein the establishment can login and obtain all the necessary information which are available in public domain. The residual balance with upto date interest, if any, of the outgoing subscriber/member will get paid after updation of annual accounts for the said financial years. Remaining averments have been denied by the defendants.
REPLICATION
12.Replication was filed on behalf of plaintiff wherein he denied the claims made by the defendants and reiterated the averments made in the plaint.
ISSUES
13.On the basis of pleadings, following issues were framed vide order dated 23.01.2019:
i) Whether plaintiff is entitled for relief of mandatory injunction as prayed in prayer no.(a) and (b) in the plaint?OPP.
SWAYAM SIDDHA Digitally signed by SWAYAM SIDDHA TRIPATHY Date:
ii) Relief.
TRIPATHY 2024.02.24 16:18:56 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 5 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
PLAINTIFF'S EVIDENCE
14.Plaintiff, in support of his case, has placed on record evidence by way of affidavit of its AR Sh. Suhail Zaidi, vide Ex.PW1/A and he relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex. PW1/1 Board resolution and copy of (Colly) Aadhar Card of the deponent.
2. Ex.PW1/2 Copy of the EPF Code No. DSNHP-31866.
3. Ex. PW1/3 Copy of acknowledgment of (OSR) Annual returning in Form 6A for the period of March 2007 to February, 2012.
4. Ex.PW1/4 Copy of letter dated 19.02.2018.
(Colly)
5. Ex.PW1/5 Copy of letter dated 24.01.2018.
(OSR) (Colly)
6. Ex.PW1/6 Copies of letter dated 18.12.2017 (OSR) (Colly) and 01.12.2017.
7. Ex.PW1/7 Copies of letter dated (OSR) (Colly) 25.11.2014, 09.03.2017, letter dated 16.08.2017 and RTI application dated 29.09.2016.
8. Ex.PW1/8 Copy of bank certificates as (OSR) payment proof.
9. Ex.PW1/9 Copy of reply dated 24.10.2016 (OSR) (Colly) by defendant no. 2.
15.The plaintiff also examined its employee Sh. Deepak Singh Bhisht as PW2, who tendered his evidence by way Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.24 16:19:03 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 6 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
of affidavit Ex.PW2/A and relied upon the letter dated 09.03.2017 Ex.PW1/7 and copy of bank certificate Ex.PW1/8.
16.PW1 was cross-examined by the defendants, however, defendants failed to avail the opportunity to cross examine PW2. Accordingly, PW2 was examined in chief and discharged.
17.Thereafter, the suit was dismissed in default vide order dated 16.10.2021. Subsequently, an application u/o 9 Rule 9 CPC was allowed on 24.02.2023 and the suit was restored to its original number. No other witness was examined on behalf of the plaintiff and evidence was closed vide separately recorded statement dated 26.07.2023.
DEFENDANT'S EVIDENCE
18.Defendants examined their AR Sh. Sunil Ranjan as DW1 vide evidence by way of affidavit Ex.DW1/A who relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex.DW1/1 (Colly) Copy of statement of account from 2006 onwards of the plaintiff with Certificate under Section 65B of the Indian Evidence Act.
2. Ex.DW1/2 (Colly) Stamped copy of subscriber ledger card of employer Vasudeva.
3. Ex.DW1/3 (Colly) Stamped copy of subscriber ledger card of employee Ramesh Kumar.Digitally signed by
SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:19:09 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 7 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
4. Ex.DW1/4 (Colly) Certificate under Section 65B of the Indian Evidence Act.
5. Ex.DW1/5 (Colly) Stamped copy of subscriber ledger card of employee Deepak Kumar.
6. Ex.DW1/6 (Colly) Authority letter dated 23.01.2024.
19.DW1 was examined in chief, cross-examined and discharged. Thereafter, evidence on behalf of the defendants was closed vide separately recorded statement dated 23.01.2024.
FINAL ARGUMENTS
20.I have heard both the counsels who argued as per their pleadings and the arguments are not being reproduced for the sake of brevity.
DECISION AND REASONING THEREOF
21.The issue-wise findings are as under:
Issue No. 1:
22.The burden to prove this issue was on the plaintiff. It is the case of the plaintiff that in spite of timely submission of contribution and returns, the defendants have not updated the records of the employees of the plaintiff from 01.04.2005 to 31.03.2012. Further, short payments have been made by defendant no. 2 for the period 2009-10, 2010-11 and 2011-12.
23.In order to prove his case, the plaintiff has examined his AR/PW1 and one of his employees as PW2. The evidence Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.24 16:19:16 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 8 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
by way of affidavit of PW1 is in the same lines as that of the plaint. Therefore, the same is not repeated for the sake of brevity.
24.In his cross-examination, PW1 denied all the suggestions put across by Counsel for defendants. He denied that the consolidated annual contribution statement, Form 6A and 3A was not sent by the employer to the Commissioner within one month of closure of period of currency, in compliance of para 38 (3) EPF Scheme, 1952. He also denied that issuance of annual account statement has been discontinued after introduction of ECR i.e. Electronic Challan-cum-Return. He also denied that EPFO has provided a tool Member E-Seva wherein, the members can login and obtain all necessary information available in public domain. He also denied that annual account statement for the FY 2009-10, FY 2010-11 and FY 2011- 12 has been updated. He did not know whether National Data Center of defendant no. 1 has been requested to update the annual account of the plaintiff or that the ECR for the aforementioned periods has been duly furnished for updation. He also denied that the plaintiff had not deposited the employer's and employees' monthly contribution in time.
25.Further, PW2 Sh. Deepak Singh Bisht, stated in his evidence by way of affidavit Ex.PW2/A that he had worked in plaintiff company from March 2008 to December 2016 and his total principal contribution towards EPF was Rs.1,70,432/-. He received only Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:19:28 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 9 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
Rs.1,40,831/- with interest on 23.02.2017 from defendant no. 1 and his EPF contributions for the year 2008-09, 2009-10 and 2010-11 was not paid. He sent a letter to defendant no. 1 on 09.03.2017 with proof of payment and requested to release the short payment with upto date interest. His EPF outstanding balance is of Rs.45,680/- excluding interest. He made several visits to the office of defendants and filed proof of his contribution, even then, the short payment was not released. He has suffered a lot of losses due to the negligence of the defendant no. 1. Defendant did not avail the opportunity to cross-examine PW2.
26.On the other hand, the defendants examined their Enforcement Officer (Legal) as witness. DW1 reiterated the contents of the WS. In his cross-examination, he stated that he has not dealt with the issue pertaining to the plaintiff but he is aware of the facts of the case. He could not tell if the plaintiff had paid all the dues since the beginning. He could not tell without verification if any notice has been issued to the plaintiff for pending dues, if any. He could not admit or deny that any such notice has ever been issued to the plaintiff or its employees. He admitted that Ex.PW1/9 was issued by their department but he could not confirm if Ex.PW1/9 contains the entire transaction of the disputed period. Further, he had been informed that the return forms and reconciliation statements are not traceable by their department. He could not comment as to whether Form 6A and 3A were accepted Digitally signed SWAYAM SIDDHA by SWAYAM SIDDHA TRIPATHY TRIPATHY Date: 2024.02.24 16:19:35 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 10 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
alongwith reconciliation statement and only Form 6A was not accepted by his department.
27.DW1 admitted that the defendant department and its employees are regulated by EPF & MP Act and that no action has been taken upon the complaints filed by the plaintiff. He voluntarily stated that reply could not be filed to the complaints as the forms and reconciliation statements were untraceable. As the dues could not be verified, therefore, no action is taken. Even then, he denied that defendant has not done its duties as per EPF Act and has avoided his responsibility towards his beneficiaries. He denied that records of the plaintiff are available in the EDP Section. He denied that even after furnishing of fresh documents upon acknowledgment Ex.PW1/5, Ex.PW1/6 and Ex.PW1/8, the payments were not released.
28.DW1 further denied that they have filed a false statement of account Ex.DW1/2 as the joining date is different from actual joining date as per records of the plaintiff. He, however, admitted that EPF contribution of all the employees from 2009-12 has not been released by the defendant department. Then, he changed his stand and denied the above said statement. He also voluntarily stated that claim of Vasudev and Ramesh has been released. He also admitted that he has not filed bank account statement showing transfer to the account of Vasudev. He further admitted that the payment shown in ledger account of Ramesh does not include the short payment with respect to disputed period 2009-12.
SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:19:44 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 11 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
29.It be noted that it has been case of the plaintiff since the very beginning that despite regular contributions and submission of Form 32, neither the records have been updated nor the short payments have been released to three of its employees, namely, Deepak Singh Bisht, Ramesh Kumar and Vasudeva. The plaintiff has filed the copy of acknowledgement of receiving of annual return in Form 6A for the period of March 2007 to February 2012 Ex.PW1/3. The entries made in Ex.PW1/3 (Colly) shows the respective contribution of the employees and the employer for the period of 2011-12, 2010-11, 2009-10, 2007-08, alongwith reconciliation statements. These statements have been duly acknowledged by the defendant department. The plaintiff has also relied upon various complaints Ex.PW1/4 to Ex.PW1/7 made to different officials in this regard.
30.In the present suit, the plaintiff has prayed for directing the defendants to update the employees' data of the plaintiff company from 01.04.2005 till date. However, as per letter dated 24.01.2018, written to the Hon'ble Minister, Labour and Employment, Government of India, the plaintiff has only mentioned regarding communication sent for online updation of annual account statement from 2014 to 2017. Even in the letter dated 25.11.2014 Ex.PW1/7, the request has been made to update the records. The defendants have although claimed that plaintiff has not complied with Para 38 (3) of EPF Scheme, 1952, but, they have admitted in their WS that the annual account of the plaintiff has not Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:19:53 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 12 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
been updated for the year 2009-10, 2010-11 and 2011-12 due to technical reasons. However, the plaintiff has neither pleaded nor proved as to what had transpired between 2005 to 2014 due to which no complaints were filed with the EPFO for such a long duration.
31.The plaintiff has also not addressed the issue of claiming time barred relief of injunction to direct updation of accounts. The plaintiff is praying for the relief beginning from the year 2005 however, the suit was filed on 23.07.2018. No averment regarding accrual and extension of cause of action for the intervening period has been made in the plaint or otherwise. As per para no. 17 of the plaint, the cause of action arose firstly on 20.05.2005 when the EPF contribution was made. It further arose on 10.10.2017 when the plaintiff submitted its employees' provident fund withdrawal form to defendant no.2 and submitted online complaint to defendant no.1. It is also claimed that cause of action arose on every date when defendants were approached for release of outstanding dues and annual account statement. However, this averment of limitation is highly misplaced.
32.As per undated letter at page no.2 of Ex.PW1/6, two of the plaintiff's employees left their jobs on 30.06.2013 and 31.07.2013 and they have received short payment for the period of 2009 to 2011. The other two employees also left their job on 30.04.2016 and 31.12.2016 and they have received short payments for the period 2011-12 and 2010- 12 respectively. But, it is unexplained as to why the SWAYAM Digitally signed by SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:19:59 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 13 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
defendants were not approached for the short payments or account updation prior to 2017. It has neither been pleaded nor proved that the plaintiff became aware of the discrepancies in the year 2017, which could have brought the suit within the limitation period.
33.It is also a well settled law that the period of limitation cannot stand extended merely on account of the issuance of reminders or legal notices or complaints for payment. Reliance is placed on the judgments passed in J. M. Construction Pvt. Ltd. v. Krishna Sachdev & Ors., CS(OS) No.1409/2007; Ashok Malik Vs. Ramesh Malik 2008 (150) DLT 693 and Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, (1988) 2 SCC
338.
34.Thus, the effort of the plaintiff to bring the present suit within the period of limitation on the basis of its complaint on 10.10.2017 is totally untenable under law, unlawful and the same does not lead to the extension of limitation period.
35.Secondly, the plaintiff has prayed for release of EPF balance contribution of its employees for the period of 2009-12. The plaintiff has claimed that three of its employees have received short payment and the remaining amount has not been released by the defendants. The plaintiff has also relied upon the letter dated 18.12.2017 Ex.PW1/6 whereby defendant no. 2 was reminded to sort out the issue of short payment and release the balance of the employees. In the letter dated 09.03.2017 Ex.PW1/7, Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY Date: 2024.02.24 TRIPATHY 16:20:07 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 14 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
DW2 has requested for release of short balance amount of Rs.29,601/- alongwith interest to his account.
36.Apart from the bare averment regarding short payment, no other proof has been filed or proved by the plaintiff. Further, the plaintiff has couched the relief of recovery of money in the form of a mandatory injunction to avoid payment of ad-valorem court fees, particularly when the plaintiff has pleaded an ascertained amount of short payment in respect of three of its employees in para no. 7 of the plaint.
37.The Hon'ble High Court of Uttarakhand in Chief Engineer Central Zone v. Dayal Construction Co., AIR 2005 UTR 34 has highlighted the illegality in granting a mandatory injunction for a dispute for which a suit for recovery of money is maintainable. It was held as under:
"The most astonishing part of the story in this case is that the trial Court has completely shut its eyes to the provisions of Court Fee Act, 1870, and that of Specific Relief Act, 1963 as a mandatory injunction has been issued for payment of Rs. 4,71,852 by the learned trial Court. What appears to have been permitted by Courts below is that since for recovery of money, rate of payable court-fee is higher, the mandatory injunction has been issued for which only Rupees 500/- is maximum Court fees. Injunctions are issued under the Specific Relief Act, 1963. Section 39, contained in Chapter VIII of said Act, which deals with the mandatory injunctions, reads as under:
"39. Mandatory injunctions -When, to prevent the breach of obligations, it is necessary, to. compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to, prevent the, breach, complaint of and also to compel performance of the requisite acts."
In view of the said provision, a mandatory injunction Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date:
2024.02.24 16:20:14 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 15 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
issued by the trial Court, in this case is unheard of in the field of law. The learned lower appellate Court has also erred in law by pot up-setting the said part of the decree. Learned counsel, for the plain-tiff-decree holders, during arguments, made submission to this Court that to do, the substantial justice, the Court can permit the decree holder to deposit the Court-fee instead of dismissing the suit on technical ground. In the opinion of this Court, if it is permitted, it may give a bad precedent which will be followed by other litigants, encouraging them to by-pass the provisions of the Court Fee Act, 1870, and only if caught they would deposit the Court-fee. As such this Court is unable to accept the submission."
38.Furthermore, the Hon'ble High Court of Allahabad in State of U.P. v. Tara Singh Jaiswala, 2012 SCC OnLine All 1876 has also observed that Section 41 (h) of the Specific Relief Act, 1963 completely bars the suit for injunction in cases where recovery of money is sought. It was held as follows:
"A perpetual injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The word 'efficacious' means which would put the plaintiff in the same position in which he would have been, if he had not asked for relief for injunction. The Trial Court has decreed the suit by directing the defendants to pay a sum of Rs. 5,36,277/- towards the money claimed by the plaintiff within a period of two month with interest. Appropriate remedy for the plaintiff on the facts of the present case was to file a suit for recovery of the money due to him under contract. The plaintiff, as a matter of fact, is seeking specific performance of the contract. The efficacious remedy being a suit for recovery of amount due to plaintiff, we are of the opinion that section 41(h) of the Act completely bars the suit for injunction."
39.Even in the present case at hand, the plaintiff has sought relief of mandatory injunction to direct the defendants to Digitally signed SWAYAM by SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date: 2024.02.24 16:20:21 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 16 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
release EPF balance contributions of the employees. As per undated letter at page no.2 of Ex.PW1/6, these employees have already left the employment of the plaintiff company and therefore their legitimate dues, if any, is an ascertained sum, which should have been sought to be recovered by the plaintiff. Instead, the plaintiff has sought relief of mandatory injunction. Moreover, injunction is an equitable relief. Also, section 39 of the Specific Relief Act categorically states that mandatory injunction cannot be claimed as a matter of right, but rather it is granted by the court in exercise of its discretion.
40.In the considered opinion of the Court, the plaintiff is not entitled to the mandatory injunctions as sought for as the first relief is time barred and the second relief is barred under Section 41(h) of the Specific Relief Act.
41.Even on merits, the plaintiff has not brought on record any proof to show that the account maintained by the defendant has not been updated for the disputed period, apart from the period admitted by the defendant. The testimonies of plaintiff witnesses and cross-examination of defendant's witness also do not provide much help to the case of the plaintiff. Hence, the plaintiff has failed to establish her case on the basis of preponderance of probabilities.
42.Issue under consideration is accordingly decided against the plaintiff and in favour of the defendants.
Digitally signed by SWAYAM SWAYAM SIDDHA SIDDHA TRIPATHY TRIPATHY Date:
2024.02.24 16:20:27 +0530 (Swayam Siddha Tripathy), Civil Judge-02(South) Saket Courts, New Delhi 24.02.2024 (Page 17 of 18) Misc. SCJ 69/2021 & CS No.668/2018 M/S NIRMAN CONSTRUCTION V. EPFO & ORS.
RELIEF
43.In view of findings on issue No. 1, the suit of the plaintiff stands dismissed. Parties to bear their own costs.
44.Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Digitally signed by SWAYAM SWAYAM SIDDHA
SIDDHA TRIPATHY
Date:
TRIPATHY 2024.02.24
16:20:34 +0530
Announced in the open court (Swayam Siddha Tripathy)
on 24.02.2024 Civil Judge-02(South)
(This judgment contains 18 pages Saket Courts, New Delhi
and each page has been signed by me.) 24.02.2024
(Swayam Siddha Tripathy),
Civil Judge-02(South)
Saket Courts, New Delhi
24.02.2024 (Page 18 of 18)