Bangalore District Court
Mrs. Suparna Majumdar vs Sutherland Global on 3 January, 2023
KABC010204742020
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 3 rd day of January 2023
PRESENT
Sri.Sabappa, B.Com., LL.B.,(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.5749/2020
PLAINTIFF : Mrs. Suparna Majumdar,
W/o Sukarna Majumdar,
Aged about 41 years,
R/at No.283, 8th Cross,
R.T. Nagar, 1st Block,
Bengaluru - 560 032.
(By Sri. Kothwal.R, Adv.,)
Versus
DEFENDANTS : 1. SUTHERLAND GLOBAL,
Represented by
Ms. Thendral Rajendra - Associate VP
Talent Acquisition, Gateway Office Parks,
A6, 6th Floor, A1 5th, 6th & 7th,
B2 Block, 1.16, GST Road, Perungalathur,
Chennai - 600 063.
2 O.S.5749/2020
2. Sutherlad Global,
Represented by
Ms. Thendral Rajendran,
C/o. Bangalore HR,
Milestone Buildcon Pvt. Ltd.,
Block No.1, 9th Floor,
Bharatiya Centre for Information,
Technology (BCIT), Bharatiya City,
Thanisandra Main Road,
Bengaluru - 560 064.
3. Sutherland Global,
Represented by
Mr. Amit Mukherjee - Senior Director -
Leadership & Support Talent Acquisition
(India), 101, First Floor, 201-202,
2nd Floor, Interface Building,
No.16, Off Link Road,
Malad(W), Mumbai - 4000064.
4. Sutherland Global,
Represented by
Mr. Anil Joseph - APAC Head of Human
Resources Technopolis, Plot # 1,
6th Floor, C-SEZ,
Kakkanad, Cochin - 682 037.
(By Sri. N.B, Adv., )
Date of Institution 18.11.2020
Nature of suit Recovery of Money
Date of commencement of
evidence 10.03.2022
Date on which judgment was 03.01.2023
pronounced
3 O.S.5749/2020
Total Duration Years Months Days
02 01 15
JUDGMENT
This is a suit filed for Recovery of Money.
2. The brief facts of the plaintiff's case is that, the defendant Company is involved in business of providing end to end services in process transformation services at the intersection of business and technology globally. In the month of September 2019, the defendant company was recruiting for the position in Corporate marketing team at their Bangalore office. They approached the plaintiff as they felt that she matched their requirements which they found matching to her profile through a job portal. The plaintiff thereafter in furtheranc of her communication with Mr. Sunil Blowda - Manager Talent Acquisition based in respondent Company in Mumbai. The plaintiff had attended 3 rounds of interview. Two rounds of interview were conducted by one Mr. Pawan Rao Associate, Vice President - Corporate Marketing and another round of interview with one Ms. Rakhs Sahay - Associate Vice President - Corporate Marketing followed by the HR round for discussing remuneration package.
It is further submitted that, plaintiff received an e-mail from Mr. Sunil Blowda, Manager Talent Acquisition on 23.12.2019 stating that she was concluded for the post of Associate Principal Corporate 4 O.S.5749/2020 Marketing and instructing her to attach her credentials by mail for further course of procedure. As per the instructions provided the plaintiff mailed all her individual, educational, work experience documents, hike letter, performance bonus letter along with copies of her salary slips for previous 3 months issued by NTT DATA on 25.12.2019 and 26.12.2019. Subsequently, there were constant communications through e-mails and messages between the plaintiff and defendants on 05.01.2020, 06.01.2020, 07.01.2020 and 08.01.2020 for submission of documents and queries raised by the plaintiff regarding the job roles and responsibilities. It is further submitted that, without consenting the plaintiff about her convenience about her date of joining, an offer of employment dated 10.01.2020 with concise note to join on 24.02.2020 was sent to the plaintiff. The plaintiff had electronically signed and accepted the offer of employment on 15.01.2020 and was very limpid as she was unable to join the company on aforesaid date i.e., 24.02.2020. She expressed the same to defendants and conveyed them that she would confirm the date of joining in a week's time. On 20.01.2020, the plaintiff wrote to Mr. Sunil Blowda requesting him that as it was last part of January and imminent year end in March with increased work load in her current organization, she needed to serve her notice period and that she would only be able to join the defendant Company only on 02.04.2020. Subsequently the plaintiff received a reply on 22.01.2020 stating that, they were fine with her joining their company on 02.04.2020. The plaintiff received a revised offer letter 5 O.S.5749/2020 on 13.02.2020 with date of joining as 02.04.2020 and same was accepted electronically and signed by plaintiff. The plaintiff was asked to fill up PF form along with key in all details imperative for her onboarding in defendant company's software Taleo which comprised of her past employment records, her previous manager's details in NTT Data, Capegemini for future references check which was further mailed to HR Associate Sweta Nikalje who is part of Amit Mukherjee's team in defendant's Company.
It is further submitted that the plaintiff had a telephonic conversation with Mr. Sunil on 25.03.2020 about Covic situation and ensuring about job and further notifying that 28.03.2020 would be her last day of work with NTT and that vacancy is already filled by someone else and that she had completed the knowledge transfer to the concerned person who has occupied her position. Mr. Sunil reaffirmed the plaintiff that regardless to the Covid situation, the defendant company had appointed two members to the same team in which the plaintiff was supposed to join. The plaintiff received a call from Mr. Sunil Blowda, the Manager of the defendant Company informing the plaintiff about the delay in taking her onboard as Management had decided to hold onboarding till May 2020. It is submitted that by relying the job offer of the defendant company, the plaintiff had resigned her current employment and is now without any job. It is submitted that once again the plaintiff mailed to the defendant Company on 30.03.2020 briefing about her financial conditions of being without any job. The defendant Company went 6 O.S.5749/2020 on reasoning one excuse after another in the pretext of taking the plaintiff onboard in a short while. After a series of exchange of mails with Mr.Sunil, he had a conference call with Mr.Amit Mukherjee who consecutively informed the plaintiff that her date of joining the defendant Company will be on 01.07.2020 and that too if at all it was required by the business unit at a earlier she might had to join earlier. The plaintiff again started to follow up from 01.06.2020 with Mr. Sunil Blowda for which she did not get any reply. On 17.06.2020 the plaintiff sent an e-mail to Amit Mukherjee depicting that she is looking for a revised offer letter for her onboarding on 01.07.2020. on 29.06.2020, Mr.Amit Mukherjee assured to the plaintiff through an e-mail stating that they were awaiting confirmation on some necessary approvals to onboard the plaintiff. As the plaintiff never got a confirmation from the defendant Company till 01.07.2020, she sent another e-mail on 02.07.2020 enquiring about the status of her date of joining. On 03.07.2020 Mr.Amit Mukherjee sent an email to the plaintiff stating that they are evaluating if the onboarding can happen in July itself and requested the plaintiff to wait for some more time before they confirm the final date of joining. The plaintiff again sent a follow up email on 14.07.2020 to the defendant Mr. Amit Mukherjee requesting update on her date of joining. Mr. Amit Mukherjee replied to the plaintiff's email on 16.07.2020 stating that they are in final stages of discussions with their senior leadership team. Since that time the plaintiff sent regular mails to the concerned authorities in defendant Organization enquiring about her date of 7 O.S.5749/2020 joining. On 16.09.2020, the plaintiff sent a follow up email to Ms.Donna Tuths depicting how adversely she had been financially affected because of not being taken onboard as promised by the defendant Company. She received a mail on the same day from official mail I.D of Mr.Amit Mukherjee stating that offer of appointment is rescinded. The plaintiff on the same day wrote a mail to the CEO Mr. Dilip Vellid informing about the same, but till date there is no reply or updates regarding the same. Plaintiff has got suffer heavy financial losses and had to face cumbersome situations due to unemployment for more than 7 months. It is pertinent to mention that the plaintiff is only salaried individual as her husband is into education related business and due to rising Covid pandemic his training institute has been closed since March 2020. The plaintiff was taking care of her household expenses, age old parents and their medical needs, child's school fees, house rent etc., Due to continuous altering in joining date and persistent fakery on the part of the defendant Company, the plaintiff has suffered financial losses and mental agony in worst situation of pandemic lockdown. Having no alternative the plaintiff got issue legal notice to the defendant Company on 05.10.2020 calling upon them to pay the plaintiff an amount of Rs.7,00,000/- for loss of salary and employment and an amount of Rs.80,00,000/- as damages towards mental harassment undergone by the plaintiff during the course of her unemployment, stress undergone and agony suffered by her at the time of rise of pandemic. The defendant giving justification of Covid-19 situation is 8 O.S.5749/2020 deceitful and misleading because the defendant had appointed other candidates in the same team at the same time when the plaintiff was kept up in the air with perpetuated false hoped of getting appointed. The defendant caused such hindreance to the plaintiff that she is defunct professionally which has foundered her financially and inwardly. It is pertinent to mention that with such time gap and downsize it is very absurd that the plaintiff have to start from curtailed position if she has to join any other company which is again a bereavement to the plaintiff financially, emotionaly and mentally. The contract between the plaintiff and defendant is complete when the defendant offered and the plaintiff accepted the offer. It is a violation of the agreed-upon terms and conditions of binding contract. It is clear that breach of contract. The cause of action arose when the plaintiff got her appointment and has been continuing till date of rescinding the same from the defendant Company. Hence, the suit.
3. After receipt of the suit summons, the defendants appeared through their respective counsel and filed their written statement contending that, the plaintiff's claim is wholly misconceived and untenable either in law or on facts of the case. The plaintiff has suppressed material facts and documents. The defendants denies all the plaint averments made in the plaint in toto. The plaintiff has deliberately suppressed the material information 9 O.S.5749/2020 and making false claims. The plaintiff has not approached this court with clean hands.
The defendant further submits that the suit is false and filed only with a malafide intent of harassing the defendants and to coerce it into paying up the money demanded by the plaintiff. The plaintiff has not disclosed that her contract of employment was at will and was subject to pending background verification and reference check. It is pertinent to note that the plaintiff has not challenged the termination of her offer letter with the defendant Company. Having ommitted to do so, the plaintiff is estopped from seeking any payment from the defendants on account of the termination of offer letter.
It is further submitted that the defendant No.1 is a Multinational Company viz., global provider of business process and technology management services offering an integrated portfolio of analytics- driven back-office and customer facing solutions that support the entire customer lifecycle. The defendant No.1 is carrying on the said business since several years and has earned good name and reputation. Sometime in January 2020, the plaintiff was offered with the employment as a Principal Associate - Corporate Marketing in the defendant Company subject to a pending background verification and reference check and was requested to join the defendant Company on or before February 2020. By an email on 20.01.2020, the plaintiff brought to the notice of the defendant Company that she 10 O.S.5749/2020 would be relieved from her earlier company only by the end of March 2020 and requested for additional time for joining the defendant Company. At the request of the plaintiff, a revised offer letter was issued to the plaintiff requesting to join the defendant Company on or before April, 12, 2020. However, it is pertinent to mention that even the aforesaid appointment letter was subject to pending favourable background verification and reference check. Since March 2020, due to exponential rise of Covid-19 Pandemic, the entire business of the defendant Company was shattered and all the economic activities of the Company came to a standstill. Hence, the defendant company was forced to put the fresh procurements on hold in light of the management decisions, closure notifications, lockdowns and standard operating procedures issued by the Government of India from time to time. By an email dated 09.04.2020 the plaintiff was informed that if the plaintiff wishes to joint any other company, the defendant would have no issues and with a hope that the lockdown would be lifted, the joining of the plaintiff was revised from 02.04.2020 to 01.07.2020. Due to sharp downturn and huge loss of business due to covid-19 pandemic, there was no business to support the existing staff and also due to closure of offices for an indefinite period, the defendant Company was forced to terminate the contract with the plaintiff along with several other recruits. Without prejudice to the above submission, it is submitted that the defendant was prevented by force majeure and by law from specifically performing its obligation. The pandemic novel corona 11 O.S.5749/2020 virus made a difficult repercussion on both human life and industry. The status quo scenario over an indefinite period had adversely disrupted the smooth functioning of the defendant Company thereby resulting in delay, interruption, or cancellation of contracts with the fresh recruiters and occurrence of such an event unforeseeable, beyond the control of defendant Company, as such the execution of the contract wholly impossible.
The allegations made by the plaintiff n para 3 to 9 are denied by the defendants in toto. The contents of para 10 of the plaint are denied as false and baseless. It is further submitted that, it was on the specific request of the plaintiff the joining date was agreed to be postponed. The allegation made in para 11 are matter of record. The allegations made in remaining paras of the plaintiff are denied in toto. It is contended that the suit is not maintainable. Hence, defendants prayed to dismiss the above suit.
4. On the basis of the above pleadings this Court has framed the following issues.
1. Whether the plaintiff proves that she has selected as a employee in the defendant Company and defendant Company has not provided opportunity to serve as a employee thereby, she has loss of salary and employment, thereby defendant Company is liable to pay Rs.7,00,000/- ?
2. Whether the plaintiff proves that she is entitled for the damages of Rs.80,00,000/- ?
12 O.S.5749/20203. Whether the plaintiff is entitled for the relief as sought for ?
4. What Order or decree ?
5. In order to prove the case, the plaintiff examined herself as PW.1 and got marked Exs.P.1 to P.3. The defendants have not adduced any evidence on their behalf.
6. Heard the arguments of both sides. Perused the records.
7. On appreciation of the oral and documentary evidence on record, my answer to the above issues are as follows:
Issues No.1 & 2 : In the Negative,
Issue No.3 : In the Negative,
Issue No.4 : As per final order;
For the following ;
REASONS
8. ISSUES NO.1 & 2 : The learned for the plaintiff
vehemently argued and submitted that, the defendant Company has issued offer letter to join the defendant Company as a Officer. Later on the defendant Company has canceled the said order. It is further submitted that, defendant Company has issued offer letter in the 13 O.S.5749/2020 month of September 2019. Later on it is canceled. The plaintiff is having experience who has working for 11 years in different Companies and she is having knowledge about the work as required by the defendant Company. The defendants stated in the written statement regarding acceptance of offer letter issued by the defendant Company. However, the defendant did not keep up the promise. Once the defendant Company issued the offer letter, it is presumed that there is contract between the plaintiff and defendant Company. The defendant company has violated the terms of the contract. Thereby, the plaintiff is put to heavy loss and damages. Thereby, the defendant Company is liable to pay Rs.7,00,000/- for loss of salary and Rs.80,00,000/- as damages as claimed by the plaintiff in the present suit. It is proved by the plaintiff with oral and documentary evidence.
The learned counsel for the plaintiff submitted the written arguments. It is the replication of the plaint, evidence and documents. It is to be considered at the time of discussing the case on merits.
9. Per contra, the learned counsel for the defendants vehemently argued and submitted that, thought offer letter is issued by the defendant Company, later on due to Covid-19 the entire business of defendant Company was shattered and all the economic activities of the company came to a standstill. There was no 14 O.S.5749/2020 business to support the existing staff. Moreover, the plaintiff has not placed any material documents like offer letter issued by the defendant Company. Moreover, there is no contract between the plaintiff and defendant Company regarding appointment of the plaintiff in the defendant Company. The plaintiff is not able to prove the case with cogent evidence and documents. Thereby, the suit is liable to be dismissed.
The defendants' counsel has relied upon the decisions reported in 2012(3) Mh.L.J 249, ILR 2003 KAR 3716 and 2010(4) SCC 491.
10. I have gone through the pleadings, evidence and documents. It is the specific case of the plaintiff that, she has suffered heavy financial losses and had to face cumbersome situation due to unemployment for more than 7 months. It is pertinent to mention that the plaintiff is only salaried individual as her husband is into education related business and due to raising Covid pandemic his training institute has been closed since March 2020. It is further case of the plaintiff that, she has resigned the earlier Company and relieved from the post. The plaintiff only after getting assurances of her employment in the defendant company, she had put down her papers in her previous company where she was earning a decent salary. The plaintiff has followed all the instructions 15 O.S.5749/2020 given to her and has completed formalities as per norms specified by the defendant company.
11. In order to substantiate this fact, the plaintiff got marked document at Exs.P.1 to P.3. These are legal notice, postal receipt and acknowledgment. Though the plaintiff has placed some email and letter correspondence made by her with the defendant Company in this case, those documents are not marked through the plaintiff. It is unfortunate to mention that though the plaintiff is able to produce the xerox copies of the email and correspondence made by her with the defendant Company, those documents are not possible to consider at this juncture of time. In case plaintiff produced documents and marked in this case, then the court has to go through the said documents and ascertain that the plaintiff has made correspondence with the defendant Company regarding her appointment. At the initial stage, the plaintiff has filed the xerox copies of the offer letter, email correspondence along with application U/Sec.65(B) of Evidence Act. However, those documents are not marked through the plaintiff by the counsel at the time of evidence. Thereby, the documents relied by the plaintiff are not possible to taken on record and discuss in detail. Mere production of legal notice, postal receipt and acknowledgment are not sufficient to hold that the defendant company has issued offer letter to the plaintiff and requested to join their company. It is the duty of the 16 O.S.5749/2020 plaintiff to furnish the relevant documents to show that she has offered by the defendant company as an officer. There is no such offer letter placed by the plaintiff in the present case. Thereby, I come to the conclusion that the documents relied by the plaintiff is not sufficient to hold that she has made any correspondence with the defendant company regarding her employment. Once the plaintiff is not able to place material documents to show that she has made correspondence with the defendant company regarding her employment, thereby, this court is not possible to discuss about the email correspondence made by the plaintiff with the defendant Company. In view of the oral evidence of the plaintiff and documents, it is not possible to hold that the plaintiff is able to prove that she has been selected as an employee by the defendant Company and defendant Company has not provided opportunity to serve as an employee. It is the duty of the plaintiff to place some material documents to show that she was provided opportunity to serve as an employee in the defendant Company. There is no such documents by the side of the plaintiff.
12. The learned counsel for the defendants testified the plaintiff by way of cross-examination. At that point of time, the plaintiff has not given any material admission. The learned counsel for the defendant suggested that she has taken false claim against the defendants in order to harass them. The same is denied by the plaintiff. Except the oral say of the plaintiff, there are no materials by 17 O.S.5749/2020 the side of the plaintiff to show that she has made correspondence with the defendant Company with regard to her employment. Thereby, merely the plaint averments and oral evidence of the plaintiff is not possible to hold that she is able to prove the case with cogent evidence and documents. It is pertinent to note that, the pleadings has to be supported with oral and material documents. Here in this case, the documents relied by the plaintiff are not got marked through the plaintiff. Thereby, the oral evidence of the plaintiff and Exs.P.1 to P.3 are not sufficient to hold that the plaintiff is able to prove her case with cogent evidence and documents. It is no doubt, the defendants have not adduced any evidence. That itself is not sufficient to hold that the plaintiff is able to prove her case.
13. It is pertinent to note that, the plaintiff specifically stated in the pleadings and oral evidence that she has made email correspondence with the defendant Company regarding her employment. She has also stated that defendant Company has issued offer letter to work in the defendant Company as an Officer. If it is so, there is no impediment on the part of the plaintiff to mark those documents in the present case. The plaintiff is not able to mark those documents in her evidence. Thereby, this Court is not possible to discuss about those documents placed by the plaintiff in this case. It is pertinent to note that, mere production of documents is not enough to prove the same. As per order 13 Rule 4 of CPC, exhibiting the document, proper exhibit, where the document is not exhibited 18 O.S.5749/2020 according to Rule 4 of Order 13, CPC, it is not an exhibit in the eyes of law. It is further observed that, exhibit of document, admitting evidence in the suit, particulars enlisted in Rule 4 have to be complied. Here in this case, though the plaintiff is able to produce the documents, however those documents are not exhibited by the plaintiff. Thereby, I would like to mention that the plaintiff has not complied Order 13 Rule 4 of CPC. Thereby, those documents are not considered by this Court.
14. Another point to be noted here, the Evidence Act Secs.61 to 65, 67 and 73, proof of contents of a document. Held, mere filing of exhibiting of a document in court does not amount to proof of its contents. Admission of a document in court may amount to admission of its contents but not their truth. Further held that the document not having been produced and marked as required under the Evidence Act, cannot be relied upon by Court. Here in this case, though the plaintiff is able to furnish the email correspondence and offer letter issued by the defendant Company, however those documents are not exhibited as per law. Thereby, those documents does not come to the aid of the plaintiff to prove her case. Thereby, in my opinion it is necessary that the contents of the documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Document having not been produced and marked as required under the Evidence Act cannot be relied upon by 19 O.S.5749/2020 the Court. Contents of the document cannot be proved by merely filing in a court. Thereby, I have come to the conclusion that there are no documentary evidence on the side of the plaintiff to believe that she has made correspondence with the defendant Company. Such being the case, in my opinion the oral evidence of the plaintiff and Exs.P.1 to P.3 are not suffice any hold of water. On the basis of Exs.P.1 to P.3 it is not possible to come to the conclusion that the plaintiff is able to prove her case with cogent evidence and documents. There must be documentary evidence to show that the defendant Company has made offer to the plaintiff to appoint her as an employee in their Organization. There is no such documents marked on behalf of the plaintiff. Thereby, this Court has draw adverse inference against the plaintiff.
15. At the same time, the learned counsel for the defendant relied upon the citations reported in 2012(3) Mh.L.J 249, ILR 2003 KAR 3716 and 2010(4) SCC 491. I have gone through the said citations. The facts and circumstances discussed in the above respected citations and the facts and circumstances of the present case are one and the same. Thereby, the above respected citations is aptly applicable to the present case on hand.
16. It is further noticed that the defendants counsel submits that the plaintiff is not seeking any cancellation of the appointment 20 O.S.5749/2020 letter issued by the defendant Company. There is no cogent evidence for claiming damages against the defendant Company. On this point, I would like to mention that the oral testimony of the plaintiff and documents are not sufficient to believe that the defendant Company is liable to pay salary of Rs.7,00,000/- and damages of Rs.80,00,000/- as sought by the plaintiff. There must be some cogent evidence and documents to show that the defendant Company has committed breach of contract. There is no such documents available on record. Thereby, I come to the conclusion that the plaintiff is unable to prove Issues No.1 and 2 with cogent evidence and documents. Hence, I answer Issues No.1 & 2 in the Negative.
17. ISSUE NO.3 :- In view of the above discussions, I come to the conclusion that the plaintiff is not able to prove Issues No.1 and 2 with cogent evidence and documents. Hence, plaintiff is not entitled for the relief as sought for. Hence, I answer Issue No.3 in the Negative.
18. ISSUE NO.4: In view of my findings on Issues No.1 to 3, I proceed to pass the following :
21 O.S.5749/2020ORDER The suit of the plaintiff is hereby dismissed.
Draw decree accordingly.
No order as to costs.
(Dictated to the Stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 3 rd day of January, 2023) (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 Smt. Suparna Majumdar DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF: Ex.P.1 : Legal notice, Ex.P.2 : 4 Postal receipts, Ex.P.3 : Acknowledgment. 22 O.S.5749/2020 WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT: - NIL - DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT: - NIL - (SABAPPA) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City. 23 O.S.5749/2020 JUDGMENT PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE ORDER 24 O.S.5749/2020 The suit of the plaintiff is hereby dismissed. Draw decree accordingly. No order as to costs. LXVIII A.C.C & S.J, Bengaluru City.