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Delhi District Court

Rajander Sing Dayal vs Jai Shree Infrastructure on 13 February, 2020

                            IN THE COURT OF HARVINDER SINGH,
                                 ASCJ, SHAHDARA DISTRICT,
                              KARKARDOOMA COURTS, DELHI.

                                                    JUDGMENT

Rajander Sing Dayal .........................plaintiff (CS No.9262/2016)/ S/o Sh. Tara Chand defendant of counter­claim(CS No.201/2020) R/o 178­D, Vidyapeeth Colony, BBVP, Pilani, Jhunjhunu, Rajasthan.

Versus Jai Shree Infrastructure ......................defendant (CS No.9262/2016)/ Through its Managing Director counter­claimant (CS No.201/2020) Mr. S. N. Sharma & S. K. Kaushik At A - 11/2, Uttari Chhajjupur, Shahdara, Delhi - 110 094.

Date of institution : 13.11.2014 Date of final arguments : 18.01.2020 Date of final decision : 13.02.2020 SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF RS.1,25,000/­ (RUPEES ONE LAKH TWENTY FIVE THOUSAND) AND COUNTER­CLAIM OF RS.2,00,000/­ (RUPEES TWO LAKH) AND RETURN OF DOCUMENTS

1. Vide this judgment, this Court shall decide the suit filed by plaintiff/defendant to counter­claim against the defendant/counter­claimant for recovery of principal sum of Rs.1,25,000/­ along­with pendente­lite and future interest @ 12% per annum and the counter­claim of defendant/counter­claimant against the plaintiff/defendant to counter­claim of Rs.2,00,000/­ along­with interest @ 18% per annum and for return of documents.

CASE OF PLAINTIFF/DEFENDANT TO COUNTER­CLAIM

2. Succinctly, the case of plaintiff/defendant to counter­claim as discernible Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.1 of 13 from his plaint is that the defendant/counter­claimant appointed plaintiff/defendant to counter­claim as Project Incharge at construction of New Bachelor Hostel Building Project at Gail (India) Limited Gaon, Divya Pur, District Auruiya, Uttar Pradesh at package of monthly salary of Rs.50,000/­ on 21.06.2012 and the plaintiff/defendant to counter­claim worked in said project peacefully and sincerely from 21.06.2012 to 15.01.2013. The plaintiff/defendant to counter­claim worked at defendant's office/site till 15.01.2013, however, defendant/counter­claimant did not pay salary of month of November, December, 2012 and half month of January, 2013. Plaintiff/defendant to counter­claim gave legal notice dated 16.09.2014 to defendant/counter­claimant, but defendant/counter­claimant did not make payment despite notice. With these averments, the plaintiff/defendant to counter­claim has filed this suit for recovery of Rs.1,25,000/­ along­with pendente­lite and future interest @ 12% per annum. CASE OF DEFENDANT/COUNTER­CLAIMANT

3. Succinctly, the case of defendant/counter­claimant as discernible from its pleadings is that the plaintiff/defendant to counter­claim left the job of the defendant/counter­claimant without any information and joined the services of competitor of defendant/counter­claimant. Defendant/counter­claimant demanded documents, cash etc. available with him, he kept on lingering on one pretext or other. Defendant/counter­claimant suffered losses due to acts of plaintiff/defendant to counter­claim. Defendant/counter­claimant asked plaintiff/defendant to counter­claim to pay compensation/damages equivalent to Rs.10,00,000/­. On same, the plaintiff/defendant to counter­claim in month of October, 2014 approached Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.2 of 13 defendant/counter­claimant with some of his colleagues and respectables of society, a meeting was held and it was settled that plaintiff/defendant to counter­claim shall handover documents and shall pay Rs.2,00,000/­ to defendant/counter­claimant as full and final settlement within six months. The plaintiff/defendant to counter­claim failed to perform his duty honestly and efficiently and further violated terms and conditions of appointment. Plaintiff/defendant to counter­claim deliberately did not get the work executed properly despite requests and warnings given by Engineers of Gail (India) Limited at the site. The plaintiff/defendant to counter­claim deliberately concealed said facts from defendant/counter­claimant and Gail (India) Limited ordered for redoing most of the work properly and perfectly and later on, re­tendered the work to another firm who was competitor of the defendant/counter­claimant. The plaintiff/defendant to counter­claim was also providing services to M/s Armtech India, a competitor firm of defendant/counter­claimant during the employment of defendant/counter­claimant, therefore, knowingly did not get execute the work of the defendant/counter­claimant properly and revealed the secrets of defendant/counter­ claimant to its competitor. The said competitor firm was also executing project work for Gail (India) Limited in the same campus. The plaintiff/defendant to counter­claim left the job on 04.01.2014 without informing defendant/counter­claimant in any manner and leaving the site unmanned, therefore, has not worked with defendant/counter­claimant upto 15.01.2013. The plaintiff/defendant to counter­claim has not returned Rs.97,000/­ provided to him in cash for smooth and proper functioning of project work at the site and has not returned the documents/registers Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.3 of 13 available with him at the site. Since, plaintiff/defendant to counter­claim left the job without any information and joined the services of competitor of defendant/counter­ claimant, so defendant/counter­claimant suffered losses of more than Rs.10,00,000/­, however, the defendant/counter­claimant claims recovery of Rs.2,00,000/­ only. With these averments, the defendant/counter­claimant has prayed for dismissal of suit of plaintiff/defendant to counter­claim with costs and for grant of decree of Rs.2,00,000/­ in favour of defendant/counter­claimant along­with interest @ 18% per annum till its realization and for directions to plaintiff/counter­claimant to return documents such as attendance register etc. to the defendant/counter­claimant. RESPONSE OF PLAINTIFF/DEFENDANT TO COUNTER­CLAIM TO WRITTEN STATEMENT/COUNTER­CLAIM

4. The plaintiff/defendant to counter­claim filed response to the written statement/counter­claim of defendant/counter­claimant wherein he re­affirmed the averments of his plaint and denied the averments of defendant/counter­claimant in support of its counter­claim. Plaintiff/defendant to counter­claim specifically denied that he left the job on 04.01.2013 and reaffirmed that he left the work of defendant/counter­claimant only on 15.01.2013. He also denied that the defendant/counter­claimant has asked him to return documents, he has not performed his duties properly, he joined services of competitor firm of defendant/counter­ claimant during his employment with defendant/counter­claimant, he was given any reminders, warnings by engineers of Gail (India) Limited at the site, the defendant/counter­claimant was asked to redo most of the work again, he was Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.4 of 13 entrusted with any sum of money, the defendant/counter­claimant has suffered any losses due to him, he has approached defendant/counter­claimant with colleagues and reputed persons of the society, has agreed to pay Rs.2,00,000/­ to the defendant/counter­claimant and that he is liable to pay damages/compensation to the defendant/counter­claimant. With these averments, the plaintiff/defendant to counter­ claim has prayed for dismissal of counter­claim and for decreeing his suit vide his replication/written statement to counter­claim.

ISSUES FRAMED

5. After completion of proceedings, following issues were framed by my scholarly predecessor vide order dated 17.09.2018 as per Order XIV Rule I of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) : ­

(i) Whether plaintiff/defendant to counter­claim is entitled to decree of sum as prayed for? OPP/OPDC

(ii) Whether the plaintiff/defendant to counter­claim is entitled to interest, if so at what rate and for which period? OPP/OPDC

(iii) Whether defendant/counter­claimant is entitled to decree for sum as prayed for? OPD/OPCC

(iv) Whether defendant/counter­claimant is entitled to interest, if so at what rate and for which period? OPD/OPCC

(v) Relief.

EVIDENCE OF PLAINTIFF/DEFENDANT TO COUNTER­CLAIM

6. In order to prove his case, plaintiff/defendant to counter­claim examined Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.5 of 13 himself as PW1, tendered his examination­in­chief vide affidavit Ex.PW1/A reiterating almost similar facts as of his pleadings, exhibited/marked documents i.e. appointment letter Ex.PW1/1, legal notice dated 13.09.2019 Ex.PW1/3, sending receipt Ex.PW1/4 (OSR), attendance register Mark 'A' to 'H' and ID­card Mark 'I' in his evidence. PW1 was cross­examined at length by Ld. Counsel for the defendant/counter­claimant which is not reproduced herein for sake of brevity. PW1 was examined and discharged. No other witness was examined by plaintiff/defendant to counter­claim.

EVIDENCE OF DEFENDANT/COUNTER­CLAIMANT

7. Defendant/counter­claimant examined Sh. Shiv Kumar Kaushik, partner of defendant/counter­claimant as DW1, tendered his examination­in­chief vide affidavit Ex.DW1/A reiterating almost similar facts as of their pleadings, exhibited document i.e. partnership­deed Ex.DW1/6 and marked documents letters/emails between defendant/counter­claimant and Gail (India) Limited as Mark 'D1' to 'D5' in his evidence. DW1 was examined, opportunity to cross­examine the same was granted, but was not availed and was discharged. No other witness was examined by defendant/counter­claimant.

FINAL ARGUMENTS/SUBMISSIONS/CONTENTIONS 8.1 Final arguments of both sides heard.

8.2 It is submitted/contended by the plaintiff/defendant to counter­claim side that it is admitted case that plaintiff/defendant to counter­claim was appointed at monthly salary of Rs.50,000/­ by defendant/counter­claimant as per case of Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.6 of 13 plaintiff/defendant to counter­claim. The plaintiff/defendant to counter­claim worked for the defendant/counter­claimant sincerely and properly till 15.01.2013. The defendant/counter­claimant has not paid his salary of November and December, 2012 and half month of January, 2013, therefore, his suit be decreed with interest and costs. It is also submitted/contended that the claim of defendant/counter­claimant is only a counter­blast to the case of plaintiff/defendant to counter­claim, nothing as per the claim of the defendant/counter­claimant could be proved by defendant/counter­ claimant, so the counter­claim be rejected with costs.

8.3 Per contra, it is submitted/contended by defendant/counter­claimant side that the plaintiff/defendant to counter­claim has worked for defendant/counter­ claimant only up to 04.01.2013, he left without informing the defendant/counter­ claimant, he was not diligent in his duties, he joined competitor of defendant/counter­ claimant during employment of defendant/counter­claimant, he passed on secrets of defendant/counter­claimant to its competitor and he deliberately did not disclose the reminders/warnings given to him at the site by the officials/engineers of Gail (India) Limited for whom the defendant/counter­claimant was doing work. He left the job without prior notice of one month as per terms of his employment and due to acts of plaintiff/defendant to counter­claim, the defendant/counter­claimant suffered huge losses up to Rs.10,00,000/­. The plaintiff/defendant to counter­claim has not returned the cash of Rs.97,000/­ entrusted to him for smooth and proper functioning of project work at the site and has also not returned the attendance register etc. which were with him. The plaintiff/defendant to counter­claim has agreed in month of October, 2014 Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.7 of 13 to pay a sum of Rs.2,00,000/­ to the defendant/counter­claimant as full and final settlement, therefore, suit of plaintiff/defendant to counter­claim be rejected with costs and counter­claim of defendant/counter­claimant of sum of Rs.2,00,000/­ be decreed with interest and costs.

8.4 Submissions/contentions of both sides considered. Records perused. ISSUE WISE DISCUSSION Issues no.(i), (ii), (iii) & (iv) 9.1 Since, issues no.(i) to (iv) are related and interlinked with each other, their fate depends upon each other and can be decided by way of common discussion, therefore, they are taken up together.

9.2 Lets, first consider the matter from the point of view of case of the plaintiff/defendant to counter­claim. At the outset, it is pertinent to note here that it is not in dispute that plaintiff/defendant to counter­claim was appointed as Project Incharge at construction of New Bachelor Hostel Building Project at Gail (India) Limited Gaon, Divya Pur, District Auruiya, Uttar Pradesh at package of monthly salary of Rs.50,000/­ per month vide Ex.PW1/1 by defendant/counter­claimant on 21.08.2012. The plaintiff/defendant to counter­claim has averred that he has not been paid salary by defendant/counter­claimant for work in month of November, December, 2012 and for the days of month of January, 2013. The defendant/counter­ claimant has not denied the same except to the extent that the plaintiff/defendant to counter­claim worked only till 04.01.2013 at the site instead of 15.01.2013 as claimed by the plaintiff/defendant to counter­claim. The plaintiff/defendant to counter­claim Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.8 of 13 has himself filed copies of attendance register as Mark 'A' to 'H' in his evidence. Perusal of Mark 'H' reveals that there is attendance of plaintiff/defendant to counter­ claim only till 04.01.2013. The plaintiff/defendant to counter­claim has deposed in his cross­examination that he had taken the photocopies of attendance register from the site at the time when he left the service. If the plaintiff/defendant to counter­claim had worked at the site till 15.01.2013, there would have been recorded presence of the plaintiff/defendant to counter­claim till 15.01.2013. It affirms the claim of the defendant/counter­claimant that plaintiff/defendant to counter­claim left the site on 04.01.2013. The plaintiff/defendant to counter­claim has also admitted in his cross­ examination that he has not given advance notice of one month as envisaged by clause 13 of letter of appointment Ex.PW1/1 regarding his intention to resign from the defendant/counter­claimant. Though, no consequences of non­giving of advance notice of intention to resign have been provided vide Ex.PW1/1, however, as a matter of common parlance, it would certainly have consequences of non­entitlement of salary for at least one month. So in given circumstances, the plaintiff/defendant to counter­claim can be said to be non­entitled for salary of month of December, 2012 and for work of four days of month of January, 2013 as a matter of equity. Hence, the plaintiff/defendant to counter­claim would only be entitled to salary of one month of November, 2012 equivalent to Rs.50,000/­ along­with interest in this matter, if the claim of the defendant/counter­claimant is not proved or is rejected. 9.3 Now, lets consider the case of the defendant/counter­claimant. As has been already noted the witness of defendant/counter­claimant was not cross­examined Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.9 of 13 by the plaintiff/defendant to counter­claim, however, the same would not relieve the defendant/counter­claimant from the onus of proving its case. The case of defendant/counter­claimant is that plaintiff/defendant to counter­claim has failed to perform his duties honestly and efficiently. He used to assure the defendant/counter­ claimant that project work is going on rapidly and smoothly and the quality of work executed is up to the mark as per work order of their client Gail (India) Limited. The plaintiff/defendant to counter­claim knowingly did not get the work executed properly, timely and efficiently despite repeated reminders/warnings given by officials/engineers of Gail (India) Limited at the site. Due to fault and concealment of plaintiff/defendant to counter­claim, Gail (India) Limited ordered redoing most of the work and later on re­tendered the work to other competitor firm of defendant/counter­ claimant due to which defendant/counter­claimant suffered huge losses equivalent to Rs.10,00,000/­. The plaintiff/defendant to counter­claim was also providing services to competitor firm of defendant/counter­claimant namely M/s Armtech India Limited during the period he was employed with defendant/counter­claimant and shared secrets of defendant/counter­claimant with its competitor. The plaintiff/defendant to counter­claim was also entrusted with attendance register, other registers and cash of Rs.97,000/­, but he has not returned them to put undue pressure upon defendant/counter­claimant. The plaintiff/defendant to counter­claim also agreed to handover documents and pay Rs.2,00,000/­ as compensation to the defendant/counter­ claimant in October, 2014. To prove its said case, the defendant/counter­claimant has only produced emails and other correspondences mark 'D1' to 'D5' in their evidence. Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.10 of 13 Now, if we consider said emails and correspondences, all of them are photocopies. The emails which are electronic documents are not supported by any certificate under Section 65B of The Indian Evidence Act, 1872, so could not be read in evidence at all. Moreover, most of the emails are subsequent to the date of 04.01.2013, the day on which the plaintiff/defendant to counter­claim left the job of the defendant/counter­ claimant. None of the correspondence is addressed to the plaintiff/defendant to counter­claim or mentions that the information was given to the plaintiff/defendant to counter­claim. There is only one email dated 24.11.2012 and one correspondence/letter dated 06.12.2012 Mark 'D5' of Gail (India) Limited which pertains to the period during which the plaintiff/defendant to counter­claim was working with defendant/counter­claimant. If we go through Mark 'D5' correspondence dated 06.12.2012 of Gail (India) Limited addressed to the defendant/counter­claimant, it is mentioned in the same that the Gail (India) Limited has received complaints from vendors/labourer/contractors that the defendant/counter­ claimant has not cleared their dues. The same instead affirms the case of the plaintiff/defendant to counter­claim that defendant/counter­claimant started creating problem in the payment of plaintiff/defendant to counter­claim and other persons employed from the month of September, 2012. In given circumstances, even the deficiency in the work could not be attributed to the plaintiff/defendant to counter­ claim as per documents of defendant/counter­claimant. The defendant/counter­ claimant has not produced any document to show that the plaintiff/defendant to counter­claim was entrusted with any registers, he was entrusted with any amount and Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.11 of 13 was responsible for keeping accounts at the site. Moreover, the plaintiff/defendant to counter­claim has deposed in his cross­examination that he was not responsible for taking note of existing labourers at the site, requirement of more labourers at the site, for disbursing salaries of the labourers at the site and for looking work of supervisor regarding maintenance of record and of his requirements. He also deposed that a supervisor used to main stock and attendance register and defendant/counter­claimant had also employed one accountant at the site who used to maintain records and was custodian of same. The said deposition of the plaintiff/defendant to counter­claim was not controverted by the defendant/counter­claimant in his further cross­examination after said deposition. No documentary evidence could be produced by the defendant/counter­claimant that the plaintiff/defendant to counter­claim has joined services of M/s Armtech India Pvt. Ltd. during the employment of defendant/counter­ claimant. The defendant/counter­claimant has also not produced any witness of any compromise arrived at in October, 2014. The onus of proving all these facts ws upon the defendant/counter­claimant. In given circumstances, where the defendant/counter­ claimant has not produced any cogent and reliable/admissible evidence in support of its case, the evidence produced by it is contradictory to its own case, therefore, the case of defendant/counter­claimant cannot be accepted. Mere bald oral unreliable deposition is not sufficient to prove its case. Same appears to be counter­blast to the case of plaintiff/defendant to counter­claim. Hence, counter­claim stands rejected. 9.4 In view of above discussions, the plaintiff/defendant to counter­claim is entitled to decree of principal sum of Rs.50,000/­ along­with interest. The Rajander Sing Dayal Vs. Jai Shree Infrastructure CS No.9262/2016 & CS No.201/2020 [13.02.2020] Page No.12 of 13 plaintiff/defendant to counter­claim has claimed pendente­lite and future interest @ 12% per annum. In the opinion of this Court, the said rate of pendente­lite interest claimed is exorbitant in nature particularly considering the fact that transaction in question is not a commercial transaction. In the opinion of this Court, scales of justice would be balance if plaintiff/defendant to counter­claim is granted pendente­lite interest @ 6.5% per annum and further future interest @ 6% per annum can only be granted as per Section 34 of CPC. In view of above discussions, the claim of defendant/counter­claimant needs to be rejected. Hence, issues no.(i) to (iv) are decided in favour of plaintiff/defendant to counter­claim and against the defendant/counter­claimant in above­said terms.

CONCLUSION/RELIEF

10. In view of discussions above, the counter­claim of defendant/counter­ claimant stands dismissed, suit of plaintiff/defendant to counter­claim is partly decreed and a decree of principal amount of Rs.50,000/­ along­with pendente­lite interest @ 6.5% per annum and future interest @ 6% per annum from the date of decree till realization of amount as per Section 34 of CPC is passed in favour of plaintiff/defendant to counter­claim and against the defendant/counter­claimant. Plaintiff/defendant to counter­claim is also entitled to costs of suit. Decree sheets be prepared accordingly. Files be consigned to Record Room after due compliance.

                                                                                                 Digitally signed
                                                                                                 by HARVINDER
                                                                           HARVINDER
Announced in the open Court                                                SINGH
                                                                                                 SINGH
                                                                                                 Date: 2020.02.14
on 13.02.2020.                                                                                   15:09:27 +0530
                                                                                      (HARVINDER SINGH)
                                                                                       ASCJ/Shahdara/KKD,
                                                                                        Delhi/13.02.2020

Rajander Sing Dayal Vs. Jai Shree Infrastructure   CS No.9262/2016 & CS No.201/2020    [13.02.2020]   Page No.13 of 13