Delhi District Court
M/S Sms Demag Pvt. Ltd vs Sh. Anant Kumar Mishra on 10 November, 2014
IN THE COURT OF SH SUNIL K AGGARWAL: ADDL. DISTRICT JUDGE
(CENTRAL) 10: DELHI
Suit No. 212/03
M/s SMS Demag Pvt. Ltd.,
81/1, Adchini,
Sri Aurobindo Marg,
New Delhi110017. ...Plaintiff
VERSUS
Sh. Anant Kumar Mishra.
R/o F24, Katwaria Sarai,
Hauz Khas,
New Delhi110016. .....Defendant
Plaint presented on 20.07.2001
J U D G M E N T:
1. Present suit for recovery of damages of Rs. 8,75,000/ with interest accrued at rate of 18% per annum from 10.10.2000 till the penultimate month of filing of the suit i.e. Rs, 1,13,918/ was filed by the plaintiff, a limited company under its previous name 'Indomag Steel Technology Ltd.' in the Hon'ble High Court of Delhi through Sh. C. D. Sugadan, Senior General ManagerP&A, who has been duly authorized in this behalf. It is claimed that the plaintiff is engaged in the business of designing, manufacturing, supply, installation and commissioning of steel plant since 1989. It was established in India by M/s Mannesmann Demag AG of Suit No. 212 of 2003 Page No. 1 of 21 Germany which is now known as SMS Demag AG and is a world leader in steel technology and, knowhow an expertise. For handling the projects, the plaintiff engaged Engineers in various fields. During the course of their employment, many of the employees of plaintiff are sent for advanced training to familiarize them with the latest technology of the steel industries and particularly the knowhow developed by the principals of plaintiff in Germany. The designing, development and manufacture of steel plant equipments is a highly specialized industrial activity. Knowhow, knowledge and skill internally developed are used for execution of large projects like setting up and/or modernization of steel plants. Such advanced technical knowledge is imparted only to the most valuable employees with the objective that it should be used for advancement of plaintiff's products in India and overseas. The training imparted to the employees requires large investment in terms of capital and human resources. The process of selection, grooming an employee, evaluating his capacity to learn and absorb new systems, technology from the experts who have developed it requires high degree of commitment. It is undertaken under the premises that after training such person shall better contribute to the growth and development of plaintiff who will be able to recoup its investments for training that person. It therefore becomes necessary that an employee sent abroad for training for long period must contribute by using his newly acquired skill and knowledge by working for the plaintiff for a fixed tenure, on his return. The plaintiff thus requires such persons to execute a BondcumUndertaking to serve the plaintiff for a period of three years after his return on successful completion of the training. It also requires that on the employee failing to fulfill the undertaking, he shall pay a predetermined amount of damages to the plaintiff which is intended to compensate the plaintiff for the costs and expenses incurred by it.
Suit No. 212 of 2003 Page No. 2 of 21
2. The defendant is a Mechanical Engineer with qualification of B.Sc. (Engg.). He was selected for employment with plaintiff as Grade OI(Engineer) on a consolidated salary of Rs.68,220/ per annum. He had joined the employment on 21.06.1996 and was assigned to the Engineering MDS Products Department. In early 1998, the defendant was selected for advance training in Germany for a period of six months. The defendant had also displayed keen interest to undergo the same. He was accordingly sent to Duisburg, Germany which is the Headquarter of plaintiff's principal, for training from 30.05.1998 to 29.11.1998. He was given advanced introduction of Auto CAD and Genius Software; Integration & Management of Drawings & Documents and working & procedures at Mannesmann Demag for two months each. For the purposes of training, the plaintiff had incurred large amount of expenses on the defendant comprising travel tickets and visa cost Rs.48,771/, miscellaneous expenses such as telephone, taxis, laundry etc. Rs.15,814/, medical insurance Rs.4,904/, daily allowance for 182 days @ DM46 per day(1DM = Rs. 23.655) i.e. Rs.1,98,040/, Salary for the training period Rs.59,142/ and living and food expenses at the rate of DM75 per day i.e. Rs.3,22,959/, totaling Rs.6,49,630/.
3. On his return from training, the defendant was promoted to Grade O II(Engineer) with a consolidated package of Rs. 1,32,468/ per annum. Again in late 1999, the defendant was sent for advance training from 04.12.1999 to 24.12.1999 to update his knowledge on the subjects CAD System MEDUSA (ATE); SMS Demag Drawing System (ATE); SMS Demag Bill of Material (KES4); Engineering Department Old Rolling Mills (AKE/AKW) and Engineering Department Strip Suit No. 212 of 2003 Page No. 3 of 21 Processing Lines (ALC), incurring further expenses of Rs.45,858/ on travel tickets, Rs.1,660/ on Visa, Rs.2,005/ medical insurance, Rs.90,760/ other expenses and Rs. 7,478/ for salary for the training period, totaling Rs.1,47,761/.
4. Prior to proceedings on training on both occasions, the defendant had executed an Undertaking cum Bond to serve the plaintiff for a period of three years on return from training or in the alternative to pay a predetermined amount of damage to the plaintiff. The first bond dated 27.05.1998 was thereby executed by the defendant for Rs.6,50,000/ and another dated 02.02.1999 for Rs.2,25,000/. The defendant suddenly resigned from the services of plaintiff on or about 07.08.2000 without serving the mandatory three months notice as per the terms of his appointment. He had also not completed the period of three years of service under the two bonds. The defendant therefore was informed that his resignation was contrary to the terms of bonds vide letter dated 14.08.2000 of the plaintiff but no response thereof was received. The plaintiff then got a legal notice dated 10.10.2000 issued to the plaintiff seeking damages from him. The plaintiff could not recoup the investment made in terms of time, effort and money by providing advance training to the defendant till his sudden and abrupt departure, who abandoned the plaintiff's service with motive to use his newly acquired knowledge, skill and knowhow, elsewhere. Some third person has enjoyed the benefits of effort and money spent by the plaintiff in training the defendant. Plaintiff therefore be entitled to be compensated for the loss and damage suffered by for which it has restricted his claim within the amount set out in the two bonds executed by the defendant even though the same cannot be monetarily calculated. Besides the total damages preset in the bonds at Rs. 8,75,000/, the plaintiff is entitled to interest at the rate of 18% per Suit No. 212 of 2003 Page No. 4 of 21 annum from the date of legal notice containing demand therefore.
5. In his written statement, the defendant has raised various preliminary objections to the maintainability of the suit. It is contended that the suit is based on procured, forged and fabricated documents and is therefore is liable to be dismissed for concealment of material facts. He has denied having executed the two bonds. In fact, he was made to sign type written material on plain sheets on 27.05.1998 and 02.12.1999 wherein no period of three years was mentioned. The defendant had signed on each sheet of the papers while the personal bonds relied upon by the plaintiff bear his signatures only on the last sheet. The alleged bonds being procured documents have no value in the eyes of law nor can be relied upon. It is further stated that the suit in the present form is not maintainable for alleged noncompliance with the conditions of forged bonds. It is alleged that the defendant was made to sign the two bonds by deception and is now being penalized for his trust. He being the only son of his parents was not interested in going to Germany because of some family problem but was selected by the plaintiff without consulting him and then compelled to proceed for working in their head office. In fact the defendant was threatened that in case he refused to go to Germany, he would be fired. Since termination of job would have left a black mark on his carrier leaving him a lame horse in the job market, he had no option but to obey the dictates of plaintiff. While joining the plaintiff, there was no term in the appointment letter concerning future training/ transfer/posting in Germany nor had he been otherwise informed. The defendant was also not given any intimation regarding execution of the personal bond when he was selected for the postings of Germany but was asked to sign plain sheets wherein no Suit No. 212 of 2003 Page No. 5 of 21 period was mentioned in respect of his service in Delhi after return from Germany. No training was imparted to him in Germany. The defendant was posted there to work at the Head office of the plaintiff.
6. It is claimed that the defendant had joined the plaintiff at a very meagre salary of Rs.2,050/ per month vide letter dated 31.05.1996, just to gain experience. He had worked with devotion and to the best of his ability. During the course of his employment, the plaintiff was selected for working with their principal in Germany. The defendant was not interested in leaving India in view of impending marriage and other family obligations but under threat of leaving his job and thereby jeopardizing the career, he had reluctantly agreed. There was no mention of condition of executing any personal bond in favour of the plaintiff but just three days prior to the journey, he was made to sign some plain sheets of paper to ensure that he would join the plaintiff on return. None has signed them as witness. The first page of the two bonds is manufactured, forged and fabricated and was not amongst the papers which were signed by the defendant. The plaintiff and its directors are liable for criminal consequences therefor. The defendant had fulfilled the condition by joining the plaintiff on return from Germany although in humiliating conditions at the same salary. His posting in Germany did not benefit the defendant in any manner either monetarily or experienceswise as no training was imparted. The copies of the sheets got signed from the defendant was not provided to him. In 199900, the financial condition of plaintiff deteriorated day by day due to recession in steel industries. More than 100 employees were either forced to leave or dismissed by the plaintiff as it was unable to bear the cost of maintaining the staff. The work atmosphere at the plaintiff's place was not healthy as they created such situations that an employee Suit No. 212 of 2003 Page No. 6 of 21 would leave them on his own. The defendant also became a victim of the treachery of the plaintiff. On his return from Germany in December 1999, defendant was not given any fixed place to sit and work. He was shifted to Electronic Data Processing Department where he was forced to work under his juniors. The defendant got much humiliated and frustrated thereby and when the conditions did not improve, he resigned from the job on 07.08.2000.
7. On merits, defendant denied that Sh. Sugadan, Senior General Manager is duly authorized to institute the suit on behalf of the plaintiff. The detail of training and the package given to the defendant from time to time is also controverted. The details of expenses incurred by the plaintiff during his posting in Germany are refuted. The receipt of letter dated 14.08.2000 and legal notice dated 10.10.2000 on behalf of the plaintiff are also denied. The claim of plaintiff for recovery of any amount by way of damages for the alleged losses with interest is also denied and the dismissal of the suit with cost is urged.
8. Replication is a formality of reiterating the contents of plaint and denying those of the written statement. It is averred that the paypackage of defendant had almost doubled on his return from Germany after advance training. The defendant had executed the duly prepared bonds on each occasion and is fully aware of their import. While denying that he was made to work under his junior or in humiliating conditions, his transfer to Electronic Data Processing Department is admitted as he had an expertise in computer system. It is also admitted that there was reduction of manpower by the plaintiff in 199900 as a part of cost cutting however useful persons like the defendant, whose services were needed, had not been asked to leave. Suit No. 212 of 2003 Page No. 7 of 21
9. Several attempts were made to serve the defendant with summons for settlement of issues at his known addresses but in vain. He was ultimately served by substituted means of publication in 'The Statesman' as well as affixation for 12.05.2003 and has appeared in the case only pursuant thereto.
10. On enhancement of pecuniary jurisdiction of the District Court of Delhi, this suit was transferred by the Hon'ble High Court in November, 2003.
11. On the basis of pleadings following issues were framed on 17.03.2004:
1. Whether the defendant had not executed bonds dated 27.05.1998 and 02.12.1999 and whether they are forged?
If so, to what effect? OPD.
2. Whether the plaintiff is entitled to a decree for a sum of Rs.9,88,918/ as damages along with interest as claimed in the plaint?
3. Relief.
12. In support of its case, the plaintiff has examined three witnesses. PW 1 Sh. Gurdeep Lamba, Assistant Manager (Finance & Account) has stated about the financial transactions arising out of the travels undertaken by the employees of the plaintiff and proved travel permit dated 13.05.1998 of defendant as Ex.PW1/1, travel expenses statement submitted by him on return from Germany Ex. PW1/2, Travel Suit No. 212 of 2003 Page No. 8 of 21 permit dated 29.11.1999 Ex.PW1/3, travel expenses statement dated 04.1.2000 Ex.PW1/4, Invoice dated 29.11.1999 Ex.PW1/5, Invoices dated 30.11.1999 Ex.PW1/6 & Ex.PW1/7, third copy of travel permit Ex.PW1/DA and travel permit dated 29.11.1999 Ex.PW1/X.
13. PW 2 Sh. C. D. Sugadan, Senior General Manager (P & A generally stated the case of plaintiff and proved job application dated 28.05.1996 of defendant Ex.PW2/1, his resume Ex.PW2/2, Letter of appointment dated 31.05.1996 Ex.PW2/3, Confirmation letter dated 06.01.1997 Ex.PW2/4, Travel report dated 22.12.1998 submitted by the defendant Ex.PW2/5, letter dated 14.08.2000 Ex.PW2/6, Legal notice Ex.PW2/7 and resignation letter of the defendant Ex.PW2/D1.
14. PW 3 Sh. I. Venugopalan, Deputy Manager (P&A) proved the bond dated 29.05.1998 as Ex.PW 3/1 as it was witnessed by him. The plaintiff had closed its evidence on 14.11.2005.
15. The defendant has examined only himself as DW 1 in support of defence and proved his application for employment Ex.DW1/P1, Confirmation letter Ex.DW1/P2 and second page of bond dated 02.12.1999 as Ex.DW1/P3. He had closed his evidence on 18.10.2006.
16. I have carefully perused the file and gone through the written synopsis filed on behalf of the parties. At the outset, the contention of defendant that the suit has not been instituted by a duly authorized person is taken up for consideration. Suit No. 212 of 2003 Page No. 9 of 21 While contending that PW 2 has deposed about a Board Resolution in favour of the Managing Director of the plaintiff who in turn has authorized him to institute the present suit but no document has been produced on record. Reliance in this behalf has been placed on 'M/s Rajgharia Paper Mills Ltd. Vs. General Manager, Indian Security Press, AIR 2000 Delhi 239', where it was held that 'the Director of the company is not competent to file suit on behalf of company unless specific power is conferred on him and the same is tendered in evidence'.
17. In 'Alamim Seatrans Ltd. Vs. Owners & Party interested in Vessel M. V. Loyal Bird, 1995 (2) Civil LG 172 (Cal.)' it was observed that unless power to institute a suit specifically confer on a particular director, he has no authority to file suit on behalf of corporation. Such power can be conferred by the Board of Directors only by passing a resolution. The powers given to Managing Director under the Articles of Association are subject to control and supervision of the Board of Directors. The Managing Director therefore cannot exercise any singular control without specific power to institute the suit himself or through his agent.
18. The position of Sh. C. D. Sugadan as Senior General Manager (Personnel & Administration) of the plaintiff has not been doubted or belied by the defendant. By virtue of holding a superior post Sh. Sugadan was competent to sign and verify the plaint as'principal officer'of the plaintiff under Order XXIX Rule 1 CPC. Such a high ranking officer of the plaintiff producing the original documents from the custody of company, incurring expenditure on the litigation could not have initiated the exercise without the authorization of competent authority. As has been held in Suit No. 212 of 2003 Page No. 10 of 21 'United Bank of India Vs. Naresh Kumar, AIR 1997 SC 3' followed in 'Indian Oil Corporation Ltd. Vs. Union of India, 140 (2007) DLT 571' that company as a juristic entity can authorize any person to sign plaint or written statement on its behalf and this would be regarded as sufficient compliance with the provisions under Order VI Rule 14 CPC. It has been held in 'IFCI Venture Capital Funds Ltd. Vs. Santosh Khosla, 187 (2012) DLT 729' that Order XXIX Rule 1 CPC refers to competence to sign and verify pleadings. It also includes concomitant power to institute the suit. Once a person signs and verifies the plaint as a principal officer, the suit is validly instituted in terms of Order XXIX CPC.
19. Apart from the objection being hypertechnical and good enough to be repelled as above, it needs to be appreciated that issues were framed on 17.03.2014 in the presence of learned Counsels for the parties. Had the defendant really felt any substance in his objection, he would have insisted on getting an issue on the competence of signatory to plaint, framed. Since the defendant manifestly gave up the objection by not insisting either on 17.03.2004 or subsequently, he is estopped from raking the issue up at final stage. Had there been a specific issue, the plaintiff might have discharged onus thereof by producing the relevant documents. In its absence the plaintiff was not obliged to lay thrust on nonissue. Furthermore, PW 2 could have been asked to produce the minutes of Board Resolution and authorization, if any, in his own favour, in crossexamination. Having himself left the cross examination of PW 2 on this point in lurch, the defendant cannot subsequently seek to gain advantage out of it. The objection of defendant therefore is found to be hollow and therefore rejected.
Suit No. 212 of 2003 Page No. 11 of 21
Issuewise findings of the court are recorded hereunder:
20. Issue No. 1: 20(a) On being faced with the suit, the defendant is seemingly resenting having joined the plaintiff in 1996 at a very meager salary. If he felt that his pay package was not commensurate to his qualifications at the relevant time, he should have taken the better option. Fairness demanded that the defendant disclosed the other jobs in his hand at that time which was offering him better salary and terms and conditions of service. At least the prevalent salary being offered to a less than one year old Mechanical Engineer in 1996 should have been quoted. Apparently, the defendant was desperate to join the plaintiff based in Delhi by shifting from Gallium Industries Ltd., Faridabad.
20(b) It is claimed that at the time of joining the service no service condition was put to the defendant that he will have to undergo months long training overseas nor was it disclosed to him at any time subsequently. The appointment letter dated 31.05.1996 of the defendant stipulates that: "Your employment will be governed by the Service Regulations of the company that are in force now and also by those promulgated in future and amendment issued from time to time".
Ironically said service regulations have not been produced on the record of this case. Even then by the nature of his employment there is always scope and requirement for improvement in skill and enhancement of knowledge in technical field. Those who innovate and keep themselves updated excel in their field and lead others. Imparting of training therefore cannot be treated as drastic change in terms Suit No. 212 of 2003 Page No. 12 of 21 and conditions of service. Further by no stretch of interpretation can it be discerned adversarial or disadvantageous to an employee who actually is the real beneficiary thereof.
20(c) The defendant has not disclosed his family problem/ obligations in going to Germany in 1998. No document in this behalf has been filed. Just because he happens to be the only son of his parents doesn't offer plausible reason to decline the offer. In any case, the family obligations which only he could have discharged have been kept by the defendant to himself. The ground is not digestible in the background that the defendant still being the only son of his parents was staying in United Kingdom for more than two years since 2004. Somebody must be taking care of his obligations in this duration.
20(d) It is claimed that the defendant was nominated for training without consulting him. It is further alleged that he was compelled to undertake training under threats of termination from service. Firstly the defendant could have straightaway refused the offer in writing in case there was pressing need of his presence here. Secondly the averment is absolutely vague as the particulars of officer of plaintiff who had threatened him have not been disclosed for the reasons best known to the defendant. It needs to be kept in mind that training/refresher courses particularly in technical field are necessary concomitants to enhance skill and efficiency requisite for updating one for emerging developments and challenges. Since the grievances now advanced in the written arguments were not visible at the relevant time, it is obvious that they are afterthoughts without edifice. Suit No. 212 of 2003 Page No. 13 of 21 20(e) The execution of personal bonds Ex. PW 3/1 and Ex. DW1/P3 have been disowned by the defendant albeit signatures on second pages thereof are admitted, on the grounds that his signatures were obtained on plain papers and that there was no agreed term binding the defendant to serve the plaintiff for any numbers of years. It is also alleged that the stamp papers are defective and the documents are unattested/unregistered as such they are inadmissible. The defendant has made reference to the following precedents in support of his pleas. In 'Anand Swaroop Dada Vs. Punjab National Bank, 1998 (1) Civil LJ 665 (P&H)' it was held that due execution of a document is not a mere formality but a solemnity attached with the execution thereof. Mere accepting documents did not convey that the same have been duly proved according to the Evidence Act.
Execution of to the document in a legal sense means that the person who wants to execute it must be fully conscious of his act and he must be in a position to know the consequences thereof. If one was called upon just to put his thumb impression or signature on a document, and if he does so, it would not be considered as a due execution of the document as required under law.
Further it was held that the plaintiff has to prove his own case and stand on his own legs. He cannot be allowed to rely upon the weaknesses of defendant.
It was laid in M/s Sahib Ram & Company Vs. The Rajasthan State Agricultural Board, 1995 (2) Civil LJ 99 (Raj.)' that: the question whether parties have entered into a contract or not has to be determined by a competent court before the power under the terms of contract can be exercised. Stipulation in terrorem is a penalty and court shall not enforce it but award a party only a Suit No. 212 of 2003 Page No. 14 of 21 reasonable compensation.
It was held in Indian Bank Vs. M/s Satyam Fibers (India) Pvt. Ltd., 1997 (2) CPR 187 (SC) that: authorities, be they constitutional, statutory or administrative possess power to recall their judgments or orders if they are obtained by fraud or forgery.
In Adapa Babysarojni Vs. Ravulapati Chandrashekhar, 1997 (3) Civil LJ 695 (AP), that the plaintiff was found not entitled to any relief because he had made material alteration by affixing the third stamp on the promissory note by observing that he deserves to be nonsuited.
In Ramdeo Rai Vs. The Collector, Vaishali, 1998 (1) P.L.J.R. 666 it was specified that a stamp paper should have been purchased by a person as per Section 29 of The Indian Stamps Act.
20(f) Rampant and blatant allegations of the plaintiff having obtained signatures of defendant on blank sheets of papers have been leveled. The defendant was neither a child nor illiterate or novice when he may have been asked to execute the personal bonds. He did not make any request in writing to the plaintiff to provided copies thereof. Apparently, he must have been exited to visit a foreign country at employer's expenses and drawing full pay at the same time. No reason therefore has been offered as to why the matter was not immediately taken up either with law enforcing agencies or the superior authorities of plaintiff. It is ironical that the defendant again purportedly signed the blank sheets of paper in December, 1999 Suit No. 212 of 2003 Page No. 15 of 21 despite allegedly having bad experience in May itself and not getting adequate salary on return after the first trip. Significantly, the defendant did not deem it necessary to find out the purpose of obtaining his signature on blank sheets even months after return from Germany. The timing and circumstances leave no space for the grievances now being raised by the defendant to hold. This is to be perceived in the background that his father is an Advocate and has represented him in this suit as his attorney. There is no explanation for not filing a criminal complaint for punishing the plaintiff and its directors for forging first page of the bonds. Similar pleas to disown an executed document were repelled in Anand Prakash Vs Godrej Sara Lee Ltd., LPA No. 318/2009 decided by Hon'ble High Court of Delhi on 14.09.2009 and Girdhari Lal Vs Pratap Singh, Decided by a division bench of Delhi High Court comprising HMJ Manmohan Sarin & HMJ S K Mishra on 01.10.2007. 20(g) A perusal of two bonds reveals that each was printed in entirety at one time. Had the signatures of defendant been obtained on blank sheets, the matter could not have been so fitted on such pages as to exactly incorporate the same at ideal place. Once the documents are allowed to be exhibited without any objection, they cannot be impounded for alleged shortage of stamp duty. Since the defendant had executed the bonds as an employee of the plaintiff, the purchase of stamp papers by the plaintiff cannot be counted as a serious, despicable or fatal error as to discard the document itself. The net effect thereof is that defendant did not have to bear the duty. Had the plaintiff played fraud in respect of these documents, it would have taken specific care to purchase the stamp papers in the name of executant. Suit No. 212 of 2003 Page No. 16 of 21 20(h) There is no legal provision making it mandatory for a bond to be registered or attested. Minor discrepancy in the testimony of PWs about the date of bond cannot be blown out of proportion just with a view to find fault in it. The defendant thus has utterly failed to discharge the onus to prove the issue which was appropriately put on him and owned without grouse. The issue therefore is decided in favour of the plaintiff and against the defendant.
21. Issue No. 2: 21(a) Defendant has claimed that he was deputed to work in the head office of plaintiff in Germany and that no training was imparted. He did not disclose the special quality or expertise which the principal of plaintiff desired to exploit over six months by undertaking huge expenses. The nature and type of work done by him in Germany is not stated. It has also not been informed whether he was into research work or was overseeing the commissioning of projects of plaintiff. It has not been made clear as to what plaintiff could have and did achieve by posting the defendant abroad in second stint just for 20 days.
21(b) There is material variation in the written defence and oral testimony of defendant. He had denied having received letter of confirmation dated 06.01.1997 and the existence of overseas Mediclaim Policies for duration of his trainings in written statement/affidavit but orally deposed otherwise. No case of having made to work under his juniors was put to PW 2 in crossexamination. The defendant tried to improve his defence by alleging that he was forced to resign and by giving suggestion that he had demanded his dues which led plaintiff to file this suit. His Suit No. 212 of 2003 Page No. 17 of 21 assertion that bonds were meant for the duration of training contradicts his reservation about the execution of the bonds and that he was sent to Germany not for training but for working at their head office.
21(c) The reliance of defendant on 'National Dairy Development Board Vs. M/s Gograj Aggarwala, 1997 (1) Civil LJ 606 (Gau.), wherein a suit for damages on breach of contract, no evidence to measure damages is available except oral statement, only nominal sum can be awarded. Claim of interest on damages being a sort of damages is not tenable. Only interest on the security furnished by the plaintiff can be awarded, does not help him out as the parties had prefixed the quantum of damages which the executants of bonds shall be liable to pay to the plaintiff. The estimation of damages cannot be termed to be exaggerated and wholly disproportionate in the facts and circumstances of the case where documents reflecting actual expenses incurred by the plaintiff for German stints of defendant have been duly proved. It was held in Niranjan Shankar Golikali Vs Century Spinning & Weaving Co. Ltd., 1967 (2) SCR 378 that such an agreement is quite lawful and the negative covenant incorporated therein cannot be regarded as restraint of trade. Reference to the ratio in Subir Ghosh Vs Indian Iron & Steel Co., 1977 II LLJ 120 (Cal.) may also be usefully made in the context.
21(d) Since the defendant had served the plaintiff for part of the duration fixed in the bonds, only proportionate amount for which he had defaulted in complying with the terms of bonds as against the total amount of liquidated damages specified therein and claimed by the plaintiff, logically needs to be awarded. Reliance in this Suit No. 212 of 2003 Page No. 18 of 21 behalf is placed upon 'Toshniwal Bros. (Pvt.) Ltd. Vs. E. Eswarprasad, 1997 (1) LLN 398, V. S. Saini Vs. DCM Ltd., RFA No. 195/2004, decided by Hon'ble Delhi High Court on 24.04.2012 and Sameer Jasuja Vs. M/s Assotech Reality Pvt. Ltd., CS(OS) No. 2229/2009 decided by Hon'ble Delhi High Court on 21.10.2013. 21(e) After six months training in Duisburg, Germany from 30.05.1998 to 29.11.1998, the defendant had committed to work for the period of three years for plaintiff (there is discrepancy in letter Ex. PW2/6 and notice Ex. PW2/7 about date of commencement of committed period but both are ignored as no proof of their dispatch has been produced and receipt is denied by the defendant) but he had resigned on 07.08.2000 without giving advance notice of three months. He thus had worked for 20 1/3 months and had left 15 2/3 months earlier. Having bound himself to pay liquidated damages of Rs 6,50,000/ commensurate whereto actual expenses have been proved by PW1 & PW2, to the plaintiff if he failed to remain in the employment of plaintiff for three years, the defendant is liable to pay proportionate damages of Rs. 2,82,870/ to the plaintiff.
21(f) On undertakings training for the second time from 04.12.1999 to 24.12.1999 the defendant had executed bond dated 02.12.1999 binding himself to serve the plaintiff for three years or pay liquidated damages of Rs. 2,25,000/ in lieu thereof. The actual cost incurred by the plaintiff as detailed by PW2 however is only around 1,50,000/. In view of the proposition of law in respect of section 74 of the Contract Act enunciated in Fateh Chand Vs Balkishan Das, 1965 (1) SCR 565, the actual cost is to be deferred over the stipulated period of three years. The defendant Suit No. 212 of 2003 Page No. 19 of 21 actually worked for only seven months and fourteen days thereafter. The component of damages proportionate to the balance committed period thus comes to Rs. 1,18,888/. The defendant therefore is liable to pay a total sum of Rs.4,01,758/ to the plaintiff by way of damages for breach of service bonds.
21(g) Grant of interest on damages seem onerous yet the entitlement of plain tiff to receive damages could be ascertained only after time consuming trial of the suit. The defendant having enjoyed the money found due to the plaintiff al through and thereby deprived them of the opportunity of multiplying it by appropriate invest ment which he must have availed in the meanwhile. Moreover, the amount has lost its value over passage of time due to inflation. The plaintiff deserves to be spared of the devaluation. Further grant of interest has been held to be normal accretion on the capital as against bounty or penalty in Alok Shankar Pandey Vs Union of India, de cided by Hon'ble the Apex Court in Civil Appeal No. 1598/2005 and Delhi Trans port Corporation Vs Roshan Lal, 147 (2008) DLT 665. The precedent relied upon by the defendant was rendered in its peculiar facts and circumstances and therefore is not applicable here. Rate of interest fixed in the bonds is on higher side therefore, grant thereof at the rate of 12% per annum to the plaintiff on the amount of damages from the date of filing of the suit till realization appears balanced and expedient in the overall circumstances of the case as the plaintiff has failed to prove the demand by way of letter dated 14.08.2000 and service of legal notice Ex. PW 2/7 on the de fendant before institution of the suit. The issue is decided accordingly.
22. Issue No. 3: Suit No. 212 of 2003 Page No. 20 of 21 In view of above discussions, the suit is partly decreed in the sum of Rs. 4,01,758/ with interest at the rate of 12% per annum from the date of filing of the suit till realization and proportionate costs, in favour of the plaintiff and against the defendant. Decreesheet be accordingly drawn. File be consigned to Record Room.
Announced in the open court
th
on 10 November, 2014 (Sunil K. Aggarwal)
Addl. District Judge (Central)10
Delhi.
Suit No. 212 of 2003 Page No. 21 of 21