Delhi District Court
Mohan Lal Goel vs Invicta Media Pvt Limited on 6 September, 2024
IN THE COURT OF SH MUKESH KUMAR GUPTA
DISTRICT JUDGE(COMMERCIAL)-07(CENTRAL)
TIS HAZARI COURTS: DELHI
CS (Comm.) No. 5060/2021
CNR No. DLCT01-0164762021
DLCT010164762021
Mohan Lal Goel,
B-62, C.C. Colony, Opp.
Rana Pratap Bagh,
Delhi-110007
......Plaintiff.
Vs
Invicta Media Private Limited,
4/5, 1st Floor, Balraj Khanna Marg,
East Patel Nagar,
New Delhi-110008 ...... Defendant.
SUIT FOR RECOVERY OF RS. 3,59,375/-.
Date of institution of suit : 30.11.2021
First Date before this court : 09.04.2024
Date of hearing of final argument : 31.08.2024
Date of Judgment : 06.09.2024
Appearance(s) : Mr Suraj Vishwakarma, Adv. Ld. Counsel for the plaintiff.
Digitally Shri Piyush Jain, Adv. Ld. Counsel for the defendant.
signed by
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.06
18:21:27
+0530
CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 1 of 30
JUDGMENT
(A) PRELUDE:
1. By way of present judgment, I shall conscientiously adjudicate upon the plaintiff's suit against the defendant for Recovery of Rs.3,59,375/- alongwith interest @ 15% per annum pendentlite and future. The plaintiff has also prayed for costs of the suit.
(B) PLAINTIFF'S CASE
2. Eschewing prolix reference to the pleadings crystallizing the same the plaintiff has averred in the plaint that:-
2.1) The plaintiff is a Chartered Accountant and Company Secretary having about 25 years of professional experience of working with many Indian as well as multinational organisation and is engaged in rendering professional management & advisory services in the field of Finance & Accounts, Taxation, Statutory & Legal Compliance, HR, IT and Admin Policy Function and other related activities as an professional services provider to the companies.
2.2) The defendant is a company incorporated under the Indian Companies Act, 1956 since June, 2010 having its registered office at 4/5, 1st Floor, Balraj Khanna Marg, East Patel Nagar, New Delhi -110008 engaged in the business of Branding & Promotion and providing broad spectrum, multichannel, multi-dimensional services encompassing Print Media, Electronics Media, 3D Animation, Social Media, Events Management etc. and having a good presence in India. The defendant Digitally signed by MUKESH company has engaged the plaintiff for management support and advisory MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 18:21:43 of Finance & Accounts, taxation, Statutory & Legal compliance, HR +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 2 of 30 (Administration) and IT function of defendant company w.e.f. 01.07.2017 at the remuneration of Rs.50,000/- per month plus GST at applicable rate and a confirmation of engagement of the service was given to plaintiff on 19.07.2017 and thereafter the plaintiff started rendering his professional services to the defendant company w.e.f. 01.07.2017 and raised monthly invoices for his professional services on month to month basis.
2.3) It is further the case of the plaintiff that it was also mutually decided in one of the discussion that the said contract of service will have a notice period of 3 months by either party in case of termination of service without any reason or 3 months remuneration in lieu of said notice period which is a Standard Professional & Corporate Practice for these type of agreements. As per agreed terms, during the period w.e.f. 01.07.2017 to 28.02.2018, the plaintiff also raised monthly invoices for professionals services to the defendant company and the company made the payment of invoices for the service rendered uptill December, 2017 proving the appreciable services by the plaintiff to the satisfaction of the defendant company and accordingly on 02.02.2018 the plaintiff sent the defendant invoice No. 008/Invicta for Rs.59,000/- dated 02.02.2018 for professional Services rendered in the month of January, 2018 and asked the defendant for the payment as per agreed terms, however, the payment was not made.
2.4) It is further the case of the plaintiff that on 27.02.2018, the plaintiff received a WhatsApp Message from Ms. Meenu Gupta, Director Digitally of defendant company from her mobile No. 9811155949 for signed by MUKESH MUKESH KUMAR GUPTA KUMAR GUPTA Date:
discontinuance of his services with immediate effect without informing 2024.09.06 18:21:52 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 3 of 30 any reason. On enquiry by plaintiff for the reason of termination of services, she informed through WhatsApp:- "Dear Mohan, I am discontinuing the association which you had with Invicta. Thanx a lot." The plaintiff claimed that as per agreed terms, the termination was without any prior notice, so the plaintiff becomes entitled for 3 months notice period professional remuneration.
2.5) On 28.02.2018, the plaintiff again sent an Invoice no. 0-
09/Invicta dated 28.02.2018 for Professional Services for Rs.59,000/- for the services rendered in the month of February, 2018, however, the payment of the same was also not made. The payment of the plaintiff was delayed by the defendant company on one pretext or other despite of various communication on Mobile and WhatsApp during the months of March and April, 2018 and finally, a meeting was fixed on 12.05.2018 at defendant's office in which the defendant company requested the plaintiff to furnish a revised combined Invoice for the sum of Rs.1,00,000/- against the outstanding of two months remuneration instead of Rs.1,18,000/- which the plaintiff agreed to, keeping in view the relationship with defendant. Accordingly an amended Revised Lump Sum invoice No. 008/Invicta dated 26.03.2018 for payment to defendant was sent and resent on 02.06.2018 through the e-mail while following up for his outstanding payment. It was also allegedly agreed in the said meeting on 12.05.2018 that 3 months notice period remuneration for an amount of Rs.1,50,000/- will also be paid in due course by the defendant.
2.6) The plaintiff has claimed that even after discontinuance of his service, continued to help the defendant company as plaintiff was MUKESH by Digitally signed MUKESH receiving the e-mail from defendant's employees for official assistance. KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.06 18:22:00 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 4 of 30 The plaintiff as such helped the defendant in getting few important requirements completed like Appointment of Statutory Auditors, Appointment of Internal Auditors, Tax consultants, Software Consultants and Selecting the best resources for various positions-Accountants, HR, Admin etc. It hass been claimed that despite this and lapse of considerable time and many promises, defendant failed to make the payment of legitimate dues of plaintiff without any reason besides stopped responding to the calls/messages of plaintiff which caused severe mental and financial harassment to the plaintiff. Plaintiff has contacted the defendant company many times through telephonic calls, messages and also sent many e-mails, on 06.04.2018, 17.05.2018, 23.05.2018, 02.06.2018, 11.06.2018, 31.10.2018, 25.11.2018, 05.03.2019, 30.05.2019, 30.06.2019 and 18.08.2020. Despite the aforesaid, sending bills, e-mails and various messages, defendant has failed to make the payment of rightful and legitimate dues of plaintiff for the professional services of 2 months for the months of January, 2018 & February, 2018 amounting to Rs.1,00,000/- and Rs.1,50,000/- towards 3 months notice period totaling to Rs.2,50,000/- which the defendant is liable to pay alongwith interest @ 15% per annum.
2.7) Plaintiff has then sent a legal demand notice dated 22.12.2020 first through e-mail dated 26.12.2020 and then through speed post on 31.12.2020 for the aforesaid outstanding amount of Rs.3,59,375/-
with interests @ 15% per annum and cost of Rs.25,000/- towards legal Digitally signed by expenses but to no avail. The plaintiff is also stated to have sent a MUKESH MUKESH KUMAR KUMAR GUPTA reminder through e-mail dated 09.01.2021, but no response was received.
GUPTA Date:
2024.09.06
18:22:08
+0530 2.8) The plaintiff finally initiated a pre-litigation mediation under
CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 5 of 30
Section 12 A of Commercial courts Act, 2015 on 10.12.2021 but the defendant has failed to appear there also resulting into a Non-Starter Report dated 28.07.2021.
2.9) Plaintiff has claimed cause of action on the dates when defendant terminated the services of plaintiff without assigning any reason, raising of invoices by the plaintiff for the months of January & February, 2018, and holding the meeting by defendant in the office and serving the legal notice dated 22.12.2020 upon the defendant and finally, when the notice for pre- litigation mediation were issued by the DLSA.
2.10) Hence, the present suit for recovery of Rs.3,59,375/- with interest and costs.
3. Initially, the suit was filed under Order XXXVII CPC by the plaintiff. However, the suit was converted into an ordinary suit vide order dated 10.12.2021 at the request of Ld. Counsel for the plaintiff.
4. It is pertinent to mention here that on the request of Ld. Counsel for the parties, the defendants No.2 and 3 being directors of defendant No.1 company were deleted from the array of the party vide order dated 06.07.2023 of Ld. Predecessor of this court, as defendant No.1 company is itself a juristic entity which can sue or be sued in its own name.
(C) DEFENDANT'S CASE:-
5. Summons for settlement of issues were issued to the defendant and Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA on receipt of the summons, the defendant contested the suit by filing a GUPTA Date:
2024.09.06 18:22:16 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 6 of 30 detailed Written Statement thereby taking various preliminary objections:-
5.1) the suit is not maintainable as the plaintiff has not filed the present suit in accordance with Commercial Court Act, 2015; the suit has been filed on false, frivolous and baseless grounds and only to tarnish and harm the reputation and image of the defendant company; No written agreement dated 01.07.2022 was executed between the plaintiff and defendant and the plaintiff has concealed the relevant and material facts and the plaintiff is guilty of Suppresio Vari and Suggestio Falsi. It has also been contended that the plaintiff with mischievous intentions has roped the defendants No.2 and 3 in the present matter in order to cause wrongful losses to the defendant and illegal gains to himself as the defendants No.2 and 3 are neither the necessary nor proper party to the suit.
5.2) On merits, all the allegations made in the plaint are denied as incorrect and it has been contended by the defendant that the company is a separate legal entity which may sue and be sued in its own name and the directors being agents of the company, cannot be personally liable for the same. The defendant has further averred that the actually in the month of June, 2017, the plaintiff approached the defendant No.1 company and represented himself as a Chartered Accountant and Company Secretary having 25 years of professional experience in the field of Finance & Accounts, Taxation, Statutory & Legal Compliance, HR, IT and Admin Policy function and other related activities with many Digitally signed by MUKESH Indian as well as multinational organisation and is also engaged in MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 18:22:24 rendering professional management & advisory services as an +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 7 of 30 professional services provider to companies. And it was the plaintiff has shown interest to work with defendant company and on persuasion, the defendant engaged the plaintiff for providing professional services.
5.3) It has been contended that it was mutually agreed between the plaintiff and the defendant company that the fee for professional services of the plaintiff shall be Rs.50,000/- per month plus GST at applicable rates and statutory deductions, as applicable which would be payable only in case of Satisfactory Performance. It has been averred that there is no written agreement dated 01.07.2022 executed between the plaintiff and the defendant company as claimed. It has been further contended that the plaintiff provided the services to the defendant in such a manner which was not acceptable and for which several reminders were given apprising the plaintiff with deficiency in services provided to the defendant company.
5.4) It is further contended that the plaintiff had never submitted any report/suggestions for improvement of Client's operations for the responsibilities assigned as per the scope of the assurance agreed to and due to the deficiency in the services provided by the plaintiff, the defendant has even suffered a huge loss. It has also been averred that had the defendant company been satisfied with the services of the plaintiff then there would not have been the situation to discontinue the services of the plaintiff. Due to non-satisfaction of the defendant to the services rendered by the plaintiff, the defendant was left with no option but to discontinue with the services of plaintiff.
Digitally signed by MUKESH 5.5.) It has further been contended that defendant has diligently MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 paid the amount of Professional Fees for the period 07.09.2017 to 18:22:32 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 8 of 30 19.01.2018 to the plaintiff and nothing is due against the services rendered by the plaintiff. It has further been contended that the plaintiff is himself a Chartered Accountant and he was looking after all accounts of the defendant company. If he had provided the work for the month of February, 2018, he would have deposited the TDS for the month of February, 2018.
5.6.) The defendant has even averred that for loss caused by the plaintiff, the defendant reserves his rights to file counter claim of the suit claiming damages. It has also been denied that after several meetings at office of Defendant company and various discussions on phone & WhatsApp, a confirmation of engagement of the service was given to the plaintiff on 19.07.2017 resulting into a Contract Agreement which will have commenced from 01.07.2017. It has also been denied that a notice period of three months by either party in case of termination of service without any reason or three months remuneration in lieu of said notice period, which is a standard professional & Corporate practice for these type of agreements and organisation was ever agreed to. It has also been denied that on 02.02.2018, the plaintiff sent the defendants Invoice No. 0008/Invoice" for Rs.59,000/- for the Professional Services rendered in the month of January, 2018 and asked the defendant for the payment as per agreed terms but the payment was not made by the defendant and on 27.02.2018, the plaintiff was asked to discontinue his service with immediate effect without informing any reason. It has also been denied that on 28.02.2018, the plaintiff send defendants Invoice No.009/Invicta Digitally signed by MUKESH for Professional Services for Rs.59,000/- for the services rendered in the MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 18:22:40 month of February, 2018. It has been contended that the defendant has +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 9 of 30 not avail any services for the month of February, 2018 from the plaintiff or the payment was delayed on one pretext or other despite various communication on mobile and WhatsApp during the month of March & April, 2018 and finally a meeting was fixed on 12.05.2018. It has also been denied that a joint meeting between the plaintiff and the director of defendant company was held on 12.05.2018 at defendant's office and the director of defendant company requested the plaintiff to send a revised combined invoice for the sum of Rs.1,00,000/- amount against the outstanding of two months i.e. January & February, 2018 totaling to Rs.1,18,000/- which was submitted as Invoice No.008/Invicta dated 26.03.2018 for the payment to defendant and the same was resent on 02.06.2018 through e-mail while following up the outstanding payment by the plaintiff. It has also been denied that 3 months Notice period Amount of Rs.1,50,000/- is to be paid in due course by the defendant was ever agreed upon.
5.7) The defendant has also denied that the plaintiff has sent a legal notice dated 22.10.2020 through e-mail on 26.12.2020 or through Speed Post on 31.12.2020 which was delivered to the defendant company calling upon for an immediate payment of rightful and legitimate dues of plaintiff for professional Services of two months remuneration of Rs.1,00,000/- and Rs.1,50,000/- towards 3 months notice period totaling to Rs.2,50,000/- plus an interest @ 15% per annum since 01.03.2018 till the payment alongwith cost of Rs.25,000/- towards the legal expenses. The defendant has averred that there is no liability of the Digitally signed by MUKESH MUKESH KUMAR defendant company to pay claimed amount of Rs.2,50,000/- or any KUMAR GUPTA interest thereupon as no amount is due against the defendant. The GUPTA Date:
2024.09.06 18:22:48 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 10 of 30 defendant has finally prayed for the suit to be dismissed with costs.
6. A detailed rejoinder/ replication to the Written Statement was also preferred by the plaintiff reiterating the contents of the plaint and vehemently denying the contents of the Written Statement. The Written Statement was labelled as erroneous, baseless fabricated and pure afterthought of the defendant. It is stated that the defendant has grossly failed to prove any merits in his defence/written statement and failed to submit any documentary evidence in support of his concocted story of "Non Satisfactory Performance". It was contended that if there was any issue regarding the performance of the plaintiff as non-satisfactory then he would not have been paid from July, 2017 to December, 2017 which clearly evidences that there was "No Performance issue" as the payments of 6 months were regularly done by the defendant company. The plaintiff has finally reiterated its prayer.
(D) CRYSTALISING THE DISPUTE :-
7. On the pleadings of the parties & documents placed on record and after perusing the affidavit of admission denial of the parties, the following issues were framed for adjudication vide order dated 02.06.2024.
ISSUES.
(i) Whether the suit is liable to be dismissed being false and frivolous ? OPD Digitally MUKESH signed by MUKESH KUMAR
(ii) Whether the plaintiff is entitled to recover the KUMAR GUPTA GUPTA Date:
2024.09.06 suit amount i.e. outstanding professional fees 18:22:57 +0530 w.e.f. 01.03.2018 to 30.01.2021 from the CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 11 of 30 defendant ?OPP
(iii) Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?OPP
(iv) Relief.
8. Vide order dated 31.08.2024, the issue No.2 has been recasted on account of typographical error in the issue framed on 02.06.2024 as under:-
"Whether the plaintiff is entitled to the recovery of suit amount of Rs.3,59,375/- against the defendant ? OPP."
(E) EVIDENCE OF PLAINTIFF.
9. Plaintiff, in support of his case, got examined himself as PW1 and reiterated the contents of the plaint on oath in his affidavit Ex.PW1/A. He got exhibited the copy of relevant portion of the WhatsApp Chat dated 19.07.2017 as Ex.PW1/1, Copy of Ledger Statement with defendant company as Ex.PW1/2, copy of relevant portion of the WhatsApp Chat dated 27.02.2018 as Ex.PW1/3, amended Invoice No.008/Invicta dated 26.03.2018 as Ex.PW1/4, copy of e-mail dated 03.03.2018 from Mr. Muthu Kumar employee of the defendant regarding issue with EMD, as Ex.PW1/5, copy of e-mail dated 27.02.2018 from Accounts department of the defendant regarding Meenu Gupta Loan Account as Ex.PW1/6, Copies of e-mail dated 06.04.2018, MUKESH KUMAR 17.05.2018, 23.05.2018, 02.06.2018, 11.06.2018, 31.10.2018, GUPTA Digitally signed by MUKESH KUMAR 25.11.2018, 05.03.2019, 30.05.2019, 30.06.2019, 18.08.2019 as GUPTA Date: 2024.09.06 18:23:03 +0530 Ex.PW1/7 to Ex.PW1/17, copy of Legal Notice dated 22.12.2020 as CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 12 of 30 Ex.PW1/18, copy of Non-Starter Report dated 28.07.2021 as Ex.PW1/19, copy of Medical Treatment Record of St. Stephen Hospital as Ex.PW1/20 and Certificate u/s 65-B of the Indian Evidence Act, 1892 as Ex.PW1/21. He has further deposed that the suit is correct and the defendant is liable to pay the outstanding amount alongwith interest and costs of the suit. PW1 has specifically deposed in his Examination-in-chief that initially, he was engaged by defendant company for services on need-based basis for which no fixed fees were finalised, however, later on Ms. Meenu Gupta, director of the defendant confirmed through her WhatsApp message dated 19.07.2017 that the defendant company w.e.f. 01.07.2017 will pay him a monthly Professional Remuneration of Rs.50,000/- per month plus GST at applicable rate. He has further deposed that he also sent lots of e-mails & correspondence to the directors of Defendant Company and its employees for several work assigned to him during the course of his engagement with the defendant company like Sales Register, Daily Reports, Quotations Data, Sales Register 2015-16, Trial Balance 2016-17, TDS GST related data and returns. Balance of all Group companies, Service Tax, Notices, Media and Advertising Details, Debtors and Creditors Outstanding Details and Aging, Cash Expenses 2015-16, Chhattisgarh Samvad Tender document, Radio Master Register, Sales Register working shortlisted Candidate Accountant Profile, Profit and Loss/Media Annual Returns, ROC documents computation and balance sheets, data/overseas connection India Pvt. Ltd. Sales. Purchase Summary/Advertising/2013-14-15-16-17, turnover Certificate, ITR- Digitally signed by MUKESH 6/AY-17-18/Media &Advertising, Revised Publication Charges/15-16, MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 18:23:17 Reminder & Feedback on EMD dues and Debtor Dues, Shareholding +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 13 of 30 Working, Invicta Media Media Pvt. /P& L, BS & trial Balance till 22.02.2018 EMD outstanding Rs.25,000/- DIP Delhi. He further deposed that he has sent a Legal Notice dated 22.12.2020 through e-mail on 26.12.2020 & through Speed Post on 31.12.2020 demanding his outstanding dues for professional service for the month of January and February, 2018 besides outstanding towards notice pay for 3 months for Rs.1,50,000/- and interest @ 15% per annum since 01.03.2018 and also legal cost of Rs.25,000/-.
10. During cross-examination, Ld. Counsel for defendant has tried to puncture the testimony of PW1 on the point of liability of defendant company. PW1 has admitted that there is no written contract between him and the defendant. He has also admitted that he has filed the WhatsApp chat with the director of the defendant on record and he has changed his mobile phone since the said Whatsapp chats. He voluntarily deposed that the back up of the Whatsapp chat was taken by him on g-
mail. He has admitted to have filed the relevant portion of the e-mail chat with the defendant and not the entire chat. He has denied the suggestion that he has not filed the entire chat as he has concealed certain material facts. He has denied the suggestion that since it was an oral agreement with the defendant company, there were no agreed terms between them and there is no e-mail chat with regard to three month's notice/termination period. He has voluntarily deposed that it was agreed verbally in various discussion with the defendant even after leaving the Digitally signed MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA defendant company and Ms. Meenu Gupta also assured him in a meeting 2024.09.06 18:23:23 +0530 dated 12.05.2018 that his dues including the notice period would be paid CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 14 of 30 in due course. And even as per her request, the plaintiff has sent a revised invoice for Rs.1,00,000/- only instead of invoice for Rs.1,18,000/-. He has also denied the suggestion that there was no verbal agreement with regard to notice/termination period. He has deposed to have rendered services to the defendant company as a retainer from July, 2017 till March, 2018 but has raised his bill only till February, 2018. He has further deposed to have filed the e-mail Ex.PW1/7 which reflects the work done by him for defendant company. He has denied the suggestion that his services were discontinued by the defendant as his work was not upto mark. He has denied the suggestion that he has not filed any GST invoice. He has admitted that although the invoice Ex.PW1/14 was raised for Rs.1,00,000/- the amount of the said invoice as reflected in ledger Register PW1/12 is Rs.54,000/- thereby volunteering that he has mentioned about two invoices in the ledger Ex.PW1/2 and each invoice for Rs.54,000/- totaling to Rs.1,08,000/-. He has admitted that two different invoices are mentioned in ledger Ex.PW1/2 for Rs.54,000/- each as invoice No.8 and invoice No.9. He has denied the suggestion that he did not provide professional service to the defendant in the month of January, 2018 and February, 2018 or that due to this reason, the invoices do not match the entries in the ledger statement. He has further admitted that he did not charge GST with respect to the invoice for the month of January and February, 2018 as he had surrendered his GST number by then. He has also denied the suggestion that he did not charge GST for the said invoice as he did not Digitally signed by provide any services to the defendant in the month of January, 2018 and MUKESH MUKESH KUMAR KUMAR GUPTA Date:
GUPTA 2024.09.06
18:23:31
February, 2018. He has also denied the suggestion that the defendant +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 15 of 30 company had already communicated before January and February, 2018 that his services would be discontinued being unsatisfactory. He has also admitted that he was also engaged to submit the report/suggestion for improvement of client's operation. Vol. He has submitted his reports in this regard to the defendant. He has further deposed that it was not recorded by way of any agreement in writing that the notice period would be for 3 months. He has voluntarily deposed that it was agreed verbally with the defendant during discussion/negotiations of terms of his retainership and it was also so agreed during the meeting held in May, 2018. he has also denied the suggestion that there was no agreement with the defendant for 3 month's notice period or that due to this reason, there is no such documentary evidence.
11. No other witness was examined by the plaintiff and vide statement dated 11.03.2024 the plaintiff evidence was closed.
(F) DEFENDANT'S EVIDENCE :-
12. The defendant in its defence also examined only one witness its director Ms. Meenu Gupta, as DW1 who in her evidence by way of affidavit Ex.DW1/A, reiterated the contents of the Written Statement on oath and got exhibited the certified copy of Board Resolution dated 23.04.2022 issued in her favour as Ex.DW1/1. She has deposed in her evidence that in the month of June, 2017, the plaintiff approached defendant company and represented to be a Chartered Accountant-cum Digitally signed Company Secretary with over 25 years of professional experience of MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.06 18:23:48 +0530 working with many Indian as well as Multinational Organization with CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 16 of 30 specialization in the field of finance, accounts, taxation & legal Compliance, HR, IT and Admin Policy function and showed his grave interest to work with the defendant company and accordingly, he was engaged at a professional fee of Rs.50,000/- per month plus GST as applicable only in case of Satisfactory Performance. There was no written agreement dated 01.07.2022. She has further deposed that the directors are not legally liable for the alleged liability of defendant company.
13. The witness DW1 was subjected to a detailed cross-examination by Ld. Counsel for the plaintiff, during which she has denied the suggestion that the meeting dated 23.04.2022 where resolution Ex.DW1/1 was passed in her favour by the defendant never took place or that the Board Resolution Ex.DW1/1 is a false resolution. She has admitted that she knows the plaintiff for the last 12-13 years or may be more and her mobile No. 9811155949 and her e-mail ID is [email protected]. She has admitted that the plaintiff approached the defendant company for the particular engagement in the month of June, 2017. The witness has deposed that plaintiff was engaged earlier also on assignment basis and on regular engagement, the professional charges for this assignment was settled at Rs.50,000/- per month. She has denied the suggestion that the fee was initially Rs.1 lakh per month which was negotiated to Rs.50,000/- considering the long association and with the condition that in case of termination, three months notice Digitally signed by MUKESH MUKESH KUMAR shall be given to the plaintiff. She has denied the suggestion that the KUMAR GUPTA GUPTA plaintiff never approached the defendant company for offering his Date:
2024.09.06 18:23:55 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 17 of 30 professional services but was given the assignment on the basis for his earlier long performance of eight months immediately prior to June 2017. She has admitted that the professional fee of the plaintiff was paid to Ms. Mahima Goel, his daughter. It has been further deposed that the plaintiff was paid for a period of six months from July, 2017 and there was deficiency in services rendered by the plaintiff to the defendant company with an oral communication for the same without any written mail or any other document being created by the defendant company. She has denied the suggestion that the services of the plaintiff were also continued for the month of January- February, 2018. When asked about the bills for services for the month of January, February, 2018, the witness has stated that she does not remember whether plaintiff has submitted any bill on 2nd February and 28th February, 2018 for the services rendered by him in January & February respectively. She has admitted the receipt of Legal Notice but not replying the same besides receiving PIMS notice and not attending the PIMS.
14. No other witness was examined by the defendant company and the evidence of the defendant was closed vide statement dated 09.04.2024.
(G) ARGUMENTS ADDRESSED:-
ARGUMENTS OF PLAINTIFF.
15. Ld. counsel for the plaintiff Shri Vishwakarma has vehemently argued that the defendant company is deliberately avoiding payment of the legitimate dues of the plaintiff who has worked with utmost sincerity Digitally signed by and dedication for the defendant company and provided services as a MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date: CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 18 of 30 2024.09.06 18:24:03 +0530 professional Chartered Accountant-cum-Company Secretary in the field of financial accountancy, taxation, statutory and legal compliances besides assisting the defendant to grow in terms of its business. It has been argued that admittedly, the plaintiff has rendered his services for the months of January and February, 2018 as per the admission of the defendant but his agreed legal remuneration were not released in time.
It has been stated that the plaintiff has worked on a meager professional fee of Rs. 50,000/- per month keeping in view of a long standing relationship with the defendant and the plaintiff is also entitled to 3 months notice period which was duly agreed to by Ms. Meenu Gupta, the director of the defendant. It has further been stated that the entire case of the plaintiff has been virtually admitted and the contradiction in the stand taken by the defendant is writ large from the fact that the defendant has earlier taken a stand that the service rendered by the plaintiff were insufficient which was later improved to the services being not provided at all. It has been argued that the documents clearly shows and the plaintiff has established his entitlement to the amount claimed alongwith interest and exemplary costs.
ARGUMENTS OF DEFENDANT:
16. Ld. Counsel for the defendant on the other has vehemently opposed the arguments addressed by the plaintiff and states that plaintiff was paid for the period for which he has worked and now he cannot be allowed to hoodwink the defendant company only because he has worked Digitally signed as a chartered accountant for the company. It has further been stated that MUKESH by MUKESH KUMAR GUPTA KUMAR Date:
GUPTA 2024.09.06 18:24:10 +0530 the plaintiff was a consultant engaged at the legal remuneration of CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 19 of 30 Rs.50,000/- per month and there is absolutely no agreement regarding any notice period which is also contrary to the terms of the trade as consultant cannot be compared to a regular employee. It has been finally argued that the services provided by the plaintiff was highly dis- satisfactory and plaintiff has even failed to improve despite many such meetings for improvement. It has finally been argued that the present suit is gross abuse of process of law and is liable to be dismissed with exemplary costs (H) ANALYSIS & DETERMINATION:-
17. I have heard the arguments addressed by the Ld. Counsels for the parties, perused the entire record and have duly considered the same. My issues-wise determination are as under:-
ISSUES No.1: "Whether the suit is liable to be dismissed being false and frivolous ? OPD
18. The onus to prove this issue was held upon the defendant company which has taken a preliminary objection in the Written Statement that the suit is liable to be dismissed being false and frivolous. However, the defendant has clearly failed to specify the reasons for describing the suit as false and frivolous, though it has vaguely averred that the plaintiff has misrepresented the court and filed the suit on baseless grounds by explaining certain facts subsequently. The crux of the aforesaid explanation is regarding deficiency in services rendered by the plaintiff to the defendant company. It has been averred in the Written Statement that the defendant was not satisfied with the services of the plaintiff for MUKESH KUMAR which he was engaged for and the defendant has given several reminders GUPTA Digitally signed by MUKESH KUMAR GUPTA Date: 2024.09.06 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 20 of 30 18:24:18 +0530 apprising the plaintiff with the deficiency of services but the plaintiff has failed to submit any report or suggestion for improvement of client operation for responsibility assigned as per the scope of assurance given by the plaintiff. However, any documentary evidence to this effect has not been filed by the defendant and if the testimony of DW1 in this regard is carefully examined, there is absolutely no specific evidence showing that the defendant has ever complained the plaintiff of deficiency in his services. Even during cross-examination, the defendant has voluntarily admitted that the same was mere oral communication and no written communiation was ever made or any document was created by the defendant company for deficiency in services provided by the plaintiff. The contention of the defendant is also highly unbelievable in view of the fact that when the WhatsApp Chat Ex.PW1/1 is duly examined alongwith the mails Ex.PW1/5 and Ex.PW1/6, the defendant company and its director Ms. Meenu Gupta is communicating with the plaintiff on all issues except the deficiency in service being rendered by the plaintiff. Even when the plaintiff is writing mail demanding the release of outstanding payment, there has been no response or complaint by the defendant company citing deficiency in services as a reason for withholding his alleged payment. In the absence of any clear or cogent evidence regarding the aforesaid and taken on the yardstick of preponderance of probability the court is of the considered opinion that the defendant has not been able to discharge the onus conferred on its shoulder in respect of this issue even to the extent of preponderance of Digitally probability. This issue is accordingly decided against the defendant and signed by MUKESH MUKESH in favour of the plaintiff.
KUMAR KUMAR GUPTA Date:
GUPTA 2024.09.06
18:24:25
+0530
CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 21 of 30 ISSUE No.2: "Whether the plaintiff is entitled to the recovery of suit amount of Rs.3,59,375/- against the defendant ? OPP."
19. The onus of proving this issue was held upon the plaintiff and since this issue pertains to the entitlement of the plaintiff to the relief claimed, the same is pivotal to the entire controversy.
20. The plaintiff has claimed a recovery of Rs.3,59,375/- which primarily has three components (i) the outstanding professional charges of Rs.1,00,000/- @ Rs.50,000/- per month for the month of January, 2018 and February, 2018. (ii) Rs.1,50,000/- towards three months notice charges as allegedly agreed by the parties and (iii) Rs.1,09,375/- being the interest on the outstanding amount @ 15% per annum w.e.f. 01.03.2018 till the filing of the suit. The plaintiff has claimed the aforesaid amount on the basis of the professional services pertaining to the finance and accounts, taxation, statutory and legal compliance and other allied functions rendered by him to the defendant company .
19. As per the case of the plaintiff, he was engaged by the defendant company in July 2017 at an annual remuneration of Rs.6,00,000/- (i.e. Rs.50,000/- per month). The plaintiff has claimed that he has rendered services to the defendant company uptil Feb. 2018 but was being paid only uptil December, 2017 and despite raising the invoices for the month of January and February, 2018 vide invoice Ex.PW1/2, he was not paid Digitally signed by MUKESH his due i.e. Rs.1,00,000 (Rs. 50,000 X 2), besides the notice period MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 amount of Rs.1,50,000/-.
18:24:33 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 22 of 30
21. Per Contra, the defendant has claimed that there was always a deficiency in the services rendered by the plaintiff to the defendant company on account of which his service was discontinued in December, 2017 itself and there is no question of the services being provided by the plaintiff in the month of January and February, 2018. For the alleged notice period salary, the defendant has claimed that neither there was any written stipulation for the same nor the same was ever agreed to in the alleged meeting of 21.05.2018.
22. In this regard, if the testimony of the witnesses and the documents are carefully perused and analyzed, the same shows the following facts being proved. One that the plaintiff has association with the defendant prior to his engagement on a formal basis in July, 2017 which can be reflected from the e-mail chat between the plaintiff and Ms. Meenu Gupta, the director of the defendant company Ex.PW1/1 duly supported with the certificate u/s 65B of Indian Evidence Act, and duly admitted by the defendant in its affidavit of admission and denial of documents dated 26.08.2022 signed by Ms. Meenu Gupta, the director of the defendant.
Prior to the formal communication dated 19.07.2017, the plaintiff appears to have been working on need to need basis with the defendant. It was on 19.07.2017 at 10.44 AM when Ms. Meenu Gupta Director of the defendant company confirmed the engagement of the plaintiff at annual remuneration of Rs.6,00,000/- (Rupees Six lakhs) per month. It is also trite to mention here that there was no formal agreement or contract dated Digitally signed by 01.07.2017 regarding the engagement of the plaintiff with the defendant MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date: company as alleged. The defendant continued to provide professional 2024.09.06 18:24:43 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 23 of 30 services to the defendant company regarding finance and accounts, taxation, statute and legal compliance, HR, Admin and IT function during the period of engagement. Though the plaintiff has claimed the amount of Rs.54,000/-per month ( including GST @ 18% minus TDS @ 10% on the agreed professional charges of Rs. 50,000/-) by referring to the ledger entries Ex.PW1/2 which was denied by the defendant, however, the plaintiff has failed to bring on record any corresponding entry either by way of his bank statement or by way of filing the copy of ITR showing the aforesaid payment being received and shown as annual income. The plaintiff during in his cross-examination as PW1 has admitted that there was only a verbal agreement of retainership between him and the defendant company and there is no written contract between him and defendant company. Interestingly, during cross-examination of DW1, it has also emerged that the professional fee of the plaintiff was paid to his daughter Mahima Goel for the period of 6 months from July 2017.
23. Now having established relationship between the plaintiff and the defendant w.e.f. July 2017 at a monthly retainer amount of Rs.50,000/-, the court proceeds with the aspect of as to when such retainership was discontinued. As per the contention raised by the plaintiff, he was provided professional services to the defendant company uptil start of March, 2018 and has relied upon the e-mail Ex.PW1/5 dated 03.03.2018 and Ex.PW1/6 dt. 27.02.2018 to show that he was working for the defendant company even after alleged discontinuance of the services on 27.02.2018. Now these e-mails have been admitted by the defendant in Digitally signed by MUKESH KUMAR MUKESH KUMAR GUPTA their affidavit of admission and denial documents in an interesting Date:
GUPTA 2024.09.06
18:24:52
+0530
CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 24 of 30
manner where the e-mail were admitted but the contents of the same were denied. Imperatively, to prove the same, the defendant was required to bring in the e-mails showing other or alleged actual contents in accordance with the law or refers the same in its deposition before the court which admittedly the defendant has failed to do. On the contrary, there is a clear admission by the defendant in respect of the WhatsApp chat Ex.PW1/3 between the period 08.01.2018 uptil 27.02.2018 on which dates, Ms. Meenu Gupta the director of the defendant clearly mentioned that she is discontinuing the association of plaintiff with the defendant company and also mentions thanks a lot. The same clearly shows that the services of the plaintiff were discontinued on 27.02.2018 only. Even during cross-examination, DW1 Ms. Meenu Gupta has admitted that the WhatsApp messages to the plaintiff was sent in the end of February, 2018 for discontinuation of his services, though, the defendant has tried to volunteer that this discontinuation was verbally communicated in the month of December, 2017 itself which is clearly contrary and contradict Ex.PW1/3 which shows direction regarding works and meetings being given to the plaintiff by the defendant, so much so, that the DW1 during her cross-examination has admitted the e-mail communication with the plaintiff in the month of January, February and March, 2018 but labeled the same as work relating to pending works. This when taken on the yardstick of preponderance of probability clearly established that the plaintiff continued to work for the defendant company in the month of Digitally January and February, 2018 and there was no discontinuance of his signed by MUKESH KUMAR MUKESH KUMAR GUPTA professional services in the month of December, 2017 as averred by the Date:
GUPTA defendant.
2024.09.06 18:25:00 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 25 of 30
24. The contention of the plaintiff is that he was suddenly disengaged and his services were discontinued by the defendant by communication of Ms. Meenu Gupta, the director of the defendant company on 27.02.2018, while on the other hand, the defendant has shown discontinuance of the services on account of deficiency of services and the services provided by the plaintiff being not up to the mark for which he was allegedly informed to improve from time to time. When the evidence in this regard is critically analyzed there is not even single document in the form of any letter, e-mail, meeting note or anything to show that there was any deficiency or complaint in the professional services rendered by the plaintiff to the defendant company. Even the admitted WhatsApp communication shows that he continued to work without any notice regarding deficiency in the professional services rendered by him. The defendant during cross-examination, has tried to bring one e-mail addressed by one CA Shashsank Jindal to the plaintiff on 07.03.2018 Ex.PW1/D-1 thereby attaching observation sheet showing deficiency. However, the same was admittedly after the discontinuance of the services of the plaintiff. Further the aforesaid Shashank Jindal was never brought in by the defendant in the witness box to prove the alleged deficiency in services rendered by the plaintiff to the defendant company. Even DW1 during her cross-examination has admitted that the deficiency in services was orally communicated and no written mail or document was ever created by the defendant.
Digitally signed by MUKESH
25. Adverting to the claim of notice period of 3 months for which the MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 plaintiff has claimed a sum of Rs.1,50,000/- on account of sudden 18:25:08 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 26 of 30 discontinuance of his professional service by the defendant, it may be seen that there is absolutely no document or even oral agreement in support of the same. PW1 during his cross-examination has admitted that there was no written contract between him and the defendant for his engagement and also admits that there was no e-mail chat for 3 months notice/termination period, though he has volunteered that Ms. Meenu Gupta, the director of the defendant assured him for clearance of his dues including the notice period charges (of 3 months) in meeting dated 12.05.2018. But if the evidence is examined carefully, Ex.PW1/16 which is a e-mail dated June, 30,2019 written by the plaintiff to both the directors of the defendant company for the first time mentions ideally I should have also been paid for the notice period also as per any standard professional contracts norm. This clearly reflects that the plaintiff has thought of the same and is presuming to be ideal according to the standard professional norm that the notice period professional charges should also be paid without referring to any agreement with the defendant. It may be seen that even at this stage, the idea of 3 months notice period was not in his mind. This fact is further corroborated from the fact that the plaintiff has averred that notice period was orally agreed between him and the defendant company through director Ms. Meenu Gupta and was finalized in the meeting dated 12.05.2018 where it was allegedly agreed that he shall be paid the notice period of professional charges of Rs.1,50,000/-, however, if Ex.PW1/8, 10 and 11 which are e-
mails dated 17.05.2018, 02.06.2018 and 11.06.2018 written by the Digitally signed by plaintiff to the director of defendant company Ms. Meenu Gupta is MUKESH carefully perused, the plaintiff is only requesting for clear his dues of MUKESH KUMAR KUMAR GUPTA GUPTA Date:
2024.09.06 18:25:17 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 27 of 30 Rs.90,000/- (net of the taxes) and not of the amount including the alleged 3 months notice period. If the amount of notice period was agreed and settled on 12.05.2018 then the plaintiff within 5 days of the meeting should have asked for a clearance of outstanding amount of Rs.2,50,000/-
and not Rs.90,000/-. Thus, on the basis of the aforesaid discussion and findings, and taken on the yardstick of preponderance of probabilities it can be safely held that there was no agreement regarding the 3 months termination notice period between the plaintiff and the defendant and claim of the plaintiff in this regard is liable to be rejected.
26. Now having discussed the aforesaid regarding entitlement, the plaintiff has admittedly being engaged for professional services by the defendant at a monthly remuneration/retainership of Rs.50,000/- and continued to render the services till he was communicated his discontinuance by the director of the defendant on 27.02.2018 vide e- mail Ex.PW1/1. Plaintiff shall accordingly be entitled to professional charges at the same rate for the month of January and February, 2018 which the defendant has admittedly failed to pay despite legal notice dated 22.10.2020 Ex.PW1/8 which has been admitted to have been received by the defendant in its affidavit of admission and denial of documents and her cross-examination as DW1. Accordingly, the plaintiff shall be entitled to recovery of Rs.1,00,000/- from the defendant.
27. This issue is accordingly partly decided in favour of the plaintiff Digitally signed by and against the defendant.
MUKESH
MUKESH KUMAR
KUMAR GUPTA
GUPTA Date:
2024.09.06
18:25:26
+0530
CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 28 of 30 ISSUE NO.4: "Whether the plaintiff is entitled to any interest, if so, at what rate and for which period ?OPP
28. The onus of proving this issue was also upon the plaintiff but no specific evidence to this effect has been led as to whether there was any agreement to pay interest on the outstanding remuneration. There is nothing on record to suggest that any such stipulation was ever made or proposed between the parties. In the absence of any agreement to show the same, the court shall be left with no option but to advert to the provisions of section 34 of CPC and provisions of Interest Act since the amount is outstanding. However, Hon'ble Supreme court in a number of judgments reported as Pt. Munshi Ram @ Associates (P) Lt. Vs. DDA, 2010 SCC Online Delhi 2444, Rajendra Construction Co. Vs. Maharashtra Housing & Area Development Authority and others, 2005 (6) SCC 678, McDermott International Inc. Vs. Burn Standard Co. Ltd. and others, 2006 (11) SCC 181, Rajasthan State Road Transport Corporation Vs. Indag Rubber Ltd., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd. Vs. G. Harischandra, 2007 (2) SCC 720 & State of Rajasthan Vs. Ferro Concrete Construction Pvt. Ltd. (2009) 3 Arb. LR 140 (SC) has repeatedly mandated that courts must reduce the high rates of interest on account of the consistent fall in the rates of interest in changed economic scenario. Under the facts and circumstances of the case, keeping in view the nature of transactions of the case and the aforesaid settled law, court is of the considered opinion that interest of justice would be met, if an interest @ 9% per annum Digitally signed by MUKESH w.e.f. 01.03.2018 on the outstanding amount of Rs.1,00,000/- is awarded MUKESH KUMAR till filing of the suit. The plaintiff shall also be entitled to inerest at the GUPTA KUMAR Date:
GUPTA 2024.09.06 18:26:00 +0530 CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 29 of 30 same rate pendentlite and future from the date of filing of the suit till its realisation. This issue is decided accordingly.
(I) CONCLUSION:-
ISSUE No.5: Relief.
29. In view of the aforesaid discussions and finding of the court on the aforesaid issues, the court is of the considered opinion that the plaintiff has been able to successfully prove its entitlement to the recovery against the defendant company. The suit of the plaintiff is, accordingly decreed for a sum of Rs.1,00,000/- against the defendant.
The plaintiff shall be entitled to a simple interest @ 9% per annum on such amount w.e.f. 01.03.2018 till its realization (which includes pendente-lite and future interest) .
30. The suit of the plaintiff is accordingly decreed in aforesaid terms leaving both the parties to bear their own respective costs.
31. Decree sheet be drawn accordingly.
Digitally signed by MUKESH MUKESH KUMAR KUMAR GUPTA GUPTA Date:
32. File be consigned to record room after due completion. 2024.09.06 18:26:08 +0530 (MUKESH KUMAR GUPTA) DATED 06.09.2024 DJ(Commercial Court)-07/ Central/Delhi PRONOUNCED IN THE OPEN COURT.
(PK) CS (Comm.) No.5060/2021 Mohan Lal goel vs. Invicta Media Pvt. Ltd. & Ors. Page no. 30 of 30