Delhi District Court
Mr. Anuj Ahuja vs Mr. Protocol Solution (P) Ltd on 5 November, 2022
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 77470/16
CNR No. : DLNW01-002571-2015
In the matter of:
Mr. Anuj Ahuja,
S/o Sh. Ashok Ahuja,
R/o 2631/1 Mandir Lane,
West Patel Nagar,
New Delhi-110008 ........ Plaintiff
VERSUS
Mr. Protocol Solution (P) Ltd.
Through Its Managing Director
Having its registered office at 281, B wing
Vardhman Grand Plaza Mnglam Place
Sector -3, Rohini
Delhi-110085
Also At:-
Office B-58, 2nd Floor,
Sector-60 Noida, U.P
....... Defendant
Date of institution : 02.01.2016
Date on which judgment was reserved : 03.11.2022
Date of pronouncement of the judgment : 05.11.2022
SUIT FOR RECOVERY OF Rs. 10,00,750/- ALONG WITH PENDENTE LITE
AND FUTURE INTEREST
JUDGMENT
1. By this judgment, I shall decide present suit filed by the plaintiff suit for CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 1 of 8 recovery of Rs. 10,00,750/- along with pendente lite and future interest
2. In brief, the case of the plaintiff as per plaint is that the defendant is a travel agency primarily serving the market of USA and Canada. The defendant is carrying its business under the brand names Faregeek.com and Bookairfair.com. The plaintiff was selected by the defendant for its post of Senior Executive Sales on 11.05.2005. A recruitment letter was issued by the defendant company in the favour of the plaintiff with a CTC salary of Rs. 3,42,000/- p.a . The salary was payable in two components. One was the fixed component i.e. the CTC as mentioned in the recruitment letter and other was a variable component which was based on the performance of the plaintiff. The plaintiff joined the defendant company on 11.05.2005 and he performed at his best. He made sales for the defendant as per the following details.
Sr. No. Month Sales done by the Performance
plaintiff Incentive of the
plaintiff
1. May, 2015 20,000/ USD Rs. 1,03,000/
2. June, 2015 70,000/ USD Rs. 4,15,000/
4 July, 2015 48,000/ USD Rs. 3,75,000/
5. TOTAL 1,38,000/ USD Rs. 8,93,000/
3. However, the defendant did not pay the said amount to the plaintiff. He was promised by the defendant that the payment shall be made to him in July, 2015. However, that was not done. On 26.07.2015, the plaintiff was called by Mr. Asher, Senior Manager Operation in the Conference Room and he was asked to resign. He was informed that he had not worked as per the satisfaction of the company, which has been denied by the plaintiff. However, on the insistence of the defendant company he gave his resignation letter to the defendant company and asked for the CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 2 of 8 payment of his due salary and the incentives. The defendant replied that only a sum of Rs. 4,18,000/- was due from them to the plaintiff. The plaintiff sent a legal notice to the defendant seeking his hard earned money. Payment was not made. Hence, the plaintiff was constrained to file the present suit.
4. Summons of the present suit were issued to the defendant and it was duly served. The company filed its WS. The defendant admitted that the plaintiff had been appointed by the defendant company. However, it is stated that the plaintiff voluntarily resigned from the defendant company which resulted in huge losses to the defendant. Further, the defendant has denied that the salary of the plaintiff was comprising of two components i.e. fixed components and variable components. It is further stated that the plaintiff had breached the contract between the parties as he resigned without completion of the probation period. It is also stated that the performance of the plaintiff was not up to mark. The defendant had specifically denied the sales which were allegedly done by the plaintiff and the incentives thereto. Further, it is stated that all the dues of the plaintiff have been paid to him. Hence, it is stated that the suit of the plaintiff be dismissed.
5. Replication was filed by the plaintiff wherein the plaintiff denied the averments of the defendant and reiterated his averments. After completion of pleadings of both the parties, following issues were framed by Ld. Predecessor of this Court vide order dated 03.07.2018:-
(1) Whether the plaintiff is entitled to decree of Rs. 9,23,000/- as claimed?....... OPP.
(2) Whether the plaintiff is entitled to interest on the amount claim? If so, at what rate and for what period ?..... OPP (3) Relief.
6. Thereafter, the matter was adjourned for PE. The plaintiff in support of CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 3 of 8 their suit examined one witness. The plaintiff Mr. Anuj Ahuja was examined as PW-1 and he tendered his evidence by way of affidavit Ex.PW1/A and he relied upon the following documents:
1) The copy of the offer letter has been annexed as Ex. PW- 1/1.
2) The copy of appointment letter has been annexed as Ex. PW-1/2.
3) The copy of the resignation letter is annexed as Ex. PW- 1/3 (Colly).
4) The copy of the emails exchanged between the plaintiff and the defendants are annexed as Ex. PW-1/4(Colly).
5)The copy of the legal notice is annexed as Ex. PW-1/5.
6) The copy of the reply of the legal notice has been annexed as Ex. PW-1/6.
7) The copy of the Tax statement of the assessment year 2015-16 has been annexed as Ex. Pw-1/7.
7. Ld. Counsel for the defendant did not cross examine the plaintiff. Thereafter, PE was closed vide order dated 11.03.2019. Thereafter, matter was listed was DE but no DE was led by the defendant and the DE was closed vide order dt. 03.03.2022.
8. I have already heard arguments from Sh. Neeleshwar Kaushik, Ld. Counsel for plaintiff and has perused the entire material available on record carefully. Issues were framed by Ld. Predecessor of this Court vide order dated 03.07.2018 My Issue-wise findings are as under:-
CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 4 of 8 Issue no. 1 (1) Whether the plaintiff is entitled to decree of Rs. 9,23,000/- as claimed?....... OPP.
9. The onus to prove this issue is upon the plaintiff. At the time of the plaintiff's evidence, the defendant did not come forward to cross examine the plaintiff's witnesses and since then, the defendant has not appeared in the court. In the WS as filed by the defendant, the defendant has admitted the relationship between the parties. It is admitted that the plaintiff was appointed as Senior Executive Sales by the defendant on 11.05.2005. It is also admitted that the appointment letter given by the defendant to the plaintiff in this regard is dt. 11.05.2015, as per which the CTC salary of the plaintiff was fixed at Rs. 3,42,000/- . The plaintiff has proved this appointment letter as Ex. PW-1/2. As the fact regarding the same is admitted by the defendant, the documents need not be proved separately.
10. Further, the plaintiff has alleged that apart from his CTC, his salary contained a variable component which was performance oriented. He has alleged that he was to get incentive on the basis of the sales made by him. The plaintiff has alleged this fact on oath. The defendant did not come forward to refute this fact. He did not cross examine the plaintiff witnesses. Only in the WS, a blanket denial has been made by the defendant that no performance incentive was payable by the defendant to the plaintiff. However, in para 7 of the WS, it is mentioned by the defendant that "It is stated the incentives were only promised on the basis of performance." Hence, it is admitted by the defendant that incentives were payable by the defendant to the plaintiff on the basis of his performance with the defendant company.
11. Now, it is an admitted case of the parties that the plaintiff worked with the defendant company till July, 2015. It is the case of the plaintiff that he was made CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 5 of 8 to resign by the defendant company, while in the WS the defendant company has alleged that the resignation by the plaintiff was voluntarily. Again, the defendant did not come forward to cross examine the plaintiff on this point. Only making blank denial in the WS does not prove the same. This fact has been specifically alleged by the plaintiff and he has reiterated the same on oath. Hence, in the absence of any cross examination on the said point, the court finds no reason to disbelieve the testimony of the plaintiff which he has made on oath. Hence, in view of the same, it is proved that the plaintiff was made to resign by the defendant company and he did not resign from the defendant company voluntarily.
12. Thereafter, it has been alleged by the plaintiff that he made the following sales for the defendant company, for which he was entitled to the following incentives.
Sr. No. Month Sales done by the Performance
plaintiff Incentive of the
plaintiff
1. May, 2015 20,000/ USD Rs. 1,03,000/
2. June, 2015 70,000/ USD Rs. 4,15,000/
4 July, 2015 48,000/ USD Rs. 3,75,000/
5. TOTAL 1,38,000/ USD Rs. 8,93,000/
13. Hence, it is stated that the plaintiff is entitled to this amount as performance incentive from the defendant, which was not paid by the defendant to the plaintiff. At the cost of repetition, in the WS, the defendant has stated that the performance of the plaintiff was on the lower side and no incentive was payable from the defendant to the plaintiff due to this reason. The plaintiff has placed on record copy of an email dt. 08.09.2015 allegedly written by the defendant company to the plaintiff, wherein the defendant has admitted that a total amount of Rs. 4,18,522/-
CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 6 of 8 was payable by the defendant to the plaintiff. The said email is not accompanied with an affidavit u/s 65B of the Indian Evidence Act. Hence, the same cannot be read in evidence.
14. However, the plaintiff has relied upon the legal notice issued by him to the defendant which is proved as Ex. PW-1/5. The said legal notice is dt. 26.09.2015 as per which also the plaintiff had sought incentives to the tune of Rs. 5,15,000/- till June, 2015 and the incentives for July, 2015. The plaintiff has also proved on record the reply to the said notice given by the defendant company which is dt. 14.10.2015 and has been proved as Ex. PW-1/6. As per this letter, the defendant has admitted that his salary and incentives for May and June, 2015 were pending. It is further mentioned in the reply that he was not entitled to the incentives for the month of July, 2015 as he had compromised on various operational issues and was disqualified. However, the defendant did not appear before the court to lead evidence in this respect. As per this letter, it is deemed admitted by the defendant that the plaintiff had performed with it and there were incentives for the months of May, June and July in the favour of the plaintiff.
15. Admittedly, the plaintiff has not placed on record any evidence to show that the incentives due to him were for the amount as alleged by him. However, the defendant did not come forward with any record to show that the actual amount of incentives was lower than what was claimed by the plaintiff. The defendant also did not come forward to show that the plaintiff's dues were paid by it at any point of time. At the cost of repetition, the defendant did not come forward to cross examine the plaintiff. It did not lead any evidence. Hence, there is no reason to disbelieve the version of the plaintiff, keeping in view the fact that the defendant has admitted in its reply Ex. PW-1/6 that there were salary and incentives payable by it to the plaintiff. Hence, the plaintiff is entitled to the recovery of the amount as claimed. Hence, this issue is decided in the favour of the plaintiff and against the defendant.
CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 7 of 8 Issue No. 2.
(2) Whether the plaintiff is entitled to interest on the amount claim? If so, at what rate and for what period ?..... OPP
16. The onus to prove this issue was upon the plaintiff. The plaintiff has claimed interest @ 12 p.a from September, 2015 to November, 2015 i.e. an amount of Rs. 27,750/-. As it is proved that the plaintiff was not given his due salary and incentives by the defendant, this issue is also decided in the favour of the plaintiff.
Relief
17. In view of the finding as discussed above, the suit of the plaintiff is decreed. The defendant is directed to pay a sum of Rs. 9,23,000/- to the plaintiff with pendente lite and future interest @ 6 percent p.a from the date of institution of the suit till its realization. Further amount of Rs. 27,750/- towards interest for the period September, 2015 till November, 2015 is also awarded to the plaintiff, to be paid by the defendant. Both the parties shall bear their own cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by RUCHIKA RUCHIKA SINGLA Announced in open court SINGLA Date: 2022.11.05 on 5th November, 2022 16:31:32 -1000 (RUCHIKA SINGLA) Addl. Distt. Judge03, NorthWest Distt., Rohini Courts, Delhi. This judgment contains 8 pages and each page is checked and signed by me. CS DJ 77470/16 Anuj Ahuja Vs. M/s. Protocol Solutions (P) Ltd. Page no. 8 of 8