Delhi District Court
Abraham Samuel vs Hamdard Laboratories (India) on 27 August, 2022
IN THE COURT OF SH. AJAY GULATI-II,
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL), THC, DELHI
CS 141115/2016
CNR No: DLCT 01002833 2015.
ABRAHAM SAMUEL
R/O NG-3, XAVIER APARTMENT,
SARASWATI VIHAR, PITAMPURA,
DELHI-110034 ....PLAINTIFF
VERSUS
1. HAMDARD LABORATORIES (INDIA)
2A/3, ASAF ALI ROAD,
DARYAGANJ,
NEW DELHI-110002,
THROUGH ITS CHIEF MUTAWALLI
2. SH. ABDUL MAJEED, CEO
HAMDARD LABORATORIES (INDIA)
2A/3, ASAF ALI ROAD,
DARYAGANJ,
NEW DELHI-110002 ....DEFENDANTS
DATE OF INSTITUTION : 20.08.2015.
DATE OF RESERVING THE JUDGMENT : 06.07.2022.
DATE OF JUDGMENT : 27.08.2022.
JUDGMENT
1. The plaintiff has filed the present suit seeking recovery, damages, compensation and mandatory injunction against the defendants. The CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 1/39 case of the plaintiff, as contained in the Plaint, in nutshell is as follows:-
(i) The plaintiff was working as a Senior Manager HR & Admin. in Nikon India Pvt. Ltd and he was approached by the defendant no.
2 to join the defendant no. 1 which is being owned by a constituted trust and its Mutawallis.
(ii) The defendant no. 2 has been acting as a CEO of the defendant no.
1 and a Chief Mutawalli is stated to be the Head of the Mutawallis.
(iii) The defendant no. 2 asked the plaintiff to join the defendant no. 1 as its Head of the HR Corporate and as such the defendant no. 2 issued offer letter through E-mail dated 03.02.2015 vide which the defendant no. 2 offered a post of Head HR Corporate to the plaintiff on annual CTC of Rs. 30,00,000/-. The plaintiff accepted the said offer by reply e-mail dated 03.02.2015 and informed the defendants that he would tender his resignation on receiving the Letter of Intent (hereinafter referred to as LOI) and would join the defendant on 06.04.2015.
(iv) The defendant no. 2 also advised the plaintiff to resign from his existing job and join the defendant no.1 as soon as possible and vide e-mail dated 04.02.2015, the plaintiff was asked to join his duties latest by 06.04.2015. The plaintiff vide reply e-mail dated 04.02.2015 confirmed that he would join the duties on 06.04.2015. The plaintiff, vide his reply e-mail dated 26.02.2015, sought liberty of the defendants to join by 08.05.2015 or 15.05.2015 though the plaintiff gave an assurance that he would join on CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 2/39 01.05.2015, if both the dates were convenient to the defendants. The defendant no 2, vide e-mail dated 27.02.2015, allowed the plaintiff to join on 01.05.2015.
(v) The plaintiff, on 04.02.2015, tendered his resignation before his employer i.e. Nikon India Pvt. Ltd and gave 2 months' notice. The plaintiff's resignation was accepted by his employer i.e. Nikon India Pvt. Ltd. and the plaintiff was relieved from the services at the closing of the working month i.e. on 30.04.2015.
(vi) It is further pleaded in the plaint that the plaintiff went to join his duties with the defendant no. 1 on 01.05.2015 but the defendant did not allow the plaintiff to join his duties and rather sent an e- mail to all the Mutawallis seeking their consensus for appointment of the plaintiff with the defendant no. 1 and the correspondence between the plaintiff and the defendant no. 2 were forwarded to all the Mutawallis and thus the plaintiff was asked to defer his joining with the defendant no. 1 company.
(vii) On 05.05.2015, the plaintiff sent an e-mail to the defendant no. 2 mentioning that the plaintiff is awaiting the communication in respect of the appointment of the plaintiff. On 06.05.2015, the defendant no. 2 replied to the said e-mail and informed the plaintiff that he is still working on the same and will get back to the plaintiff as soon as possible.
(viii) Since nothing was heard from the defendant no. 2, the plaintiff again on 12.05.2015, sent an e-mail to the defendant no. 2 requesting him to update the status of his joining. Thereafter the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 3/39 plaintiff wrote e-mails dated 16.05.2015, 19.05.2015, 04.06.2015, 22.06.2015 and 26.06.2015 in which the plaintiff informed the defendant no. 2 that he has left his stable job and career upon the request of the defendant no. 2 and since then he has been facing extreme hardships and also since he is the only earning member in the family and his family has been suffering due to his decision of leaving his previous employment.
(ix) It is further pleaded that as no response was received from the defendants, the plaintiff was left with no other alternative but to serve the legal notice to the defendants and thus a legal notice was issued to the defendant on 16.07.2015.
(x) After receiving the legal notice, the defendant no. 2 wrote an e-
mail to the plaintiff on 31.07.2015 informing the plaintiff that the appointment to the post of Head HR corporate is kept in abeyance and thus in such circumstances the LOI dated 04.02.2015 stands withdrawn and cancelled with immediate effect.
(xi) The plaintiff, on the strength of the aforesaid pleadings, has sought the following prayers:
(i) Pass a decree of Declaration in favour of the plaintiff and against the defendants, declaring that the plaintiff has wrongly been prevented by the defendants from joining his duties w.e.f. 1st May 2015, as per the offer letter/email dated 03.02.2015, which was duly accepted and acknowledged by the plaintiff on the next day and he resigned from his previous employment on the basis of the said offer of the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 4/39 defendant No.2;
(ii) Pass a decree in favour of the plaintiff an against the defendants by which the Hon'ble Court may kindly direct the defendants to pay damages months to months bases to the plaintiff which would be equivalent to salary which the plaintiff is losing every month due to the illegal prevention of the plaintiff from joining his duties w.e.f. 01.05.2015. The plaintiff is claiming the damages from the date of 01.05.2015 to till the filing of the present suit in the month of August, 2015 a sum of Rs. 10 Lacs of the said period which may kindly be granted.
(iii) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendants by which the plaintiff is to be placed at the post, for which an offer was given to him by the defendant No. 2, and the plaintiff duly accepted the same and on the basis of which he resigned from his previous job.
(iv) Pass a decree in favour of the plaintiff and against the defendants by which the Hon'ble Court may kindly direct the defendants to pay the compensation to the plaintiff for causing him mental tension, agony and harassment to him and his family members as the plaintiff also has lost his reputation in the eyes of society as he is sitting jobless at this old age just because of the wrong acts of the defendants. The said sufferings of them are irreparable loss and injuries to them but just for healing touch the plaintiff is claiming the compensate amount which can be tuned to Rs 10 Lacs. However due to his unemployment he is not able to affix the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 5/39 Court fee on this amount but giving an undertaking that as soon as the Hon'ble Court would grant the competition amount the required court fee to be paid on the said awarded amount, or any other deficit court fee of the petition would also be affixed as per the direction of the Hon'ble Court.
(v) Some other order/s and relief/s as this Hon'ble Court may deem fir and proper in the aforesaid facts and circumstances of the case may kindly be granted to the plaintiff.
SUMMONING OF THE DEFENDANT AND WRITTEN STATEMENT
2. The summons of the suit were issued to the defendants and the defendants filed their joint written statement. In the written statement filed by the defendants, the defendants sought to challenge the suit of the plaintiff raising following preliminary objections:-
i. That the LOI issued to the plaintiff does not create any legal relation as no final or concluded agreement was entered into between the parties.
ii. The LOI issued to the plaintiff is not a concluded contract as the same does not clearly or specifically provides the terms and conditions of the employment and as such the LOI cannot be deemed to be an enforceable agreement.
iii. The relief claimed by the plaintiff is hit by the provisions of Specific Relief Act, 1963 in as much as the agreement, as claimed by the plaintiff, at best is an employment agreement and the same CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 6/39 is determinable in nature and as such no injunction can be granted in respect of such agreement.
iv. On Merits, the defendants have denied that they have asked the plaintiff to join their organization in as much as no concluded agreement was entered into between the plaintiff and the defendants and it was only an LOI which was issued to the plaintiff, which at best is an offer made to the plaintiff, which cannot be treated to be an agreement.
v. It is further pleaded that the defendants never advised the plaintiff to leave his existing job and it was the plaintiff who sought deferment in the joining date and refused to join the defendant no. 1 and rather vide email dated 26.02.2015, the plaintiff sought to join the defendant no. 1 company on 08.05.2015.
vi. It is further pleaded that due to the demise of the Chief Mutawalli some important issues got entangled within the management and as such the post of Head HR Corporate was kept in abeyance and the same was also duly informed to the plaintiff.
vii. It is further pleaded that the communication by way of e-mail between the plaintiff and the defendant does not create any legal binding agreement between the parties and since no agreement was finally executed between the parties nor any appointment letter was ever issued to the plaintiff therefore the LOI issued to the plaintiff or its acceptance by the plaintiff does not create any legally enforceable agreement between the parties and as such the plaintiff has no cause of action to sue the defendants by way of CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 7/39 present suit.
REPLICATION
3. The plaintiff filed replication to the written statement filed by the defendants and in the replication the plaintiff denied the allegations and the statements made by the defendants and reiterated the contents of his plaint.
ISSUES
4. On completion of the pleadings, this Court, vide order dated 30.11.2015, framed the following issues:-
1. Whether the plaintiff is entitled to a decree of declaration as prayed? OPP
2. Whether the plaintiff is entitled to damages as prayed? OPP
3. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP
4. Whether the plaintiff is entitled to any compensation on account of mental tension, agony and harassment to him and his family members? OPP
5. Whether the plaintiff has got no cause of action for filing the present suit? OPD
6. Whether the suit of the plaintiff is barred under the provisions of Specific Relief Act? OPD
7. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD
8. Relief, if any?CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 8/39
5. In order to prove his case the plaintiff entered into the witness box and tendered his evidence by way of affidavit exhibited as PW1/A. The plaintiff relied upon and proved the following documents:-
i. Ex PW 1/1- E-mail dated 03.02.2015 by defendant no 2 to plaintiff. ii. Ex PW 1/ 2- Reply e-mail dated 03.02.2015 by plaintiff to defendant no 2.
iii. Ex PW 1/ 3- Email dated 04.02.2015 by defendant no 2 to plaintiff. iv. Ex PW 1/ 4- Reply e-mail dated 04.02.2015 by plaintiff to defendant no 2.
v. Ex PW 1/ 5- Resignation Letter of Plaintiff. vi. Ex PW 1/ 6- E-mail dated 26.02.2015 by plaintiff to defendant no 2. vii. Ex PW 1/ 7- Thread E-mail dated 27.02.2015 between plaintiff and defendant no 2.
viii. Ex PW 1/8- Acceptance of Resignation by Nikon India. ix. Ex PW 1/ 9 E-mail dated 01.05.2015 sent by defendant no 2 to plaintiff and to other Mutawallis.
x. Ex PW 1/ 10 (Colly) Thread E-mail dated 05.05.2015 to 12.05.2015 between plaintiff and defendant no 2.
xi. Ex PW 1/11 (Colly)- E-mails dated 16.05.2015 and 19.05.2015 by plaintiff to defendant no 2.
xii. Ex PW 1/ 12- E-mail dated 04.06.2015 by plaintiff to defendant no 2.
xiii. Ex PW 1/ 13- E-mail dated 22.06.2015 by plaintiff to defendant no 2.
xiv. Ex PW 1/ 14- E-mail dated 26.06.2015 by plaintiff to defendant no 2.
xv. Ex PW 1/ 15- Copy of the legal notice by plaintiff to defendant no 2.
xvi. Ex PW 1/ 15A- Postal Receipts.
6. The plaintiff was duly cross-examined by the Ld. Counsel for the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 9/39 defendants and the plaintiff closed his evidence on 18.07.2017.
DEFENDANT'S EVIDENCE AND RELATED PROCEEDINGS
7. The defendants in their evidence produced 2 witnesses namely Javed Akhtar as DW-1 and Mr. Sabbir Ahmed as DW-2.
8. The DW-1 entered into the witness box and tendered his evidence by way of affidavit exhibited as Ex. DW-1/A. The said witness was duly cross-examined by the plaintiff thereafter the defendant produced DW-2 to tender his evidence by way of affidavit which was exhibited as Ex. DW-2/A and he relied and exhibited the documents i.e. standing order of the company which was exhibited as Ex. DW-2/1. The said witness was also put an email dated 31.07.2015 in his cross-examination which was exhibited as DW-2/1A.
9. The said witness was also duly cross-examined by the Ld. Counsel for the plaintiff and the defendants closed their evidence by making a separate statement on 30.10.2018.
ANALYSIS AND FINDINGS
10. I have heard Dr. M.V. Khan, Ld. Counsel for the plaintiff and Sh. S.S. Sastri, Ld. Counsel for the defendants at length and perused the whole record.
11. The arguments in the present matter were concluded on 06.07.2022 and the matter was listed for orders/clarification, if any, on 01.08.2022. However during the course dictating the judgment some clarifications were required in respect of the document exhibited as Ex. PW-1/5 since the same was referred to as the LOI in the cross-examination of the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 10/39 PW-1 whereas it is an admitted case between the parties that no formal LOI was ever issued by the defendants to the plaintiff. Thus clarifications were sought qua the said document on 18.08.2022 when the Ld. Counsel for both the parties submitted that in the cross- examination of PW-1, the Ex. PW-1/5 was inadvertently referred to as the LOI whereas the said document is the resignation letter submitted by the PW-1 in his earlier company i.e. Nikon India Pvt. Ltd.
12. In view of the arguments advanced and submissions made by the Ld. Counsel for the parties, I proceed to decide the issues as under.
13. To decide all the disputes between the parties, the emails exchanged between the plaintiff as well as the defendant no. 2, as filed and proved on record, are very relevant and significant which are reproduced in the below table. (For the sake of convenience the Plaintiff is referred to as PW-1 and Defendant No. 2 is referred to as D-2).
Email Dt. From To Contents Ex. No. 03.02.2015 D-2 PW-1 Dear Mr. Abraham, PW-1/1
It was nice to have discussions in the last week on the subject.
As discussed I am pleased to inform that we may offer you the post of Head HR Corporate on annual CTC of 30 Lacs.
It would be helpful if you please send us your consent/acceptance on this proposal and your earliest date of joining, to enable me to issue a formal letter of intent.
Looking forward. Thanks 03.02.2015 PW-1 D-2 Dear Sir, PW-1/2 Thank you very much for your offer. I accept the same and look forward to the LOI.
My current notice period is two months. I shall CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 11/39 tender my resignation upon receiving you LOI and look forward to joining Hamdard Laboratories on 6th April (Monday).
Thanking you once again.
Kind regards, Samuel 04.02.2015 D-2 PW-1 Dear Sir, PW-1/3 Subject- Letter of Intent Reference your application for the post of Head HR Corporate and subsequent personal discussions held on 29th January 2015.
Management, in this organization on the terms and conditions mutually agreed upon.
You are hereby required to join the duty latest by 06th April, 2015.
On joining the duty you report to under signed along with following documents-
1. Education Certificate with DOB, and present/permanent address proof.
2. Experience certificate.
3. Relieving certificate from the present Employer.
4. Current salary certificate-Form 16.
5. 03 photographs.
Please note that if you fail to join your duty latest by 06th April 2015, this LOI would stand cancelled.
For Hamdard Laboratories (India) (Abdul Majeed) CEO.
04.02.2015 PW-1 D-2 Dear Sir, PW-1/4 Thank you very much for your offer. As discussed, I will assume my duties on 06th April 2015.
Thanking you once again.
Kind regards, Samuel.
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 12/3926.02.2015 PW-1 D-2 Dear Sir, PW1/6 Good morning! I once again thank you for your offer and as confirmed, will join Hamdard Laboratories. As discussed, due to some exigencies such as office relocation etc, my joining was to be delayed.
My current organization wants to relieve me on 15th May, 2015, but I understand it would be too much for the asking. If your good-self may kindly permit me to stand till then I confirm 16th May as my joining date in Hamdard Laboratories or else, is permissible, would request you to make May 08th 2015 (Friday) as my joining date.
If both the above dates are inconvenient to you, then I shall stand by 01 st May, as my joining date as we discussed. The final decision will be only upto your kind confirmation, I shall inform my current employers about my final date.
I am sorry to bother you with this. This is just a request and your decision on this be final.
Kind regards, Samuel.
27.02.2015 D-2 PW-1 Dear Mr. Abraham. PW-1/7 Your date of joining is as it stands -01st May, 2015.
Abdul Majeed CEO.
27.02.2015 PW-1 D-2 Dear Sir, PW-1/7 Thank you for the confirmation, I shall join Thread accordingly on 01st May, 2015. Email Kind regards.
01.05.2015 D-2 PW-1 Dear All Mutawallis, PW-1/9 and I am attaching herewith the correspondence w.r.t.
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 13/39 to appointment of Mr. Abraham Samuel as
corporate Head H.R.
other
Mutta As you will appreciate from correspondence that this decision was taken in late January 2015, by
-
the under signed after due deliberation and wallis consultation with Late Sh. Chief Mutawalli Mr. Abdul Mueed.
All correspondence with Mr. Abraham Samuel and his CV are attached for ready reference.
It was envisaged at that time that the skill set of Mr. R.K. Gautam of Personnel, HR and Industrial relations- being his forte and expertise and also in view of opportunities to be followed, emphasis would have to be given on HR development both for staff within and for new lateral like clinics where issue related to Hakeem's training and their monitoring would be of utmost importance. Also the cultural changes which need to be brought about so that HLI could be ranked as one of the competitive employer within industries and also for fulfillment and achievement of 1000 Cr. Mission.
Hence in the present circumstances I find it best to leave the decision to all the Mutawallis to come to consensus on said recruitment. Even though I am more obliged to make him join as proposed and promised date 01st May, 2015.
Nevertheless, being senior level position I would like to have consensus of all of us and thus I have requested Mr. Abraham Samuel to defer his joining another week. I also request if board like to hear him, he would be available this week.
For your kind consideration, Abdul Majeed CEO.
05.05.2015 PW-1 D-2 Dear Majeed Sir, PW-1/10 Trust you have been able to discuss my case favorably and come to a positive conclusion. I Thread await your communication on this. My family Email and I are stressed sir and I am in no man land CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 14/39 and look to you for a positive conclusion.
Kind regards, Samuel.
06.05.2015 D-2 PW-1 Dear Mr. Abraham, PW-1/10 I am working on it and will get back to you as soon as possible.
Abdul Majeed CEO.
12.05.2015 PW-1 D-2 Dear Majeed Sir, PW-1/10 good evening! Request you to kindly update on the status of my joining please.
Kind regards, Samuel.
16.05.2015 PW-1 D-2 Dear Majeed Sir, PW-1/11 Good morning! Thread As discussed day before, kindly confirm if I can Email report for duty on Monday assuring all internal issues are sorted out.
Regards, Samuel.
19.05.2015 PW-1 D-2 Dear Majeed Sir, PW-1/11 Good morning! As discussed yesterday, I was awaiting your mail. Since it is a matter not only of my career but also my life, I would like you to take very judicious decision.
You are aware that I left a stable job and career upon your request. Frankly I never expected such a situation.
Therefore you must do your best for me whom you know for the last twenty years is not official communication from me but a personal one.
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 15/39One bonding is person and you must honor this relationship. I sincerely look forward to hearing from you favorably.
Regards, Samuel.
04.06.2015 PW-1 D-2 Dear Majeed Sir, PW-1/12 Good afternoon! Its been a while since I received any feedback post our meeting with Hammad Sir.
Request you to kindly update the status of my joining please.
Kind regards, Samuel.
22.06.2015 PW-1 D-2 "Dear Majeed Sir, PW-1/13 Good afternoon and Ramadan greetings! Kindly refer to our discussion on Friday 19th June. The situation seems hopeless with the stiff resistance from Hamdard sir and MR. Hamid on my joining Hamdard understood and you correctly mentioned.
The only way out of this seems to be is compensation which also they are opposing. However, I request you to kindly take a judicious decision and provide me with compensation so that I can sustain myself till I have another option. I hope you understand my situation which is getting very critical.
I really regret leaving my previous job and landing in a situation like this where only not only I but my family is also suffering because of my decision.
I really want you to be kind and sympathetic towards and do justice.
Kind Regard, Samuel"
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 16/3926.06.2015 PW-1 D-2 Dear Majeed Sir, PW-1/14 Good afternoon.
I have been awaiting your response to my mail.
Kindly conclude my matter since it has been dragging for a while. If required, I can see you on Monday in person for this.
I shall be grateful to you for this.
Regards, Samuel 31.07.2015 D-2 PW-1 Dear Mr. Samuel, DW-
2/1A As has been informed earlier that as per the management policy, it has been decided to keep the post of head H.R. Corporate in Abeyance and /or till the management takes further decisions to fill up the said post.
In the circumstances the letter of intent dated 04.02.2015 is hereby withdrawn and stands cancelled. This is withdrawal shall have immediate effect.
Abdul Majeed CEO emphasis supplied by me
14. Issue no. 1 and 3 are taken together for adjudication as the discussion on the same is purely legal in nature qua the legal right of the plaintiff to claim declaration and injunction.
Issue No. 1 Whether the plaintiff is entitled to a decree of declaration, as prayed for? OPP Issue No. 3 Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP
15. The plaintiff by virtue of his prayer of declaration and mandatory CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 17/39 injunction has sought that the action of the defendants in not allowing the plaintiff to join the duties, in furtherance of the LOI dated 03.02.2015 which was accepted by the plaintiff on the same date, be declared as null and void as the defendants have prevented the plaintiff from joining his duties. The plaintiff has sought directions in the form of mandatory injunction against the defendants thereby directing the defendants to allow the plaintiff to join the defendant no. 1 and place the plaintiff on the post for which the offer was given by the defendant no. 2 which was duly accepted by the plaintiff.
16. The Ld. Counsel for the plaintiff submitted that there is no fault or dereliction on the part of the plaintiff and since the plaintiff has duly accepted the offer given by the defendant no 2 therefore the action of the defendants in not allowing the plaintiff to join the duties on 01.05.2015 by virtue of the letters/emails proved on record as (Ex. PW- 1/1 to PW-1/7) and therefore the subsequent actions of the defendants are illegal and barred in law since the defendants ought to have allowed the plaintiff to join the duties. It is further submitted by the Ld. Counsel for the plaintiff that the plaintiff had tendered his resignation in order to join the defendant no. 1 and the defendants, due to the disputes within their Mutawallis, had illegally prevented the plaintiff from joining the duties.
17. The Ld. Counsel for the plaintiff further submitted that since the plaintiff has accepted the LOI and reported at the office of defendant no. 1 to join his duties on 01.05.2015, as agreed between the plaintiff and the defendant no. 2, therefore legally enforceable and concluded contract has come into operation between the parties and as such the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 18/39 defendants are liable to give appointment to the plaintiff and place the plaintiff on the post of HR Head, Corporate as per the LOI dated 03.02.2015 on the basis of the said LOI.
18. Per Contra, the Ld. Counsel for the defendants argued that since the LOI, which was issued by the defendant no. 2 to the plaintiff was only an offer therefore no concluded contract had come into existence between the parties. It was further argued that no appointment letter was ever issued to the plaintiff which has been admitted by the plaintiff in his cross-examination therefore there is no question of any legally enforceable contract having come into being between the parties. It is further submitted by the Ld. Counsel for the defendants that, even if it is presumed that a concluded contract has come into operation between the parties by virtue of the offer of the LOI and its acceptance thereof, even then the alleged agreement between the parties is related to the personal service and private employment and as such the alleged agreement, being terminable in nature, therefore no declaration or injunction can be granted in respect of the said agreement as per the provisions of Specific Relief Act, 1963. In support of his arguments, the Ld. Counsel for the defendants has relied upon the judgments of Hon'ble Supreme Court of India in the case of Rajasthan Co-Opposite Party Dairy Federation Ltd. vs Maha Laxmi Mingra Marketing Service Pvt. Ltd. 1996 (10) SCC 405 and Dresser Rand S.A. vs. Bindal Agro Chem Ltd. 2006 (1) SCC 751 to contend that letter of intent is only an expression to enter into a contract and it does not create any binding legal relationship.
19. A perusal of the record shows that the plaintiff, in order to prove his CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 19/39 case, has relied upon various emails exchanged between the parties which are exhibited as Ex. PW-1/1 to PW-1/14. The said emails have not been expressly disputed by the defendants in their written statement and it was not disputed that the defendant no 2 were not competent to communicate with the plaintiff or that the said e-mails were not sent by the defendant no 2. Rather the defendants have also placed reliance on the same and thus the said e-mails were deemed to be admitted between the parties.
20. It is admitted case between the parties, as also proved on record by the communication between the parties via emails, that vide email dated 03.02.2015 (Ex. PW-1/1) the plaintiff was offered the post of Head HR Corporate by the defendant no. 2 on annual CTC of Rs. 30,00,000/- and the plaintiff was asked to join on 06.04.2015.
21. It is also clear that the plaintiff accepted the offer made by the defendant no. 2 vide return email dated 03.02.2015 (Ex. PW-1/2) and the plaintiff also informed the defendants that he would tender his resignation on receiving the LOI and would join the defendant no. 1 on 06.04.2015. It is also not disputed that an email dated 04.02.2015 was sent to the plaintiff by the defendant no. 2 with the subject as Letter of Intent (Ex. PW-1/3) and the plaintiff was asked to join the defendant no. 1 by 06.04.2015 failing which the LOI would stand cancelled. However by subsequent emails between the parties the date of appointment was extended from 06.04.2015 to 01.05.2015 as proved on record by email Ex. PW-1/6 & Ex. PW-1/7.
22. It is also not in dispute that the plaintiff went to join the defendant no. 1 on 01.05.2015 however the plaintiff was not allowed to join the duties CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 20/39 in as much as the defendant no. 2 thought it appropriate to take consensus of the other Mutawallis and therefore the joining of the plaintiff was deferred vide email dated 01.05.2015 (Ex. PW-1/9).
23. The law relating to enforcement of the employee and the employer contract is very well settled and similarly the law relating to specific enforceability of contract which are terminable in nature is also settled. The Hon'ble Supreme Court of India, in its landmark judgment reported as Indian Oil Corporation vs Amritsar Gas Service 1991 (1) SCC 533 has held that a Court cannot grant specific performance in respect of the contracts which are determinable in nature.
24. The Hon'ble High Court of Delhi in judgment titled as L.M. Khosla Vs. Thai Airways International Public Company Ltd. CS (OS) No. 673/1997, DOD-01/08/2015 has held that the contract between the employer and the employee by its very nature are terminable in nature and therefore the same cannot be specifically enforced.
25. In the present case it is very interesting to note that the plaintiff, in his evidence, has relied upon an email dated 22.06.2015 which was written by the plaintiff to the defendant no. 2 and was proved as (Ex. PW- 1/13). The said email is very relevant to decide the present issue and the said e-mail is already reproduced in para 13 above.
26. A perusal of the said email clearly shows that the plaintiff has himself given up his claim of employment and sought compensation from the defendants since there was resistance between the Mutawallis qua the employment of the plaintiff. Even otherwise keeping in view the settled law that a contract which is determinable in nature as well the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 21/39 contacts of private employment, which in itself are inherently terminable in nature, therefore this Court is of the considered view that the plaintiff cannot seek specific performance in the nature of granting employment to the plaintiff by the defendant no. 1 as the contract between the plaintiff and the defendant, though no concluded contract had come into existence since no appointment letter was ever issued to the plaintiff which the plaintiff has also admitted in his cross- examination but even presuming the contract to be in existence, cannot be specifically enforced. Therefore the plaintiff is not entitled to declaration and mandatory injunction as sought by the plaintiff. These issues are thus decided against the plaintiff and in favour of the defendants.
27. Issue no. 5, 6 and 7 are taken together as the decision on the same goes to the root of the case.
Issue No. 5. Whether the plaintiff has got no cause of action for filing the present suit? OPD Issue No. 6. Whether the suit of the plaintiff is barred under the provisions of Specific Relief Act? OPD Issue No. 7. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD
28. The Ld. Counsel for the defendants submitted that since no appointment letter was issued by the defendant no. 1 to the plaintiff and even assuming that the LOI is an enforceable agreement and since the said agreement is itself not enforceable under the law, being an agreement which is determinable in nature, therefore the suit is barred under the provision of the Specific Relief Act of 1963.CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 22/39
29. The Ld. Counsel for the defendants has further submitted, as also proved on record in the evidence, that no appointment letter was issued to the plaintiff and the plaintiff had only gone to join the defendant no.1 in furtherance of the LOI and therefore it clearly shows that no terms of appointment were ever settled between the parties and the same was to be done only on the issuance of the appointment letter therefore the plaintiff has no cause of action to file the present suit and the suit of the plaintiff is completely premature and therefore the same is not maintainable.
30. The Ld. Counsel for the plaintiff, however countered the arguments of the defendants, and submitted that the defendant no. 2 had been acting as a CEO of the defendant no. 1 and the same has also been proved on record by the testimony of the DW-2 who deposed that the defendant no. 2 was vested with the powers of CEO and it was the defendant no. 2 who had offered the post of Head HR Corporate to the plaintiff and the said offer was also accepted by the plaintiff therefore the present suit cannot be held be barred under the Specific Relief Act, 1963.
31. The Ld. Counsel for the plaintiff further submitted that even assuming that the prayers of declaration and mandatory injunction cannot be granted in favor of the plaintiff, however the plaintiff is still entitled to compensation due to the actions and inactions of the defendants who had induced the plaintiff to leave his lucrative job and join the defendant no. 1 at an increased salary and the plaintiff, believing the assurances given by the defendant no. 2, had developed legitimate expectations that after leaving his job, the plaintiff would join as Head of Corporate, HR in the defendant no. 1 company at an increased CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 23/39 annual package of Rs. 30 Lakh and by not allowing the plaintiff to join the defendant no.1, the plaintiff has got the cause of action to sue the defendants for damages and compensation.
32. The evidence as contained in the form of emails, as already reproduced in Para 13 above, as well as the oral testimony of both the parties, clearly proves that though no formal LOI was issued by the defendant no. 2 but the email dated 04.02.2015 (Ex. PW-1/3) with subject as Letter of Intent, which was sent to the plaintiff in furtherance of thread email dated 03.02.2015 and vide the said e-mail the plaintiff was asked to join the duties on 01.04.2015 and the said date was later on extended to 01.05.2015 vide subsequent emails between the parties. It was also proved on record by the testimony of DW-2 that the defendant no. 2 was vested with the powers of CEO. However when the plaintiff went to join his duties he was not allowed to join since the defendant no. 2 thought it appropriate to take consensus of other Mutawallis and as such the joining of the plaintiff was deferred. The plaintiff however continued to chase the defendant no. 2 and ultimately vide email dated 22.06.2015, the plaintiff himself sought compensation from the defendants as the plaintiff was not getting the appointment. In his cross- examination, the plaintiff/PW-1 has admitted that no appointment letter was issued to the plaintiff and only an email was sent to the plaintiff with the subject Letter of Intent. PW-1 also admitted that the joining letter is required to be signed before any person joins the company.
33. The PW-1, in his cross-examination, also admitted that in the process of appointment an LOI is the first stage and upon joining the appointment letter is given. The PW-1 also admitted in his cross-examination that CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 24/39 the LOI is merely an intention of the parties to enter into the agreement in future. The PW-1, in his cross-examination, also admitted that he did not receive any appointment letter from the defendants.
34. The defendant witness i.e. the DW-1 in his cross-examination had stated that the proper appointment letter is required to be issued at the time of joining and the plaintiff was not allowed to join his duty due to the inter-se disputes between the members of the top management and the plaintiff was also reluctant to join at that time. In the testimony of DW-2 it has come on record that CEO of the company was Mr. Abdul Majeed and Mr. Abdul Mueed delegated his power to his son Mr. Abdul Majeed i.e. the Defendant no. 2. It has also come on record that Mr. Abdul Mueed expired in April-2015 and as on the date of cross- examination, the dispute relating to Chief Mutawalli and CEO of the defendant no. 1 is sub-judice before the Hon'ble High Court of Delhi.
35. In the cross-examination of the DW-2 it also came on record that the retirement age of the employees in the defendant no. 1 company is 58 years and the services of an employee could be terminated by giving 15 days' notice during the probation period which is of 6 months and 30 days' notice if the employment is confirmed.
36. The overall conspectus of the case as well as law relating to the specific performance of private employment contract, this Court has already observed, while deciding the Issue No. 1 and 2 that the prayer of declaration and injunction is not available to the plaintiff since the same is expressly barred under the provisions of the Specific Relief Act, 1963 more particularly in view of Section 14(1)(d) of the Act which provides that the agreement, which are determinable in nature, cannot be CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 25/39 specifically enforced. However the plaintiff has also sought compensation on account of the acts and omissions on part of the defendants by preventing the plaintiff to join the defendant no. 1 company or if not preventing then deferring the appointment by keeping the plaintiff in lurch as the plaintiff had left his job to join the defendant no. 1 but unfortunately the appointment did not take place due to the facts and circumstances detailed hereinabove. Therefore this Court is of the considered opinion that though the suit qua declaration and mandatory injunction is barred under the law, as already observed above, however the suit in respect of the claim for compensation is maintainable since the plaintiff has pleaded facts giving cause of action to the plaintiff to raise a claim for compensation. In view of the discussion hereinabove, the Issues No. 5 and 6 are decided accordingly.
37. The onus to prove the Issue No. 7 was also on the defendants however the defendants have not produced any witness nor led any evidence to show that the suit filed by the plaintiff has not been properly valued. The plaintiff by way of present suit has sought recovery of compensation and damages to the tune of Rs. 10,00,000/- along with the declaration and injunction and on the said reliefs the plaintiff has paid a total Court fees of Rs. 12,133/-. However the defendants have failed to show anything on record as how that the suit has been undervalued or that the plaintiff has not paid the proper Court Fee. In view of the above this issue is decided against the defendants and in favour of the plaintiff.
38. Issue no. 2 and 4 are taken together since both the issues relate to the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 26/39 entitlement of the plaintiff to recover damages and compensation.
Issue No. 2 Whether the plaintiff is entitled to damages as prayed for? OPP?
Issue No.4 Whether the plaintiff is entitled to any compensation on account of mental tension, agony and harassment to him and his family members, as prayed for? OPP
39. The Ld. Counsel for the plaintiff submitted that the defendants have prevented the plaintiff from joining the duties and due to the actions of the defendants, the plaintiff left his lucrative job with Nikon India Pvt. Ltd and when the plaintiff went to join the defendant no. 1 company, the defendant no. 2 prevented the plaintiff to join the corporation and dragged the matter for around 3 months and finally vide email dated 31.07.2015 (Ex. DW-2/1A), the LOI was illegally withdrawn by the defendants. It is further submitted by the Ld. Counsel for the plaintiff that the plaintiff is entitled to compensation not only for the period which got elapsed in the process of joining since the plaintiff could not take-up any other employment during such period as the plaintiff was awaiting the decision of the defendants but also for the period which would have entitled the plaintiff to enjoy the fruits of the employment with the defendants till his retirement.
40. The Ld. Counsel for the plaintiff also submitted that if the plaintiff had been employed by the defendant no. 1 then he would have retired at the age of 58/60 years and would have earned handsomely but due to the actions/inactions of the defendants, the plaintiff was prevented from joining the defendant no. 1 and thus suffered losses which cannot be calculated in terms of money but the plaintiff is atleast entitled to the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 27/39 damages of Rs. 10,00,000/- for agony and harassment caused by the defendants to the plaintiff.
41. The Ld. Counsel for the defendants, on the other hand, submitted that the plaintiff was never prevented from joining the defendant no. 1 company in as much as it was only an email with the subject Letter of Intent which was issued to the plaintiff but no concluded contract in the nature of the appointment had come into existence between the parties. The Ld. Counsel for the defendant further submitted that the consensus of other Mutawallis was required for the appointment of the plaintiff and same was sought by the defendant no. 2 but no fruitful result was achieved and therefore the plaintiff was duly informed about the withdrawal of the LOI.
42. The Ld. Counsel for the defendants further submitted that even if the plaintiff was employed with the defendant no.1 then also his appointment would have been a contract which in itself was determinable in nature but since no concluded contract had come into being as admittedly no appointment letter was ever issued to the plaintiff therefore the plaintiff is not entitled to any compensation.
43. Lastly the Ld. Counsel for the defendants argued that presuming that there was an offer in the face of LOI which was accepted by the plaintiff and assuming that the plaintiff had joined the defendant no. 1 then also the employment of the plaintiff would have been terminable in nature and the plaintiff, at best, would have been entitled to 30 days' salary on the termination of his employment.
44. The onus to prove these issues were on the plaintiff and the plaintiff in CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 28/39 his testimony has proved the facts regarding the issuance of the offer of appointment to the post of Hear HR Corporate to the plaintiff by the defendant no. 2 by virtue of the email dated 03.02.2015 read with acceptance email dated 03.02.2015 and issuance of LOI vide email dated 04.02.2015 i.e. Ex. PW-1/1, PW-1/2 and PW-1/3 respectively.
45. A scrupulous reading of the emails exchanged between the parties, as mentioned in Para 13 above, clearly shows that the plaintiff was offered the job to the post of HR Head, Corporate by the defendant no. 2 on CTC of Rs. 30,00,000/- and the said offer was accepted by the plaintiff and the plaintiff vide Ex. PW-1/2 informed the defendant no. 2 that he would tender his resignation on receiving the LOI and would join the defendant no. 1 on 06.04.2015. It is also proved on record that the plaintiff could not join the defendant no. 1 on 06.04.2015 as the date of joining was extended to 01.05.2015 vide emails Ex PW-1/6 and Ex. PW-1/7. The plaintiff also proved on record that the plaintiff, on receiving the e-mail of LOI tendered his resignation and he was relieved by M/s Nikon India Pvt. Ltd from his service at the closing of working month i.e. on 30.04.2015 and the said document was proved on record as Ex. PW-1/5. It has also come on record that the plaintiff went to join the defendant no. 1 on 01.05.2015 however on 01.05.2015, vide email dated 01.05.2015 (Ex. PW-1/9), the defendant no. 2 informed all other Mutawallis about the correspondence qua the appointment of the plaintiff as HR Head, Corporate and vide said email the consensus of other Mutawallis was sought for the appointment of the plaintiff and therefore as such the joining of the plaintiff was deferred and the plaintiff was also marked in the said email. The plaintiff, thereafter continued to send emails to the defendant no. 2 i.e. CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 29/39 email dated 05.05.2015, 06.05.2015, 16.05.2015, 19.05.2015 and 04.06.2015 which were proved on record in the form of thread e-mails as Ex. PW-1/10 to PW-1/12 vide which the plaintiff wrote to the defendant no. 2 seeking information about his joining and that he was facing lot of stress and harassment as he has already left his earlier job but is not able to join the defendant no. 1 since the decision of his joining is pending within the management of the defendant no. 1 company. The plaintiff finally vide email dated 22.06.2015 (Ex. PW- 1/13 as already reproduced above) sought compensation from the defendants since the plaintiff had realized that there has been resistance from the management on reaching the consensus for the appointment of the plaintiff. The plaintiff thereafter sent legal notice dated 16.07.2015 (Ex. PW-1/15) to the defendant in which the plaintiff demanded ideal wages w.e.f. 01.05.2015 till the date of notice and to be paid continuously until he is allowed to join his duties with defendant no. 1 at the rate which was agreed in LOI i.e. Rs. 30,00,000/- per annum.
46. The defendant thereafter sent email dated 31.07.2015 (Ex. DW-2/1A) and informed that the plaintiff the appointment to the post of HR Head, Corporate is kept in abeyance and in such circumstances the LOI dated 04.02.2015 issued to the plaintiff stands withdrawn and cancelled with immediate effect.
47. The facts and circumstances of the present case are quite peculiar.
In this case though the plaintiff was offered the job of Head HR Corporate which was also accepted by the plaintiff, but admittedly no appointment letter was ever issued to the plaintiff by the defendant and thus the plaintiff has technically not joined the defendant CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 30/39 no. 1 company and thus no concluded contract has come into existence between the parties. However it has also come in the evidence that the plaintiff on receiving the email dated 03.02.2015 from the defendant no. 2 specifically informed the defendant no. 2 that on receiving the LOI he would tender resignation from his existing job. Though no formal LOI was issued to the plaintiff but vide email dated 04.02.2015, the subject of the said email was Letter of Intent, the plaintiff was asked to join his duties latest on 04.02.2015. It is also proved on record that the plaintiff, on receiving the said email, tendered his resignation to his existing employer i.e. M/s Nikon India Pvt. Ltd vide email Ex. PW-1/5 and the plaintiff was relieved from his services by M/s Nikon India Pvt. Ltd. w.e.f. 30.04.2015 vide Ex. PW-1/8 since the plaintiff had to join the defendant no. 1 from 01.05.2015. It is also a matter of record that the plaintiff also reported for joining his duties with the defendant no. 1 on 01.05.2015 however the plaintiff was not allowed to join the duties for the reasons already detailed above.
48. The evidence brought on record clearly proves that the defendant no. 2 made a promise to the plaintiff in the form of offering the job. The said promise was also accepted by the plaintiff. The plaintiff, believing the promise of the defendant no. 2, altered his position and tendered his resignation from his existing job. It shall not be out of place to mention here that a bare perusal of email dated 04.02.2015 (Ex. PW-1/3) clearly shows that the plaintiff had been asked to join his duties. Had it been the case that any formalities or further assessment of plaintiff was required to be done by the defendants, then the defendant no. 2 would not have directly asked the plaintiff to come and join the duties. It shows that the defendant no. 2 had already assessed the plaintiff and CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 31/39 found him fit for the job and therefore the plaintiff was asked to come and join the duties directly and the issuance of appointment letter, though it did not take place in the present case, was a mere formality. This court has no hesitation in holding that the actions of the defendants were also hit by the principles of promissory estoppel since the plaintiff acted on the promise given by the defendants and thus changed his position by leaving his existing job and as such the defendants cannot be allowed to take contradictory stands i.e. at one place the plaintiff was asked to join his duties and at other place it is contended that since no appointment letter was ever issued to the plaintiff therefore no right has accrued in favor of the plaintiff to claim any compensation against the defendants for his non-appointment by the defendants.
49. This Court is not oblivious of the fact that the plaintiff had left his existing job to join the defendant no. 1 with a legitimate expectation having been developed on the basis of the representations and assurances given by the defendant no. 2 to the plaintiff to have a better job with increased earnings. However the actions of the defendants are not appreciable in as much the defendant no. 2, acting as the CEO of the defendant no.1, was made well aware by the plaintiff about the fact that in order to join the defendant no.1, the plaintiff has to leave his existing job with Nikon India Pvt. Ltd. and the plaintiff, believing the assurances of the defendant no. 2, had also tendered his resignation and thereafter he was also relieved by his earlier company from work at the close of business hours of 30.04.2015. On 01.05.2015, the plaintiff immediately went to join the defendant no. 1 but the defendant no. 2, due to managerial issues i.e. to seek consensus from other Mutawallis, did not allow the plaintiff to join the defendant no. 1 and rather set the CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 32/39 clock rolling for the plaintiff to wait for the approval of other Mutawallis so that the plaintiff could be allowed to join the defendant no. 1.
50. The plaintiff thereafter kept chasing the mirage by contacting the defendant no. 2 who also assured that things are under pipeline and the plaintiff would be informed soon. It was when the consensus was taking too much time that the plaintiff, vide email Ex. PW-1/13, wrote to the defendant no. 2 that he may be given compensation. It is also proved on record that on 16.07.2015, the plaintiff got served a legal notice on the defendants and it was only thereafter that the defendant no. 2, vide email dated 31.07.2015, informed the plaintiff that the post of HR Head Corporate is kept in abeyance and the LOI issued to the plaintiff on 04.02.2015 is withdrawn with immediate effect.
51. The facts of the present case leave no iota of doubt that due to the inactions of the defendants the plaintiff was unable to join the defendant no. 1. Once the plaintiff had notified the defendant no. 2 that the plaintiff has to resign from his existing job in order to join the defendant no. 1 and that the plaintiff would tender his resignation after receiving the LOI then the defendant no. 2 was under an obligation to notify the plaintiff not to resign from his job before getting an appointment letter or the defendant no. 2 should have notified the plaintiff that consensus from other Mutawallis is required to be taken before allowing the plaintiff to come and join the duties but the defendant no 2 allowed the plaintiff to have an extended date of joining i.e. 01.05.2015. The plaintiff, acting on the assurances of the defendant no. 2 and after receiving the LOI, duly tendered his resignation and was CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 33/39 relieved from his services w.e.f. 30.04.2015 however to the greater dismay of the plaintiff, the plaintiff was left in lurch when he went to join the defendant no. 1 on 01.05.2015 and the plaintiff was made to wait incessantly until 31.07.2015 when the LOI was finally withdrawn by the Defendant No. 2. All these chain of events, as proved by the emails exchanged between the parties, clearly prove that extreme harassment and mental agony has been caused to the plaintiff since the plaintiff has his whole family to look-after when at such an advanced age the plaintiff had left a well-paid job to join the defendant no. 1 but due to the actions/omissions of the defendants the plaintiff was not allowed to join the said job. The gamut of the whole evidence, as brought on record, clearly proves that the actions and omissions of the defendants have caused mental agony and harassment to the plaintiff and as such the plaintiff is held entitled to claim compensation from the defendants.
52. However what should be the amount which the plaintiff is entitled to receive from the defendants towards compensation is one of the significant question which requires further consideration.
53. The Hon'ble Supreme Court, in Kanchan Udyog Ltd. v United Spirits Ltd. (2017) 8 SCC 237, has dilated upon the law regarding grant of damages as per Section 73 and 74 of the Contract Act, 1872. The rele- vant part of the said judgment is reproduced:
"27. In Galoo Ltd. (supra) the emphasis was on the common sense approach, holding that the breach may have given the oppor- tunity to incur the loss but did not cause the loss, in the sense in which the word "cause" is used in the law. The following passage extracted therein from Chitty on Contracts, 26 th ed. (1989) Vol. 2, CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 34/39 pp. 11281129, para 1785 may be usefully set out: (WLR p. 1370 AB) "The important issue in remoteness of damage in the law of con-
tract is whether a particular loss was within the reasonable contem- plation of the parties, but causation must also be proved: there must be a causal connection between the defendant's breach of contract and the plaintiff's loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of plaintiff's loss."
28. Wellesley Partners LLP (supra) itself carves out an exception to the principle that a contract breaker is liable for damage resulting from his breach, if at the time of making the contract, a reasonable person in his shoes would have had damage of that kind in mind as not unlikely to result from a breach. After noticing The Achilleas (2009) AC 61 it was observed: (Ch p. 550 H) "69......The Achilleas shows that there may be cases, where based on the individual circumstances surround- ing the making of the contract, this assumed expectation is not well founded.
The observations noticed therein from para 23 and 24 of the Parabola case (2011) QB 477 are also considered relevant as follows:
"23. ...The next task is to quantify the loss. Where that involves a hypothetical exercise, the court does not apply the same balance of probability approach as it would to the proof of past facts. Rather, it esti- mates the loss by making the best attempt it can to evaluate the chances, great or small (unless those chances amount to no more than remote speculation) taking all significant factors into consideration.
24. ...The judge had to make a reasonable assess-
ment and different judges might come to different assessments without being unreasonable. An appel-CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 35/39
late court will be slow to interfere with the judge's assessment."
emphasis supplied
54. The arguments on behalf of the defendants that plaintiff is only entitled to damages, if any, in the form of 30 days' salary since every employee of the defendant no. 1, if terminated after the completion of probation period, is only entitled to one months' salary appears to be attractive but I am afraid to concur with the same in view of the facts and circumstances of the present case since the present case is not that of termination of employment of the plaintiff by the defendants. Had it been a case of termination of employment then definitely the plaintiff would have been only entitled to damages/compensation in terms of the appointment letter i.e. 15 days' or 30 days' of salary as the case may be. However the facts of the present case are totally different and as per the considered opinion of this Court, the straight-jacket formula of granting 15 days' or 30 days' of salary, as the case may be, towards compensation cannot be applied in the present case.
55. Avoiding prolixity but at the cost of repetition, it is imperative to observe that the defendant no. 2 had infact asked the plaintiff to come the join the duties on 01.05.2015 and when the plaintiff went to join the duties then he was not allowed to join the same despite the fact that the plaintiff had clearly notified the defendant no. 2 that the plaintiff would tender his resignation on receiving the LOI and on receipt of the email dated 04.02.2015 (Ex. PW-1/3), the plaintiff tendered his resignation. It shall not be out of place to mention here that had the defendant no. 2 informed the plaintiff that the offer given to the plaintiff is subject to the approval of the other Mutawallis then the plaintiff might not have CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 36/39 resigned from his existing job. It shall also imperative to mention here that when the plaintiff had applied for the job with the defendant no. 1, the age of the plaintiff was more than 50 years and it is a matter of common knowledge that it is not an easy task to get a fresh employment immediately after leaving an existing job more particularly when a person has left a job in the hope of a better job in hand and is unable to join the so-called better job due to omissions of the future employer.
56. The Hon'ble Supreme Court in the case of Kanchan Udyog Ltd.
(supra) has clearly observed that the Court has to make a best attempt to quantify the losses taking all the significant factors into consideration. The Court has to make a reasonable assessment while coming to a conclusion for granting the compensation so to make good the loss occurred to the aggrieved party if not putting the aggrieved party at par with the past situation where the aggrieved party would have been in the absence of any breach.
57. Therefore keeping in view the overall facts and circumstances of the present case, this Court is of the considered opinion that the plaintiff is entitled to be compensated for the harassment and mental agony faced by the plaintiff at the hands of the defendants. Though the compensation for mental agony and harassment cannot be measured with certainty in monetary figures. However it has been proved on record that the plaintiff was offered an annual package of Rs. 30,00,000/- and was asked to join the duties on 01.05.2015 but due to the facts and circumstances detailed and discussed above, the plaintiff could not join the defendant no. 1. The defendants have CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 37/39 nowhere denied that no such offer was ever given to the plaintiff or that the defendant no. 2 was not competent to offer the said package to the plaintiff more particularly when it has come in the testimony of DW-2 who deposed that the defendant no. 2 was vested with the powers of CEO. Therefore keeping in mind the principles of equity, good conscience and to meet the ends of justice, this Court is of the considered view that the plaintiff is entitled to monetary compensation for the period from 01.05.2015 to 22.06.2015 (i.e. the date of joining to the date when the plaintiff himself sought compensation from the defendants vide Ex. PW-1/13). It shall not be out of place to take note of the fact that had the plaintiff be employed with the defendant no. 1 at the offered package (30 Lakh CTC) then the plaintiff would have got around Rs 1,35,000 - 1,45,000/- per month in-hand salary after deduction of the taxes and other charges but the benefit of the deduction of the taxes would have enjoyed by the plaintiff only therefore in order to narrow-down the exact calculations qua this aspect, this Court is of the considered opinion and it is also deemed appropriate that the plaintiff be granted a lump-sum amount of Rs. 5,00,000/- as compensation for the aforesaid period i.e. from 01.05.2015 to 22.06.2015 as mentioned above. The defendants are thus directed to pay Rs. 5,00,000/- as compensation to the plaintiff within a period of 30 days from date of this judgment failing which the plaintiff shall be entitled to simple interest at the rate of 6% per annum after the expiry of 30 days till realization. These issues are decided accordingly.
58. In view of the aforesaid discussion, the suit of the plaintiff is hereby partly decreed in the above terms.
59. Decree Sheet be prepared.
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 38/3960. The plaintiff is also entitled to the costs of the suit as per the rules.
61. File be consigned to Record Room after due compliance.
Announced in the open Court (Ajay Gulati II)
on 27th August 2022. ADJ-01 (Central)
THC, Delhi.
CS No 141115/2016 ABRAHAM SAMUEL Vs HAMDARD LABORATORIES (INDIA) Page 39/39