Delhi District Court
Kuldeep Chand Sharma vs Acreaty Management Consultant Pvt Ltd on 2 September, 2023
IN THE COURT OF SHRI NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE - 02, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No.9234/16
In the matter of :
Kuldeep Chand Sharma
R/o 4-C, Poket A-14,
Himgiri Apartments
Kalkaji Extension,
New Delhi-110019
..... Plaintiff
Vs.
Acreaty Management Consultant Pvt. Ltd.
208, G.K. House, 187-A Sant Nagar,
East of Kailash,
New Delhi-110065
Also at :
C-22/9, Sector 57,
Noida (NCR) - 201301.
..... Defendant
Date of Institution : 03.12.2015
Date on which arguments
concluded : 07.08.2023
Date of Judgment : 02.09.2023
Result : Decreed
(This judgment is being pronounced by the undersigned after his transfer in
terms of order No.35/G-I/Gaz.IA/DHC/2023 as the case was listed for
pronouncement of the judgment before the transfer order.)
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 1
SUIT FOR RECOVERY OF A SUM OF RS. 11,73,278/- (RUPEES
ELEVEN LACS SEVENTY THREE THOUSAND TWO
HUNDRED AND SEVENTY EIGHT ONLY)
JUDGMENT
This judgment shall govern the disposal of the suit for the recovery of Rs.11,73,278/- instituted on behalf of the plaintiff Sh. Kuldeep Chand Sharma against the defendant herein mentioned above.
2. The case of the plaintiff, as culled out from the plaint, is as under:
Plaintiff, pursuant to an interview, was appointed by the defendant company at the post of Chief Executive Officer (CEO) and the same came into effect from 01.04.2013. The terms of the appointment of the plaintiff were governed by an appointment letter dated 01.05.2013, issued by the defendant company to the plaintiff.
As per the appointment letter, the salary of the plaintiff was fixed at Rs.10,00,000/- per annum and besides the said salary, as per clause 4 of the appointment letter, he was also entitled for 10% of sharing in net profit, after tax, over last year's business. Plaintiff tendered his resignation on 01.02.2015 which was duly considered by the defendant company and in terms of clause 7 of the appointment letter, he, after serving of three months (notice period), was relieved by the defendant company on 30.04.2015.
Plaintiff worked with the defendant company with utmost hard work, honesty and sincerity as acknowledged and CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 2 certified by the defendant company vide its certificate dated 02.05.2015. Plaintiff vide cheque for a sum of Rs.63,800/- bearing number 003618 dated 07.05.2015, drawn on HDFC Bank, was remitted salary for the month of April 2015.
As per the stipulation contained in the appointment letter, the plaintiff was entitled to 10% sharing in net profit over last year's business of the defendant company, after tax. However, despite repeated requests of the plaintiff, the said 10% share, out of company's profit of financial year 2013-2014 was not remitted to him, to which he was fully entitled to. When despite repeated verbal requests, the defendant did not remit the said amount, the plaintiff was constrained to write mails to the concerned officials/directors of the defendant company. Despite receipt of the said emails, the plaintiff did not receive any satisfactory reply. Plaintiff has worked with the defendant company from 01.04.2013 till 30.04.2015 and as such, he is entitled to 10% share in the net profit earned by the company, after deduction of tax, for the financial year 2013-14, 2014-15 and one month of financial year 2015-16.
Perusal of the defendant company's balance sheet for the financial year 2013-14 shows that it has earned net profit of Rs. 52,91,393/- after tax and as per the said balance sheet, the Plaintiff is entitled to sum of Rs. 5,29,139/- towards 10% of profit sharing for the financial year 2013-2014, which is payable to the plaintiff by the defendant Company. Assuming the profit of the defendant Company to be same as that of the previous year, plaintiff is also entitled to a further sum of Rs. 5,29,139/- towards 10% of the profit sharing for the Financial year 2014-2015. The Plaintiff is also entitled to interest on the said CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 3 amounts @ 18% p.a. from 28.08.2014 on Rs.5,29,139/- and from 1.4.2015 on amount of Rs. 5,29,139/- till the actual remittance of the entire payable amount, by the defendant to the Plaintiff. However, despite repeated requests/reminders of the plaintiff, the said 10% share out of company's profit of financial year 2013-14 and 2014-2015 and one month of financial year 2015-16 was not paid to him. Under said compelling circumstances, plaintiff sent legal notice dated 20.05.2015 to the defendant. However, despite receipt of legal notice, the defendant company neither replied or refuted the same nor has remitted the outstanding amount to the plaintiff. In view thereof, plaintiff was left with no option but to file the present suit.
3. Summons of the suit were issued to the defendant, however, the same were refused by the defendant and thereafter, the then Ld. Presiding Officer declared the same as deemed service and since no one had appeared on behalf of the defendant, it was proceeded ex-parte vide order dated 04.03.2016. Plaintiff led ex-parte evidence and vide order dated 31.05.2017, ex-parte plaintiff's evidence stood closed. Thereafter, ex-parte final arguments were heard by the then Ld. Presiding Officer and vide ex-parte judgment dated 09.06.2017, the suit of the plaintiff was decreed.
4. But ex-parte judgment dated 09.06.2017 was set at naught vide order dated 07.06.2019 on an application moved on behalf of the defendant under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) and defendant was accorded an opportunity to file written statement to the present suit within the statutory period.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 4
5. Written statement came to be filed on behalf of the defendant wherein it contested the suit of the plaintiff and stated that the suit is not maintainable as the plaintiff has got no cause of action and has suppressed material facts. It is further submitted that present suit is filed by the plaintiff on self assumed amount/profit of the defendant as he had not filed any strict proof which reflect the net profit of the defendant.
6. It is further stated that the plaintiff had already received his net profit share i.e. a sum of Rs.17,34,685/- for financial year 2013-14 and Rs.4,89,463/- for financial year 2014-15 as per the clause No.4 in his appointment letter dated 01.05.2013 except salary.
7. It is further averred that the director of the defendant i.e. Mr. Paramjit Anand and plaintiff had good friendly relations since past many years and plaintiff requested to Mr. Paramjit Anand that he was in dire need of money and his house was on construction mode and he requested for the money, and as per mutual understanding, they both decided that the plaintiff can take the part payment from the company's account to his own account and the same would be settled at the end of the year at the time of his net profiting shares i.e. 10% in company's net profit.
8. It is further stated that plaintiff worked under the defendant's company since 2013-15 and if plaintiff had not received his share in the year 2013-15, then how the plaintiff continued his job for the next year and as the plaintiff had already taken more than his 10% of net profit and, therefore, Mr. Paramjit Anand objected the same, however, plaintiff requested to Mr. Paramjit Anand that the balance would be adjusted in the next year.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 5
9. It is further submitted that as per the appointment letter dated 01.05.2013, plaintiff was entitled a gross salary of Rs.83,333/- which includes reimbursement of vehicle running and maintenance expenses of including driver, though, defendant paid a salary of Rs.1,59,579/- yearly in the year 2013-14 by way of cheque/NEFT and Rs.1,73,747/- in the year 2014-15 for the demand of the plaintiff.
10. It is also stated that the net profit of the company in financial year 2013-14 was Rs.42,41,721/- and in financial year 2014-15, was Rs.42,94,222/-, 10% of which came to Rs.8,53,594.30/- and on several occasions, Mr. Paramjit Anand requested to the plaintiff to clear the outstanding balance which he had received intentionally but all the time, plaintiff gave false statement and lingered the same.
11. As plaintiff was the CEO of the company, he had power over the financial department and also to transfer money to any person without taking any permission from anyone and due to this reason, he transferred the money to his account more than his 10% net profit share.
12. It is further stated that at the time of plaintiff's resignation, he did not pray or demand any money for the clearance of his 10% net profit as he received a sum of Rs.63,800/- as his salary and Rs.15400/-, for his leave encashment and Rs.61000/- as a salary for the month of March 2015, and the plaintiff is not liable for one month profit of year 2015 as he had not continued his job.
13. Replication also came to be filed on behalf of the plaintiff wherein the defence taken in the written statement was demurred and the averments made in the plaint were reiterated. Over and above, it was CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 6 submitted that plaintiff was made to incur expenses for the defendant company by Mr. Paramjit Anand and his wife Mrs. Neeru Anand, which was reimbursed to him. Those expenses were towards tours/travels, booking train and flight tickets, expenses for uniforms, fuel, toll charges for company vehicles, office gen-set etc. Plaintiff also admitted having friendly relation with Mr. Paramjit Anand, director of the defendant. Plaintiff further averred that even as per the documents filed by the defendant, the net profit of the defendant for the year 2013-14 was Rs.53,26,760/- and for the year 2014-15, it was Rs.44,40,641/-.
14. The consummation of pleadings was followed by framing of issues which are as under:
Issue no.1 :- Whether plaintiff is entitled for recovery of the suit amount as claimed? OPP.
Issue no. 2 :- Whether defendant has already paid due amount of the plaintiff and there is no liability of the defendant? OPD. Issue no. 3 :- Whether the plaintiff is entitled for interest, if so at what rate and for which period? OPP.
15. For recording of evidence, case was assigned to Sh. Parth Kaushik, Ld. Advocate, who was appointed as Local commissioner as per Order 18 Rule 4 (2) CPC and after recording of evidence from both the sides, he submitted his final report.
16. Sh. Kuldeep Chand Sharma was examined as PW1 vide his affidavit Ex.PW1/A, who relied upon the documents showcased as under:
Copy of appointment letter as Ex.PW1/1 (OSR); The original printout of the resignation email dated 01.02.2015 as CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 7 Ex.PW1/2 (objected by defendant);
Copies of resignation acceptance letter with certificate are Ex.PW1/3 (OSR) (Colly);
Copy of cheque vide which salary for April 2015 is Mark A; Printouts of email dated 28.02.2015 and follow up email dated 11.05.2015 requesting for payment are Ex.PW1/4 and Ex.PW1/5 (objected by defendant);
Printout of balance sheet, P/L Account and auditors report of the defendant company downloaded from ROC Website as Ex.PW1/6 (pages 4 to 19) (objected by defendant);
Office copy of legal notice dated 14.02.2020 under Order 12 Rule 8 CPC read with Section 65 and 162 of Indian Evidence Act, three original postal receipts, printouts of three tracking reports downloaded from India Post website and original reply dated 24.08.2020 on behalf of the defendant are Ex.PW1/7, Ex.PW1/8 (Colly), Ex.PW1/9 (objected by defendant), Ex.PW1/10 (objected by defendant), Ex.PW1/11 (objected by defendant) and Ex.PW1/12 respectively;
Office copy of expense details from 16.4.2013 to 19.4.2013 mentioned as Ex.PW1/13 in the affidavit is now marked as Mark F;
Copy of cheque dated 24.04.2013 for Rs.66,979/- and pay in slip for the same Mark B;
Office copy of travel and office expense details from 29,4.2013 to 4.5.2013 Ex.PW1/14 (objected by defendant);
Office copy of Expense details from 16.6.2013 to 20.6.2013 Ex.PWl/15 (objected by defendant);
Copy of Citi bank bill due on 8.7.2013 Ex.PW1/16 (OSR);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 8 Office copy of Expense details from 14.7.2013 to 19.7.2013 Ex.PW1/17 (objected by defendant);
Copy of HDFC bank bill due on 26.08.13 Ex.PW1/18 (OSR); Office copy of Expense details from 04.09.2013 to 07.09.2013 Ex.PW1/19 (objected by defendant);
Office copy of Expense details from 25.8.2013 to 30.8.2013 Ex.PW1/20 (objected by defendant);
Copy of HDFC bank bill due on 26.09.2013 Ex.PW1/21 (OSR); Copy of HDFC bank bill due on 26.10.2013 Ex.PW1/22 (OSR); Office copy of Expense details from 23.9.2013 to 26.9.2013 mentioned as Ex.PW1/23 in the affidavit is now marked as Mark- G;
Original Print out of IRCTC ticket booked on 22.9.2013 downloaded from IRCTC website Ex.PW-1/24 (objected by defendant);
Original printout of IRCTC ticket booked on 16.10.2013 downloaded from IRCTC website Exhibit PW-1/25 (objected by defendant);
Office copy of Expense details from 12.12.2013 to 15.12.2013 Exhibit PW-1/26 (objected by defendant);
Office copy of Expense details from 24.12.2013 to 25.12.2013 Exhibit PW-1/27 (objected by defendant);
Copy of HDFC bank bill due on 26.1.2014 Exhibit PW-1/28 (OSR);
Office copy of Expense details dated 15.2.2014 Exhibit PW-1/29 (objected by defendant);
Original printout of IRCTC ticket booked on 24.1.2014 Exhibit PW1/30 (objected by defendant);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 9 Original printout of IRCTC ticket canceled on 5.2.2014 Exhibit PW-1/31 (objected by defendant);
Original printout of IRCTC ticket canceled on 27.1.2014 Exhibit PW-1/32 (objected by defendant);
Copy of HDFC bank bill due on 26.2.2014 Exhibit PW-1/33 (OSR);
Copy of car service invoice Exhibit PW-1/34 (objected by defendant);
Office copy of expense details dated 14.6.2014 for Rs.11,763.11 ps Exhibit PW-1/35 (objected by defendant);
Original printout of IRCTC ticket booked on 31.3.2014 & 11.04.2014 and also refund process Exhibit PW-1/36 (Colly) (objected by defendant);
Office Copy of expense details dated 14.6.2014 for Rs.9,589.57 ps Exhibit PW-1/37 (objected by defendant);
Original printouts of IRCTC ticket booking on 12.4.2014, 22.4.2014, 26.4.2014 Exhibit PW-1/38 (Colly) (objected by defendant);
Copy of HDFC bank bill due on 26.5.2014 Mark-C;
Office Copy of Expense details dated 14.6.2014 for Rs.3,940.56 ps Exhibit PW-1/39 (objected by defendant);
Original printouts of IRCTC ticket bookings on 18.4.2014, 08.4.2014, 15.4.2014, 26.04.2014 & 14.05.2014 Exhibit PW-1/40 (Colly) (objected by defendant);
Copy of HDFC bank bill due on 26.6.2014 Mark-D;
Copy of receipt dated 7.7.2014 and car service invoice on 7.7.2014 Exhibit PW-1/41 (Colly) (objected by defendant);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 10 Offices copies of receipts dated 07.07.2014 for purchase of uniforms, diesel for company vehicle Xylo, office genset, paper and stationery for office, fuel for company vehicles Exhibit PW1/42 to Exhibit PW-1/46, respectively (objected by defendant); Copy of journal voucher dated 22.7.2014 Exhibit PW-1/47 (colly) (objected by defendant);
Office copy of expense details 12.07.2014 Exhibit PW1/48 (objected by defendant);
Original printout of IRCTC ticket booked on 18.5.2014, with original printout of IRCTC ticket booked on 18.5.2014, 15.5.2014, 20.5.2014, 15.5.2014, 20.5.2014, 20.5.2014, 21.5.2014, 17.5.2014, 19.5.2014 and also cancellations/emails are Ex.PW- 1/49 (Colly) (objected by defendant);
Office copy of expense details dated 12.7.2014 is Ex.PW-1/50 (objected by defendant);
Original printout of IRCTC ticket booked on 28.6.2014 and also cancellations/emails Ex.PW-1/51 (Colly) (objected by defendant); Office copy of expense details dated 12.7.2014 Ex.PW-1/52 (objected by defendant);
Original printouts of IRCTC ticket booked on 18.6.2014, 18.6.2014, 19.06.2014, 27.06.2014, 27.06.2014, 19.06.2014, 05.07.2014, 05.07.2014, 31.03.2014 & 02.07.2014 are Ex.PW- 1/53 (Colly) (objected by defendant);
Copy of credit card statement payable by 26.4.2014 is Mark E; Copy of receipt dt. 11.8.2014 by plaintiff, order no.229909 dt. 15.7.2014 and bill receipt no. 139203 dated 15.07.2014 from Godrej for purchase of 4 drawer filing cabinet for office are Ex.PW-1/54 (Colly) (objected by defendant);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 11 Office copy of receipt for sum of Rs.1300/- on 11.8.2014 for uniforms Ex.PW-1/55 (objected by defendant);
Office copy of receipt for sum of Rs.8025/- dt. 11.8.2014 for uniforms Ex.PW-1/56 (objected by defendant);
Office copy of receipt for sum of Rs1000/- dt. 11.8.2014 for Toll for company vehicle Xylo Ex.PW-1/57 (objected by defendant); Office copy of receipt for sum of Rs.8676/- dt. 11.8.2014 towards diesel for office genset is Ex.PW-1/58 (objected by defendant); Office copy of receipt for sum of Rs.2163/- dt. 8.9.2014 for bill of phone no. 033-40031567 for Kolkata Office Ex.PW-1/59 (objected by defendant);
Office copy of receipt for sum of Rs.12565/- dt. 8.9.2014 for repair of company car DL-3C-AL8739 is Ex.PW-1/60 (objected by defendant);
Office copy of receipt for sum of Rs.12654/- dt. 8.9.2014 towards fuel, DND toll, electronic monitoring for company vehicles is Ex.PW-1/61(objected by defendant);
Office copy of expense details dated 15.9.2014 is Ex.PW-1/62 (objected by defendant);
Original printouts of IRCTC ticket booked on 10.08.2014, 10.08.2014, 23.8.2014 & 23.08.2014 are Ex.PW-1/63 (Colly) (objected by defendant);
Office copy of receipt for sum of Rs.8845/- dt. 8.10.2014 for office genset diesel and Rs.13,156/- towards fuel for different company vehicles are Ex.PW-1/64 (Colly) (objected by defendant);
Office copy of receipt for sum of Rs.661/- dt. 8.10.2014 towards reimbursement for lunch during official meeting is Ex.PW-1/65 (objected by defendant);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 12 Office copy of receipt for sum of Rs.8845/- dt. 8.11.2014 towards diesel for office genset for October-14 is Ex.PW-1/66 (objected by defendant);
Office copy of receipt for sum of Rs.918/- dt. 8.10.2014 for scooty insurance renewal and office copy of receipt for sum of Rs.24,490/- dt. 8.11.2014 towards purchase of HP Laptop for Manu M Nair with original print out of bill from Flipkart dt. 17.10.2014 are Ex.PW-1/67, Ex.PW-1/68 and Ex.PW-1/69 respectively (objected by defendant);
Office copy of receipt for sum of Rs.2000/- dt. 8.12.2014 for DND toll payments for company vehicles Ex.PW-1/70 (objected by defendant);
Office copy of receipt for sum of Rs.2327/- dt. 8.12.2014 for purchase of diesel for company vehicle Xylo is Ex.PW-1/71 (objected by defendant);
Office copy of receipt for sum of Rs.8222/- dt. 8.1.2015 paid for renewal of insurance of company vehicles during month of December, 2014 and office copy of receipt for sum of Rs.2625.50ps dt. 8.1.2015 for diesel for office genset are Ex.PW- 1/72 (Colly) (objected by defendant);
Copy of receipt for sum of Rs.42,512/- dt. 8.1.2015 for repair of company vehicles in December, 2014 is Ex.PW-1/73 (objected by defendant);
Office copy of receipt for sum of Rs.1500/- dt. 8.1.2015 for DND recharge for company vehicle is Ex.PW-1/74 (objected by defendant);
Office copy of receipt for sum of Rs.3950/- dt. 8.1.2015 for purchase of diesel for company vehicle Xylo is Ex.PW-1/75 (objected by defendant);
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 13 Office copy of receipt for sum of Rs.4351/- dt. 9.2.2015 for diesel and DND toll for Xylo and Rs.3055/- dt. 9.2.2015 insurance policy of company vehicle Omni are Ex.PW-1/76 (Colly) (objected by defendant);
Office copy of receipt for sum of Rs.4694/- dt. 9.2.2015 for diesel for office genset and Rs.752.47 ps dt. 9.2.2015 for DND Card and CNG for company vehicle, Eeco during January, 2015 are Ex.PW- 1/77 (Colly) (objected by defendant);
Office copy of receipt for sum of Rs.1956.46 and Rs.675 both dt. 9.2.2015 for fuel for Fortuner, company vehicle in January, 2015 and snacks on way after official meetings are Ex.PW-1/78 (Colly) (objected by defendant);
Office copy of expense statement dated 12.2.2015 Ex.PW-1/79 (objected by defendant);
Original printouts of IRCTC ticket booked on 29.1.2015 & 25.1.15 and printout of screen shot of IRCTC bookings cancellation dated 1.2.2015 are Ex.PW-1/80 (Colly) (objected by defendant);
Office copy of receipt for sum of Rs.1680/- dt. 9.4.2015 for DND Cards for company vehicles, Fortuner and Xylo and Rs.12701/- dt. 9.4.2015 for insurance renewal of Xylo and Honda M/cycle in March, 2015 are Ex.PW-1/81 (Colly) (objected by defendant); Office copy of receipt for sum of Rs.2332/- and Rs.3656/- both dt. 9.3.2015 for diesel for office genset and for Xylo are Ex.PW-1/82 (Colly) (objected by defendant);
Original print out of email dated 09.04.2014 sent by plaintiff to Paramjit Anand sharing his train tickets is Ex.PW-1/83 (objected by defendant);
Original print out of email dated 18.04.2014 sent by plaintiff to CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 14 Paramjit Anand sharing his train tickets is Ex.PW-1/84 (objected by defendant);
Original print out of email dated 15.05.2014 sent by plaintiff to Paramjit Anand and others of defendant company sharing train ticket of another official is Ex.PW-1/85 (objected by defendant); Original print out of emails dated 14.05.2013, 14.05.2013, 14.04.2013, 14.04.2013 and 30.01.2015 sent by plaintiff to Paramjit Anand Sharing his tickets are Ex.PW-1/86 (Colly) (objected by defendant);
Copy of Form-16 issued by defendant for FY 2013-15 is Ex.PW- 1/87 (OSR);
Printout of Form 26-AS of plaintiff for FY 2015-16 is Ex.PW-1/88 (objected by defendant);
The original printouts of the bank statement of ICICI Bank from and of HDFC Bank from 01.04.2013 till 31.07.2015 and from 01.04.2013 till 01.04.2016 are Ex.PW-1/89 (Colly) and Ex.PW- 1/90 (Colly) respectively (objected by defendant); Office copy of the legal notice along with postal receipts are Ex.PW-1/91 (Colly);
Copy of certificate u/s 65-B Indian Evidence Act r/w Section 4 IT Act Ex.PW-1/92 (objected by defendant);
Objection: The Counsel for the defendant has strongly objected to the manner and mode of proof of documents tendered by the plaintiff.
PW-1 was also cross-examined on behalf of the defendant.
17. Sh. Kartik Pandey, Deputy Manager of HDFC Bank was examined as PW-2 who relied upon the following documents:
Record which are printout of account opening form of Mr. CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 15 Kuldeep Chand Sharma obtained from computer system of the bank and the same is duly stamped by the bank as Ex.PW2/1; Printout of KYC documents of Mr. Kuldeep Chand Sharma comprising of PAN Card and Voter ID Card obtained from computer system of the bank and the same is duly stamped by the bank as Ex.PW2/2 and Ex.PW2/3 respectively; Printout of bank statement of Mr. Kuldeep Chand Sharma bearing A/c No. 00271000193681 with the branch for the period w.e.f. 01.04.2013 to 31.05.2015 obtained from computer system of the bank and the same is duly stamped by the bank which is Ex.PW2/4 (running into 25 pages).
The certificate under Section 65B which has been signed by Ms. Neelima Mamgain, Branch Operation Manager and the same is Ex.PW2/5.
PW-2 was also cross-examined on behalf of the defendant.
18. Sh. Arjun Kumar, Relationship Manager, ICICI Bank was examined as PW-3 who relied upon the following documents:
Copy of account opening form of bearing a/c no. 017701538243 and supporting documents of Mr. Kuldeep Chand Sharma obtained from computer system of the bank and the same is duly stamped by the bank as Ex.PW3/1 (colly) (running into 9 pages); Printout of bank statement of Mr. Kuldeep Chand Sharma bearing a/c no. 017701538243 with the branch for the period w.e.f. 01.04.2013 to 31.05.2015 obtained from computer system of the bank and the same is duly stamped by the bank as Ex.PW3/2 (colly) (page no.10-25).
19. In defendant's evidene, Sh. Kunwarjeet got himself CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 16 examined as DW1 vide his affidavit Ex.DW1/A, who relied upon the documents as under:
Certified true copy of Board Resolution dated 06.12.2021 as Ex.DW-1/1 (Objected by the counsel for the plaintiff on the ground that the witness has not brought the original minutes book and the same is only certified true copy of the document and should be de-exhibited and marked);
Copy of ledger dated 1.4.2013 to 31.3.2014 with Section 65B certificate is marked as Ex.DW-1/2 (objected by counsel for plaintiff as to mode of proof).
Copy of bank statements dated 01.04.2013 to 31.03.2015 is Ex.DW1/3 (Colly) (pages 36 to 62, 64 to 65, 67 to 69, 69, 71, 73, 75, 77, 79, 81, 83, 92, 94, 96, 98, 100, 101, 103, 105, 107, 109, 111, 114 to 145) (Objected by the counsel for plaintiff as to mode of proof);
Copy of ledger dated 1.4.2014 to 31.3.2015 filed with section 65B Certificate is marked as Ex.DW1/4 (Objected by the counsel for plaintiff as to mode of proof);
Copy of letter dated 12.6.2015 issued by defendant to HDFC Bank thereby withdrawing authority of the defendant as signatory on behalf of the defendant as Mark 'A'.
Certificate of Section 65B dated 22.7.2022 Ex.DW1/5 (which is mentioned in evidence by way of affidavit as Ex.DW1/8) (Objected by the counsel for plaintiff).
Documents mentioned in evidence by way of affidavit as Ex.DW1/6 and DW1/7 are not available on record and thus de- exhibited.
Objection: The counsel for the plaintiff has strongly objected to the manner and mode of proof of documents tendered by the defendant. CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 17
20. Sh. Salman Khan, Sales Manager HDFC Bank was examined as DW-2. He relied upon the following documents i.e. the summoned record which is printout of bank statement year 01.07.2013 to 30.11.2013 vide account no. 02948180000017 obtained from computer system of the bank and the same is duly stamped by the bank which is Ex.DW2/1 (running into 5 pages). Objection: Objected on the ground that statement of account is not duly certified as per the Bankers Book of Evidence Act. Original Authority Letter from HDFC Bank, Lajpat Nagar
-IV branch is Ex.DW2/2.
Court Observation: Objection is rejected as the non-certification of the statement of account is a mere irregularity, not affecting its admissibility, the same being produced by the bank official having due authorization.
21. Sh. Ajay Kumar, Deputy Manger-Retail Branch Banking, HDFC Bank was also examined as DW-3. He relied upon the following documents i.e. original authority letter friom HDFC Bank, Sector-62, Noida Branch is Ex.DW3/1, the summoned record which are printouts of bank statement for the year 01.04.2013 to 31.03.2015 vide account no. 03948020000142 obtained from computer system of the bank and the same is duly stamped by the bank as Ex.DW3/2 (running back to back into 1055 pages). Objection: Objected on the ground that the statement of account is not duly certified as per the Banker's Book of Evidence Act.
Court Observation: Objection is rejected as the non-certification of the statement of account is a mere irregularity, not affecting its admissibility, the same being produced by the bank official having due authorization. CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 18
22. From the side of the plaintiff, Ld. Counsels Sh.Vikrant Arora and Sh. Dinesh Manocha and on behalf of defendant, Sh. Mayank Mahendru, advanced the arguments.
23. Ld. Counsels for plaintiff broached the case and ambitiously iterated the facts of the case as per the plaint and emphasized that as per the appointment letter, plaintiff is entitled to 10% of the profits, and there is no dispute about his entitlement. It is also not a disputed position that the plaintiff had resigned from the defendant company w.e.f 01.02.2015 through email, post which his final payment was cleared and commending letter was also given. The plaintiff was denied his legitimate claim of profits, in regard to which legal notice was issued to the defendant, the receipt of which is denied, but presumption under Section 27 of General Clauses Act would come to fore. Ld. Counsel further pointed that the defendant company earned profits of Rs.53 lacs in the first year and Rs.42 lacs in the next year, and to demonstrate that, balance sheet of the defendant is on record, though in their written statement, they are saying this to be the gross profits and not the net profits. Ld. Counsel further pointed out that defendant has failed to shown any accounts to substantiate their version that some advance amount was paid that was given to the plaintiff. Ld. Counsel then took the Court through the cross-examination of defendant's witness. Ld. Counsel also referred to the testimony of the bank witnesses summoned on behalf of the plaintiff, who have furnished the details of the bank accounts. Ld. Counsel further stressed that he has produced the documents demonstrating the monies given to the plaintiff, which were spent by him for various purposes of the company.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 19
24. On the contrary, Ld. Counsel for the defendant countered the case of the plaintiff by expounding that being the CEO of the defendant company, plaintiff was the signatory in the bank accounts and some withdrawals were made by him, which have been adjusted. Ld. Counsel alluded to paragraph 6 of the written statement to assert his plea of set off of various expenses. Ld. Counsel further emphasized that plaintiff has not disclosed all his bank account statements, and the bank statements produced by him with replication were without any certificate under Section 65B of Indian Evidence Act. Ld. Counsel further took the Court through the cross-examination of PW-1, PW-2 and PW-3 to point out various infirmities in the case of the plaintiff. Ld. Counsel also asserted that majority of the documents filed are photocopies or print outs, which have not been proved in accordance with law. In regard to the certificate under Section 65B of Indian Evidence Act, Ld. Counsel has assailed the vagueness of the certificate on the ground that there is not a single averment as to who has personally taken out the print, and from which computer. Ld. Counsel also put forth that plaintiff did not leave the job because he was denied his 10% profit, but because he claimed to have shifted somewhere else.
25. Having heard the rival contentions from both the sides, I now render my issue wise finding herein under.
26. Issue no.1 :- Whether plaintiff is entitled for recovery of the suit amount as claimed?
And Issue no. 2 :- Whether defendant has already paid due amount of the plaintiff and there is no liability of the defendant?
26.1 Issue no.1 and 2 are taken up together, both being CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 20 concatenated. Before delving deep into the testimony adduced by both the sides, let us ascertain the long and short of the pleadings. As per the plaint, plaintiff was appointed by the defendant company as Chief Executive Officer w.e.f 01.04.2013 vide appointment letter dated 01.05.2013 Ex.PW-1/1, at annual salary of Rs.10 lac. Besides this, as per clause 4 of the appointment letter, the plaintiff was also entitled to 10% share in net profit, after tax, in a financial year. The plaintiff submitted his resignation on 01.02.2015, which was duly considered by the defendant company and in terms of clause 7 of the appointment letter Ex.PW-1/1, plaintiff after serving during the notice period of 3 months, was relieved by the defendant company on 30.04.2015.
26.2 As against the aforesaid pleadings, on behalf of the defendant, there has been no expostulation, as in the written statement on behalf of defendant, neither the fact of the appointment of the plaintiff is disclaimed nor the salary part, and nor the entitlement of the plaintiff to 10% of the net profit for the period 2013 till 2015. The stand of the defendant rather is that plaintiff has already received his net profit share as per clause 4 of the appointment letter Ex.PW-1/1.
26.3 In so far as the quantum of the profit generated by the defendant company during the relevant period, there is some discordance. Plaintiff, in the plaint, has alleged that the defendant company earned net profit of Rs.52,91,393/- after debts for the financial year 2013-14, and the same amount of profit can be assumed for the financial year of 2014-15, whereas as per the written statement, defendant has claimed to have earned the net profit of Rs.42,41,721/- for the financial year 2013-14 and Rs.42,94,222/- in the financial year 2014-
15. In the replication, it is alleged by the plaintiff that as per the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 21 documents filed by the defendant itself, the net profit for the year 2013- 14 is Rs.53,26,760/- and for the year 2014-15, it was Rs.44,40,641/-. Be that as it may, the amount of the net profit would become germane, only if plaintiff is found entitled to claim 10% of the same.
26.4 Since, the defendant in the written statement, has not dis- affirmed the entitlement of the plaintiff to receive 10% of the profit for the financial years 2013 to 2015, let us now succinctly note its stand in this regard. As per the written statement, the plaintiff being the CEO of the defendant company, had the power, and who was the Head of finance department as well and had already received a sum of Rs.17,34,685/- in the financial year 2013-14 and Rs.4,89,463/- in the financial year 2014- 15, besides his salary. It is also pleaded that director of the defendant i.e. Mr. Paramjit Anand and plaintiff were friends with each other and the plaintiff entreated him to take the part payment from the company's account as he was in emergent need of money for his house which was under construction and it was agreed that the same would be settled at the end of the year at the time of taking 10% share in the company's profit. Apart from this, it is also pleaded that though the plaintiff was entitled to a gross salary of Rs.83,333/- per month which included a reimbursement of vehicle running and maintenance expenses, including the driver, but he was also paid a sum of Rs.1,59,579/- in the year 2013- 14 by way of cheque/NEFT and Rs.1,73,747/- in the year 2014-15. It is pleaded that the total amount of money received by the plaintiff from the year 2013 till 2015 excluding the salary and driver salary comes to Rs.21,63,148/-, as per the ledger of the defendant company. Defendant has also furnished the details of the bank accounts in which the plaintiff is alleged to have taken the monies, which are account no. 017701538243 of ICICI Bank and account no. 00271000993681 of CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 22 HDFC Bank.
26.5 From the aforesaid, it is discerned, that the controversy lies in a narrow compass that whether the plaintiff during the period of his employment had received various payments from the defendant on an agreement that those payments would be in lieu of his 10% share in the company's profit, or whether those payments were distinct from the entitlement of the plaintiff to the 10% share in the company's profit and to ascertain this, a bone deep analysis of the evidence adduced by both the sides is warranted.
26.6 At this juncture, let me deal with the argument on behalf of the plaintiff as regards the incompetency of witness DW-1 on the premise that only board resolution has been filed in support of his authorization without placing the original minutes book. As per the testimony of DW-1, he was appointed as the authorized representative of the defendant company vide board resolution dated 06.12.2021, certified true copy of which is Ex.DW-1/1.
26.7 Before rendering any finding on it, let us see the position of the law in regard to the irregular board resolution. In the judgment of High Court of Delhi in Pawan Kumar Dalmia Vs. M/s HCL Infosystems Ltd. & Ors, date of decision 13.03.2012, following paragraph is relevant:
"9. One of the arguments urged on behalf of the appellant is that the written statement was not signed by a duly authorized person and therefore the same could not have been looked into. This argument is a wholly frivolous CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 23 argument because the legal position in this regard is well settled after the decision of the Supreme Court in the case of United Bank of India vs. Naresh Kumar & Ors. AIR 1997 SC 3 and which is that suits which are filed by companies should not be dismissed on technical grounds, once those suits are contested to the hilt, i.e. right till the end. The ratio of the judgment in the case of United Bank of India (supra) will also squarely apply even where a company is a defendant i.e. to the facts of the present case as the defences contained in the written statement of a company cannot be ignored on a mere technical plea of lack of authority in the person inasmuch as all the suits have been contested to the hilt, evidence led by both the parties, witnesses of both the parties have been extensively cross examined and thereafter the matter was argued in detail resulting in passing of the final judgments in these suits. I may for the sake of completeness state that there is an original power of attorney available in the file, and so also noted by the trial Court, which allows the contesting of the suits by one Mr. H. N .Mathur and the written statement bears the signature of said Mr. H. N. Mathur."
26.8 On the strength of the aforesaid observation, I hold that the non-production of original minute book is a mere irregularity, not impacting the competency of DW-1 to depose in the present suit on the basis of board resolution Ex.DW-1/1, and thus there is no legal hassle in considering his testimony.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 24 26.9 DW-1 Sh. Kunwarjeet Yadav, Authorized Representative/Account Manager, has deposed vide his affidavit Ex.DW- 1/A and produced copy of the ledger dated 01.04.2013 to 31.03.2014 alongwith certificate under Section 65B of Indian Evidence Act Ex.DW- 1/2, copy of ledger dated 01.04.2014 to 31.03.2015 alongwith certificate under Section 65B of Indian Evidence Act Ex.DW-1/4. But, on poring over his cross-examination, this witness appears to be completely ill- informed who failed to give any substantive responses to the queries of Ld. Counsel for the plaintiff. He claimed to have been employed with the defendant company since August 2021, which implies, that he was not with the defendant company during the relevant time, and had deposed on the bedrock of the information being fed to him on behalf of defendant company. Nonetheless, I now deal with the germane excerpt of his testimony, which is reproduced herein under for reference.
"On 22.07.2022 The witness has been confronted with para no.3 of Ex.DW1/A. Ques. What is the basis of the averments made in the said para no.3 and clarify whether the same is within your personal knowledge or whether the same has been informed to you.
Ans. I have been informed by Mr. Paramjit Anand and the same is not in my personal knowledge.
The witness has been confronted with para no.5 of Ex.DW1/A. Ques. What is the basis of the averments made in the said para no.5 and clarify whether the same is within your personal knowledge or CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 25 whether the same has been informed to you.
Ans. I have been informed by Mr. Sanjeev Chandra and the same is not in my personal knowledge. The witness has been confronted with para no.6 of Ex.DW-1/A. It is correct that I was not present at the time of the alleged full and final settlement of the plaintiff. I have no idea about the reimbursement entries/payments made to the plaintiff by the defendant company. I have no idea and also I cannot show any document which states that the full and final settlement of the accounts of the plaintiff has been made by the defendant company. I cannot even confirm about the reimbursement entries in the accounts in relation to the plaintiff.
On 23.08.2022 It is correct that the reimbursement by the defendant company is only against the voucher raised and signed by the employee, otherwise not. It is also correct that the accounts of the defendant company are regularly audited. It is also correct to say that if in case of any discrepancy while audit of the records, the auditors seek the relevant records pertaining to said discrepancy.
The witness is confronted with para no.7 of Ex.DW1/A and has been put with the following question:
Ques: Is there any letter/representation on behalf of the defendant company seeking the record/documents pertaining to reimbursements obtained by the plaintiff from the defendant for the reimbursements as stated CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 26 in this para?
Ans. I have knowledge regarding any such letter/representation made by the defendant to the plaintiff.
Ques: I put it to you that the plaintiff had submitted all the vouchers with supporting documents in relation to the expenses made by him on behalf of defendant company for reimbursements which was regularly being made by the company and that there had been no discrepancy in the same and as such no letter/representation was made by the defendants to the plaintiff on the said context? Ans: I have no knowledge about the same. Ques: Can you explain on what basis you have made th averments in para no.7 of Ex.DW1/A? Ans. The averments made in para no.7 of Ex.DW1/A are on the basis of the information given by the management of the defendant company. Vol. I have no knowledge regarding any written letters/representations between the plaintiff and the defendant company regarding reimbursements.
The defendant company releases the amount of expenses incurred by their employees on the basis of the claim vouchers even without any supporting documents. Again said, the defendant company releases the voucher without supporting documents in rare cases and thereafter also requires the said documents.
Ques: Can you give the details of the alleged payments of net profit by the defendant company to the plaintiff as stated in para no.8 CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 27 of Ex.DW1/A?
Ans. I have no knowledge.
Ques: You have stated in para 8 that the plaintiff has already received an excessive payment towards the share in profit in addition to the salary as per entitlement. Can you tell how much excessive amount has been received by the plaintiff on that account? Ans. I have no knowledge.
Ques: I put it to you that you have deliberately not produced the records i.e. vouchers with supporting documents of the expenses given by the plaintiff to the defendant company at the relevant time during his course of employment for reimbursement of the expenses made by the plaintiff on behalf of the defendant company from time to time as per the instructions and requirements of the defendant company which were duly reimbursed to the plaintiff at the relevant time? Ans. I have no knowledge about the same.
It is wrong to suggest that I have given false statement in para no.10 and 11 of Ex.DW1/A regarding the expenses, vouchers and reimbursements made by the defendant to the plaintiff at the relevant time.
Ques: The witness is confronted with an entry dated 23.08.2013 regarding payment of Rs.35,000/- mentioned in the said statement Ex.DW1/2 and has been asked to give the details of the said entry and refer the relevant records/documents pertaining to the said entry. Ans. I cannot give the details of the said entry at point 'A'. (Vol. I'll have to verify the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 28 records of the court from the office records. There are some payments which have been made by the plaintiff on his own to himself). Ques: Is it correct that you cannot give the details of the other entries in the ledgers Ex.DW1/2 and Ex.DW1/4 from the court record?
Ans. I cannot give the said details from the court records. Vol. I will have to verify from the office records.
Ques: Can you give the details of the alleged above said payments which have been made by the plaintiff on his own to himself? Ans. I cannot give the details of the such entries made to himself from the court record. Vol. I have to refer the office records for the same.
Ques: Is it correct that the said ledgers Ex.DW1/2 and Ex.DW1/4 have not been certified by the management of the defendant company?
Ans. I have no knowledge about the same."
26.10 It can be extrapolated from the aforesaid extract of cross- examination of DW-1 that DW-1 has no personal knowledge in regard to some of the contents of his affidavit Ex.DW1/A, specifically paragraph no. 3 & 5, and had deposed on the basis of the information being given to him by Mr. Paramjit Anand and Mr. Sanjeev Chandra. Further DW1 was also ignoramus as to the reimbursement entries/payments made to the plaintiff by the defendant company; he also could not show any document which stated that full and final settlement of the accounts with the plaintiff has been done; he had no knowledge as to the details of the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 29 alleged payments made to the plaintiff in lieu of the net profit as stated in paragraph 8 of his affidavit; he had no knowledge as to how much excessive amount had been received by the plaintiff as stated in paragraph 8; he could not give the details of an entry dated 23.08.2013 regarding payment of Rs.35,000/- as mentioned in the settlement Ex.DW1/2 and sought to verify the records from his office, which was not done; he could not get details as to other entries in the ledgers Ex.DW1/2 & Ex.DW1/4 and sought to verify from the office records, which was not done. He also could not give the details of the entries allegedly made by the plaintiff to himself, and for that also he sought to refer to the office records, which was again not done.
26.11 It is, thus, lucid that though defendant had planted DW-1 as a witness from its side, however, this witness expressed his ignorance on most counts, and specifically, when he was asked to furnish details of the payments allegedly made to the plaintiff in lieu of the share in the net profits received by him, the witness drew blank. Though, this witness had joined the defendant company much later then the relevant period, he ought to have gathered all the information in regard to the alleged payments/reimbursements made to the plaintiff and it was his duty to point out at least some of the payments/expenses which could indicate that plaintiff was compensated well in lieu of his share in net profits of the defendant company.
26.12 Furthermore, though Ld. Counsel for defendant, during final arguments had endeavored to point out some of the entries pertaining to the payments made to the plaintiff/PW-1, and had also referred to the cross-examination of the plaintiff but that in itself cannot be a substitute for the ambiguous statements made by DW1, the authorized CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 30 representative of the defendant company. Nevertheless, the cross- examination of plaintiff/PW-1 shall be embarked upon in the later part of the present exposition.
26.13 Another aspect which merits consideration is that the defendant, through the testimony of DW-1, has traversed the written statement, which is manifest from the affidavit of DW-1 Ex.DW-1/A. In paragraph 5 of the affidavit, it is claimed that after the tendering of resignation by the plaintiff, all accounts of the plaintiff were duly settled by the defendant after making calculation of full and final payment and at the time of relieving from the service, it is observed that the plaintiff had got several unaccounted amounts already transferred in his account from time to time without any substantiation, and therefore, the said excess payment received by the plaintiff was duly adjusted by the defendant company towards all the payables to the plaintiff at the time of relieving the claim including the claim towards the share in net profit. Then in paragraph 6, DW-1 further testified that while making full and final settlement of accounts of the plaintiff by the defendant company, it was also observed that the plaintiff had got payments against entitlement for various reimbursements as per the terms of the appointment letter, however, on verification those monies were found to be availed by the plaintiff without providing any supporting documents/invoices. Then, in paragraph 7, DW-1 claimed that it also came to notice that plaintiff had not incurred any expenses towards the medical, data card for laptop and vehicle running and maintenance expenses including the driver, therefore, the plaintiff was not entitled for any of those reimbursements, which was wrongfully availed of by him and since the plaintiff failed to provide supporting documents against the claim for reimbursements, the said excess amount received by him was also adjusted in the full and CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 31 final settlement of the plaintiff including the claim for share net profit. Then, in paragraph 10, DW-1 has claimed that plaintiff was never authorized or instructed to incur expenses towards premium flight tickets, expenses for uniform, fuel, toll charges, office gen-set, furniture, phone bills, premium of insurance and renewal, purchase of laptop etc. as alleged by the plaintiff and as a matter of fact it was beyond the scope of the area in which plaintiff was operating and being the CEO of the defendant company, it did not behove him to perform such kind of petty tasks.
26.14 On juxtaposing the aforesaid extract of evidence of DW-1 with the written statement, it is observed that in the written statement it is not the stand of the defendant that at the time of relieving from service, the full and final settlement was struck with the plaintiff owing to the alleged excess charges being paid to him. Rather, therein, the stand of the defendant was that plaintiff and Mr. Paramjit Anand, director of the defendant, were on friendly terms, and plaintiff was in emergent need of money since his house was on construction mode, and he implored the defendant, and as per mutual understanding, it was decided that plaintiff can take part amount from the company's account to his own account, which would be settled at the end of the financial year. Thus, on this count, the stand in the written statement and that in the affidavit of DW-1 is at variance with each other. Apart from this, DW-1, in his affidavit, has simply spoken about full and final settlement of the accounts, without furnishing any details in regard to the said settlement. When the defendant is claiming to have finally settled a huge amount of Rs.17,34,685/- for the financial year 2013-14 and Rs.4,89,463/- for the financial year 2014-15, against the 10% net profit of the plaintiff, which would have amounted to half of the same, it was expected of the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 32 defendant to have documented the alleged full and final settlement with the plaintiff, so as to obviate any further action at the end of the plaintiff. In the absence of such diligence on the part of the defendant, their plea of the accounts having been fully and finally settled with the plaintiff cannot be countenanced.
26.15 Another aspect which is worth noting here is that on one hand, defendant is holding the plaintiff liable for seeking illegal reimbursements and usurping of unaccounted amounts, without any supporting documents, but at the time of his relieving from the service, plaintiff was issued a certificate Ex.DW1/3 (Colly) certifying that the plaintiff had worked in defendant company with honesty and sincerity. If the defendant had found out about the financial indiscipline of the plaintiff, there was no occasion for them to issue a commending certificate. This act of the defendant, to some extent, would dent its claim that the plaintiff has acted with mala fide in his conduct and had claimed illegitimate reimbursements during his tenure with the defendant company.
26.16 Coming now to grips with the contents of affidavit of PW-1 Ex.PW-1/A wherein he has vouchsafed his plaint and replication. He denied having any control over the finance department of the defendant company, stating that the same was being looked after directly by Mr. Paramjit Anand, being the owner/shareholder/director of the defendant company. He outrightly denied having received a sum of Rs.17,34,685/- in the financial year 2013-14 and Rs.4,89,463/- in the financial year 2014-15. He further explicated that he was made to incur expenses for the defendant company by Mr. Paramjit Anand and his wife Mrs. Neeru Anand, and which expenses were later reimbursed to him. Thus, CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 33 expenses were towards tours/travels, other expenses for himself and employees and even for Mr. Paramjit Anand and Mrs. Neeru Anand. He also gave some of the exemplars viz. Booking train and flight tickets for the employees of the defendant company, for Mr. Paramjit Anand and his wife, their personal travels, cancellation, expenses for uniforms, expenses for fuel, toll charges etc for company vehicles, for office gen- set, furniture for the office, payment of phone bills of offices, payment of insurance premiums, renewals of insurance of the company vehicles, purchase of laptop etc. He further explicated that the defendant has sought to demonstrate all these expenses by filing a statement of account, but many entries do not related to any payments made to him by the defendant. He also deposed that the defendant company has also filed the copies of bank statement where certain payments have been shown to be made to one Kuldeep Sharma which do not pertain to him and he had never received any of the said payments. He has further deposed that some of the expense statements and documents related to claim of the reimbursement of expenses have been filed on record, which are photocopies of the original, as originals have been submitted by him with the defendant company for reimbursement of expenses mentioned therein.
26.17 In his cross-examination, when PW-1 was queried as to his reimbursement claims, he affirmed that his entitlement of reimbursement claim was up to the maximum limit mentioned in his appointment letter Ex.PW-1/1 and not beyond that and that he has not filed any document in support of his reimbursement claim of vehicle running and maintenance expenses including driver. He also acknowledged having not filed any document in support of his claim for reimbursement of medical expenses and reimbursement of data card for laptop. A suggestion was posed to CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 34 him that he had not incurred any expenses in respect of the reimbursement entitlement claim as per Ex.PW-1/1 and he had wrongfully claimed the reimbursement, which was refuted by him.
26.18 Further, PW-1 was asked to show the entries towards the payment for reimbursement of expenses as mentioned in paragraph 8 of his affidavit in the bank account statement being Ex.PW-1/89 (colly) and Ex.PW-1/90 (colly), to which he responded as under.
"Ans. At Ex.PW-1/89 (colly) which bank statement of ICICI Bank on page no.6 SI. No. 10 at point 'A' of the court record could be an ATM withdrawal for purpose of office expense of defendant but I do not remember to whom the said payment was made. SI. no. 12 at point 'B' could be for travel expenses for air tickets, etc. Page no.7 SI. no.20 at point 'C; and SI No. 36 at point 'D' are towards the reimbursement portion of my salary. Point 'E' to 'K' at page no.7 are towards reimbursements for expenses.
Page no.8 Point 'L' to 'P' are towards reimbursements for expenses and at point 'R' is towards reimbursement of salary. Point 'Q' has been wrongly mentioned as it does not pertain to payment made by defendant.
Page no.9 Point 'S' is towards reimbursements for expenses.
Page no.10 Point 'T' at is towards CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 35 reimbursements for expenses. Point 'U' at page 10 could be for Bangalore-Hyderabad expense trip which undertaken by Mr. Paramjeet Anand. Point 'V' to 'Z' at page 10 is towards reimbursements for expenses.
Page 11 Point 'AA' to 'AB' and 'AE' is towards reimbursements for expenses. Point 'AC' at SI. No. 56 is towards travel expense and ticket cancellations for other employees of defendant namely Sameer Chandra, Manu Nair, Charu Gupta (guest of Paramjeet Anand) and Paramjeet Anand.
Page 11 Point 'AD' at SI No. 62 is towards reimbursement of salary.
Page 12 Point 'AF', 'AO', 'AP' and 'AQ' are towards reimbursement of salary.
Point 'AG' to 'AN' are towards
reimbursement of expenses.
Page 13 Point 'AR', 'AT' are towards
reimbursement of salary.
Point 'AS', 'AU' are towards
reimbursement of expenses.
Page 14 Point 'AV', 'AX' are towards
reimbursement of salary.
Point 'AW' is towards reimbursement of
expenses."
26.19 The aforesaid bank account statements have been proved by
plaintiff by summoning the concerned officials from HDFC Bank and CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 36 ICICI Bank, which now I shall advert to alongside the bank statements presented by the defendant in order to underpin their respective stand. At the cost of repetition, it is reiterated that the stand of the plaintiff is that his account statements would reflect various reimbursements received from the defendant against various bills/vouchers submitted by him which pertained to the expenses incurred by him towards the defendant company/its directors. On the contrary, the stand of the defendant is that plaintiff, being the CEO of the company, had conducted unaccounted transactions which are reflected in their bank statements, and these transactions would demonstrate the misappropriation of funds by the plaintiff, and which were finally settled at the time of his resignation, and against which set-off is now claimed.
26.20 Moving further, plaintiff had summoned a witness from HDFC Bank as well as ICICI Bank to prove his account statements. PW- 2 Sh. Kartik Pandey, Deputy Manager, HDFC Bank had appeared and produced account opening form of the plaintiff Ex.PW2/1, KYC documents comprising of PAN Card and Voter ID Card Ex.PW2/2 & Ex.PW2/3, bank statement of account no. 00271000193681 w.e.f 01.04.2013 to 31.05.2015 (running into 25 pages) Ex.PW2/4, duly accompanied by Certificate under Section 65B signed by Ms. Neelima Mamgain, Branch Operation Manager Ex.PW2/5. This witness was cross-examined on behalf of the defendant, but nothing adverse was indicated. On perusal of the bank statement Ex.PW2/4, multiple credit entries in the account of the plaintiff have been shown to be received from defendant, but mainly the entries therein pertain to his monthly salary. One entry dated 09.05.2015 is shown in respect of credit of Rs.63,800/- from the defendant, other than his monthly salary.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 37 26.21 PW-3 Sh. Arjun Kumar, Relationship Manager, ICICI Bank brought the copy of account opening form bearing account no. 017701538243 and supporting documents pertaining to the plaintiff duly stamped by the bank Ex.PW3/1 and the bank statement for the period 01.04.2013 to 31.05.2015 Ex.PW3/2 (Colly). This witness was cross- examined on behalf of the defendant but to no avail. On perusal of the bank statement Ex.PW3/2 (Colly), multiple credit entries in the account of the plaintiff have been shown to be received from defendant, other then his monthly salary. For reference, these entries are date wise indicated as under:
03.07.2013 Rs.10,000/- 10.07.2013 Rs.89,892/- 23.07.2013 Rs.20,000/- 10.08.2013 Rs.13,894/- 12.08.2013 Rs.19,771/- 19.08.2013 Rs.20,080/- 19.09.2013 Rs.15,421/- 23.09.2013 Rs.20,343/- 28.09.2013 Rs.22,283/- 14.10.2013 Rs.25,915/- 19.10.2013 Rs.29,203/- 23.11.2013 Rs.2,354/- 23.11.2013 Rs.32,520/- 11.12.2013 Rs.21,719/- 11.12.2013 Rs.2,000/- 16.01.2014 Rs.20,115/-
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 38 29.01.2014 Rs.2,790/-
15.02.2014 Rs.21,604/- 25.04.2014 Rs.41,665/- 07.05.2014 Rs.43,527/- 27.05.2014 Rs.11,009/- 27.05.2014 Rs.25,914/- 27.05.2014 Rs.21,482/- 11.06.2014 Rs.19,750/- 11.06.2014 Rs.24,374/- 30.06.2014 Rs.23,849/- 11.07.2014 Rs.45,000/- 15.07.2014 Rs.45,000/- 22.07.2014 Rs.22,234/- 16.07.2014 Rs.19,675/- 28.07.2014 Rs.16,894/- 19.08.2014 Rs.20,000/- 26.08.2014 Rs.37,319/- 20.09.2014 Rs.20,000/- 26.09.2014 Rs.38,881/- 18.10.2014 Rs.19,412/- 29.10.2014 Rs.22,663/- 20.11.2014 Rs.20,000/- 21.11.2014 Rs.37,522/- 12.12.2014 Rs.20,000/- 12.12.2014 Rs.5,226/- 13.01.2015 Rs.20,000/- 17.01.2015 Rs.47,712/-
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 39 23.01.2015 Rs.11,751/-
10.02.2015 Rs.20,000/- 13.03.2015 Rs.20,000/- 18.03.2015 Rs.5,989/- 13.04.2015 Rs.20,000/- 13.04.2015 Rs.14,381/- 08.05.2015 Rs.20,000/- 26.22 Though, Ld. Counsel for the defendant, during final
arguments had assailed the afore-mentioned records produced by PW2 and PW3, however, it is found that at the time of marking of these documents, no objection was raised on behalf of defendant as to their admissibility, and thus at the stage of final argument no such objection can be entertained. Otherwise also, these bank statements have been produced by the officials of the banks who have been maintaining it in due course, ruling out any possibility of fabrication, and thus there is no impediment in placing reliance upon the same.
26.23 It is manifest that all the aforesaid payments were credited in the account of the plaintiff from the defendant. On behalf of the defendant, a generic denial of the account statements has been projected by claiming the account statements to be forged and fabricated, but coming from the bank itself, there is no iota of doubt on the veracity of the bank statements. Mere allegation of the plaintiff having connived with the bank officials in procuring these bank statements would be of no assistance to the defendant. The claim of the plaintiff is that these credit entries from the defendant are testament to his plea that against the expenses incurred by him, defendant would reimburse him on different CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 40 occasions. Defendant, on the other hand, has claimed these reimbursements to be unaccounted and illegitimate. However, this stand of the defendant again is generic without any substantiation. There is no material or evidence that at any point of time plaintiff was held accountable for all these credit entries. Defendant, being a private limited company, must be getting its accounts audited periodically, and therefore, it cannot be assumed that at no point of time defendant could find these entries to be unaccounted, and plaintiff continued its spree of embezzling the funds. Simply putting forth that at the time of resignation of the plaintiff, all the reimbursements made to him were adjusted against his share in the net profit would not advance the cause of the defendant.
26.24 I would now dwell upon the various documents exhibited by the plaintiff to demonstrate that during the tenure of his employment with the defendant, he had applied for reimbursements which are reflected in his bank account statements. It is noted at the out set that on behalf of the defendant, objections have been raised in regard to mode and manner of proof of those documents, which I shall also deal now.
26.25 Office copy of expenses details from 16.04.2013 to 19.04.2023, Mark F, office copy of expenses details from 23.09.2013 to 26.09.2013 Mark G, further office expenses by way of a form are Ex.PW1/14, Ex.PW1/15, Ex.PW1/17, Ex.PW1/19, Ex.PW1/20, Ex.PW1/26, Ex.PW1/27, Ex.PW1/29, Ex.PW1/35, Ex.PW1/37, Ex.PW1/39, Ex.PW1/48, Ex.PW1/50, Ex.PW1/52, Ex.PW1/62 and Ex.PW1/79. Defendant has disputed the receipt of these forms and since objection was raised as to mode of proof of these documents, it was for the plaintiff to have established as to who had received and CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 41 acknowledged those forms vide which reimbursements were sought. Similarly, the document pertaining to Citi Bank bill Ex.PW1/16, HDFC Bank bill Ex.PW1/18, HDFC Bank bill Ex.PW1/21, Ex.PW1/22 and Ex.PW1/28 have not been proved by calling the records from the concerned banks. Further, plaintiff/PW1 has also sought to prove various tickets which were got booked by him in regard to travel i.e. Ex.PW1/24, Ex.PW1/25, Ex.PW1/30, Ex.PW1/31, Ex.PW1/32, Ex.PW1/36(colly), Ex.PW1/38, Ex.PW1/40, Ex.PW1/49(colly), Ex.PW1/51, Ex.PW1/53, Ex.PW1/63 (colly) and Ex.PW1/80. All these exhibits have also been disputed on behalf of defendant and plaintiff also failed to prove the same by calling the concerned witness or summoning the record from IRCTC.
26.26 Moving further, documents Ex.PW1/34 and Ex.PW1/41 pertain to bill from the Hyundai company which has also not been proved by calling the concerned witness. Ex.PW1/69 is the Flipcart customer purchase which is also objected on behalf of the defendant, and the objection has not been removed. Ex.PW1/47 is copy of journal voucher which has also not been proved, despite objection.
26.27 In view of the fact that despite objection on behalf of the defendant as to mode of proof of aforesaid documents, plaintiff chose not to take any steps and, thus, the aforesaid documents cannot be accorded any consideration.
26.28 Ex.PW1/42, Ex.PW1/43, Ex.PW1/44, Ex.PW1/45, Ex.PW1/46, Ex.PW1/54(colly), Ex.PW1/55 to Ex.PW1/61, Ex.PW1/64 to Ex.PW1/68 and Ex.PW1/70 to Ex.PW1/78, Ex.PW1/81 and Ex.PW1/82 are the copy of office expenses receipts which are also CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 42 challenged on behalf of the defendant. Plaintiff has failed to establish that office receipts were acknowledged by the defendant.
26.29 In regard to aforesaid, Ld. Counsel for the plaintiff had argued that a legal notice dated 14.02.2020 Ex.PW-1/7 under Order 12 Rule 8 CPC was sent to the defendant to produce the originals of the aforesaid documents which were submitted by the plaintiff with the defendant for reimbursement, and reply dated 24.08.2020 Ex.PW-1/12 on behalf of defendant was received, wherein the defendant claimed that the issuance, existence, custody, possession and control of the alleged documents are specifically denied and all such documents were claimed to be forged and fabricated. However, in my view, given the reflection of various entries from the defendant in the bank accounts of plaintiff for which no credit worthy explanation has been tendered on behalf of defendant, this stand of the defendant that all the aforesaid exhibits purporting to be the documents in support of the reimbursements to be forged and fabricated, is unjustified. It defies logic and is unlikely that the plaintiff would fabricate all the aforesaid documents. No doubt that some of the documents pertaining to reimbursements could have been proved by the plaintiff by summoning the relevant record from the concerned department, but in the absence of any such action on the part of the plaintiff, in the wake of objection from the side of the defendant, these documents cannot be read in evidence. In so far as receipts Ex.PW-1/42 to Ex.PW-1/82 pertaining to office expenses are concerned, since corresponding credit entries in the bank account statements placed on record by the plaintiff are reflected, these receipts can be taken into consideration, as plaintiff by serving the notice under Order 12 Rule 8 CPC to the defendant has done his bit, and clearly the defendant has withheld the supply of these documents from the plaintiff in order to CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 43 scupper his legal right.
26.30 Further, amongst all the afore-mentioned exhibits, there is one Ex.PW-1/33 pertaining to the bank statement of plaintiff of HDFC Bank, original of which was produced during the evidence of PW-1 at the time of his examination in chief, which was seen and returned, and no objection was raised on behalf of defendant. This document is shown to be containing entries of Rs.5,113/-, Rs.13,739 and Rs.4,920/-, which the plaintiff/PW-1, is claiming to have been spent for the purpose of defendant company, and which can be taken into account in support of the stand of the plaintiff that he was being reimbursed on behalf of the defendant for such kind of expenses.
26.31 From the side of the defendant as well, ledgers Ex.DW-1/2 and Ex.DW-1/4 have been placed by DW-1, but it is a settled legal position that ledgers in itself are not the proof of payments shown to have been credited to a particular person, without corroborating evidence. Now, in order to corroborate the ledgers, DW-1 has also furnished bank account statement of HDFC Bank Ex.PW1/D1 (colly) pertaining to the account no. of the defendant i.e. 03948020000142. Some of the entries therein were confronted to the plaintiff in his cross- examination, which for reference, have been marked as SA1 to SA40. The germane extract of the cross-examination of the plaintiff in regard to these entries is reproduced herein below.
"Ques: In reference the statement of account mentioned in para 9 of Ex.PW1/A what all documents you are referring to?
Ans. I am referring upon the statements of the defendant marked as Ex.PW1/D1 (Colly).
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 44 Ques: In reference to the entries mentioned in para 9 of Ex.PW1/A what all entries do not related to any payments made to you?
Ans. I am referring upon the entries at Point 'SA1 to SA40' in Marked as PW1/D1 (Colly) (page 36-145) which are disputed and highlighted entries. Other entries of the pages are neither disputed nor related to me.
Ques: Can you explain for what purpose the expenses were made against the entry marked at Point 'SA1' in Ex.PW1/D1 (Colly)?
Ans. I do not remember. Objection: not relevant as already answered above.
Ques: Can you explain for what purpose the expenses were made against the entry marked at Point 'SA25' in Ex.PW1/D1 (Colly)?
Ans. This is with reference to stay at Service Apartment expenditure at Pune for Mr. Paramjit Anand, Mrs. Neeru Anand and I stayed at separate apartment.
It is wrong to suggest that I and Paramjit Anand and Neeru Anand went on a personal trip and the aforesaid expense was relating to that only and it has no connection with the defendant.
It is correct that entries made at point 'SA2 to SA16 and SA18-22' is pertaining to bulk salary transfer by the defendant to the employees which also include my salary. The remaining undisputed highlighted entries in Ex.PW1/D1 (colly) were pertaining to various reimbursements received by me. It is wrong to suggest that I have received all the payments against the entries marked at Point 'SA1 to CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 45 SA40' in Ex.PW1/D1 (Colly). It is incorrect to suggest that I have received several of disputed payments in my another bank account which I have concealed from the court."
26.32 From the aforesaid excerpt, it is made out that plaintiff/PW- 1 initially disputed the entries at point SA1 to SA40, which as per the defendant, related to him. Then, during his further cross-examination, he acknowledged some of the entries i.e. SA25, SA2 to SA16 and SA18 to
22. However, plaintiff/PW-1 explicated therein that entries SA2 to SA16 and SA18 to 22 pertain to bulk salary transfer by the defendant to the employees which included his salary and and remaining undisputed highlighted entries were pertaining to various reimbursements received by him. He then denied having received all the payments against the entries marked at point SA1 to SA40, and this fragment of the statement, was heavily relied upon by Ld. Counsel for the defendant to assail the veracity of plaintiff/PW-1, but the consideration has to be accorded to over all stand of the plaintiff/PW-1 in regard to these entries, and one solitary statement of denial at one point of all the entries and acceptance of some of the entries at point SA1 to SA40 at other point, cannot constitute the basis for spurning the entire testimony of PW-1.
26.33 In order to further elaborate on the aforesaid, during final arguments, Ld. Counsel for the plaintiff pointed out that the entries made in the name of Kuldeep Chand Sharma and K.C. Sharma relate to the plaintiff, whereas entries in the name of Kuldeep Sharma do not relate to him, as in the defendant company, plaintiff's name has been recorded as Kuldeep Chand Sharma/K.C. Sharma. Ld. Counsel for defendant, on the other hand, ambitiously put forth his stance against this that this stand has neither been taken in the pleadings nor anywhere else, and for the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 46 first time, is being flagged during the final arguments.
26.34 At the first blush, the argument of Ld. Counsel for the defendant appears to be attractive that it was for the first time during final arguments that this stand of Kuldeep Sharma being alien is taken, and nowhere in the pleading, this averment was put forth. However, since some of the entries in bank statement Ex.PW1/D1, marked as SA1 to SA40 pertain to Kuldeep Sharma and some other pertain to K.C. Sharma, this certainly presents a quandary, which needs to be resolved.
26.35 On poring over the emails pertaining to the plaintiff and one document Ex.PW-1/86, which is a document pertaining to Indigo ticket, it is noticed that the name of the passenger is mentioned as Kuldeep Sharma, which certainly belies the argument of the plaintiff that he is not known by the name of Kuldeep Sharma. What is to be seen now is whether this circumstance would in any manner tilt the balance in favor of the defendant or not. As noted herein above, in the cross-examination of PW1, he explained that entry marked at point SA25 was referred to a stay at service apartment expenditure at Pune for Mr. Paramjit Anand, Mrs. Neeru Anand and himself. Thereafter, a suggestion was posed to him that the plaintiff, Paramjit Anand and Neeru Anand went on a personal trip and the aforesaid expense had no connection with the defendant, which suggestion was dis-affirmed by the plaintiff. Now, if the defendant wished to propound this expenditure to be a personal trip, it ought to have examined Mr. Paramjit Anand, the director the defendant company to this effect. In the absence of any contrary material, this expense cannot be considered to be a personal expense of the plaintiff. In so far as entries at point SA2 to SA16 and SA18 to 22, plaintiff affirmed that these entries pertain to bulk salary transfer by the defendant to the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 47 employees which also included his salary. He also affirmed that remaining undisputed highlighted entries were pertaining to various reimbursements received by him. Then he denied having received several of the disputed payments in his another bank account which she has concealed from the Court, which suggestion was also denied. Thus, on holistic reading of this extract of testimony of PW-1, it is observed that though PW1 has not oppugned specifically that the entries in the name of Kuldeep Sharma did not relate to him, but when Ld. Counsel for the defendant had suggested to him that several of the disputed payments were transferred to some other account of the plaintiff which had been concealed from the court, it can be inferred that the defendant had sought to prove that some of the disputed payments were received in some other bank account of the plaintiff, details of which have been concealed from the court. Defendant, in order to substantiate on this, could have called for the records from the bank in which the defendant had been maintaining the account, to demonstrate in which account of the plaintiff the disputed payments were transferred. Defendant, though has produced the bank statements pertaining to them, and the entries, inter alia of the pertaining to the plaintiff, however, once the plaintiff had denied some of the entries, the onus was upon the defendant to have established on record as to in which account the payments shown in those disputed entries were credited. Thus, even if, on behalf of plaintiff, no such pleading was made that the payments credited in the account of Kuldeep Sharma was not related to him, the onus was always upon the defendant to have proved the payments in the account pertaining to the plaintiff only, which burden has not been discharged.
26.36 The other limb of contention on behalf of the defendant is that plaintiff has failed to file any authorization in respect of the alleged CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 48 expenses incurred by him and the reimbursements sought by him, however, this argument also is without any force, as once the plaintiff has received various reimbursements on different occasions from the defendant company, it shall be presumed that those reimbursements were received in due course of the business, and in the absence of any squeal on behalf of defendant at any point of time against the plaintiff, the plaintiff cannot be castigated for his failure to place on record the written authorization.
26.37 In so far as the contention of Ld. Counsel for defendant, by relying upon the admitted documents Ex.PX and Ex.PY, that the plaintiff was at the helm of the financial transaction of the company which authority was withdrawn by way of letters Ex.PX and Ex.PY, it is observed that these letters were sent to the banking authority after the resignation of the plaintiff, and since these were procedural formalities, it would not in any manner be sufficient enough to presume that the plaintiff acted with mala fide in any financial transaction of the defendant company. As has been noted in the preceding discussion that at no point of time, defendant flagged any of the alleged illegal activities of the plaintiff in regard to the financial transaction of the defendant company, and rather plaintiff was given a favorable certificate for the service rendered by him, therefore, this argument of Ld. Counsel for defendant is without any merit.
26.38 Ld. counsel for defendant also pointed out during final arguments that plaintiff was confronted with a query in regard to payment of Rs.32419/- which was made through cheque on 28.10.2014 but it was not reflected in Ex.PW1/89 (colly), Ex.PW1/90 (colly), the same would amount to suppression of fact by the plaintiff. This argument CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 49 also in my opinion is of no significance as evidential burden was upon the defendant to have shown as to in which account the said payment was credited. It is reiterated herein that defendant exhibited cavalier approach in adducing evidence by examining DW1, who feigned ignorance on every other query of the plaintiff. The onus was upon the defendant to have established that the reimbursements derived by the plaintiff were not legitimate, which onus the defendant has failed to discharge.
26.39 In the backdrop of aforesaid discussion, it is held that once the plaintiff has assembled his stand that the myriad payments credited in his account, apart from the salary, pertain to various reimbursements, the plea of the defendant that plaintiff has already been compensated to the tune of Rs.17,34,685/- in the financial year 2013-14 and Rs.4,89,463/- in the financial year 2014-15 cannot be countenanced and the defence of set off in favor of the defendant is not worthy of any consideration. Though plaintiff has also not been able to clarify his stand in regard to some of the entries, nevertheless, since the defendant has failed to establish that at any point of time, the alleged illegitimate acts of the plaintiff were called in question, the plaintiff is found entitled to recover his share of 10% net profit from the defendant company.
26.40 In so far as quantification of net profit is concerned, the same is found manifested in the admitted statement of profit and loss Ex.DW-1/P1 (Colly), as per which the net profit for the year ending 31.03.2014 was Rs.5,326,760/- and for the year ending 31.03.2015 was Rs.4,440,641/-. On computation, 10% of the same would total to Rs.9,76,740/-, which amount plaintiff is found entitled to recover from the defendant.
CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 50 Issue no.1 and 2 are decided in favor of plaintiff and against the defendant.
27. Issue no. 3 :- Whether the plaintiff is entitled for interest, if so at what rate and for which period?
27.1 In so far as the interest component is concerned, plaintiff has claimed the same at the rate of 18% per annum from the date of institution of the suit till actual realization. The law with regard to the according of pendente lite and future interest has stood crystallized in the judgment of Supreme court of India in Central Bank of India vs. Ravindra and Ors., date of decision 18.10.2001, which is as under:
".....
(2) The principal sum so adjudged is 'such principal sum' within the meaning of Section 34 of the Code of Civil Procedure Code, 1908 on which interest pendente lite and future interest i.e. post-decree interest, at such rate and for such period which the Court may deem fit, may be awarded by the Court.."
27.2 By virtue of Section 34 of CPC as well as the law laid down in the afore-noted judgment, pendente-lite and future interest can be granted in favor of the plaintiff and, in my opinion, this being the employment contract, interest at the rate of 8% per annum on the sum of Rs.9,76,740/- can be awarded from the date of institution of the suit till realization of the amount. This issue is, thus, partly decided in favor of the plaintiff.
27.3 In the result, the suit of the plaintiff is decreed in the sum of Rs.9,76,740/- with rate of interest quantified at 8% per annum from the CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 51 date of institution of the suit till realization of the amount. Decree sheet be drawn up. Cost of the Local Commissioner and that of the suit are also awarded to the plaintiff.
Announced & dictated in the open court on 02.09.2023 (Navjeet Budhiraja) Additional Sessions Judge-02 South District, Saket Courts, New Delhi 02.09.2023 Certified that this judgment contains 52 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional Sessions Judge-02 South District, Saket Courts, New Delhi 02.09.2023 CS DJ No.9234/16 Kuldeep Chand Sharma Vs. Acreaty Management Consultant Pvt. Ltd. 52