Delhi District Court
Sh. Jayendra Singh vs . International College Of Financial ... on 27 May, 2023
Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-008618-2022
RCA No.:- 11/2022
RCA DJ No.:- 84/2022
IN THE MATTER OF :-
Sh. Jayendra Singh
S/O Sh. K. Jai Singh,
R/O A-90, Sector-21,
Noida 201301
Mobile No. 9871646548
E.mail: [email protected] ....Appellant
Versus
International College of Financial Planing Ltd. (ICFP)
(through its The Managing Director/C.E.O.)
Regd. Office: 5th Floor, Bajaj House,
97, Nehru Place, New Delhi 110019
Mobile No. 9711450002
e.mail: [email protected] ....Respondent
APPEAL U/S 96 READ AGAINST DECREE/JUDGMENT DATED 21/04/2022, PASSED BY LD. CIVIL JUDGE-05, DISTRICT CENTRAL, TIS HAZARI COURTS, DELHI IN SUIT NO. CSSCJ/598490/2016 TITLED AS "SHRI JAYENDRA SINGH VS. INTERNATIONAL COLLEGE OF FINANCIAL PLANNING LTD. (ICFP) Date of institution of the Appeal : 31/05/2022 Date on which Judgment was reserved : 19/05/2023 Date of Judgment : 27/05/2023 RCA DJ NO. 84/2022 Page 1 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
::- J U D G M E N T -::
1. The appellant was plaintiff and the respondent was defendant before the Ld. Trial Court. Appellant and respondent are respectively referred in this Judgment according to the original status before the Ld. Trial Court. Succinctly, the plaintiff/appellant has filed a suit for recovery of Rs.97,595/-
along with interest @ 18% per annum from the date of filing of the suit till its realization. The suit of the appellant/plaintiff was dismissed vide Judgment and decree dated 21/04/2022. Being aggrieved by the judgment and decree dated 21/04/2022, the appellant/plaintiff has filed the present appeal.
APPELLANT /PLAINTIFF CASE :
2. Appellant/plaintiff had filed the suit on the following averments:
a. The defendant is a company which provides education inter alia in the field of financial planning. b. On 16.08.2007, the plaintiff was appointed by the defendant as its 'Associate vice President- Distance Education' (AVP-DE) vide appointment letter dated 16.08.2007 on the terms and conditions stated therein.
c. Since the very date of appointment itself, the plaintiff was given the charge to head the Distance Education Dept. and since commencement of his employment till the last day of his working for the defendant, the plaintiff had been handling his duties with grave responsibility and due diligence. The plaintiff has RCA DJ NO. 84/2022 Page 2 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
been responsible for reviving and strengthening the entire Certified Financial Planner Certification Programme (CFPcm) across all locations, for which purpose the plaintiff had taken all measures to the best of his capacity and prudence to achieve the targets assigned. The plaintiff has always been committed and dedicated to perform his job responsibilities in an earnest manner, giving his best by working even beyond official hours whenever required.
d. While holding the post of AVP-DE and well understanding the responsibility of being a part of top management, the plaintiff had always kept the whole team under him aligned and motivated by making available for the conducive and favorable working conditions and providing every possible solution to their problems so that even they are able to perform well.
e. The plaintiff was at all times successful in building a good liaison with Financial Planning Standards Board, India (with whose affiliation the main course of CFP is carried on in ICFP, as education provider), despite the fact that the Education Provider Agreement between ICFP and FPSB, India was not renewed and this fact was not brought in the knowledge of the plaintiff by the defendant.
f. The defendant had always been giving imaginary targets to achieve to the plaintiff, and also gave target to increase the turn-over to imaginary level, with a lot of mental pressure to achieve the same. The plaintiff, RCA DJ NO. 84/2022 Page 3 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
to achieve such imaginary targets, always endeavored to do his best, but the defendant never extended much cooperation to the plaintiff in achieving the same. The defendant used to snap down any new productive idea proposed by the plaintiff right at the first instance without even exploring any possibility of its implementation and even without in the least giving the plaintiff a chance to take it any further. g. Despite the plaintiff having efficiently done his job, the defendant left no leaf unturned to humiliate, disrespect, discourage and disregard all efforts of the plaintiff whenever the plaintiff used to fail in achieving such imaginary targets.
h. Even after having worked in all earnestness, sincerity and dedication for a period of more than ten months for the defendant, the plaintiff was still not given a letter of confirmation by the defendant as per their policy of confirmation after 6 months (as stated in the appointment letter). There was not even a single word of dissatisfaction on the part of the defendant towards the performance of the plaintiff, as a prudent person/employee and for this reason the plaintiff was appraised and was given annual increment.
i. Even though the plaintiff was also made the head of another department/vertical of the defendant i.e., the Certified Financial Planner (CFP) vertical of the defendant, yet the plaintiff was not made a part of any policy decision team relating to the same. Many at times employees were inducted and/or fired from this RCA DJ NO. 84/2022 Page 4 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
vertical by the defendant without any intimation and/or approval of the plaintiff in capacity of a product head. All these serious lapses on the part of the defendant created umpteen numbers of practical difficulties and hurdles for the plaintiff. j. The defendant, going a step further in the scheme of demoralizing the plaintiff for reasons best known to them, took away the Corporate Training vertical of the defendant which was being handled by the plaintiff, through his subordinate Mr. Prabsharan Singh, successfully as he had succeeded in felicitating valuable mandates.
k. Gradually the in-house atmosphere of the defendant became inhuman, suffocating, unfriendly and extremely demotivating for the plaintiff. There were less professionally qualified employees who try to dominate and influence the more qualified and senior officials at the behest of the management of the defendant.
l. In spite of all the plaintiff continued to work in a discomfort zone and did to the best of his abilities and therefore, he had been so gravely stressed out and pressurized that it started affecting his health adversely. The plaintiff was constrained to see the Doctor who advised him to remain away from stress otherwise he may face psychological problems. m. Gradually it had become practically unworkable and unfeasible for the plaintiff to continue any further and in view of the aforementioned he was compelled by RCA DJ NO. 84/2022 Page 5 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
compulsive circumstances created by the defendant's management and was left with no other alternative but to exercise the liberty to resign from the services as had been given to him vide clause 13 of the appointment letter dated 16th August 2007 and accordingly on 18th June, 2008 the plaintiff submitted his resignation, through E-mail. It is important to mention here that the plaintiff was always willing to serve the defendant for much more than two years but the defendant created such circumstances for the plaintiff as to constrain him to leave the services or to do acts which were impossible to perform or act as per the directions of defendant's management howsoever unethical were.
n. Subsequent to submission of resignation by the plaintiff, the defendant accepted the resignation and verbally asked the plaintiff, through its Vice President- HR, to handover official property and charge to senior manager. The plaintiff sent another E-mail on 26.06.2008 to the defendant asking it to give such communication in writing. Consequently, vide E-mail dated 27.06.2008, the Vice President-HR of the defendant asked the plaintiff to handover the charge. The said E-mail dated 27.06.2008 was sent to the plaintiff at his official E-mail address despite the fact that the same has already been blocked by the defendant. On the night of 27.06.2008, when the plaintiff tried to access his official E-mail in anticipation of some official messages, he came to RCA DJ NO. 84/2022 Page 6 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
know that his official E-mail address has been blocked by the defendant. Therefore, the plaintiff on 28.06.2008, from his personal E-mail address sent another E-mail to the defendant, informing the latter that his official E-mail address has been blocked, pursuant to which the Vice President-HR of the defendant, vide another E-mail on 30.06.2008, forwarded the E-mail dated 27.06.2008 to the plaintiff at his personal E-mail address asking the plaintiff to handover the charge.
o. Despite all this the plaintiff still kept fulfilling his duties as a responsible employee and continued to serve his notice period in all earnestness and honesty little realizing that the Defendant has already got his official E-mail address and his Finger verification id (for attendance) blocked which only came to light (only on 27th June, 2008) when the plaintiff was trying to accomplish the undone projects in the interest of the defendant before the completion of his notice period, but was unable in his endeavors for reasons mentioned.
p. Abiding by the E-mail dated 27 th June 2008, duly received by the plaintiff only on 30th June 2008, the plaintiff handed over the charge and all the official properties which were in his possession to the Defendant, through its Senior Manager Mr. Rajiv Seth, on 30.06.2008 and the same was acknowledged. The plaintiff on the same day i.e. on 30.06.2008, signed and submitted the 'Full and Final Settlement RCA DJ NO. 84/2022 Page 7 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
Form' and other documents to the defendant collectively, but the defendant, had not paid the amount of Rs.97,595/- to the plaintiff which it is liable to pay. Therefore, on 01.07.2008 the plaintiff sent another E-mail and requested the defendant to pay his unpaid salary and reimbursements amount to Rs.97,595/-.
q. Thereafter, plaintiff had also met with Mr. Anishy Wig, C.E.O., Ms. Nirupama Srivastav, VP-HR and Ms. Priyanka Dewan, legal officer of the defendant, and requested them to pay the sum of Rs.97,595/- as unpaid salary and reimbursements to him. The said officials assured the plaintiff to make the payment very soon. Thereafter, the plaintiff had requested the said officials on telephone on 30.07.2008 and 04.08.2008 to make the payment and was assured again. On 06.08.2008, the plaintiff again sent a reminder to the defendant, through E-mail dated 06.08.2008 and asked for the payment of Rs.97,595/- from the defendant.
r. On 07.08.2008, the plaintiff received another E-mail on behalf of the defendant. The plaintiff was astonished to receive the said E-mail dated 07.08.2008 addressed by Ms.Priyanka Dewan, Law Officer, demanding an amount of Rs.1,65,732/- from the plaintiff claiming to have accrued by virtue of the Service Agreement which the plaintiff was made to sign at the time of appointment.
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s. The claims put forward by your Defendant are totally denied being wholly baseless and false as no 'training' of any kind has ever been provided by your Defendant to the plaintiff. Therefore, the claim by your Defendant is totally unconstitutional, illegal and against the very sprit of employment.
t. As already stated hereinabove that the plaintiff was always willing to serve the Defendant for much more than two years but the defendant created such circumstances for the plaintiff as to constrain him to resign from the services. Had there was no such intension on your part, the resignation of the plaintiff could have been refused.
u. On the other hand the Defendant is liable to pay to the plaintiff a sum of Rs.97,595/- as accrued till 30.06.2008 as the unpaid salary and reimbursements. Besides, the defendant is also liable to pay to the plaintiff, the salary for the unexpired notice period as the notice/resignation was submitted on 18.06.2008. However, the plaintiff is confining his claim only to an amount of Rs.97,595/- as accrued till 30.06.2008 as the unpaid salary and reimbursements, the bills for which has already been submitted by the plaintiff to the defendant.
v. On 13.08.2008, the plaintiff instructed his advocate to issue a legal notice to the defendant and raise a demand therein for Rs.97,595/-. In this background, the plaintiff has filed the present suit seeking following reliefs:
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(a) pass a decree for a sum Rs.97,595/- in favour of the plaintiff and against the defendant, and
(b) order the defendant to pay an interest @ 18% per annum on Rs.97,595/- from the date of filing suit till the date of decree, and
(c) order the defendant to pay an interest @ 18% per annum on Rs. 97,595/- from the date of decree till its realization, to the plaintiff.
WRITTEN STATEMENT ON BEHALF OF
DEFENDANT/RESPONDENT
3. Defendant filed Written statement, wherein it was
contended that:
a. The present suit filed by the Plaintiff is not only false, frivolous, vexatious, vague, but also based on concocted and defamatory allegations against the Defendant. The sole intention of the present plaint filed by the Plaintiff is not only to defame reputation and good will of Defendant but also to extract money by evolving Defendant into present vexatious litigation.
b. The present suit is not maintainable as the Plaintiff himself deliberately failed to substantiate his claim with any evidence corroborating with it. The siad fact proves that the allegations narrated by Plaintiff against the Defendant are not only false, but also concocted in nature.
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c. It is not out of place to mention the present suit is not maintainable before this Ld. Court, due to want of territorial jurisdiction. It is pertinent to mention that the Plaintiff as an employee executed Service Agreement on 16 th August, 2007 with Defendant Company. In the said Agreement both the parties expressly agreed that in case of any dispute, the same shall be referred to the exclusive jurisdiction of the Courts at Mumbai.
d. In addition to the above said it is also pertinent to mention that the appointment of Plaintiff in Defendant Company was based on Appointment Letter and Service Agreement dated 16 th August, 2007 duly executed in favour of Defendant. In fact the core area of responsibility of Plaintiff is to report Mr. Anish Wig, CEO of Defendant Company and to provide all possible support and assistance in expansion of various financial courses imparted by Defendant through Distant Education Learning mode. The said facts clearly proves that the Plaintiff was under the supervision of CEO of Defendant and not directly involved in any managerial activity, as alleged by Plaintiff in present Plaint. The above said facts and nature of work of Plaintiff clearly denote that the Plaintiff is a workman under the definition of "Workman", as defined in Section 2 (s) of Industrial Dispute Act-1947. Hence, The suit barred by Industrial Disputes Act. The defendant has denied all RCA DJ NO. 84/2022 Page 11 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
the averments made in the plaint and prays for dismissal of the present suit.
REPLICATION
4. Plaintiff filed his replication to the WS of the defendants wherein he denied the averments made in the WS and reiterated the averments made in the plaint.
ISSUES
5. On the basis of the pleadings, Ld. Trial Court vide order dated 07.08.2015, framed the following issues:-
(i) Whether the plaintiff is entitled to a decree for recovery of Rs.97,595/- as prayed for ? OPP
(ii) Whether the plaintiff is entitled to pendente lite and future interest @ 18%, as prayed for ? OPP
(iii) Whether the the suit is barred by jurisdiction ? OPD
(iv) Relief.
EVIDENCE OF THE PLAINTIFF
6. Sh. Jayendra Singh/plaintiff himself stepped into the witness box as PW-1. He tendered his evidence by way of affidavit Ex. P-1 and relied upon the following documents:
i. Mark A is appointment letter dt. 16.08.2007. ii. Mark B is copy of annual increment dt. 14.05.2008. iii. Ex. PW1/A (OSR) is Medical prescription of Dr. Gaurav Aggarwal.RCA DJ NO. 84/2022 Page 12 of 26
Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
iv. Mark C is print out of e-mail dt. 18.06.2008. v. Mark D is print out of e-mail dt. 26.06.2008. vi. Mark E is print out of e-mail dt. 27.06.2008. vii. Mark F is print out of e-mail dt. 28.06.2008. viii. Mark G is print out of e-mail dt. 30.06.2008. ix. Ex. PW1/G (OSR) is Handing over charge letter. x. Mark H is full and final settlement form. xi. Mark I is printout of e-mail dt. 01.07.2008. xii. Mark J is printout of e-mail dt. 06.08.2008. xiii. Mark K is printout of e-mail dt. 07.08.2008. xiv. Ex.PW1/K is legal notice dt. 13.08.2008. xv. Ex. PW1/L is postal receipt.
PW-1 was cross examined by the ld. Counsel for defendant.
7. Dr. Gaurav Aggarwal, stepped into the witness box as PW-2. He tendered his evidence by way of affidavit Ex.PW2/A and relied upon the documents already exhibited as Ex. PW1/A in the examination of PW-1.
8. Vide separate statement of the plaintiff, recorded on 21.01.2019, PE was closed. Matter was then put up for DE.
EVIDENCE OF THE DEFENDANT
9. Sh. Vivek Singh, stepped into the witness box as DW-
1. He tendered his evidence by way of affidavit Ex.DW1/1 and relied upon the following documents:
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i. Ex. DW-1/A is Board Resolution in favour of Sh. Vivek Kumar Singh.
ii. Ex. DW-1/B (colly 05 pages) are attendance sheets of plaintiff.
iii. Ex. DW-1/C (colly 17 pages) are copies of warning letters and performance sheet.
iv. Ex. DW-1/D (colly 05 pages) are copies of proposal alongwith the consent given by the plaintiff. v. Ex. DW-1/E (colly 03 pages) are copies of confirmation letter and increment letter.
10. He was cross examined by counsel for plaintiff. Vide separate statement of AR of the defendant company, DE was closed on 18.02.2020. Matter was put up for final arguments.
11. The present appeal has been preferred against the judgment dated 21.04.2022 passed by the Ld. Trial Court, whereby the suit filed by the plaintiff was dismissed.
12. In view of the aforesaid facts and circumstances, the following points arise for determination: -
(i) Whether the preponderance of probabilities lies in favour of the appellant/plaintiff?
(ii) Whether the clause 9 of the Service Agreement which is contradictory to clause 13 of the appointment letter is void as per Sections 10, 14 and 16 of Indian Contact Act, 1872?
(iii) Whether the principle of 'Contra Proferentem' is applica-
ble in the facts of the present case?
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(iv) What order?
GROUNDS URGED/ARGUMENT ADVANCED ON BEHALF OF THE APPELLANT
13. The case of the appellant in the present appeal has been preferred by the appellant urging that the Ld. Trial Court has failed to appreciate that respondent/defendant has not denied the material facts in the written statement and has also admitted the documents relied upon by the plaintiff filed along with the plaint except in the 'Full and Final Settlement Form'. The preponderance of probabilities lies in favour of the plaintiff and therefore, the plaintiff was entitled to decree in the suit. The defendant has also admitted all the contents of the plaint in the written statement except taking the defence that the plaintiff is liable to pay a sum of Rs.3,17,600/- to the defendant for committing breach of the terms of the appointment and service agreement. It is contended on behalf of plaintiff/appellant that the ld. trial court failed to appreciate that the defendant neither pleaded nor proved as to how the appellant/plaintiff was liable to pay Rs. 3,17,600/- or Rs. 1,65,732 to the defendant as the respondent/defendant has not pleaded the required relevant and material facts, the appellant /plaintiff cannot be presumed to have committed breach of any of the terms of the agreement.
14. It if further urged on behalf of the plaintiff/appellant that the Ld. trial court has failed to appreciate that clause 13 of the appointment letter dated 16/08/2007 provides that the plaintiff will be at liberty to resign from the service after giving RCA DJ NO. 84/2022 Page 15 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
one month's notice or payment in lieu thereof and the resignation was tendered by the plaintiff in terms of the clause 13 and the defendant cannot take advantage of any other contradictory terms of either the appointment letter and/or the service agreement. The appellant has also contended that if any terms either in the appointment letter and/or in the Service Agreement which is contradictory to clause 13 of the appointment letter are void on a conjoint reading of Section 10, 14 and 16 of the Contract Act, 1872 as the relation between plaintiff and defendant was such that defendant was in a position to dominate the will of plaintiff and used that position to incorporate the contradictory term so that the same may be used by the defendant as per its own suitability and convenience. In the present case, the rule of 'Contra Proferentem' are applicable which state that in situations whenever ambiguity arises in any provisions of the agreement, it has to be construed more forcibly against the party putting forth the document, and in favour of the other party. Appellant/plaintiff did not have any bargaining power and/or legal assistance while entering into the service agreement and therefore, the terms of the service agreement cannot be led defending his right to tender resignation. It is further argued that the Ld. Trial Court has failed to appreciate that it is an undisputed fact that the plaintiff's salary remained unpaid for the month of June, 2008 and even if the defendant is not satisfied with the plaintiff's calculation done in 'Full and Final Settlement Form' by the plaintiff yet the defendant was liable to pay Rs.83,334/- as monthly salary to the plaintiff. Ld. trial court has erroneously not considered the admitted documents and RCA DJ NO. 84/2022 Page 16 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
held that the printouts of e.mail were not admissible without certificate u/s 65B of Indian Evidence Act. It has been argued that Ld. Trial court has not decided the case on the application of law, rules of interpretation and preponderance of probabilities and the judgment and decree dated 21/04/2022 is based on surmises and conjectures.
GROUNDS URGED/ARGUMENT ADVANCED ON BEHALF OF THE RESPONDENT
15. Reply has been filed on behalf of the defendant/respondent and it is urged that the appellant was appointed with the respondent as 'Associate Vice President - Distant Education, vide appointment letter dated 16/08/2007. After completing his six months' probation period, as envisaged in the Service Agreement, the respondent, contrary to the appellant's assertions, issued a letter of Confirmation dated 14/02/2008 to the appellant confirming his position with the respondent company. Inspite of the appellant's poor performance, the respondent always encouraged and motivated the appellant to improve his performance hoping that such encouragement would yield in improved performance and output. On 18/06/2008, the appellant tendered his resignation to the respondent, in breach of service agreement and in the resignation letter the appellant stated that plaintiff was voluntarily resigning from his position due to personal reasons because of which he will not be able to effectively contribute to the work. It was never stated that he was resigning from the services due to unworkable or unfeasible environment as RCA DJ NO. 84/2022 Page 17 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
alleged in the suit. Left with no alternative, the respondent conditionally accepted the appellant's resignation. It is also contended that after tendering the resignation, the appellant visited the office of the respondent only once on 30/06/2009 for handing over charge to the concerned officer and did not complete the notice period.
16. The respondent has stated that Ld. trial court has rightly dismissed the suit filed by the plaintiff as no affidavit u/s 65B of the Indian Evidence Act was filed, which is mandatory requirement of law and even if all the documents has been admitted by the opposite party it is incumbent upon the person relied upon the electric document to file affidavit u/s 65B of Indian Evidence Act. Further, the respondent has not admitted the documents of the appellant and merely the fact that appellant has sent e.mail to the respondent does not give default right to the appellant to construe the same as admission on the part of the defendant. The content of such documents is required to be specifically proved by the appellant in terms of the Indian Evidence Act.
17. It is further contended by the Ld. counsel for the respondent that the service agreement envisaged that the appellant was required to complete at least two years of employment with respondent. As the appellant tendered his resignation before the completion of two years of period, therefore, he was in expressed breach in terms of the service agreement and not entitled to claim any of the relief in the suit.
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18. It is further urged on behalf of the respondent that there was no requirement of respondent to prove that the appellant was liable to pay Rs. 3,17,600/- to the respondent for breaching clause 9 of the Service Agreement as the service agreement has already been filed on record and is admitted document and the onus was on the appellant to prove that he has complied with the terms of service agreement before tendering his resignation.
19. It is further contended by the respondent that the terms of the appointment letter dated 16/08/2007 and service agreement dated 16/08/2007 ought to be read as a whole and the clause 13 of the appointment letter has to be read harmoniously with the Service Agreement. It has been urged on behalf of the respondent that before reading of both provisions would mean that after completion of minimum employment period of two years, appellant had tendered his resignation by giving one month notice or one month salary in lieu thereof.
20. It is urged on behalf of the respondent that rule of Contra Proferentem has no application with the present suit. The appointment letter and the service agreement breaching the terms between the appellant and the respondent and there is no ambiguity in the terms of both these documents, which are to be read harmoniously. Thus, it has been urged that the present application is devoid of merits and is liable to be dismissed.
21. Arguments were heard. Record perused.
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FINDINGS AND CONCLUSIONS
22. The suit was filed by the plaintiff against the defendant on recovery of Rs.97,595/- along with interest @18% per annum from the date of filing of the suit till its realisation. It is urged on behalf of the plaintiff that plaintiff was appointed by the defendant as its Associate Vice President vide appointment letter dated 16/08/2007 on the terms and conditions stated therein. The plaintiff tendered his resignation on 18/06/2008 and has filed the suit for his dues towards full and final settlement. Plaintiff filed a form with defendant for full and final settlement which is disputed by the defendant as the plaintiff has not given any proof or basis for claiming an amount of Rs.97,595/- from the defendant. The full and final settlement as mark 'H' the e.mail dated 01/07/2008 mark 'I' for clearance of dues amounting to Rs.97,595 has not been proved as the defendant has denied both the documents and no certificate under section 65B of Indian Evidence Act has been filed by the plaintiff.
23. The defendant in reply mark K has stated that the "process towards the settlement would be carried out in its correctness subject to realisation of your outstanding dues of Rs.1,65,732/- towards the company by virtue of the Service Agreement which has been duly accepted by you" and the attention of the plaintiff was drawn to the service agreement dated 16/08/2007 wherein it has been stated that the plaintiff had agreed to serve the company for a minimum period of two years from the date of his/her appointment and in case of breach RCA DJ NO. 84/2022 Page 20 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
of this condition, plaintiff had given undertaking to the defendant company to reimburse three month's salary. Plaintiff admitted the receipt of email mark 'A'. The contention of the appellant/plaintiff that the service agreement which is in contradiction to the clause 13 of the appointment letter dated 16/08/2007 is void being violative of the provision of Contract Act was not pleaded. As a matter of fact, there is no mention of the Service Agreement in the entire pleading of the plaintiff. An agreement providing for reasonable restraint on the employee is not void. In Niranjan Shankar Golikari v. Century Spg. and Mfg. Co. Ltd., AIR 1967 SC 1098, the Hon'ble Supreme Court observed as under:
17. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termi-
nation of the contract than those in cases where it is to op- erate during the period of the contract. Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclu- sively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage him- self in a trade or business or would not get himself em- ployed by any other master for whom he would perform similar or substantially similar duties is not therefore a re- straint of trade unless the contract as aforesaid is uncon- scionable or excessively harsh or unreasonable or one- sided as in the case of W.H. Milsted & Son Ltd. Both the trial court and the High Court have found, and in our view, rightly, that the negative covenant in the present case re- stricted as it is to the period of employment and to work similar or substantially similar to the one carried on by the appellant when he was in the employ of the respondent Company was reasonable and necessary for the protection of the company's interests and not such as the court would refuse to enforce. There is therefore no validity in the con- tention that the negative covenant contained in clause 17 RCA DJ NO. 84/2022 Page 21 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
amounted to a restraint of trade and therefore against pub- lic policy.
24. In Aakash Educational Services Ltd. v. Sahib Sital Singh Bajwa, 2020 SCC OnLine Del 1719, Hon'ble High Court of Delhi reiterated the position of law on the scope of enforceability of negative covenants in a commercial contract, holding that once a contract is terminated, a negative covenant thereunder to restrict the trade, business or profession of any party is hit by Section 27 of ICA. The court also held that while such negative covenants may be legal during the subsistence or currency of the contract, however, post termination of the contract, barring exceptional cases, they will be unenforceable. In the present case, the covenant in the Service Agreement was that the plaintiff will serve the defendant company for a minimum period of two years from the date of his/her appointment and in case of breach of this condition, plaintiff shall be liable to reimburse three month's salary to the defendant.
25. In BLB Institute of Financial Markets Ltd. v.
Ramakar Jha, 2008 SCC OnLine Del 1075, Hon'ble Delhi High Court while allowing an application under section 9 of the Arbitration and Conciliation Act held that a negative covenant providing employee to work for a definite period of time is valid and enforceable. In the present case, plaintiff himself averred in the plaint that he was willing to work with the defendant for more than two years, which shows that the plaintiff entered into the service agreement on his free will and volition and the ground urged in the present appeal that owing RCA DJ NO. 84/2022 Page 22 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
to the relation between plaintiff and defendant, defendant was in a position to dominate the will of plaintiff and used that position to incorporate the contradictory term so that the same may be used by the defendant as per its own suitability and convenience is without any merit. Court cannot infer that every employment agreement is a result of undue influence unless the facts and circumstances of the case warrants such an inference. The facts of the present case do not warrant any such inference. There was no pleading before the trial court to this effect and the ground has been urged for the first time in appeal, nor there is any evidence on record to draw such an inference.
26. It has also been argued on behalf of the Appellant that principle of 'Contra Proferentem' is applicable, while interpreting the service agreement entered into between the parties. Principle of 'Contra Proferentem' state that in situations whenever ambiguity arises in any provisions of the agreement, it has to be construed more forcibly against the party putting forth the document, and in favour of the other party. In the present case, there is no ambiguity between the terms of the service agreement and appointment letter dated 16/08/2007. The Hon'ble Supreme Court in Mangala Waman Karandikar v. Prakash Damodar Ranade, (2021) 6 SCC 139 observed as under:
10. Having heard both the parties at some length, at the outset before we analyse this case, we need to observe some principles on contractual interpretation. Unlike a statutory interpretation, which is even more difficult due to assimila-
tion of individual intention of lawmakers, contractual inter- pretation depends on the intentions expressed by the parties and dredging out the true meaning is an "iterative process"
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for the courts. In any case, the first tool for interpreting, whether it be a law or contract is to read the same.
27. The plain reading of both the documents i.e. service agreement and appointment letter dated 16/08/2007, shows that there is no ambiguity in both the documents. As per clause 9 of service agreement, plaintiff had undertaken to work for the defendant company for a minimum period of two years and in the event of breach of this condition, he agreed to reimburse the defendant company three month's salary, the cost incurred by the company towards his training. Clause 13 of the Appointment letter provides that plaintiff was given liberty to resign from service only upon giving one month notice or payment in lieu thereof. Plain reading of both these clauses shows that plaintiff could have exercised his right to resign only after completion of minimum period of two years. In the present case, plaintiff resigned only after ten months and breached the service agreement. Plaintiff has leveled allegations against the defendant for creating such an environment making it difficult for the plaintiff to continue his employment, however during his cross-examination, he accepted that he never raised any grievance during his employment. Perusal of the email dated 18.06.2008 also shows that no such reasons were mentioned and resignation was tendered for personal reasons. Testimony of PW2 that the plaintiff was suffering from hypertension does not prove any maltreatment by the defendant.
28. Further as rightly pointed out by the learned trial court, the plaintiff has not filed any document to show that he is RCA DJ NO. 84/2022 Page 24 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
entitled to medical reimbursement and travel expenses as mentioned by him in Full and final settlement, Mark H. Defendant has also disputed the fact that the plaintiff served the notice period and filed the attendance sheet Ex. DW-1/B (Colly), which shows that plaintiff has attended the office only on 23rd and 25th of June after tendering the resignation. Only a general suggestion has been given to the DW-1, that the attendance sheet is forged and fabricated. Plaintiff tendered his resignation on 18th of June and had to serve the notice period of one month commencing from 19th of June. In email dated 30th June, 2008, Mark I, the plaintiff himself stated that he has no role to perform in defendant company and inquired from the defendant company, whether he is required to serve the notice period. Similarly, perusal of the Form-1 shows that the plaintiff had only claimed salary for the period 1st June to 30th June, 2008 and not for the entire notice period, which would come to an end on 18th of July, 2008 as the resignation was tendered on 18 th of June, 2008, which shows that plaintiff did not serve the one month notice period and thus no claim towards the salary of notice period was made by the plaintiff. Further with regard to salary for the period 1st June to 18th June,2008, defendant in para 22 of the Written statement has contended that the plaintiff remained absent for the entire month of June 2008 and thus is not entitled to recovery of any amount from the defendant. The onus to prove was on the plaintiff, however there is no averment in the plaint that the plaintiff was attending the office of the defendant from 1st to 18th June. All the averments in the plaint are with regard to notice period, which as discussed earlier was not served by the plaintiff. Thus, the plaintiff is in breach of RCA DJ NO. 84/2022 Page 25 of 26 Sh. Jayendra Singh vs. International College of Financial Planning Ltd.
mandatory condition of clause 13 of the appointment letter by not serving the notice period in addition to breach of clause 9 of service agreement. Accordingly, plaintiff/appellant is not entitled to recovery of the amount claimed by him. The appeal of the plaintiff/appellant is hereby dismissed. \
29. In view of the discussions, as adumbrated above, I hereby pass the following:
:: - FINAL ORDER - ::
A. The regular civil appeal of the plaintiff/appellant is hereby dismissed.
B. The Parties shall bear their own respective costs.
30. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
31. Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
32. Appeal file be consigned to record room after due compliance.
Announced in the open court on this 27th Day of May, 2023.
(Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi RCA DJ NO. 84/2022 Page 26 of 26