Delhi District Court
Vipul Jain vs Vikas Goel And Anr. on 22 March, 2014
VIPUL JAIN VS VIKAS GOEL AND ANR.
IN THE COURT OF MS. RAJAT GOYAL: CJ04 (SOUTH):
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No. 20/2013
Vipul Jain S/o Sh. C. K. Jain,
R/o: J55, Sarita Vihar,
New Delhi ... Plaintiff
Versus
1. Vikas Goel,
Director of M/s SMB Solutions Corporate
Services Private Ltd. Having its office at:
B1, LGF, Geetanjali Enclave,
New Delhi - 110017
2. M/s SMB Solutions Corporate
Services Private Ltd. Having its office at:
B1, LGF, Geetanjali Enclave,
New Delhi - 110017 ... Defendants
Date of Institution : 21.08.2012
Date of Reserving Judgment : 22.03.2014
Date of Decision : 22.03.2014
J U D G M E N T
(on Suit for recovery of Rs.2,82,016/)
1. This suit was filed by the plaintiff for seeking a decree for recovery of Rs.2,82,016/ against the defendants alongwith interest @ 18% per annum.
2. Briefly stated, case of the plaintiff is that by way of appointment letter dated 07.03.2011, plaintiff joined the CS No. 20/2013 Page 1 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
services of the defendants and was posted at the client office of the defendants. That plaintiff successfully completed the probation period of three months. That client of the defendants where the plaintiff was posted (i.e.M/s Boston Scientific India) was satisfied with the work and efficiency of the plaintiff. That on 18.01.2012, defendant no.1 terminated the services of the plaintiff without any notice and reason and in a malafide manner. That defendants did not serve the mandatory notice of one month before terminating the service of the plaintiff. That defendants did not pay plaintiff's salary for the period 01.01.2012 to 18.01.2012. That defendants are also liable to pay retention bonus and notice period salary to the plaintiff. That plaintiff also sent legal notice dated 26.03.2012 to defendants in this regard, but to no avail. That plaintiff is also entitled to a sum of Rs.2,00,000/ on account of loss of monetary benefits and reputation. Hence, the present suit.
3. Upon service of summons of the present suit, defendants appeared and filed their written statement (WS) denying the allegations as contained in the plaint. It was further submitted on behalf of defendants that the present suit has been filed without any cause of action. That defendant no.1 is neither a necessary nor a proper party to the present suit. That contract between the defendants and M/s Boston Scientific India was terminated on account of misconduct of the plaintiff due to which defendants suffered CS No. 20/2013 Page 2 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
financial losses. That service of the plaintiff was terminated in accordance with the appointment letter. That plaintiff never completed his probation period and as such, his services were not confirmed. That various complaints were received against the plaintiff from M/s Boston Scientific India and that the plaintiff was reprimanded verbally several times. That plaintiff also indulged in unauthorized data theft from the office of the defendant. That plaintiff is not entitled to any amount. Hence, the present suit may be dismissed.
4. Plaintiff filed replication to the WS of the defendants denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of the pleadings of the parties, following issues were framed vide order dated 18.05.2013 :
1. Whether the plaintiff is entitled to a decree for recovery of Rs. 2,82,016/ as prayed in prayer clause (a) of the prayer ? OPP
2. Whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP
3. Whether the plaint of the plaintiff is without any cause of action and the same is liable to be rejected under Order VII Rule 11 CPC? OPD
4. Whether the plaintiff has concealed material facts from the Court and has not come to the Court with clean hands?OPD CS No. 20/2013 Page 3 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
5. Whether suit of the plaintiff is bad for misjoinder and nonjoinder of necessary parties and the same is liable to be dismissed on this ground? OPD
6. Relief.
6. In order to prove his case, the plaintiff himself stepped into the witness box as PW1. Plaintiff thereafter closed his evidence. Defendants, on the other hand, examined defendant no.1 as DW1 and thereafter closed their evidence.
7. I have heard the contentions of both the sides and also gone through the record carefully. My issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a decree for recovery of Rs. 2,82,016/ as prayed in prayer clause
(a) of the prayer ? OPP
8. The onus to prove this issue was upon the plaintiff. Plaintiff, appearing as PW1, tendered his affidavit Ex.PW1 into evidence wherein he has reiterated all the allegations as contained in the plaint. He has also relied upon various documents such as Ex.PW1/1 (copy of email dated 10.02.2011), Ex.PW1/2 (appointment letter dated 07.03.2011), Ex.PW1/3 (copy of email dated 24.05.2011) and Ex.PW1/4 to Ex.PW1/6 (various other emails). Ld. Counsel for the plaintiff has argued that plaintiff was appointed at a monthly salary of Rs. 45,000/ per month and that he successfully completed CS No. 20/2013 Page 4 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
his probation period. It has further been argued that since plaintiff had completed the probation period, his services could have been terminated only after serving one month's notice or giving salary in lieu thereof in accordance with clause 3 of his appointment letter Ex.PW1/2. On the other hand, it has been argued on behalf of the defendants that plaintiff had still not completed his probation period and hence, no notice was required for termination of his services. Ld. Counsel for the plaintiff has argued that there was no communication from the defendants regarding extension of probation period of the plaintiff and hence, it must be presumed that services of the plaintiff were confirmed. However, I do not find any merit in this argument of the Ld. Counsel for the plaintiff. It is the admitted case of the parties that Ex.PW1/2 is the letter of appointment of the plaintiff containing the terms and conditions of his service. Clause 2 of Ex.PW1/2 states very clearly that upon successful completion of the probation period, the services of the plaintiff will be confirmed in writing. Admittedly, services of the plaintiff were never confirmed by the defendants by way of any writing. The same has been admitted to by PW1 in his cross examination. Thus, there is no question of deemed confirmation of the plaintiff merely because there was no written communication regarding extension of his probation period. As per clause 3 of Ex.PW1/2, services of the plaintiff could be terminated at any time without any notice whatsoever during his probation period. As has already been CS No. 20/2013 Page 5 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
observed by me above, services of the plaintiff were not confirmed and hence, he shall be deemed to be within his probation period from the date of his joining till termination of his services on 18.01.2012. Hence, in my opinion, defendants were not required to serve any notice period before terminating the services of the plaintiff as the requirement of giving one month's notice or salary in lieu thereof arose only after confirmation in accordance with clause 3 of Ex.PW1/2. Hence, in my opinion, plaintiff is not entitled to salary for one month period.
9. Plaintiff has also claimed an amount of Rs.23,516/ as salary for the period from 01.01.2012 to 18.01.2012. It is an admitted case of both the parties that services of the plaintiff were terminated with effect from 18.01.2012. PW1 has stated in his evidence that salary for the period 01.01.2012 to 18.01.2012 was not paid to him by the defendants. Ld. Counsel for the defendants has argued that plaintiff has not led any evidence to prove that salary for the said period was not paid to him. However, I do not find myself to be in agreement with this argument of the defendants. Though it is correct that there is no documentary evidence led by the plaintiff in support of his claim regarding salary for the said period, the very nature of the claim makes it extremely difficult for the plaintiff to lead any documentary evidence to this effect. In my opinion, since the averments regarding non payment of salary for the said period were extremely clear CS No. 20/2013 Page 6 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
and categoric, defendants could and should have led evidence to prove that salary was indeed paid to the plaintiff for the period 01.01.2012 to 18.01.2012. However, no such evidence has been led by the defendants, hence, leading to an adverse inference against the defendants. Hence, I am of the view that plaintiff is entitled to salary for the period 01.01.2012 to 18.01.2012.
10. Plaintiff has also claimed retention bonus of Rs. 18,000/ for the period from October 2011 to January 2012. However, I do not myself to be convinced with this argument. As per clause 1 of Ex.PW1/2, plaintiff was eligible for retention bonus of Rs.27,000/ upon completion of first six months of his service and an additional retention bonus of Rs.27,000/ upon completion of 12 months of his service. PW1 has admitted in his cross examination that first retention bonus was given to him by the defendants upon completion of six months of his service. Thus, the only controversy which remains is regarding his entitlement to second retention bonus. It is the case of the plaintiff himself that he joined the defendants on 14.03.2011 and continued to work there till 18.01.2012. Hence, in my opinion, plaintiff is not entitled to second retention bonus of Rs.27,000/ as he had not completed 12 months of service. Ld. Counsel for the plaintiff has argued that DW1 has admitted in his cross examination that plaintiff was entitled to retention bonus of Rs.4500/ per month. However, the said oral testimony of DW1 cannot CS No. 20/2013 Page 7 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
have the effect of overriding the written terms and conditions of the service of plaintiff as contained in Ex.PW1/2. It must be noted here that PW1 has himself admitted in his cross examination that he was not entitled to second retention bonus as he had not completed 12 months of service. Hence, in my opinion, plaintiff is not entitled to retention bonus for the period October 2011 to January 2012.
11. Plaintiff has also claimed an amount of Rs.2,00,000/ as compensation for monetary loss, mental agony and loss of reputation. However, no evidence whatsoever has been led by the plaintiff to prove that he had suffered any monetary loss due to termination of his services by the defendants. Further, there is again no evidence regarding the allegation that termination of the plaintiff by the defendants has led to loss of any goodwill or reputation of the plaintiff. As already mentioned above, plaintiff was still within his probation period when his services were terminated and hence, there is no question of penalizing the defendants for terminating the services of plaintiff without any notice. Hence, I am of the view that plaintiff is not entitled to any amount as compensation for monetary loss, mental agony and loss of reputation. Thus, issue no.1 is decided accordingly.
ISSUE NO.2 Whether the plaintiff is entitled to interest? If so, at what rate and for which period ? OPP CS No. 20/2013 Page 8 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
12. Plaintiff has claimed interest @18% per annum.
However, in the facts and circumstances of the case, interest @12% per annum from the date of termination i.e. 18.01.2012 till realization is just and appropriate in my opinion. Issue no.2 is, thus, decided accordingly.
ISSUE NO.3 Whether the plaint of the plaintiff is without any cause of action and the same is liable to be rejected under Order VII Rule 11 CPC? OPD
13. The onus to prove this issue ws upon the defendants.
However, there is absolutely nothing on record to lead to the inference that the present suit has been filed without any cause of action. The plaintiff has very clearly averred in the plaint that his services were terminated without notice and that he is entitled to salary for the month of January 2012 alongwith retention bonus etc. Thus, by no stretch of imagination can it be said that the present suit has been filed without any cause of action. Hence, issue no.3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.4 Whether the plaintiff has concealed material facts from the Court and has not come to the Court with clean hands?OPD
14. The onus to prove this issued was on the defendants.
However, no evidence has been led by the defendants to CS No. 20/2013 Page 9 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
prove that plaintiff has concealed any material facts from the Court. Accordingly, issue no.4 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.5 Whether suit of the plaintiff is bad for misjoinder and nonjoinder of necessary parties and the same is liable to be dismissed on this ground? OPD
15. Ld. Counsel for the defendants has argued that defendant no.1 is a Director of defendant no.2 company and hence, is not personally liable. It is correct that Director of Company cannot be fastened with any personal liability on account of duties discharged by him during the course of his office. However, impleadment of defendant no.1 as a party to the present suit can at the most be considered to be a case of misjoinder of parties. As per Order I Rule 9 CPC, misjoinder or nonjoinder of parties cannot defeat any suit. Thus, issue no.5 is also decided in favour of the plaintiff and against the defendants.
Relief:
16. As a consequence to my findings on the above mentioned issues, I am of the opinion that plaintiff is entitled to recovery of a sum of Rs.23,516/. Since defendant no.1 is a Director of defendant no.2 company, no personal liability can be fastened upon him. Hence, suit of the plaintiff is partly CS No. 20/2013 Page 10 of 11 VIPUL JAIN VS VIKAS GOEL AND ANR.
decreed and a decree for recovery of Rs.23,516/ along with interest @ 12% per annum from 18.01.2012 till realization is passed in favour of the plaintiff and against defendant no.2. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly.
17. File be consigned to the record room after due compliance.
Announced in the open Court on 22.03.2014 (Rajat Goyal) CJ04 (South)/Saket Courts New Delhi/22.03.2014 CS No. 20/2013 Page 11 of 11