Delhi District Court
Delhi Information Technology Park vs Rohit Ahuja on 16 September, 2016
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
CS No. 47670/15
IN THE MATTER OF :
M/s Genpact India
( Earlier Known as
M/s GE Capital International Services)
22A, Sector18,
Gurgaon122015
Registered Office At:
Delhi Information Technology Park,
Shastri Park, Delhi53 ....... Plaintiff
V E R S U S
Mr. Rohit Ahuja
G2, Plot No. 886, Sector5,
Vaishali, Sahibabad201010
Also At: 721, Sector5,
Vaishali, Sahibabad20101 ........ Defendant
Date of Institution of suit : 13.12.2010
Received in this Court : 24.11.2014
Date of Judgment/Order : 16.09.2016
Decision : Suit is decreed with cost.
CS No. 47670/15 page 1 of 12
M/s Genpact India V/s Rohit Ahuja
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
SUIT FOR PERMANENT INJUNCTION AND DAMAGES
J U D G M E N T
1. By this judgment, the suit of the plaintiff for permanent injunction
and damages of Rs. 44,374/ alongwith pendente lite and future interest
@ 18 % per annum against the defendant is disposed off.
2. As stated, the plaintiff is a company incorporated under the
companies Act engaged in Information Technology enabled service and
this suit is filed through Ms. Vidya Srinivasan who is duly authorized on
behalf of plaintiff vide resolution dt. 02.07.04 to institute the suit and
signed / verified the plaint. The defendant was appointed as Asstt.
Manager vide letter dt. 01.09.06 which contains the terms and condition
for employment duly accepted by him. In view of the appointment letter,
either party could terminate the services by three month prior notice and
the plaintiff reserved the right not to accept the payment of salary in lieu
of notice period. It was further condition that defendant shall not be
permitted to any other employment during the course of employment
with the plaintiff nor divulge any affairs with the business of plaintiff.
Contrary to the terms and condition of the employment letter, defendant
vide letter dt. 21.08.08 informed the plaintiff to resign and sought to be
relieved by 13.09.08 without serving the notice period. The resignation of
defendant was not accepted and was rejected and accordingly the
defendant remained the employee of the plaintiff. The defendant was
CS No. 47670/15 page 2 of 12
M/s Genpact India V/s Rohit Ahuja
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
communicated to join the duty and served the notice period but of no
avail. As the defendant has contravent the terms and condition of the
employment and the joined the other service, plaintiff has therefore filed
this suit against the defendant.
3. In written statement, the defendant stated that suit is not
maintainable and the plaintiff has concealed the material facts; this suit is
filed without any cause of action. The defendant has joined another
office and informed the plaintiff that his three months salary should be
deducted in lieu of three months notice. The defendant claimed that he
has not committed any breach of agreement and left the job intimating
the plaintiff in advance. As further contended, this suit is filed to harass
the defendant. The defendant further denied other material contentions
of the plaintiff in the plaint prayed to dismiss the suit with heavy cost.
4. Alongwith the WS, the defendant has also filed one counter claim
praying for decree of Rs. 5,00,000/ on the ground of humiliation and
harassment. The plaintiff in reply of counter claim of the defendant
denied the avements of the counter claim. It is further mentioned that the
counter claim filed by the defendant was dismissed for non prosecution
and the defendant was proceeded ex parte. The case was thereafter
fixed for exarte evidence.
5. Mr. Ankit Kumar, AR of the plaintiff filed his affidavit by way of
evidence Ex PW 1/A and examined himself as PW1 in support of the
case. He deposed as per averments made in the plaint and also
deposed regarding the relevant documents i.e. board resolution dt.
CS No. 47670/15 page 3 of 12
M/s Genpact India V/s Rohit Ahuja
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
02.04.07 Ex. PW 1/1, appointment letter dt. 01.09.06 Ex. PW 1/ 2, email
dt. 21.08.08 Ex. PW 1/3, email dt. 29.08.08 Ex. PW 1/4, email dt.
02.09.08 Ex. PW 1/ 5, email dt. 08.09.08 Ex. PW 1/ 6, email dt. 08.09.08
Ex. PW 1/ 7, email dt. 08.09.08 Ex. PW 1/ 8, email dt. 11.09.08 Ex. PW
1/ 9, email dt. 11.09.08 Ex. PW 1/ 10, email dt. 12.09.08 Ex. PW 1/ 11
and full and final statement of account dt. 09.12.10 Ex. PW 1/12. As no
other witness was examined by the plaintiff, the exparte evidence was
closed.
6. I have heard the final arguments on behalf of plaintiff and gone
through the relevant materials on record. I have also considered the
relevant provisions of law.
7. Having drawn my attention to the pleadings of the parties,
testimony of witnesses and materials on records, it is submitted by
learned counsel for the plaintiff that the case of the plaintiff has been
duly proved and plaintiff has discharged the onus, the plaintiff is entitled
for the relief as prayed in the suit. It is further argued the defence of the
defendant is shame, vague and fanciful, the defendant failed to give
three month legal notice in view of terms and condition of the agreement.
As contended, this suit is filed within limitation. The Ld. Counsel for the
plaintiff further prayed to decree the suit in favour of the plaintiff and
against the defendant.
8. The onus to prove the case regarding entitlement for the amount /
relief claimed in the suit was on the plaintiff. It is well settled that a suit
has to be tried on the basis of the pleadings of the contesting parties
CS No. 47670/15 page 4 of 12
M/s Genpact India V/s Rohit Ahuja
Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
which is filed in the suit in the form of plaint and written statement and
the nucleus of the case of the plaintiff and the contesting case of the
defendant in the form of issues emerges out of that. Being a civil suit,
this suit is to be decided on the basis of preponderance of probabilities.
In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported
in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to
observe as under:
"A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were
duly executed by the deceased Sh. Sohan Singh. The
Power of Attorney is after all a registered Power of
Attorney, and more importantly, the original title documents
of the subject property are in the possession of the
respondent No. 1 and which would not have been, if there
was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
CS No. 47670/15 page 5 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visa vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
9. Section 101 of the Evidence Act, 1872 defines " burden of proof"
which is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the CS No. 47670/15 page 6 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn.
10. In the present case, there is no denial that the defendant has joined the services in the plaintiff company and also left the job without giving three months prior notice as required. It is further reiterated that defendant has not contested the suit and testimony of PW1 remained unimpeached / uncontroverted. The execution of the appointment letter Ex. PW 1/ 2 is also admitted by both the parties. The plaintiff has prayed for decree of permanent injunction for restraining the defendant from divulging any information and also prayed for decree of Rs. 44,374/ as liquidated damaged for breach of contract dt. 01.09.06. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief CS No. 47670/15 page 7 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
Act, 1963 which is as below: Section 38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
11. Section 38 of Specific Relief Act enables the court to grant perpetual injunction to prevent the breach of an obligation existing in favour of applicant, whether expressed or implied. Meaningly, the question is to be examined as to whether there exists an obligation in favour of the applicant and if the answer is in affirmative and the case falls within the ambit of Section 41 of the Specific Relief Act an injunction cannot be granted. It is also necessary to mention that rights and obligations are corollary each other and the right places a correspondence duty also for its existence. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied.
12. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section CS No. 47670/15 page 8 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
13. I have gone through the agreement entered into between the parties dt. 01.09.06 Ex. PW 1/2 and para 6 authorized any of the parties to the agreement to terminate the services by giving notice in writing for three months or payment of salary in lieu thereof. In view of the clause in the agreement between the parties, the defendant has liberty to terminate the services by paying three months salary in case, notice is not given. In case, the further condition of the "plaintiff that the company reserves the right not to accept salary in lieu of notice" is applied, none of the agreement between the parties can be terminated by the other party as the plaintiff has only option to accept the three months notice or three months salary. As the defendant is ready and willing to pay three months salary in view of agreement between the parties, there appears to be no ground for issuance of decree of permanent injunction in favour of plaintiff and against the defendant.
14. Section 27 of the Indian Contract Act, 1872 provides that any agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind is to that extent void. Any prayer made by the plaintiff to restrain the defendant to join any services is therefore void in view of Section 27 of the Indian Contract Act as well. In the agreement Ex. PW 1/ 2 between the parties, there is clause which permits the parties to pay three months salary in lieu of three months CS No. 47670/15 page 9 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
notice for termination. In view of the Section 14 (1)(a) of the Specific Relief Act, 1963, a contract cannot be specifically enforced for the non performance of which compensation is an adequate relief. Moreover, in view of the Section 41 (e)(h) of the Specific Relief Act as well, the plaintiff cannot be granted the relief of permanent injunction to prevent the breach of a contract the performance of which would not be specifically enforced. Moreover the plaintiff has efficacious remedy available for breach of the agreement and therefore the plaintiff is not entitled for the relief of permanent injunction. The injunction is equity relief and a persons who seeks equity must do equity as well.
15. The execution of agreement Ex. PW 1/ 2 is admitted and it is reiterated that defendant has not given three month notice for termination of the agreement. Since the defendant was exparte, the version of the plaintiff in the plaint and evidence were unrebutted and unchallenged. Plaintiff has duly proved that the defendant has left the job without three months notice in view of agreement Ex. PW 1/ 2. As per the statement of account Ex. PW 1/ 12, it is proved that the net amount payable by defendant to the plaintiff is Rs. 43,749/ alongwith pendente lite and future interest. The witness further proved that defendant failed to make the due payment against liability.
16. In view of the unrebutted testimony of the PW1 and the materials on record, this court is of the considered opinion that the plaintiff has proved the case against the defendant. It is further proved that defendant has failed to make due and outstanding payment to the plaintiff and he is CS No. 47670/15 page 10 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
liable to make the payment. I thus do not see any reason why the suit cannot be decreed. The plaintiff has prayed for grant of interest @ 18 % p.a. which seems to be excessive. This court is inclined to grant simple interest @ 10 % p.a being reasonable and as per prevalent market rate which shall meet the ends of justice.
17. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood CS No. 47670/15 page 11 of 12 M/s Genpact India V/s Rohit Ahuja Sh. G. N. Pandey, Addl. District Judge (NE) Karkardooma Courts, Delhi.
discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
18. Therefore, in view of the aforesaid discussion and for the reasons recorded, the suit of the plaintiff is decreed in the following manner:
(a) Plaintiff is granted a decree for recovery of Rs. 43,749/ alongwith simple interest @ 10% p.a. from the date of filing of the suit till the date of realization.
(b) Plaintiff is granted costs of suit.
19. Decree sheet be drawn accordingly.
20. File be consigned to record room after necessary compliance.
Announced in open Court on this 16th day of September, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 47670/15 page 12 of 12 M/s Genpact India V/s Rohit Ahuja