Delhi District Court
Sh. Tejbir Singh vs M/S Dsc Limited on 17 April, 2018
IN THE COURT OF MS. PRIYA MAHENDRA, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 9326/16
Sh. Tejbir Singh
S/o Sh. Bahadur Singh
R/o 27/46, Ground Floor,
Old Rajinder Nagar,
New Delhi. ............Plaintiff
Versus
M/s DSC Limited
E-9, Third Floor, South Extension,
Part-II, New Delhi. .........Defendant
Date of institution of the suit : 19.07.2014
Date reserved for judgment : 13.04.2018
Date of pronouncement of judgment : 17.04.2018
Suit for recovery of Rs. 3,13,480/-
JUDGMENT
1.1 The brief facts of the case of the plaintiff are that the plaintiff joined the services of the defendant with effect from 15.05.2006 as DGM in Administration Department and was allotted the employment code 00837 by the Human Resource Department of the defendant. The letter of appointment was executed on the date of joining i.e 15.05.2006. It is Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 1/32 further stated that as per Clause No.5 of the letter of appointment, the plaintiff was posted at KMP Project, Gurgaon and w.e.f 02.02.2009 the plaintiff was transferred to the Head Office of the defendant at Gurgaon. The plaintiff served his whole service at Gurgaon. During the service of the plaintiff with the defendant company, the plaintiff discharged his duties to the utmost satisfaction of the defendant and there was never any shortcoming in the work of plaintiff. It is further stated that vide e-mail dated 04.07.2011 to the defendant, the plaintiff has apprised the defendant that due to personal reasons, the plaintiff is unable to continue his services with the defendant company and the plaintiff tendered his resignation to the defendant, the original of which was already submitted to H.R Department on 04.07.2011. By way of the said mail, the plaintiff requested the defendant to accept his resignation and also accept the requisite notice period i.e from 04.07.2011 to 30.07.2011. The plaintiff also requested the defendant to relieve him from services by 30.07.2011 and settle full and final account of the plaintiff by 30.07.2011. Through e- mail dated 20.07.2011, the defendant had sent the pay slip for the month of June, 2011 and also paid salary for the month of June 2011 but the defendant did not settle the account of the plaintiff and did not pay his legal dues. Thereafter, the plaintiff was also paid salary for the month of Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 2/32 July 2011, though, the pay slip for the month of July 2011 was not sent to plaintiff by defendant.
1.2 It is further stated that through e-mail dated 26.07.2011, the defendant again apprised the defendant that he had resigned from the post of AGM and requested the defendant to please advise/assign the official to whom he can handover the charge and all documents of his department as the plaintiff's last date of service with the defendant was 30.07.2011 and also requested to fully and finally settle all his accounts by 30.07.2011. It is further stated that on the request of the plaintiff, the defendant sent Mr. Mohit Jain, DGM to take charge from the plaintiff. The plaintiff handed over all documents, files, folders and Management Information Statement and other documents in his charge to the assigned person Mr. Mohit Jain and obtained the acknowledgment of receiving of said documents for his record/possession. The plaintiff also submitted duly signed No Objection Certificate form with the defendant for the clearance of his accounts. It is further stated that as the requisite notice period as defined in the appointment letter had already been completed on 30.07.2011, plaintiff resigned from the services of the defendant company on 30.07.2011. Despite completing all the formalities, the defendant did not pay the plaintiff his Gratuity Dues of Rs. 1,38,462/- which was Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 3/32 pending since 14.05.2011, Paid Leave allowance of Rs. 2,00,400/- as per the leave policy of the defendant and Special allowance of Rs. 13,300/- on which TDS has been deducted. There is also an outstanding amount of Rs. 16,800/- receivable by plaintiff from defendant company on account of reimbursement of the expenses incurred by plaintiff on behalf of the defendant company and the same are pending since January, 2011. 1.3. It is further stated that the plaintiff requested the defendant number of times by personally visiting the office at Gurgaon and also through mails to clear all outstanding dues. The defendant did not pay the dues to the plaintiff and the plaintiff was constrained to get issued a legal notice through his Advocate Ms. Meenu Garg on 13.06.2012, demanding the payment of dues amounting to Rs. 3,68,962/- plus interest @ 18% per annum from the date of resignation within 15 days from the receipt of the notice. The defendant neither replied the notice dated 13.06.2012 nor took any steps to clear the outstanding dues. It is further stated that the plaintiff filed an application under Payment of Gratuity Act before the Competent Authority under Payment of Gratuity Act at Delhi on 05.12.2012. The defendant appeared just once before the Competent Authority but failed to take any steps to contest the matter. The competent Authority proceeded exparte against the defendant and passed Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 4/32 the order in favour of the plaintiff and directed the defendant to pay to the plaintiff Rs. 1,38,462/- plus interest @ 10% from 30.07.2011 till the date of actual payment within a period of 30 days from the date of issue of the order. The defendant despite order of Competent Authority failed to pay the amount and the plaintiff moved an application for execution of the order before the Competent Authority. The Competent Authority was pleased to pass the order for the recovery of the due amount of Gratuity payable under the order and forwarded the direction to District Commissioner (South) to recover the amount from the defendant. It is further stated that the Recovery Officer visited the Office of the defendant and recovered the principal amount of gratuity of Rs. 1,38,462/- and the recovery proceeding for awarded interest are pending with the Recovery Officer.
1.4 It is further stated that the defendant has illegally and without any reason withheld the payment due to the plaintiff and thus the plaintiff is entitled to claim interest on the said amount @ 12% per annum as per custom and usages prevailing in the market. The plaintiff is otherwise entitled to claim interest @ 12% per annum as the defendant has wrongfully utilized the amount due to the plaintiff. A sum of Rs. 82,980/- as accrued towards the interest is payable by the defendant, which the Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 5/32 plaintiff is claiming in the suit. It is further stated that now a sum of RS. 2,30,500/- towards the principal amount and Rs. 82,980/- towards the interest accrued till the date of filing of the suit i.e total sum of Rs. 3,13,480/- is due to be paid by the defendant to the plaintiff. The defendant has not paid dues of plaintiff despite repeated demands and requests and even after receipt of notice of demand dated 13.06.2012 and thus this suit has been filed by plaintiff.
2. Written Statement was filed on behalf of the defendant. In the Written Statement, it is stated that this Court has no territorial jurisdiction to adjudicate the mater. It is further submitted that the plaintiff was appointed vide appointment letter dated 15.05.2006. The said appointment letter was issued from Gurgaon office of the defendant. It is further submitted that the said appointment letter was duly accepted and signed at Gurgaon, Haryana. According to the clause 5 of the appointment letter, the plaintiff was posted at KMP Project - Gurgaon. The plaintiff has joined the services at Gurgaon office of the defendant. The plaintiff discharged his duty also from Gurgaon office. Therefore, the dispute can only be effectively adjudicated at Gurgaon Courts, Haryana. Therefore, the plaint deserves to be returned on this ground alone.
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 6/32 2.1 It is further stated that the claim of Special allowance and Reimbursement of expenses raised by plaintiff, is time barred. It is submitted that the plaintiff has claimed an amount of Rs. 13,300/- as special allowance and Rs. 16,800/- on account of reimbursement for the period prior to January 2011. Though, the said amount is not legally due and payable but the said claim is also barred by law. It is submitted that in Para 8 of the plaint, it is admitted by the plaintiff that claim made in respect of Special allowance and Reimbursement are pending since January 2011. Therefore, the plaint is liable to be rejected on this ground alone.
2.2 It is further stated that the plaintiff has not approached the Court with clean hands and has suppressed the material facts. It is stated that the plaintiff has not submitted the "No Objection Certificate" from various department in prescribed format. The said "NO Objection Certificate" is pre-requisite to determine whether the plaintiff is required to return some valuable article/equipment, whether any advance taken by him is required to be adjusted and as to whether after all such adjustments, any amount is due to the plaintiff or is required to be recovered from him. It is also stated that the plaintiff was explained the Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 7/32 position that until the records are handed over to the defendant's office, it is very difficult for the defendant to prepare full and final statement of account. It is submitted that every time plaintiff gave false assurances to handover the same but never complied. It is further stated that the defendant never received any legal notice alleged to have been sent by the plaintiff and, therefore, the question of sending reply to it, does not arise at all. It is further stated that Sh. Mohit Jain was never assigned to take charge from the plaintiff. Neither the plaintiff nor Sh. Mohit Jain handed over any document or NOC to the defendant.
2.3 It is further submitted that before resigning, the plaintiff failed to serve one month's advance notice. It is further stated that the present suit is gross abuse of the process of law and it is liable to be dismissed in limine because the plaintiff has not complied with the terms of appointment as well as established norms of service.
3. In the Replication, the plaintiff has denied and disputed the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint. The Plaintiff has reaffirmed that this court has territorial jurisdiction to adjudicate the present matter. It is submitted that the letter of appointment was executed on the date of joining i.e Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 8/32 15.05.2006 and the said appointment letter, stipulates in condition No.5 that the defendant reserves the right to place the plaintiff in any of the units, offices, associate companies either existing or to be opened in future, according to exigencies of work at the sole discretion of the management. The plaintiff joined the duty at Gurgaon but later on the plaintiff was deputed at Barapula Project of the defendant at Delhi during the period August 2010 to May 2011. The salary of the plaintiff was being paid from the registered office of defendant at Delhi throughout his service which is evident from the pay slips filed on the record. The defendant used to deposit TDS at Delhi and the plaintiff was having his Provident Fund Account at Delhi where the defendant had been depositing its share. In view of the above, it is baseless to allege the dispute can only be effectively adjudicated at Gurgaon Court. It is also stated that the defendant has its registered office at Delhi within the territorial jurisdiction of this court and as such this court has territorial jurisdiction to entertain and try the present suit and the plaint is not liable to be returned.
3.1 It is further stated that it is wrong to allege that the certain claim is barred by law of limitation. None of the claim of the plaintiff as claimed in the suit is barred by law of limitation and in view of the admission and Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 9/32 acknowledgement made by defendant within the prescribed period of limitation, the entire claim of plaintiff is within the prescribed period of limitation. It is further stated that the plaintiff after resignation handed over all the record which was in his possession to Sh. Mohit Jain, Deputy General Manager and to Mr. Arun Kanwar, Assistant Manager of the defendant company. The defendant despite various requests did not issue "No Objection Certificate" to the plaintiff. The plaintiff had not taken any loan nor any payment was due from him. It is evident also from the fact that till date the defendant never raised any demand or asked the plaintiff for the return of any valuable article/equipment. It is wrong to allege that before resigning, the plaintiff failed to serve one month advance notice. It is stated that the plaintiff resigned on 04.07.2011 and served the company till 30.07.2011 as last working day of July 2017 i.e 31.07.2011 was Sunday.
4. From the pleadings of the parties, the following issues were framed on 25.11.2014:
ISSUES
1. Whether the suit of the plaintiff is barred by limitation? OPD
2. Whether this court has no territorial jurisdiction to try and entertain the suit of plaintiff? OPD Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 10/32
3. Whether the plaintiff is entitled to the recovery of suit amount from the defendant? OPP
4. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
5. Relief.
5. In support of his evidence, the plaintiff examined only one witness in all.
5.1. PW-1 Sh. Tejbir Singh tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint. PW-1 has relied upon following documents:
1. Ex. PW1/1 is the Letter of Appointment dated 15.05.2006.
2. Ex. PW1/2 is the Inter Office Memo.
3. Ex. PW1/3 is the copy of Pay-Slip for the month of June, 2011.
4. Ex. PW1/4 is the Form No. 16.
5. Ex. PW1/5 is the Form No. 16.
6. Ex. PW1/6 is the Form No. 16.
7. Ex. PW1/7 is the Form No. 16.
8. Ex. PW1/8 is the receipt of deposit of EPF withdrawal form slip.
9. Mark 'A' is the copy of the EPF withdrawal form.
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 11/32
10. Ex. PW1/10 is the copy of bank pass-book of the plaintiff (running into 14 pages).
11. Ex. PW1/12 are the e-mails dated 04.07.2011 & 26.07.2011.
12. Mark 'C' is the copy of HR Policy Manual.
13. Mark-D is the copy of Legal Notice dated 13.06.2012.
14. Ex. PW1/16 is the postal receipt.
15. Ex. PW1/17 is the order of the Competent Authority under Payment of Gratuity Act.
5.2 It is important to point out here that the plaintiff has not filed on record copy of the receiving taken by the plaintiff from Mr. Mohit Jain after handing over the charge and the same is inadvertently marked as Mark 'B' in examination-in-chief of PW-1/plaintiff Sh. Tejbir Singh. 5.3 In his cross-examination, PW-1 stated that he used to receive his salary in his bank account and the defendant disbursed the salary through cheque/draft. PW-1 admitted that he could have deposited his salary cheque in any of accounts and voluntarily stated that he was having only one bank account. PW-1 further stated that he does not remember the date as to when he was given the increment as shown as special allowance of Rs. 13,300/-. PW-1 further stated that he was getting running imprest Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 12/32 from the company to meet site expenses. However, he made extra spending to the tune of Rs. 16,800/- which has been claimed in this case.
PW-1 further stated that he had sent lot of mails to defendant to pay said amount, but of no use. The amount pertained to January, 2011 for Barapulla Project site. PW-1 further stated that he had received the gratuity amount to the tune of Rs. 1,38,462/- after issuance of legal notice and he also received the interest thereon after filing of the present suit. PW-1 admitted that there is no amount due for gratuity amount. PW-1 further stated that he was entitled for casual leave, privileged/earned leave, sick leave, as per the policy. As per policy, the privileged leaves were reimbursable. He was entitled for 83 privileged leaves. At the time of resignation, he was posted as Additional General Manager and his last posting was at Gurgaon, Haryana. PW-1 denied the suggestion that he is not entitled to the amounts claimed by him in the present case. PW-1 further stated that from August 2010 to May 2011, he was posted at Barapulla Project and there is no written transfer order, but he was transferred on oral order of the MD. PW-1 denied the suggestion that he was never posted at Barapulla Project.
5.4 No other PW was examined and PE was closed vide order dated 20.04.2015.
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 13/32
6. In defence evidence, the defendant examined only one witness in all.
6.1 Sh. Dinesh Kumar Sharma was examined as DW-1, who tendered his evidence by way of affidavit Ex. DW1/1. DW-1 has relied upon the following documents in his cross-examination:
1. Ex. DW1/P1 is the letter dated 29.03.2010.
2. Ex. DW1/P2 is the letter dated 19.06.2010.
3. Ex. DW1/P3 is the Pay-Slip of the plaintiff. 6.2 In his cross-examination, DW-1 stated that the plaintiff had joined the defendant company at his Gurgaon office on 15.05.2006 and the appointment letter was issued from Gurgaon office by Dr. Devender Sharma. The defendant is having corporate office at Delhi and registered office at Gurgaon. He denied the suggestion that appointment letter was issued to the plaintiff at Delhi.
6.3 He further stated that the defendant company maintains the record of employees regarding their postings. The record pertaining to the plaintiff that he joined the defendant company at Gurgaon already filed on record. He denied the suggestion that the defendant has not filed such Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 14/32 record in the instant case. He denied the suggestion that the plaintiff jointed the defendant company at Delhi. He stated that the salary was paid to the plaintiff from Gurgaon office through RTGS from ICICI Bank, Gurgaon. He does not remember the name of the branch. The defendant company was maintaining the Attendance Register till 2006 and thereafter the attendance of its employees started biomatrical. Presently, the defendant company has no record of biometrical attendance. The attendance registers were maintained at the site. The entire attendance registers cannot be produced as the same were locked at Maneshwar Camp.
6.4 The Provident Fund Account of the defendant company pertaining to its employees was maintained from Gurgaon. The defendant company was registered at Delhi for the purpose of Provident Fund of its employees. He stated that he is not aware from which place Form-16 used to be issued to the employees by the defendant company. He denied the suggestion that he is deliberately concealing the Form-16 were issued from Delhi.
6.5 He further stated that he is not sure whether the registered office of the defendant company in 2012 was at E-9, Third Floor, South Extension, Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 15/32 Part-II, New Delhi. He further stated that Barapulla Project at Delhi was assigned to defendant company by the Government. He is not aware whether the plaintiff has worked at Barapulla Project at Delhi from August 2008 to May 2011.
6.6 No other DW was examined and DE was closed vide order dated 11.10.2017.
7. I have carefully considered the arguments advanced and perused the record.
8. Details final arguments heard. My findings on the issues are as follows:
Issue No.1:
Whether the suit of the plaintiff is barred by limitation? OPD
9. The plaintiff in the present suit has originally sought recovery under four heads, namely, Gratuity Dues amounting to Rs. 1,38,462/-; Paid Leave Allowance of Rs. 2,00,400/-; Special Allowance amounting to Rs. 13,300/- and Expenses due for reimbursement amounting to Rs. 16,800/-. The Competent Authority under Payment of Gratuity Act has already passed decree in favour of the plaintiff in respect of Gratuity Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 16/32 Dues. According to Mark 'C' copy of HR Policy Manual of defendant company, the employees are entitled to encashment of Paid/ Privileged Leave at the time of full and final settlement of accounts. Thus, the plaintiff became entitled to encashment of Privileged Leave only after leaving the job of defendant company w.e.f 30.07.2011. The defendant has not produced any evidence to establish that the amount claimed as Special Allowance amounting to Rs. 13,300/- by the plaintiff is barred by limitation and how. The plaintiff in plaint, has admitted that expenses due for reimbursement amounting to Rs. 16,800/- are pending since January 2011. The present suit having been filed on 21.07.2014, the amount claimed towards expenses for reimbursement is barred by limitation. However, the claim of the plaintiff in respect of Privileged Leaves Allowance and Special Allowance is not time barred. So, the present issue is decided partly in favour of the plaintiff and partly in favour of the defendant.
Issue No.2:
Whether this court has no territorial jurisdiction to try and entertain the suit of plaintiff? OPD
10. It is stated by Ld. Counsel for the plaintiff that the registered office Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 17/32 of the defendant company was situated at South Extension, Part-II, New Delhi when the present suit was filed by the plaintiff. The appointment letter of the plaintiff was issued from the registered office of the defendant at Delhi, his salary was being paid from the registered office of Delhi, Forms-16 were issued from the registered office of the plaintiff and the defendant company was registered at Delhi for the purposes of Provident Fund of its employees. So, it is argued that part of 'cause of action' has arisen within the territorial jurisdiction of this court and the present suit is maintainable in this court.
10.1 On the other hand, it is argued by Ld. Counsel for the defendant that no cause of action has arisen within the territorial jurisdiction of this court. The appointment letter of the plaintiff was issued from Gurgaon. The plaintiff remained posted at Gurgaon throughout his services and the salary and other payments were remitted to plaintiff from Gurgaon office of the defendant. Ld. Counsel for the defendant has also heavily relied on admission made by the plaintiff in plaint in Para No.2 wherein he admitted that he served his whole service at Gurgaon. He further contends that the territorial jurisdiction cannot be vested with Delhi Court only because the registered office of the defendant is situated at Delhi.
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 18/32 10.2 The plaintiff has the choice to file a suit in any of the forums which answer the requirements of Clause (a) (b) and (c) of Section 20 of CPC. In so far as clause (a) of Section 20 is concerned, the plaintiff may file a suit against a defendant where the defendant actually and voluntarily resides, or carries on business or personally works for gain. Clause (b) of Section 20, while following the same measure, provides that where there are more than one defendant to a suit, and one or more of them do not reside or carry on business or personally work for gain, within the territorial jurisdiction of the court within which the suit is instituted, then the plaintiff, is required to take leave of the court, or such defendant(s) acquiesce in the institution of the suit against them. As against this, clause (c) of Section 20 of CPC gives liberty to a plaintiff to file a suit in a court within whose jurisdiction the cause of action wholly or in part arises. The explanation to the section provides, in so far as a corporation is concerned, it shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. It is no longer res integra that corporation includes a company. [See Hakam Singh vs Gammon (India) Pvt. Ltd. (1971) 1 SCC 286]. Furthermore, the explanation only expounds on the concept of "business"
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 19/32 carried on by a corporation. Therefore, if a corporation is sued in a place where its sole or principal office is located, it cannot be heard to say that the suit will not lie in that court because it does not carry on business at its sole or principal office, in view of the deeming fiction created by the explanation. Similarly, the second part of the explanation attracts itself to a set of circumstances where the cause of action arises and the subordinate office of the defendant-corporation is located. Therefore, if in a given case, a principal office of the defendant was located, say at place „A‟, and the cause of action arose in place „B‟, where the defendant also had its subordinate office located, the jurisdiction for filing the suit would lie in place „B‟ and not in place „A‟. [See Patel Roadways Ltd., Bombay vs Prasad Trading Company (1991) 4 SCC 270 at page 277, 278 paragraph 12] "....12. We would also like to add that the interpretation sought to be placed by the appellant on the provision in question renders the explanation totally redundant. If the intention of the legislature was, as is said on their behalf, that a suit against a corporation could be instituted either at the place of its sole or principal office (whether or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and (c) Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 20/32 together with the first .part of the Explanation would have completely achieved the purpose. Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This was, therefore, not the purpose of the explanation. The Explanation is really an explanation to clause (a). It is in the nature of a clarification on the scope of clause (a) viz. as to where the corporation can be said to carry on business. This, it is clarified, will be the place where the principal office is situated (whether or not any business actually is carried on there) or the place where a business is carried on giving rise to a cause of action (even though the principal office of the corporation is not located there) so long as there is a subordinate office of the corporation situated at such place. The linking together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of clause (a), the location of the subordinate office, within the local limits of which a cause of action Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 21/32 arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive "or" will not be there. Instead, the second part of the Explanation would have read "and in respect of any cause of action arising at any place where it has a subordinate office, also at such place...."
10.3 In order to appreciate this aspect of the matter, one needs to understand what would constitute a cause of action. Cause of action, as commonly understood, is a bundle of facts which the plaintiff must prove, if traversed, to entitle him to a judgment, in his favour, by the concerned court. Cause of action has no relation whatsoever with the defence set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
10.4 In this context, the following observations of the Supreme Court made in Oil and Natural Gas Commission vs Utpal Kumar Basu & Ors. (1994) 4 SCC 711 at page 717, in paragraph 6 being apposite, are Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 22/32 extracted hereinafter:
"....6. It is well settled that the expression "cause of action"
means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh Lord Watson said:
"... the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour."
10.5 A more elaborate exposition of the expression cause of action is given in Rajasthan High Court Advocates' Association vs Union of India & Ors. (2001) 2 SCC 294. The relevant observations made in paragraph 17 at page 304, is extracted hereafter:
".....17. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 23/32 expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action".
It has to be left to be determined in each individual case as to where the cause of action arises.
10.6 Reference in this behalf may also made to the observation of the Supreme Court in the case of The State of Madras vs C.P. Agencies & Anr. AIR 1960 SC 1309:
"......3. We have been referred to the well-known observations of Brett J. in Cooke v. Gill, (1873) 8 CP 107 and to the definition of "cause of action" given in Read v. Brown, (1888) 22 QBD 128 which are all referred to in 75 Ind App 121 : Lord Esher M. R., defined "cause of action" to mean "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
Fry L. J. agreed and said:
"Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of the cause of Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 24/32 action."
10.7 In the context of what constitutes a cause of action, in respect of a suit arising out of a contract, one may advert to Explanation III, which was part of Section 7 of Act of 7 of 1888. This Explanation was, however, omitted. A reference to this explanation is found in paragraph 13 at page 171 in the judgment of the Supreme Court in the case A.B.C. Laminart Pvt. Ltd. vs A.P. Agencies, Salem (1989) 2 SCC 163. The relevant part of the Explanation III is extracted hereinbelow:
"....13. Under section 20(c) of the Code of Civil Procedure subject to the limitation stated theretofore, every suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. It may be remembered that earlier section 7 of Act of 1888 added Explanation III as under: "Explanation III--In suits arising out of contract the cause of action arises within the meaning of this section at any of the following places, namely:
(1) the place where the contract was made;
(2) the place where the contract was to be performed or performance thereof completed;
(3) the place where in performance of the contract any money Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 25/32 to which the suit relates was expressly or impliedly payable...."
10.8 A perusal of the explanation would show that in a matter concerning a contract, there may arise various kinds of causes of action. Amongst others, the place where the contract is made, or where in the performance of the contract any money was expressly or impliedly payable, would form, a part of the cause of action.
10.9 It is also well settled law that even if small part of cause of action arose at the place within the territorial jurisdiction of the court, that court would have territorial jurisdiction to entertain and try the suit. The facts of the present case are to be analyzed in the light of the law enunciated above. Letter of appointment Ex. PW1/1, patently shows that it has been issued to the plaintiff by the defendant from its registered office at Delhi as it bears the address of Registered Office of defendant at the top. Ex. PW1/3, the salary slip has been issued again from the registered office of the defendant company at Delhi. So, salary was also being paid to the plaintiff from the registered office of the defendant at Delhi. Ex.PW1/4 to Ex. PW1/7 also establish that Form-16 was also being issued to the plaintiff from the registered office of the defendant at Delhi. The defendant has not produced any documentary evidence to Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 26/32 controvert the evidence produced by the plaintiff to establish that the appointment letter was issued from Gurgaon Office and salary and other payments were remitted from Gurgaon Office. The place where the plaintiff worked for the defendant company, is only part of cause of action and the place from where his appointment letter was issued or his salary was being disbursed, are vital facts which have nexus with the issues raised in the present suit and thus vests this court with territorial jurisdiction. Thus, the plaintiff has succeeded in establishing through his oral as well as documentary evidence that part of cause of action has arisen within the territorial jurisdiction of this court. So, this issue is decided in favour of the plaintiff and against the defendant. Issue No.3:
Whether the plaintiff is entitled to the recovery of suit amount from the defendant? OPP
11. The plaintiff admittedly resigned from the services of the defendant No.1 company by tendering his resignation vide e-mail dated 04.07.2011 and proposed to serve notice period from 04.07.2011 to 30.07.2011. He had already been paid his salary for the month of June 2011 and July 2011. The defendant, in the Written Statement, has not specifically Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 27/32 denied that the amount claimed in the present suit in respect of Gratuity Dues amounting to Rs. 1,38,462/-; Paid Leave Allowance of Rs. 2,00,400/-; Special Allowance amounting to Rs. 13,300/- and Expenses due for reimbursement amounting to Rs. 16,800/-, is not due to be paid by the defendant to the plaintiff. The law requires that denial in Written Statement to be specific and general denial is not sufficient. The defence of the defendant company as spelt out in the Written Statement is that the plaintiff has not furnished No Dues/No Objection Certificate from various Departments and in absence of the same, the defendant could not prepare full and final settlement of account of the plaintiff. It is also stated that in absence of 'No Objection' furnished by the various Departments of the defendant company, the defendant could not determine as to whether any adjustment is required to be made in respect of any liability of the plaintiff towards the defendant company and the full and final amount, if any, payable by the defendant company to the plaintiff. Moreover, the plaintiff has not served full one month notice period, as per his appointment condition and is guilty of breach of terms of employment.
11.1 Ex. PW1/12 are the e-mails dated 04.07.2011 and 26.07.2011. By way of said e-mails, the plaintiff herein requested the defendant company Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 28/32 to advise/assign the official to whom he can give the charge and old documents of his department and form for claiming 'NOC' from related departments and to fully and finally settle his accounts by 30.07.2011. In response to the said e-mails, only one e-mail dated 26.07.2011 was sent by the defendant company to the plaintiff advising him not to be in hurry to give charge and for his relieving. No written communication in form of any letter or e-mail has been filed on record by the defendant to show that the plaintiff avoided giving of charge to the defendant company. Moreover, the leaving employee is at the mercy of the employer company for obtaining the 'No Objection Certificate' from the employer company. The relieving employer company can easily stall the release of 'No Objection Certificate' to the employee despite handing over of charge by the employee. The plaintiff discharged initial onus by establishing repeated written communication sent by him to defendant company to assign a person to handover the charge and receiving 'NOC' from Department of defendant company through e-mails Ex. PW1/12. He also orally testify that he handed over complete charge to Mr. Mohit Jain, Deputy General Manager and to Mr. Arun Kumar, Assistant Manager. His testimony to this effect remained uncontroverted. There is not a single suggestion put by defendant to plaintiff in his cross-examination Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 29/32 that Mr. Mohit Jain and Mr. Arun Kumar are not employees of defendant company or had no authority to take charge from plaintiff. Then the onus shifted on the defendant company to establish that charge was not handed over by the plaintiff despite request of the defendant company and for this reason, No Objection Certificate was not issued by the defendant company. DW-1 stated in his evidence that he cannot tell specifically as to which record of the defendant company was not handed over by the plaintiff at the time of leaving the defendant company. No letter was written to the plaintiff on behalf of defendant company demanding the record from him. In absence of any written communication by the defendant company to the plaintiff demanding handing over the charge and the e-mail Ex. PW1/12 on record, the defendant failed to prove that it was on account of failure of the plaintiff to handover the charge to the defendant company, NOC was not issued by various Departments of defendant company.
11.2 Apart from that, the plaintiff also issued the legal notice Mark 'D' to defendant and has placed on record Postal Registered Dispatch Receipt Ex. PW1/5 to establish that it was duly received by defendant. The defendant has baldly denied receipt of legal notice Mark 'D'. Section 27 of General Clauses Act provides that when the notice is sent through Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 30/32 registered post to the correct address, the same shall be presumed to have been duly served. The defendant has failed to adduce any evidence to rebut the presumption of due service. Despite service of legal notice, no reply to legal notice was sent by the defendant claiming that the plaintiff is not entitled to full and final settlement of his account on account of his failure to handover the charge and file No Objection Certificate issued by the various Departments of the defendant company. Further more, no demand was ever raised by the defendant company from the plaintiff as to any amount due and payable by the plaintiff to the defendant, if any amount was payable by the plaintiff to the defendant or for returning any valuable article/equipment. The defendant has not adduced any documentary evidence that amount as claimed in the present suit was not due and payable by the defendant company. In view of the aforesaid reasons on preponderance of probabilities, the plaintiff succeeded in establishing his legal entitlement to Paid Leave Allowance of Rs. 2,00,400/- and Special Allowance amounting to Rs. 13,300/-. However, the defendant is entitled to recover an amount of Rs. 13,116/- for the deficient notice period. Thus, the plaintiff is entitled to recover Rs.2,00,514/- (Rs.2,004,00+ Rs.13,300 - Rs. 13,116). Hence, this issue is decided in favour of the plaintiff and against the defendant.
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 31/32 Issue No.4:
Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
12. The rate of interest claimed by the plaintiff is exorbitant and the plaintiff is awarded interest @ 10% per annum on amount of Rs. 2,00,514/- from 30.07.2011 till the date of payment. Therefore, this issue is decided in favour of the plaintiff and against the defendant. Relief.
13. The suit of the plaintiff is decreed for a sum of Rs. 2,00,514/- alongwith interest @ 10% per annum from 30.07.2011 till the date of payment. Cost of the suit is also awarded to the plaintiff.
14. Decree sheet be prepared accordingly.
15. File be consigned to the Record Room.
Announced in the open court. (PRIYA MAHENDRA)
Dated: 17.04.2018 ADJ-04 (South)
Saket Courts/New Delhi
Digitally signed
by PRIYA
PRIYA MAHENDRA
MAHENDRA Date: 2018.04.19
10:16:54 +0530
Civil Suit No. 9326/16 Tejbir Singh vs. M/s DSC Ltd. 32/32