Delhi District Court
Sh. R.K. Rastogi vs Sh. Bhartendu Dhoundiyal on 24 March, 2023
IN THE COURT OF SH. MANOJ KUMAR, SENIOR CIVIL JUDGE-
CUM-RENT CONTROLLER (EAST), KARKARDOOMA COURT :
DELHI
CS No.6850/16
CNR No.DLET03-000141-2014
Sh. R.K. Rastogi
Consultant
having his resident office at G-99, Sector-41,
Gautam Budh Nagar, Noida, UP
.....Plaintiff
VERSUS
Sh. Bhartendu Dhoundiyal, Proprietor
M/s. Logicpro Software Services,
127, Bank Enclave, Delhi-110092
Also at 817 Laxmi Deep Building, Delhi-110092
Also at : 504, Peach Tree, C-Block,
Sushant Lok, Gurgaon.
.....Defendant
Date of Institution : 05.03.2014
Date of reserving of judgment : 24.03.2023
Date of pronouncement of Judgment : 24.03.2023
JUDGMENT
1. By this judgment, this court shall decide the present suit for recovery of Rs.1,04,901/- along-with interest.
CS No.6850/16 page no.1/15
2. The application of the defendant under Order XVI Rule 1 r/w Section 151 CPC for summoning defendant witness Sh. Inderjeet Tanja was allowed vide order dated 30.09.2015.
3. The application of the defendant under Order VIII Rule 1A r/w Section 151 CPC was allowed and documents on behalf of the defendant was taken on record vide order dated 20.01.2018.
4. The brief facts of the case as per the plaint are that plaintiff is a renowned consultant on provident fund matters and has established an impeccable reputation in the National Capital Territory. Defendant approached the plaintiff for engaging him as a Retainer Consultant to advise one of defendant's customers/clients M/s Punj Llyod Limited, 78 Institutional Area, Sector-32, Gurgaon, for their nationwide Establishment. Having been lured and induced by defendant's representation, plaintiff submitted his terms of a Retainer vide his letter dated 31.05.2011 wherein it was clearly and categorically stated that for advising defendant's customer/client on all matters relating to Provident Fund, plaintiff shall charge a retainership fee of Rs.25,000/- per month. The financial justification submitted by the plaintiff was acknowledged, admitted and accepted by the defendant in as much effective June, 2011 through August, 2011, defendant paid the agreed fees of Rs.25,000/- per month to plaintiff for providing the required advise on provident fund matters to the defendant's said customer/client M/s. Punj Lloyd Limited. CS No.6850/16 page no.2/15
5. It is stated that defendant with dishonest and malafide intentions, revisited the terms of fee and thus, lured and induced the plaintiff to reduce his retainer-ship fee from Rs.25,000/- to Rs.15,000/- per month to which plaintiff had agreed. The financial justification, revisited, was once again acknowledged, admitted and accepted by the defendant in as much effective September, 2011 through April, 2012, defendant paid the revised and agreed fee of Rs.15,000/- per month for providing the required advise on provident fund matters to the plaintiff. Plaintiff also provided his consultancy services to defendant's customer/client M/s. Punj Lloyd Limited during the months from May, 2012 to October, 2012 on the standing instructions of the defendant. On or about 08.11.2012, defendant terminated the contract of the plaintiff vide a text message on the mobile phone of the plaintiff. So, thereafter, plaintiff stopped providing his services.
6. It is stated that for the above said period of six months of May, 2012 to October, 2012, plaintiff has not yet been paid his dues of Rs.90,000/- qua the retainership fee of Rs.15,000/- per month. The transportation (taxi) charges of Rs.6801/- for his various visit to corporate office of M/s. Punj Lloyd Limited at Gurgaon have also not been paid inspite of his having submitted his invoices which have been acknowledged by the defendant. Plaintiff served a legal notice to the defendant. CS No.6850/16 page no.3/15
7. Thus, on the above stated grounds, plaintiff has prayed for a decree for recovery of Rs.1,04,901/- along-with pendentelite and future interest @ 18% per annum from the date of judgment till its realization.
8. Summons were issued to the defendant which were duly served. The defendant has filed written statement wherein he vehemently opposed the allegations and contentions of the plaintiff. Amongst the pre- liminary objections, it has been contended in WS of defendant that plaintiff has not disclosed the correct terms and condition of the retainership agree- ment as mutually discussed and agreed by the plaintiff and defendant. It is further stated that letter dated 31.05.2011, 08.11.2012 and legal notice dated Nil were never issued by the plaintiff. It is further stated that plaintiff is a retired person and well known to the defendant. Plaintiff approached the defendant in the year 2011 and requested him to help the plaintiff in getting some work and requested him to help the plaintiff in getting some work. On the request of plaintiff, defendant appointed him on retainership basis for monthly payment of Rs.25,000/- for one of his client M/s. Punj Lloyd Ltd. For a period of one year during financial year 2011-2012 subject to sat- isfaction of work and further requirement and other conditions and same were accepted by the plaintiff orally. As per the terms of contract as orally agreed by the plaintiff, he was to provide his services to the defendant's client M/s. Punj Lloyd Ltd only after consultation with the defendant, but not otherwise or by his own. Defendant as per his commitment and agree- CS No.6850/16 page no.4/15 ment with the plaintiff, kept on paying the plaintiff for his services as and when asked by him and also the amount as and when mutually agreed and decided among them till April, 2012 and thereafter, defendant informed the plaintiff telephonically that his services were not longer required as defen- dant's client was not willing to utilize the services of plaintiff because of his hearing problem and other problems including inefficiency of the plaintiff including old age and further inability to maintain and update his profes- sional requirement i.e. e-mail account, fax etc. It is further stated that on May, 2012, plaintiff shifted his house from 35A Kundan Nagar to 127, Bank Enclave, Delhi. On 08.11.2012 for the first time when defendant visited the old house after shifting from there, he found some invoices raised by plain- tiff in the name of defendant. Defendant in shock and utter disbelief, imme- diately text a message to the plaintiff to stop raising the invoices as defen- dant stopped taken the services of the plaintiff since April, 2012 and same was also communicated to the plaintiff telephonically. Plaintiff after deceit- fully raising the invoices never followed the defendant for payment of same as he used to do it before. It is further stated that plaintiff entered into the contract with the defendant's company and not with the defendant per se. Defendant's company which used to issue cheque and payment ot the plain- tiff and not the plaintiff from his personal account. But plaintiff failed to make the defendant's company as party. Plaintiff never gave any financial justification to the defendant. It is denied that defendant ever revisited the CS No.6850/16 page no.5/15 terms of the fees and lured and induced the plaintiff to reduce his retainer- ship fees from Rs.25,000/- to 15,000/- per month with malafide intention or dishonestly. Plaintiff accepted the offer of the defendant and agreed to work on payment of Rs.15,000/- per month in the company of the defendant's client. It is further stated that defendant is not liable to pay any amount to the plaintiff and no legal notice was ever issued by the plaintiff to the defen- dant.
9. Rejoinder to the written statement of the defendant was filed by the plaintiff.
10. On basis of the pleadings of the parties, issues were framed on 20.11.2014 which are as under:-
"1. Whether the plaintiff proves that he had provided services to the defendant's client for period from May, 2012 till October, 2012 ? OPP
2. Whether plaintiff is entitled to recover Rs.1,13,001/-
from the defendant as prayed for ? OPP
3. Whether is entitled to any interest on the aforesaid amount and if so, at what rate and for what period ? OPP
4. Whether plaintiff has suppressed material facts and if so, its effect on the suit ? OPD
5. Relief"CS No.6850/16 page no.6/15
11. Thereafter, matter was listed for evidence. To lead evidence, plaintiff Sh. R.K. Rastohi entered the witness box as PW-1. He tendered his evidence by way of affidavit Ex.PW1/A, bearing his signatures at point A & B. He relied upon the documents i.e. letter dated 31.05.2011 as Ex.PW1/1, letter dated 08.11.2012 and its postal receipts Ex.PW1/2 & Ex.PW1/3 respectively, letter dated 20.11.2012 and its postal receipts Ex.PW1/4 and Ex.PW1/5 respectively and legal demand notice as Ex.PW1/6.
12. No other witness was examined and plaintiff's evidence was closed on 14.07.2015.
13. Defendant was examined as DW1. He tendered his evidence by way of affidavit Ex.DW1/A, bearing his signatures at point A & B. In view of the order dated 20.01.2018, he relied on the documents i.e. Ex.DW1/A which is bill/invoice no.992 dated 15.06.2012, Ex.DW1/B, which is bill/cash memo no.887 dated 13.06.2012, Ex.DW1/C which is duly voucher dated 13.06.2012, Ex.DW1/D which his toll receipt issued by DND flyway transaction no.5468798 dated 13.06.2012 time at 19:25 hrs, Ex.DW1/E which is toll reciept issued by Delhi Gurgaon Expressway receipt no.08332784 dated 13.06.2012 time at 12:59 hrs and Ex.DW1/F, which is toll receipt issued by DND flyway transaction no.1534106.
14. Sh. Inderjeet Taneja was examined as DW2. He was working as an AGM, HR Operations in Advent Management & Consulting Services at Gurgaon, Haryana. He was employed in Punj Loyd, Sector-32 Gurgaon CS No.6850/16 page no.7/15 as Executive HR. He joined on 27.12.2010 and left on 31.07.2012. He deposed that Mr. Bhartendu Dhaundiyal was a PF consultant who is running a firm under the name & style of Logic Pro. Mr. Bhartendu Dhaundiyal informed DW2 that he has hired Mr. R.K. Rastogi regarding consultation of PF consultation matters. He further asked DW2 when he require the services of Mr. R.K. Rastogi, DW2 can call him directly and to visit at the Punj Loyd Premises, Gurgaon. DW2 called him 5-6 times. Upon last visit, during April, 2012, his HR Head Mr. Namit Kapoor has shown his wish to meet Mr. R.K. Rastogi to discuss the basic issue regarding one of notice issued by the PF office to Punj Loyd. DW2 called Mr. Rastogi and arranged meeting with Mr. Namit Kapoor. After meeting, Mr. Namit Kapoor said that due to hearing and communication issue and and he was not able to draft the reply on the same day and asked DW2 to inform Mr. Bhartendu Dhaundiyal to appoint someone else, who can visit, discuss and draft on the same day. At that time, PF inspection was going on and they had to reply within 3 days. So, Mr. R.K. Rastogi was taking more than three day for visiting the Gurgaon office. Hence, Mr. Namit Kapoor told that Mr. R.K. Rastogi will not serve our purpose. Thereafter, DW2 informed Mr. Bhartendu Dhaundiyal regarding the said issue and to appoint someone else. Till DW2 remained in the said firm, no other person has been appointed for the above said purpose.
15. Defendant's evidence was closed on 22.09.2022.
CS No.6850/16 page no.8/15
16. I have heard the submissions made by both the parties and perused the entire record carefully. The issues wise finding of the court as follows :
Issue no.1, 2, 3 & 4.
"Whether the plaintiff proves that he had provided services to the defendant's client for period from May, 2012 till October, 2012 ?
Whether plaintiff is entitled to recover Rs.1,13,001/- from the defendant as prayed for ?
Whether is entitled to any interest on the aforesaid amount and if so, at what rate and for what period ?
"Whether plaintiff has suppressed material facts and if so, its effect on the suit ?"
17. All the above stated issues are interconnected, hence, this Court shall discuss and decide them together. Plaintiff/PW1 in his cross- examination deposed that he was of 78 years of age in the year 2011. He further deposed that he is not using e-mail for communication. He admitted that he is hard of hearing and using hearing aid. He deposed that defendant used to make payment through cheque only. He deposed that he used to send the invoices to defendant through post. He specifically deposed that as far as Punj Llyod consultancy is concerned, either he would take the CS No.6850/16 page no.9/15 appointment or as and when Punj Llyod would contact him directly, he used to confirm the appointment after talking to the defendant. He deposed that he knows inderjeet Taneja who was employee and nodal officer of Punj Llyod qua consultancy of PF matters. He admitted that his consultancy fees was reduced from Rs.25,000/- to Rs.15,000/- per month. He specifically deposed that he was paid consultancy fee being retainer for the month of January & March, 2012, though, no consultancy work was done by him during the said period. He further deposed that he directly contact the defendant for consultancy as well as fee. He further deposed that as and when payment for the bill fall due, he would call and remind the defendant for the same.
18. Defendant in cross-examination filed the statement of account for the relevant period and the same is exhibited as Ex.DW1/P1. Defendant deposed that on 28.06.2012, he make a payment of Rs.20,000/- as final payment to the plaintiff or his pending bills for the month of April, 2012 and before. He voluntarily stated that payment of Rs.20,000/- comprises of Rs.15,000/- towards consultancy fees and Rs.5,000/- towards conveyance charges for the month of April, 2012 or before, whatever pending if any. He specifically denied that he paid a sum of Rs.1301/- pertaining to bill no.978 towards taxi/conveyance charges for the visit of the plaintiff to Punj Llyod on 03.05.2012.
CS No.6850/16 page no.10/15
19. Defendant in his WS claimed that plaintiff was telephonically informed that his service is no longer required as defendant's clients are not willing to utilize the services of the plaintiff because of his hearing problem and inability to maintain and update his professional requirement i.e. e-mail account, fax etc. It is contended that there after, there was no communication between plaintiff and the defendant. It is further contended by the defendant that on May, 2012, plaintiff shifted his house from 35-A, Kundan Nagar to 127, Bank Enclave, Delhi. So, he contended that on 08.11.2012, when he visited his old house, he found some invoices raised by plaintiff and he immediately texted the message to the plaintiff to stop raising the invoices.
20. Defendant/DW1 admitted in his WS and Ex.DW1/1 that plaintiff was appointed on a retainership basis for a monthly payment of Rs.25,000/- for one of his client M/s. Punj Lloyd Ltd. for a period of one year during F.Y. 2011-2012. Defendant also admitted that as per the agreement and understanding between the parties, defendant revived the payment terms and retainership of the plaintiff was reduced from Rs.25,000/- to Rs.15,000/- per month. Defendant/DW1 admitted that he kept on paying the plaintiff for his services as and when asked by him and also the amount as and when mutually agreed and decided among them till April, 2012.
CS No.6850/16 page no.11/15
21. Defendant failed to disclose the exact date when he terminated the retainership of the plaintiff. Defendant further failed to file any document or material to show that he shifted his address from Kundan Nagar to Bank Enclave in the month of May, 2012. Thus, no evidence produced by the defendant to show that he came to know about the alleged invoices on 08.11.2012 only. Moreover, defendant/DW1 in his cross- examination admitted that he made the payment of Rs.20,000/- on 28.06.2012 as final payment to the plaintiff for the pending bills for the month of April, 2012 and before. Thus, on the one hand, DW1/defendant stating that he was not aware about the invoices raised by the defendant during the period from May, 2012 till 08.11.2012. On the other hand, he paid a sum of Rs.20,000/- to the plaintiff on 28.06.2012. Thus, stand of the defendant is self contradictory.
22. The testimony of DW2 also not sufficient to rescue the defendant/DW1 as he was not aware about the agreement between the plaintiff and the defendant. He admitted that he does not know whether plaintiff went to Punj Lloyd after July, 2012 or not. He deposed that he cannot produce document/record showing that he made calls to the plaintiff and he did not come immediately.
23. Thus, when the testimony of DW1 & DW2 are read, then it shows that DW2 intimated the DW1 regarding the issues of plaintiff in the month of April, 2012. However, DW1 failed to prove any CS No.6850/16 page no.12/15 document/material on record to show that after coming to know about the said issue of plaintiff, he called the plaintiff and terminated his retainership. Thus, letter Ex.DW1/P2 dated 14.11.2012 was the only document which shows that defendant terminated the retainership of the plaintiff.
24. Moreover, the contention of the DW1/defendant that no service given by the plaintiff during the period from May, 2012 to October, 2012 is not sustainable as it is the admitted case of the parties that plaintiff was engaged as a retainer and retainership is to be paid irrespective of the fact whether defendant/his client avail the services of the plaintiff or not. It is not the case of the defendant that plaintiff refused to provide his service when the same was sought by the client of the defendant. The alleged shortcomings in the nature of personal and professional incompetence of the plaintiff as deposed by DW2 never communicated to the plaintiff by the defendant during the period from May, 2012 till 14.11.2012 i.e. the date on which letter Ex.DW1/P2 dated 14.11.2012 was sent to the plaintiff. Thus, there is no material on record to prove that after coming to know about the shortcomings of the plaintiff, his retainership was terminated by the plaintiff in the month of April, 2012 only.
25. Nonetheless, plaintiff proved that he visited the office of the defendant's client on 13.06.2012 as the documents i.e. invoice of taxi charges Ex.DW1/A, bill of taxi charges Ex.DW1/B, duty voucher of the driver Ex.DW1/C and toll receipts of DND flyway and Delhi Gurgaon CS No.6850/16 page no.13/15 Expressway Ex.DW1/D to Ex.DW1/F, shows the use of the taxi by the plaintiff from Noida to Gurgaon and back. Interestingly, these documents are filed and proved on behalf of defendant only. The contention of the defendant that Ex.DW1/A and Ex.DW1/B are filled/written by the plaintiff himself is not convincing as it is not the case of the defendant that Ex.DW1/B not issued by Pal Tours & Travels and Ex.DW1/B and Ex.DW1/C not signed by the concerned person.
26. The another contention of the defendant that suit was not filed against the firm of the defendant is also not sustainable as defendant is the proprietor of the firm and it is a settled law that proprietorship concern is not a separate legal entity. Thus, I am satisfied that suit against the defendant is maintainable. Defendant has not proved any material which shows that plaintiff has suppressed material facts.
27. The plaintiff claiming retainership fee of Rs.15,000/- for period of six months from May, 2012 to October, 2012. The same comes to Rs.90,000/-. Plaintiff also claiming taxi charges i.e. Rs.1046/- as per Ex.DW1/A. Thus, plaintiff is held entitled for a sum of Rs.91,046/-.
28. As far as interest is concerned, plaintiff has not proved as to how he is entitled for interest @ 18% per annum on Rs.91,046/- before filing the present suit. In legal notice Ex.PW1/6, plaintiff also not claimed any interest. Thus, I am satisfied that plaintiff is entitled for interest @ 6% per annum from the date of filing of the suit i.e. 05.03.2014 till realization CS No.6850/16 page no.14/15 of the amount of Rs.91,046/-. Thus, issue no.1, 2, 3 & 4 are decided in favour of plaintiff and against the defendant accordingly.
29. In view of the above findings of this court, the present suit is decreed in favour of the plaintiff and against the defendant. The plaintiff is entitled to recovery of a sum of Rs.91,046/- along-with interest @ 6% per annum from the date of filing of the suit i.e. 05.03.2014 till the realization of the amount. Cost of the suit is also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Digitally
signed by
Announced in the Court MANOJ
MANOJ
KUMAR
today, the 24th of March, 2023 KUMAR
(MANOJ KUMAR)
Date:
2023.03.24
17:05:42
SCJ-cum-RC, East/KKD
+0530
CS No.6850/16 page no.15/15