Delhi District Court
Sh. Amrit Pal Singh vs M/S. Artefact Projects on 12 December, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA :
ADDITIONAL DISTRICT JUDGE06 : WEST DISTRICT
TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 72 OF 2012
(UNIQUE CASE I.D. NO.02401C1372602008)
Sh. Amrit Pal Singh
R/o Flat No.454,
Tower No.2, Mount Kailash,
East of Kailash, New Delhi. ............ PLAINTIFF
Versus
M/s. Artefact Projects
through its Managing Director
Sh. Manoj B. Shah,
Having its Regional Office at
211212, Vishwadeep Building,
District Centre, Janakpuri,
New Delhi.
Second Address
M/s. Artefact Projects,
1st Floor, Bhiwapurkar Chambers,
Opposite Yashwant Stadium,
Dhantoli, Nagpur, Maharashtra. ........... DEFENDANT
Date of institution : 26.11.2008
Order reserved on : 05.12.2012
Date of Decision : 12.12.2012
Suit No.72 of 2012 Page : 1/18
SUIT FOR RECOVERY OF RS.5,73,531/
J U D G M E N T :
1. The plaintiff has filed the present suit for recovery of Rs.5,73,531/.
2. The facts of the case, as stated in the plaint, are that the plaintiff retired as Chief Engineer from Punjab Building and Roads Branch in October 2006. He was engaged by the defendant company on the basis of retainership contract dated 12.11.2006 for the period of two years as a Team Leader. The plaintiff joined his duties in Kota, Rajasthan on 13.12.2006. Subsequently, he was transferred to Delhi on 23.11.2007 and was posted as Senior Projector Coordinator. Further, the case of the plaintiff is that he was to be paid a consolidated consultancy fees of Rs.80,000/ per month but the payments by the defendants were highly irregular from the beginning of the contract. The plaintiff also had to travel from Patiala to Kota and incurred an expenditure of Rs.11,000/ for shifting his household goods. A bill in this regard was sent to the defendant but it failed to reimburse the same. The plaintiff was also required to attend official meeting at NHAI's head quarter at New Delhi and the plaintiff incurred TA bill amounting to Rs.5,700/ which was submitted with the defendant on Suit No.72 of 2012 Page : 2/18 27.09.2007 but the defendant failed to reimburse the same. The defendant also failed to reimburse the sum of Rs.64,886/ for shifting his household luggage from Kota to Delhi. The defendant stopped paying the salary from March, 2008 without assigning any reason and a number of emails, SMSs and letters were sent to the defendant but no response was received. The plaintiff ultimately terminated the retainership contract vide notice on 03.06.2008 and the contract was terminated on 04.07.2008. During the notice period, the plaintiff sent several letters to the defendant regarding settlement of his pending payments but the defendant did not pay any heed. On termination of agreement, plaintiff relinquished his charge and handedover the articles issued to him and obtained No Dues Certificate from Kota Office alongwith No Dues Certificate from the defendant's regional office. The plaintiff vide letter dated 06.06.2008 demanded service tax paid by him but the defendant failed to give any response. The plaintiff worked with the defendant for a period of 18 months and 23 days whereas, he was paid consultancy fees for only 14 months and 13 days. Finding no other alternative, the plaintiff issued legal notice dated 03.10.2008 but the defendant failed to give any reply. Finding no other Suit No.72 of 2012 Page : 3/18 alternative, the present suit was filed by the plaintiff.
3. Summons of the suit were served on the defendant. The defendant contested the suit by filing Written Statement raising preliminary objections that the suit of the plaintiff is liable to be dismissed as this Court has no territorial jurisdiction to try the same.
On merits, the defendant has not disputed the Retainership Agreement dated 12.11.2006 with the plaintiff. It is submitted that as per the terms of the Agreement, the plaintiff was expected to meet the satisfactory level of performance with due diligence and professional efficiency which the plaintiff has failed to adhere. It is also submitted that the professional fees was also subject to deduction of TDS etc. It is denied that the plaintiff was entitled to any payment towards the alleged shifting charges. The plaintiff was also advised to do the work properly and improve his professional efficiency. It is submitted that due to personal preference and medical reasons of plaintiff's wife's health and on humanitarian grounds, he was transferred to Delhi, thus, he is not also not entitled to the said shifting charges. It is stated that the defendant has duly replied the legal notice dated 03.10.2008 vide reply dated 08.10.2008 which fact has not been disclosed by the plaintiff. The other averments made in the plaint are denied and it Suit No.72 of 2012 Page : 4/18 is stated that the plaintiff has been paid his dues for the entire period his working with the defendant company, hence, the suit is liable to be dismissed.
4. The plaintiff filed replication to the WS of the defendant denying the contents contrary to the plaint and reiterated the facts stated in the plaint.
5. On 16.04.2009, Ld. Predecessor of this Court framed the following issues :
1. Whether the plaintiff is entitled to the reimbursement for official transfers as alleged by the plaintiff ? OPP.
2. Whether the defendant during the subsistence of contract had paid consultancy fee only for a period of 14 months and 13 days and has not paid for remaining four months and 10 days as alleged by the plaintiff ? OPP.
2(a) Whether this court has no jurisdiction to try the present suit? OPD.
3. Whether the plaintiff had been paid all his dues for the entire period of contract by the defendant ? OPD.
4. Whether the plaintiff is entitled to the relief, as claimed ? OPP.
5. Relief.
6. Thereafter, the parties were directed to lead evidence in support of their respective case. Plaintiff has examined himself as PW1 and filed his examinationinchief by way of his affidavit Ex.PW1/1.
Suit No.72 of 2012 Page : 5/18 He has also relied upon documents Ex.PW1/A to Ex.PW1/Z in support of his case. The plaintiff has also examined Sh. Anil Bisht, Customer Service Manager, ICICI Bank as PW2 and Sh. S.K. Gupta as PW3 and closed his evidence.
7. On the other hand, on behalf of the defendant company Sh. Manoj Kumar, HR Executive was examined as DW1 who filed his examinationinchief by way of her affidavit Ex.DW1/1. He also relied upon documents Ex.DW1/A and Mark A, B & C. Sh. Vinod Kumar Sharma, Administration Incharge in Kota Office of the defendant has also been examined as DW2. Thereafter, the DE was closed.
8. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendant and have perused the record carefully including the written submissions filed by the parties. My findings on the issues are as under : ISSUE NO. 2(a) :
Whether this Court has no jurisdiction to try the present suit? OPD
9. This issue is takenup first as it deals with the territorial jurisdiction of this Court. The onus of proving this issue was on the defendant. In its WS, the defendant has taken a preliminary Suit No.72 of 2012 Page : 6/18 objection that the defendant company is having its head office at Nagpur. The entire correspondence between the plaintiff and the defendant emanated from and to defendant's head office at Nagpur and hence, this court lacks jurisdiction to try the present suit. Ld. Counsel for the defendant has argued that PW1 in his crossexamination on 26.08.2009 admitted that all correspondence originated from Nagpur and the plaintiff has further deposed that he had knowledge of the same. He further admitted that he used to receive reply and communication of the defendant company only from its head office at Nagpur because everything is controlled by them. Therefore, the citus of employment lies at Nagpur only and hence, the jurisdiction lies only with the Nagpur Court. It is also argued that the retainership agreement was also executed at Nagpur and the plaintiff submitted his resignation to the defendant company at Nagpur only.
10. Ld. counsel for the plaintiff, on the other hand, has argued that defendant has miserably failed to prove that this Court has no territorial jurisdiction. It has been submitted that the defendant had its office at New Delhi where the plaintiff was working when the amount in question became due and as per Section 20(c) CPC, Suit No.72 of 2012 Page : 7/18 the suit may be instituted at a place where the cause of action wholly or in part arises. Reliance was placed by the Ld. Counsel for the plaintiff on the judgments of Patel Roadways Ltd. Vs. Prasad Trading Company (1991) 4 SCC 270 and New Moga Transport Company Vs. United India Insurance Co. ltd. & Ors. (2004) 4 SCC 677. In these judgments, Hon'ble Supreme court held that in case of a company, the location of subordinate office within the local limits of which a cause of action arises is the relevant place of filing of the suit and not the principal place of business. It was further argued that DW1 Sh. Manoj Kumar admitted in his crossexamination that he has not denied the jurisdiction of this Court and hence, this Court has the jurisdiction to try the suit.
11. The plaintiff has filed the present suit for recovery of wages due and other charges. Sections 15 to 20 CPC deals with the jurisdiction of the Courts to try the suit. Section 15 CPC provides that the suit shall be instituted in the Court of lowest grade competent to try it. Sections 16 and 17 CPC deals with the jurisdiction in case of immovable properties. Section 19 deals with the compensation for wrongs to person or movable property. Section 20 CPC deals with the remaining clause of cases of Suit No.72 of 2012 Page : 8/18 Section 20 (c) CPC provides that every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. Hon'ble Supreme Court in Patel Roadways case (supra) held in para9 that clause (c) of Section 20 refers to the Court within the local limits of whose jurisdiction cause of action wholly or in part arises. It was also held in para 12 of the judgment that the suit could have been instituted at the place of 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 a place where the cause of action arise under Clause (c) (irrespective of whether the Corporation had a subordinate office at such place or not). Explanation even at the end of Section 20 is really an explanation to Clause (a). In New Moga Transports case (supra), Hon'ble Supreme Court held that a choice of forum is available to the plaintiff under Clause (a) and (c) of Section 20 CPC and he cannot be compelled to go to place of residence or business of the defendant and can file a suit at a place where the case of action arises.
12. From the pleadings of the parties, it is clear that a part of cause of action has arisen within the territorial jurisdiction of Delhi as the Suit No.72 of 2012 Page : 9/18 plaintiff has worked with the defendant company at its Delhi office and hence, it cannot be said that no cause of action has arisen at Delhi. Therefore, the suit filed by the plaintiff at Delhi is maintainable in Delhi courts. Therefore, the issue is decided in favour of the plaintiff and against the defendant. ISSUE NO.1 :
Whether the plaintiff is entitled to the reimbursement for official transfers as alleged by the plaintiff ? OPP.
13. The onus of proving this issue was on the plaintiff. The plaintiff has claimed reimbursement of the official transfers from the defendant. Ld. Counsel for the plaintiff has argued that the plaintiff has produced and proved on record the bill of Rs.11,000/ as Ex.PW1/D and the letter dated 03.01.2007 as Ex.PW1/C. No evidence has been lead by the defendant to rebut the same. The plaintiff also served notice on the defendant u/O 12 Rule 8 for production of original documents which were submitted to the defendant but the defendant has failed to produce the same and hence, an adverse inference has to be drawn against the defendant. It has further been argued that DW1 in his cross examination has admitted that the plaintiff was entitled to travelling allowance for official purposes in view of Clause6 of Suit No.72 of 2012 Page : 10/18 the Retainership Contract Ex.PW1/A. The plaintiff has proved on record that he had to incur the expenses of transfer as he was transferred from Kota to Delhi by the defendant and also for the purposes of shifting of his household to the place of the defendant at the time of joining and hence, the plaintiff was entitled for reimbursement of the same. The plaintiff has also produced and proved on record the copy of the Challan Ex.PW1/W showing the payment of service tax which has not been rebutted by the defendant and the plaintiff is entitled for refund of the same.
14. Ld. Counsel for the defendant, on the other hand, has argued that the plaintiff had entered into a Retainership Agreement with the defendant and he is governed by the terms of contract and not by any transfer, rules and regulations, if any, applicable to the employees of the defendant as there was no relationship of employer and employee between the plaintiff and the defendant. It was further argued that the Retainership Contract Ex.PW1/A nowhere states about the shifting charges and bare perusal of clauses 6, 7 and 8 would show that the plaintiff was entitled for Travelling Allowance for official purposes and was further entitled to an independent vehicle for office use and site visits.
15. I have carefully perused the Retainership Agreement Ex.PW1/A. Suit No.72 of 2012 Page : 11/18 It is an admitted case of the parties that the plaintiff was not in the regular employment of the defendant company and he was hired on retainership basis by the defendant company as per the terms & conditions of the Retainership Contract Ex.PW1/A. Therefore, only the terms mentioned in Retainership Contract Ex.PW1/A would be binding on both the parties. A bare perusal of the Retainership Contract Ex.PW1/A would show that the plaintiff is not entitled for reimbursement of shifting charges or the transfer charges, as claimed by him on account of his shifting/ transfer from one place to another place. The plaintiff is merely entitled to the travelling allowance for official purposes. Hence, the plaintiff is not entitled for any charges on account of transportation charges/ labour charges or reimbursement of service tax, as claimed by him. The plaintiff would merely be entitled to the travel allowance, as per clause 6 of the Retainership Contract Ex.PW1/A and hence, he is only entitled to travel allowance of Rs.1286/ for the journey undertaken by him by rail on 24.11.2007. The issue is accordingly partly decided in favour of the plaintiff and partly in favour of the defendant. ISSUES NO.2 & 3 :
Suit No.72 of 2012 Page : 12/18
(2) Whether the defendant during the subsistence of contract
had paid consultancy fee only for a period of 14 months and 13 days and has not paid for remaining four months and 10 days as alleged by the plaintiff ? OPP.
(3) Whether the plaintiff had been paid all his dues for the entire period of contract by the defendant ? OPD.
16. Both these issues are takenup together as they require common discussion. The onus of proving issue no.2 was on the plaintiff and issue no.3 was on the defendant. It is an admitted case of the parties that the plaintiff was hired by the defendant company on the basis of Retainership Contract Ex.PW1/A and he was to be paid a consolidated fees of Rs.80,000/ p.m. excluding taxation according to Indian Tax Laws. The claim of the plaintiff is that the plaintiff worked for the period of 18 months and 23 days whereas, he was paid salary only upto March 2008 and the salary of 4 months and 10 days was due and outstanding towards the defendant.
17. The defendant, on the other hand, has taken a defence that there is no dues outstanding against the defendant company and the plaintiff was paid entire dues for the period of contract. The defendant has also taken the defence that plaintiff was a non performer and nonstarter due to which the project work at Kota Suit No.72 of 2012 Page : 13/18 suffered badly. It was also submitted that the performance of the plaintiff was not at all satisfactory and he was very irregular and unauthorizedly absented himself and absconded from work site and this act of the plaintiff resulted in loss of time, efforts and huge amount of financial loss.
18. Ld. Counsel for the plaintiff has argued that the plaintiff produced on record his bank statement for the period 01.04.2007 to 08.10.2008 and examined PW2 Shri Anil Bisht of ICICI Bank who proved the statement as Ex.PW2/A and the perusal of the statement would show that the plaintiff has not been paid his salary/ consultation fees from March, 2008 to July, 2008 and the defendant has not produced any evidence in rebuttal. It has also been argued that DW1 Manoj Kumar in his crossexamination has admitted that he has not annexed any papers or documents to show that the performance of the plaintiff was not satisfactory. The witness was also not aware of the procedure followed by the defendant company regarding the accounts of employees of the defendant company. He also admitted that there is no document on record to show that the plaintiff has been paid his full dues and nothing is payable to him by the defendant company. He also admitted that there is no document on record placed by him to Suit No.72 of 2012 Page : 14/18 show that the plaintiff has caused any loss to the company and further no document has been placed on record to show that the plaintiff was irregular and absent from his work. It was further argued by the Ld. Counsel for the plaintiff that the defendant company also examined DW2 Shri Vinod Kumar Sharma to prove that the performance of the plaintiff was not satisfactory but DW2 in his crossexamination testified that the averments made in para 3 of his affidavit Ex.DW2/A is based on hearsay evidence and and plaintiff has not filed any document to support the averments made therein. It has also been argued that the plaintiff also examined himself as PW1 and proved on record the ledger account of the defendant company as Ex.PW1/Y to show the payments made by the defendant company to the plaintiff towards the retainership fee/ salary. He also proved on record the legal notice dated 03.10.2008 as Ex.PW1/Z wherein, the plaintiff had demanded the salary/ retainership fee alongwith other expenses. DW1 Shri Manoj Kumar in his crossexamination admitted the receipt of the said notice and stated that the defendant had given reply to the said notice vide reply MarkC which was not disclosed by the plaintiff.
19. Ld. Counsel for the defendant has argued that plaintiff did not Suit No.72 of 2012 Page : 15/18 perform at all while in Delhi office and the plaintiff was advised by the defendant vide letter dated 12.03.2008 to at least perform but the plaintiff did not show any interest. It was also argued that the plaintiff has been paid the entire dues for the period of his working with the defendant company and nothing remains to be due and outstanding. It was also argued that the plaintiff has unauthorizedly remained absent from the work site which caused financial loss to the defendant company besides loss of reputation and argued that the plaintiff is not entitled to any amount whatsoever.
20. Perusal of record shows that the plaintiff has proved on record the Statement of Account of the defendant company as Ex.PW1/Y and the statement of bank account as Ex.PW2/A which shows that the plaintiff was paid his retainership fee/ salary only upto March, 2008 whereas, he had worked upto 04.07.2008 with the defendant company. The plaintiff has also proved on record the letter issued by the Senior Manager (HR) of defendant company as Ex.PW1/T dated 05.07.2008 which shows that the plaintiff was relieved on 04.07.2008 and the accounts were not settled till that date. The defendant has failed to substantiate the averments made by it in its WS and has not placed on record any Suit No.72 of 2012 Page : 16/18 documentary evidence to show that the performance of the plaintiff was not satisfactory or that he had unauthorizedly absented himself. The perusal of testimony of DW1 and DW2 would rather show that the defendant has failed to establish its defence on record Hence, I am of the considered opinion that the plaintiff is entitled for salary/ retainership fee w.e.f. April 2008 till 04.07.2008 in terms of retainership contract Ex.PW1/A. Thus, in view of the aforesaid discussion, both the issues are decided in favour of the plaintiff and against the defendant. ISSUE NO.4 :
Whether the plaintiff is entitled to the relief, as claimed ? OPP.
21. The onus to prove this issue was on the plaintiff. In view of my findings on the issues hereinabove, I am of the considered opinion that the plaintiff is entitled to recovery salary/ retainership fee for a period of four months and ten days from the defendant company + travelling allowance of Rs.1286/, as per railway ticket dated 24.11.2007 for his official travel from Kota to Hazrat Nizamuddin, Delhi. Thus, in all, the plaintiff is entitled for a recovery of Rs.3,46,667/ towards the retainership fees and Rs.1286/ towards the travelling allowance. The plaintiff is not entitled to the travel allowance/ shifting charges, as claimed by Suit No.72 of 2012 Page : 17/18 him, as held in issue no.1 hereinabove. Thus, this issue is decided in favour of the plaintiff and against the defendant. ISSUE NO.5 (Relief)
22. Thus, in view of my findings on the aforesaid issues, the suit of the plaintiff is partly decreed for a sum of Rs.3,47,953/. The plaintiff shall also be entitled to simple interest @ 9% p.a. on the aforesaid amount w.e.f. 05.07.2008 till its realization. The plaintiff shall also be entitled to the proportionate cost. Decree sheet be drawn accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT th ON: 12 December, 2012.
(ANIL KUMAR SISODIA) Additional District Judge06/ West Tis Hazari Courts, Delhi.
Suit No.72 of 2012 Page : 18/18