Bangalore District Court
Sri. D.Ravindra vs Mr. Sukant Adhikari on 10 February, 2020
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 10 th Day of February, 2020
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 6747/2011
Plaintiff/s : Sri. D.Ravindra
S/o Doreswamy
Aged about 53 years,
R/at No.534, 2nd Main Road,
BSK 1st stage, 1st Block, Srinagar,
Bengaluru - 560 050.
[By Sri. G.Narayana Hebbar, Adv.]
-Vs-
Defendant/s : 1. Mr. Sukant Adhikari
Director - CEO,
M/s Autrien Communications
Private Limited,
No.686, 16th Main, 39th Cross,
Jayanagar 4th 'T' Block,
Bengaluru - 560 041.
2. M/s Autrien Communications
Private Limited,
Having its Corporate Office at
Level 9, Raheja Towers,
M.G.Road, Bengaluru - 560 001.
Rep. By its Managing Director
& CEO, Sri. Sukanth Adhikari
[D1 - By Sri. G.D.S., Adv.]
[D2 - By Sri. M.H.H., Adv.]
2 OS.No.6747/2011
Date of institution of the suit 15.9.2011
Nature of the suit Money suit
Date of commencement of 10.2.2014
recording the evidence
Date on which the judgment 10.02.2020
was pronounced
Total duration Years Months Days
08 04 26
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
***************
J UD GM E N T
This is a suit for recovery of money
2. The case of the plaintiff is that, he is a software
consultant and the defendant is the director and CEO of M/s
Autrien Communications Pvt. Ltd., and the plaintiff and
Mr.Sukant Adhikari are known to each other for many years.
During the year October 2007, the said Sukanth Adhikari
offered the plaintiff to work in his organization as Director
Engineering/consultant and the annual professional fee was
offered at Rs.12,00,000/- plus other reimbursement of
expenses for six months from 10.1.2007 and after discussion
the plaintiff was deputed as Project Manager at Zenevo
Technologies, Lucknow from October, 2007 to till March 2011
3 OS.No.6747/2011
and the emoluments was fixed at Rs.1,50,000/- per month &
the hotel stay and transportation facilities was the
responsibility of the customer and the defendant has
confirmed the same through e-mail and as such there was no
work agreement entered into between the plaintiff and the
defendant for the reason that the project was managed by
Zenevo Technologies Pvt. Ltd., Lucknow and the plaintiff
worked from October, 2007 to 31.3.2011 and as per the
norms the plaintiff had requested the defendant on
24.1.2011 to relieve him from his assignment from 31.3.2011
and the same was agreed by the defendant. The defendant
has not paid the package salary as promised for the financial
period 2010-11 & the defendant has paid only Rs.4,85,000/-
plus TDS deduction of Rs.50,500/- and the defendant has
sent Form 16A for three quarters i.e., from 1.7.2010 to
30.9.2010 deducted Rs.18,000/-, 1.10.2010 to 31.12.2010
deducted Rs.30,000/- and from 1.1.2011 to 31.3.2011
deducted Rs.2,500/- totally Rs.50,500/- and still the
defendant was due and liable to pay a sum of Rs.12,64,500/-
to the plaintiff and when the plaintiff demanded for payment
through e-mail the defendant instead of making balance
amount sent an e-mail requesting time up to 3 rd week of
4 OS.No.6747/2011
March 2011 narrating that the company is at crucial
juncture and requested to wait for some more time and and
on 26th March 2011 the plaintiff sent an e-mail to the
defendant demanding the balance amount and on 2 nd April
2011 the plaintiff sent another e-mail to the defendant
demanding the amount for March 2011 and in response to
that the defendant sent an e-mail that they will process the
invoice within 45 days and till 1st week of May 2011 the
plaintiff has not received any amount from the defendant and
when the plaintiff demanded for payment, the defendant
started demanding the plaintiff to sign pre-dated work
agreement to clear the payment through e-mails dated
5.5.2011 and the plaintiff has not signed pre-dated
agreement for the reason that the work entrusted to him was
over and the plaintiff received another e-mail on 12.5.2011
insisting to send the signed scanned agreement and the
plaintiff sent an e-mail to the defendant in response to the
above stating that his work is completed on 31.3.2011 and in
case of new requirement or further extension of his service
then he can sign a contract as per new Statement of Work
and further plaintiff demanded his consultant charges and
the plaintiff also sent a reminder on 26.5.2011 calling upon
5 OS.No.6747/2011
the defendant to pay the amount through RPAD and as the
defendant has not made payment then having no other
alternative, the plaintiff issued a legal notice on 26.7.2011
demanding the amount with 24% interest per annum from
01.4.2011 and the said notice was duly served upon the
defendant on 27.7.2011 and after service of the said notice,
the defendant has not replied and further till this date the
defendant did not settle the issue by clearing the liability and
the defendant is due a sum of Rs.12,64,500/- to the plaintiff
after payment of Rs.4,85,000/- and TDS deduction of
Rs.50,500/- and in all Rs.5,35,500/- for the period 2010-11
as on 1.4.2011 and the defendant committed default in
payment of the said amount after receiving from his customer
i.e., Zenevo Technologies and the defendant has used the
above said amount for his business and the plaintiff has
suffered loss as a result of the failure on the part of the
defendant to pay up the amounts in time and had the
plaintiff made use of the amount due by the defendant, the
plaintiff could have made his commitments and hence the
defendant is liable to pay interest on the principal amount
mentioned about at the rate of 24% p.a. from the date of due
6 OS.No.6747/2011
till the date of realization and hence the plaintiff has filed this
suit.
3. On the other hand, the defendant No.1 has filed
his written statement and denied the averments of the plaint
as false and incorrect and further contended that the plaintiff
was appointed as a Director Engineering for the probation
period of six months which would commence from 1.10.2007
and not from 10.1.2007 as alleged in the plaint and the
company had also agreed to pay a gross annual salary of
Rs.12,00,000/- + allowance and performance linked bonus
and the defendant vide e-mail dated 3.10.2007 shifted the
plaintiff to M/s Zenevo Technologies project as a consultant
to manage the project and the company had agreed to pay a
consultancy fee of Rs.1,50,000/- per month vide e-mail dated
3.10.2007 and it is specifically denoted the fact that the
consultancy fee or payments would be made to the plaintiff
subsequent to the company receiving the payments from the
Zenevo Technologies, however the plaintiff issued an e-mail
dated 29.1.2008 to the company with regard to his revised
gross annual salary which will be Rs.50,000/- Basic +
allowances + Performance Bonus as per the company rules
7 OS.No.6747/2011
and the same was agreed by the company and the plaintiff at
no point of time worked from October 2007 to 31.3.2011 for
the M/s Zenevo Technologies and the plaintiff on his own
whims and fancies without the prior consent of the company
decided to take a break leaving behind the unfinished project
and did not bother to update the company about the project
details nor the plaintiff completed the project and due to this
negligent act of the plaintiff the Zenevo Technologies project
failed miserably and due to which the company has also
suffered monetary losses and the plaintiff has ruined the
project and the revenue pending from M/s Zenevo
Technologies account has become zero and this fact clearly
demonstrates that the plaintiff has not acted as per the terms
and conditions of the company and has not approached this
court with clean hands and has put forth false and concocted
stories in order to obtain favourable order from this court.
The plaintiff was appointed for the purpose of providing
consultancy service to the clients of the company and the
plaintiff was paid based on the consultancies provided to the
clients of the company with Salary + Allowances + Bonus
varying from case to case and based on performance and as
per the terms of the company, the plaintiff was required to
8 OS.No.6747/2011
enter into a contract agreement, however the plaintiff
deliberately and intentionally avoiding signing the contract
agreement and whenever the defendant demanded for signing
the document, the plaintiff would give evasive reasons to the
defendant and the document requires certain modifications
and one such instance was that on 5.5.2011 the defendant
had issued an e-mail with regard to the Contract Agreement
for the purpose of the company records and also as a
mandatory condition of the company and had requested the
plaintiff to sign and provide an e-mail of the company,
however the plaintiff denied to have received an e-mail dated
5.5.2011 and claims that the said e-mail was received on
13.5.2011 and therefore, the plaintiff denied to sign the
document alleging that agreement is pre-dated agreement
and this clearly demonstrates that the plaintiff with malafide
intention and in order to harass the defendant has avoided
signing the Agreement and has been making false and
baseless allegations against this defendant and the plaintiff
had issued invoices however it is false, the defendant is not
liable to pay the alleged amount as prayed by the plaintiff
and the plaintiff has denied signing the Contract Agreement
for one or the other reason and subsequent to the verification
9 OS.No.6747/2011
of account by the company, this defendant specially denies
the claim of the plaintiff and the invoices issued by the
plaintiff are false and concocted and have been created for
the purpose of this case in order to make unlawful profits
and prima facie the suit is bad for non-joinder and mis-
joinder of party and the facts averred in plaint clearly
demonstrate that the contractual transactions are between
the plaintiff and the company and therefore, the company is
proper and necessary party to the said suit and the
defendant is a Director representing the company and the
plaintiff with an ulterior motive to harass the defendant has
made the defendant a party to the suit and accordingly
prayed for dismissal of the above suit.
4. And whereas the defendant No.2 has also filed the
written statement and denied the averments of the plaint as
false and incorrect and further contended that the suit was
filed by the plaintiff against Mr. Sukanth Adhikari for
recovery of a sum of Rs.13,96,005/- with interest at 24% p.a.
from the date of suit till the date of realisation and the said
Sukanth Adhikari entered appearance and filed his written
statement disputing the claim of the plaintiff and also taking
10 OS.No.6747/2011
th specific stand that since the alleged transaction was
between the plaintiff and M/s Autrien Communications Pvt.
Ltd., which is not a party to the above suit, it was contended
that the suit is bad for non-joinder of necessary party and
also mis-joinder of party and in spite of such a specific stand
was taken way back on 13.1.2012 itself, the plaintiff had not
chosen to implead the above company as a party to the above
matter in time but has got the above company impleaded
only on 2.2.2016 by filing impleading application after lapse
of more than four years and even otherwise also the plaintiff
has not called upon this defendant at any point of time for
any alleged dues and the legal notice dated 26.7.2011 issued
by the plaintiff is addressed to the defendant No.1 and hence
there is no legal demand against this defendant and
accordingly the claim against the company is barred by law of
limitation and is liable to be dismissed at the threshold under
Order 7 Rule 11(d) of CPC and the plaintiff has merely
impleaded the company as defendant No.2 in the cause title
to the above matter but the entire pleading, cause of action
and prayer completely stands against the defendant No.1 and
given the same, without any pleadings or cause of action or
reliefs against the company, the above suit is neither
11 OS.No.6747/2011
sustainable nor maintainable in law and the suit has to be
rejected as far as the Company/the defendant No.2 under
Order 7 Rule 11(a) of CPC for non-disclosure of cause of
action against the defendant No.2. The plaintiff as per his
own whims and fancies without the prior consent of the
company was taking leaves and left the said assignment
leaving behind the unfinished project of Zenevo and had
neither bothered to update the company about the project
details nor has completed the project and due to the
negligent and irresponsible act of the plaintiff the company
failed to complete the Zenevo Technologies project and the
same was a failure and a black mark on the company and
and due to which the company has also suffered monetary
losses and also lost its client and the plaintiff has ruined the
project and no further revenue was generated to the company
out of the said project as the same was failed and he has
handled the said project in such a manner that complete
project had failed and full payment to the company was not
made, since Zenevo Technologies suffered losses due to the
project failure and the plaintiff was the only project manager
and was completely responsible for this project and the
company used to get projects for four consecutive years from
12 OS.No.6747/2011
Zenevo, but after this project failure, Zenevo did not award
any project to the company and the alleged certificate claimed
to have issued by M/s Zenevo Techonologies to the plaintiff
for working from August 2009 to March, 2011, is concerned,
the same is concocted one for the purpose of this suit and
even if any such certificate was obtained by the plaintiff, the
same is contrary to the factual reality and the plaintiff with
an ulterior motive to gain unlawful profit has without
intimating or obtaining prior permission from the defendant
No.2 has signed the non-disclosure Agreement and denied
the defendant No.2 the details about the project progress and
has not come forward to take any initiative or step to salvage
the project and the plaintiff had deliberately failed to
contribute with any new application or any business
development which would aid the company for earning good
profits and goodwill and has indulged himself in demanding
illegal monies which is completely baseless and imaginary
and the bills issued by the plaintiff are false and concocted
and have been created for the purpose of filing of this suit
and the company is not liable to pay any amount to the
plaintiff as claimed in the suit. As per the terms of the
company, the plaintiff was required to enter into a contract
13 OS.No.6747/2011
agreement, however the plaintiff has deliberately and
intentionally avoided to sign the contract agreement and
whenever the defendant demanded for signing the document,
the plaintiff would give evasive reasons to the defendant and
the document requires certain modifications and one such
instance was that on 5.5.2011 the defendant had issued an
e-mail with regard to the Contract Agreement for the purpose
of the company records and also as a mandatory condition of
the company and had requested the plaintiff to sign and
provide an e-mail of the company, however the plaintiff
denied to have received an e-mail dated 5.5.2011 and claims
that the said e-mail was received on 13.5.2011 and therefore,
the plaintiff denied to sign the document alleging that
agreement is pre-dated agreement and this clearly
demonstrates that the plaintiff with malafide intention and in
order to harass the company and for extraneous reasons has
avoided the execution of the Agreement and has been making
false and baseless allegations against the company and as
such the company is not liable to pay the alleged amount to
the plaintiff and accordingly prayed for dismissal of the above
suit.
14 OS.No.6747/2011
5. On the basis of the pleadings, one of my learned
predecessor has framed the following issues : -
1) Whether the plaintiff proves that, the
defendants have offered the job of
Director of Engineering vide appointment
letter dated 01.10.2007 agreeing to pay a
gross annual salary of Rs.12,00,000/- +
allowance and performance linked bonus
and later he was appointed as Project
Manager of Zenevo Technologies and the
company had agreed to pay a
consultancy fee of Rs.1,50,000/- per
month vide E-mail dated 03.10.2007?
2) Whether the plaintiff further proves that
the defendants have started demanding
him to sign pre-dated work agreement to
clear the payments through E-mail dated
05.05.2011?
3) Whether the defendants prove that, the
plaintiff did not work with M/s Zenevo
Technologies from October 2007 to
31.03.2011 and the plaintiff on his own
whims and fancies without the prior
consent of the company decided to take
a break leaving behind the unfinished
project and did not bother to update the
project details to the company?
4) Whether the plaintiff is entitled to
recover an amount of Rs.13,96,000/-
from the defendants with interest at 24%
per annum from the date of suit till
realisation?
5) What order or decree?
Addl. Issues :-
1) Whether the suit is bad for non-joinder
and mis-joinder of party?
15 OS.No.6747/2011
2) Whether the defendants prove that suit
is not maintainable against him, in the
absence of any contractual obligation
with the plaintiff?
6. In order to prove the above issues, the plaintiff got
himself examined as PW.1 and got marked the documents at
Ex.P1 to P20. On the other hand, the defendants have not
lead any oral and during the cross-examination of PW.1 got
marked the document at Ex.D1 and thereafter the matter
was posted for arguments.
7. And I have heard the arguments of both sides and
perused the entire materials placed on record.
8. And my findings on the above issues are as
under:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Addl. Issue No.1: In the negative
Addl. Issue No.2: In the affirmative
Issue No.7: As per final order, for the following:
16 OS.No.6747/2011
R E A S ON S
9. Issue No.1 to 4 & Addl. Issue No.1 & 2 :- Since
these issues are inter-related then they are hereby discussed
commonly in order to avoid repetition of facts.
10. On perusal of the entire materials placed on
record by both the parties, I found that it is an admitted fact
that the plaintiff is a software consultant and the defendant
No.1 is the Director/CEO and the defendant No.2 is the
Managing Director of M/s Autrien Communications Pvt. Ltd.
11. It is also an admitted fact that during the year
October 2007, the defendants have offered the plaintiff to
work in his organization as Director Engineering/consultant
and the annual professional fee was offered at
Rs.12,00,000/- plus other reimbursement of expenses for six
months from 10.1.2007.
12. It is also an admitted fact that after discussion the
plaintiff was deputed as Project Manager at Zenevo
Technologies, Lucknow from October, 2007 by the defendants
and his emoluments was fixed at Rs.1,50,000/- per month
vide e-mail dated 3.10.2007.
17 OS.No.6747/2011
13. Now it is the specific case of the plaintiff he
worked from October 2007 to 31.3.2011 at Zenevo
Technologies, Lucknow and as per the norms the plaintiff
had requested the defendant on 24.1.2011 to relieve him
from his assignment from 31.3.2011 and since the
defendants have not paid the package salary as promised for
the financial period 2010-11 & since the defendants have
paid only Rs.4,85,000/- plus TDS deduction of Rs.50,500/-
and have sent Form 16A for three quarters i.e., from
1.7.2010 to 30.9.2010 deducted Rs.18,000/-, 1.10.2010 to
31.12.2010 deducted Rs.30,000/- and from 1.1.2011 to
31.3.2011 deducted Rs.2,500/- totally Rs.50,500/- and since
still the defendants were due and liable to pay a sum of
Rs.12,64,500/- then he is constrained to file this suit for
recovery of the same along with interest at the rate of 24%
per annum.
14. On the other hand it is the specific case of the
defendant No.1 that in fact the plaintiff vide e-mail dated
29.1.2008 to the company with regard to his revised gross
annual salary which will be Rs.50,000/- Basic + allowances +
Performance Bonus as per the company rules and the same
18 OS.No.6747/2011
was agreed by the company and the plaintiff at no point of
time worked from October 2007 to 31.3.2011 for the M/s
Zenevo Technologies and the plaintiff on his own whims and
fancies without the prior consent of the company decided to
take a break leaving behind the unfinished project and did
not bother to update the company about the project details
nor the plaintiff completed the project and due to this
negligent act of the plaintiff the Zenevo Technologies project
failed miserably and due to which the company has also
suffered monetary losses and the plaintiff has ruined the
project and the revenue pending from M/s Zenevo
Technologies account has become zero.
15. And whereas it is the specific case of the
defendant No.2 that the plaintiff has not at all worked for
M/s Zenevo Technologies from October 2007 to 31.3.2011
and in fact the plaintiff has originally filed this suit for
recovery of money against the defendant No.1 only and even
though the said defendant No.1 filed his written statement on
13.1.2012 that he being the Director/CEO has nothing to do
with the plaintiff's claim as the alleged transaction was
between the plaintiff and the defendant No.2 namely M/s
19 OS.No.6747/2011
Austrien Communications Pvt. Ltd., still the plaintiff has
allegedly got impleaded him on 2.2.2016 after a lapse of 4
years and as such the suit of the plaintiff against the
defendant No.2 is barred by law of limitation.
16. So in view of the above specific defences of
defendant No.1 & 2, the heavy burden rather lies on the
plaintiff to prove that he had worked for M/s Zenevo
Technologies from October 2007 to 31.3.2011 with the
emoluments of Rs.1,50,000/- per month and the defendants
have not at all paid the said full salary for the financial period
of 2010-11, but have paid only Rs.4,85,000/- and as such
the defendants are liable to pay the remaining suit sum.
17. In order to prove the above material facts in
issues, though the plaintiff got himself examined as PW.1 and
got marked the documents at Ex.P1 to P20, the same do not
hold any water as there is a lot of variance in the pleadings
and proof of the plaintiff that are placed on record. Now let
me examine it.
18. First of all though the plaintiff has specifically
pleaded that he worked from October 2007 to 31.3.2011 for
20 OS.No.6747/2011
M/s Zenevo Technologies Pvt. Ltd., Lucknow at a salary of
Rs.1,50,000/- per month and the defendants have not at all
paid the said full salary for the financial period of 2010-11,
but have paid only Rs.4,85,000/-, the same once again do
not hold any water as the above facts are not at all proved by
the plaintiff with cogent material evidence.
19. Even though the plaintiff/PW.1 has lead his oral
evidence and so also produced two documentary evidence at
Ex.P1 & P2, the same are of no help to the case of the
plaintiff as the said documentary evidence of Ex.P1/Letter of
appointment clearly shows that the plaintiff was allegedly
appointed on a temporary contract for six months from
10.10.2007 at an annual professional fee of Rs.12,00,000/-
etc.
20. And whereas contrary to said the documentary
evidence of said Ex.P1, the said e-mail letter of Ex.P2 dated
03.10.2007 allegedly shows that the plaintiff was offered a
job at the above said M/s Zenevo Project Lucknow for a
period of 3-4 months only at a consultation fee of
Rs.1,50,000/- per month.
21 OS.No.6747/2011
21. And since para-9 of the said letter of appointment
of Ex.P1 clearly shows that the plaintiff has to sign a
confidentiality agreement specific to the projects of the
defendants company and since para-14 of the said Ex.P1
further shows that at the end of initial 6 months contract
period the plaintiff may be appointed as an employee with a
separate appointment letter and since the plaintiff/PW.1 at
page-11 & 12 of his cross-examination has clearly admitted
that "as per para-9 of Ex.P1 no written contract has taken
place in between him and the defendants and as per the said
Ex.P1 the offer period of the defendants is for only six months
and after the said period no offer has been given to him by
the defendants and the defendants have also not at all given
any confirmation letter with regard to his job and he has not
at all produced any documents to prove that he had worked
at the telecom product of the said company" as below " FUÀ
£À£ÀUÉ N¢ ºÉýzÀ ¤¦.1gÀ 9£É ¥sÁågÁzÀ jÃvÁå £À£Àß ºÁUÀÆ ¥ÀæwªÁ¢ £ÀqÀĪÉ
AiÀƪÀÅzÉ PÀgÁgÀÄ¥ÀvÀæ DVgÀ°®è. ¤¦.1gÀ jÃvÁå ¥ÀæwªÁ¢UÀ¼À D¥Àsgï PÉêÀ® 6
wAUÀ½UÉ ªÀiÁvÀæªÉ EvÀÄÛ CAzÀgÉ ¸Àj. ¤¦.1gÀ £ÀAvÀgÀ ¥ÀæwªÁ¢UÀ¼À PÀqɬÄAzÀ
£À£ÀUÉ ¨ÉÃgÉ AiÀiÁªÀÅzÉ D¥Àsgï EgÀĪÀÅ¢®è CAzÀgÉ ¸Àj. ¥ÀæwªÁ¢UÀ¼ÀÄ, £À£Àß
22 OS.No.6747/2011
PÉ®¸ÀzÀ §UÉÎ AiÀiÁªÀÅzÉ PÀ£ï¥ÀsgïªÀÉÄõÀ£ï ¯Élgï PÉÆnÖgÀĪÀÅ¢®è. £Á£ÀÄ ªÉÄïÉ
ºÉýzÀ mÉ°PÁA ¥sÁæqÀPïÖ£À PÉ®¸À ªÀiÁrzÀ §UÉÎ £Á£ÉãÀÄ AiÀiÁªÀÅzÉ zÁR¯É
ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è", then it has to be held in unequivocal terms
that the plaintiff has failed to prove that he had worked with
M/s Zenevo Technologies from October, 2007 to 31.3.2011 on
behalf of the defendants.
22. And even otherwise, contrary to the above
material admissions though the plaintiff has allegedly
produced a letter of M/s Zenevo at Ex.P4 and so also copies
of some e-mail messages in between the plaintiff and
defendant No.1 at Ex.P5 to P20 to prove his contentions, the
same are of no help to the case of the plaintiff as the said
document of Ex.P4 clearly shows that the plaintiff had not at
all worked from October 2007 in the said M/s Zenevo, but on
the other hand it allegedly shows that the plaintiff had
allegedly worked for M/s Zenevo Technologies, Lucknow from
August 2009 to March 2011.
23. And even then the said documentary evidence of
Ex.P4 is of no help to the case of the plaintiff as the plaintiff
has neither summoned & examined the said Managing
23 OS.No.6747/2011
Director of the said M/s Zenevo Technologies, Lucknow
company nor even produced any documentary evidence to
prove that he had resided at such & such an hotel at
Lucknow and completed the project one assigned by the
defendants.
24. And more over for arguments sake if it were to be
taken that the plaintiff had allegedly worked for the above
company from August 2009 to March 2011, the same is also
of no help to the case of the plaintiff as the said documentary
evidence of Ex.P4 does not show the alleged salary
emoluments of the plaintiff.
25. And so in the absence of the same it has to be
held that the plaintiff vide e-mail dated 29.1.2008 to the
company has agreed to the revised gross annual salary which
will be Rs.50,000/- Basic + allowances + Performance Bonus
as per the company rules as specially pleaded by the
defendant No.1.
26. And in fact the admission of the plaintiff/PW.1 at
para-3 of his plaint and affidavit evidence that the defendants
24 OS.No.6747/2011
have paid a sum of Rs.4,85,000/- rather probablizes the
above material facts.
27. Thirdly the e-mail messages, letters & postal
acknowledgements of Ex.P5 to P20 are concerned, the same
are of no help to the case of the plaintiff as the said e-mails
were exchanged in between the plaintiff and the defendant
No.1, wherein the defendant No.1 has not at all admitted that
the plaintiff had worked for Zenevo Technologies from
October 2007 to 31.3.2011 at a salary of Rs.1,50,000/-.
28. And even otherwise, for arguments sake if it were
to be taken that the plaintiff had allegedly worked from
August 2009 to March 2011 for M/s Zenevo Technologies Pvt.
Ltd., Lucknow at a salary of Rs.1,50,000/- per month and
the defendants have not at all paid the said full salary for the
financial period of 2010-11, but have paid only
Rs.4,85,000/-, the same are of no help to the case of the
plaintiff as admittedly the plaintiff has originally filed this
suit for recovery of money against the defendant No.1 only
and even though the said defendant No.1 filed his written
statement on 13.1.2012 that he being the Director/CEO has
nothing to do with the plaintiff's claim as the alleged
25 OS.No.6747/2011
transaction was between the plaintiff and the defendant No.2
namely M/s Austrien Communications Pvt. Ltd., still the
plaintiff has allegedly got impleaded the defendant No.2 on
2.2.2016 after a lapse of 4 years and as such the suit of the
plaintiff against the defendant No.2 is barred by law of
limitation.
29. On the other hand though the defendants have
not lead their evidence to prove their contentions, the same is
not at all fatal to their case as the plaintiff/PW.1 himself at
page-10 of his cross-examination has clearly admitted that "it
is true to suggest that he has not at all done any transaction
with the defendant No.1. It is true to suggest that originally
he has filed the above suit against the defendant No.1 only. It
is true to suggest that he admits the contention one taken in
the written statement of defendant No.1 that he has only
done transaction with the defendant No.2", which is rather
fatal to the case of the plaintiff because as per section 58 of
the Indian Evidence Act the above admitted facts need not be
further proved by the defendants.
30. And moreover contrary to his oral and
documentary evidence since the plaintiff/PW.1 at page-11 &
26 OS.No.6747/2011
12 of his cross-examination has clearly admitted that the
defendants have not at all given any confirmation letter of his
job and further admitted that he has not at all produced any
documents to prove that he has done the telecom product
work of M/s Zenevo and since in a ruling of 2004(1) KCCR
662 our Hon'ble High Court of Karnataka has clearly held
that "Pleadings and proof - Whenever a party approaches
the court for a relief, based on the pleadings and issues,
he has to prove his case. The suit has to be decided
based on merits and demerits of the party who
approaches the court. The weakness of the defendant
cannot be considered as a trump card for the plaintiff "
then not leading of any evidence by the defendants is of no
much consequence.
31. So in view of the discussion made above, I am of
the opinion that since the plaintiff has failed to prove that he
had worked from October 2007 to 31.3.2011 for M/s Zenevo
Technologies Pvt. Ltd., at Lucknow at a salary of
Rs.1,50,000/- per month and the defendants have not at all
paid the said full salary for the financial period of 2010-11,
but have paid only Rs.4,85,000/-, with cogent material
27 OS.No.6747/2011
evidence and since the admission of the plaintiff/PW.1 at
para-3 of his plaint and affidavit evidence that the defendants
have paid a sum of Rs.4,85,000/- rather probablises the
contention of the defendants and since the plaintiff/PW.1 at
page-10 of his cross-examination has clearly admitted that he
has only done transaction with the defendant No.2 and
admittedly since the defendant No.2 is impleaded after the
lapse of 4 years then the suit of the plaintiff is barred by law
of limitation and as such the plaintiff is not at all entitled to
the reliefs as sought by him and accordingly I have answered
issue No.1 & 2 in the negative, issue No.3 in the affirmative,
issue No.4 in the negative, additional issue No.1 in the
negative and additional issue No.2 in the affirmative.
32. Issue No.5:- In view of the discussion made on
issue No.1 to 4 and additional issue No.1 & 2 and further
holding issue No.1 & 2 in the negative, issue No.3 in the
affirmative, issue No.4 in the negative, additional issue No.1
in the negative and additional issue No.2 in the affirmative, I
proceed to pass the following order:-
28 OS.No.6747/2011
ORDER
The suit of the plaintiff for recovery of money against the defendants is hereby dismissed.
In view of the peculiar circumstances the parties are directed to bear their own cost.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 10th day of February, 2020).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 D.Ravindra List of documents exhibited for plaintiff:
Ex.P1 The officer letter Ex.P2 E-mail copy Ex.P3 E-mail copy Ex.P4 Experience letter Ex.P5 & 5(a) E-mail copies Ex.P6 E-mail copy Ex.P7 Invoice Ex.P7(a) Covering letter 29 OS.No.6747/2011 Ex.P8 Acknowledgement Ex.P9 Pre-dated Agreement Ex.P10 E-mail copy Ex.P11 E-mail copy Ex.P12 E-mail copy Ex.P13 Office copy of reminder Ex.P14 & 15 Postal receipt & acknowledgement Ex.P16 Copy of legal notice Ex.P17 & 18 Postal receipt & acknowledgement Ex.P19 C.D. Ex.P20 Sec.65(b) Evidence Act Certificate List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Ex.D1 G-mail message XVII Addl. City Civil & Sessions Judge, Bengaluru.