Delhi District Court
Suit. No. 162/09 vs Skypak Services Specialist Ltd on 15 February, 2011
In the Court of Sh. Praveen Singh: Additional Senior Civil Judge
(New Delhi District), Patiala House Courts, New Delhi
Suit. No. 162/09
Alka Tiwari,
Advocate,
Chamber no. 222, Patiala House Courts,
New Delhi-01. ....................... Plaintiff.
VERSUS
Skypak Services Specialist ltd.
Through its M.D.
Ms. Devika Kulkarni
Regd. Office
3-Sona Udyog, Parsi Panchayat Road,
Andheri East, Mumbai-69.
Regional Office
8/252, Mehram Nagar,
Opp. Palam Domestic Airport,
New Delhi. .......................... Defendant.
Date of Institution : 21.08.2009.
Date of Arguments: 09.02.2011.
Date of Judgment : 15.02.2011.
SUIT FOR RECOVERY OF RS.129,330/- WITH INTEREST.
JUDGMENT :
The present suit for recovery of Rs.129,330/- has been filed by the plaintiff against the defendant.
Suit No. 162/09 1 of 10
2. The case of the plaintiff is that she is a practicing advocate and the defendant is a company duly incorporated under the Companies Act, 1956. It is further submitted that the plaintiff had been retained as consultant on legal matters by the defendant on terms and conditions stipulated in her letter of appointment dated 30.05.2005. It is further submitted that as per the appointment letter, the plaintiff was to be paid monthly retainer fee of Rs.8,000/- per month and Rs.2,000/- per month towards travelling expenses. It is further submitted that the plaintiff was authorized to attend legal matters before Civil or Criminal courts or any other competent authority herself or with any advocate. It is further submitted that the plaintiff had availed professional services of Rajesh Tiwari, Advocate with due information to the defendant. It is further submitted that the plaintiff had been regularly rendering professional services as per the requirement and had been attending different courts at Delhi as well as out of station namely Meerut, Ghaziabad, Noida, Gurgaon, Jind, Dehradun etc. It is further submitted that the defendant was quite irregular in reimbursing the fee of the plaintiff and the amount was always released quite late. It is further submitted that the fees was only paid upto April, 2008 and the defendant started making defaults in payment w.e.f May, 2008 and had not made payment thereafter till July 2009. It is further submitted that the plaintiff had been regularly sending reminders by way of E-mail messages for the release of the payment followed by numerous phone calls. It is further submitted that the plaintiff finally sent a notice for termination/ withdrawal of agreement on 19.03.2009. This notice was forwarded to the defendant company by E-mail and its hard copy was sent through CBP. CBP is the process by which the internal mail is sent/ received to/ by the defendant. It is further submitted that by this notice, a sum of Rs.1,11,080/- was Suit No. 162/09 2 of 10 demanded by the plaintiff, the same being her dues. It is further submitted that the notice was duly received by the defendant and in acknowledgment of the same, the defendant company sent an E-mail and asked the plaintiff to hold the matter and undertook to resolve the same. It is further submitted that on 17/18 April, 2009, the concerned official of the defendant, Sh. Vijay Dholey, G.M. came to Delhi and assured to release the amount of the plaintiff within a few days. However, the assurance turned out to be false. Hence the present suit for recovery of Rs.1,29,330/- which includes Rs.1,10,000/- as fee w.e.f May,08 to March,09, interest on the said amount @ 10% i.e. Rs.8250/-, miscellaneous expenses w.e.f February, 08 to March, 09 of Rs.7,000/- and Rs.4,080/- towards TDS amount deducted for which no certificate was issued by the defendant.
3. The defendant, on being served with the summons of the suit, filed the written statement. In the written statement, a preliminary objection was taken that the plaintiff had not come to the court with clean hands. A further preliminary objection was taken that no cause of action arose against that defendant as the plaintiff herself did not adhere to the terms of the offer of retainership and the plaintiff cannot be allowed to take advantage of her own wrongs. It is further submitted that the suit has not been filed in accordance with law and has not been properly valued for the purpose of court fees. A further preliminary objection is taken that the plaintiff had not disclosed in entire plaint as to how she is entitled to claim the alleged amount from the defendant by concealing very important factum of her not attending the office of the defendant in terms of the offer of retainership letter dated 30.05.2005, as accepted by the plaintiff. A further preliminary objection is taken that the suit is liable to be dismissed as the court has no territorial jurisdiction.
Suit No. 162/09 3 of 10
4. On merits, it is admitted that the plaintiff was retained as consultant vide letter dated 30.05.2005. It is further admitted that the plaintiff was authorized to attend legal matters before civil or criminal courts or any other competent authority by herself or with any Advocate. It is denied that the plaintiff availed the professional services of Sh. Rajesh Tiwari, Advocate with due information to the defendant. It is submitted that the legal matters required to be attended by the plaintiff were not regularly followed, as a result whereof, one of the matters with respect to one Subodh Asthana was decided against the defendant and the decision of the court was not communicated by the plaintiff or by Mr. Rajesh Tiwari, which had caused delay in filing appeal before the Hon'ble High Court. It is further submitted that on account of such mishandling by the plaintiff, the defendant suffered losses. It is denied that the plaintiff had been rendering her professional services to the defendant as per requirement before various courts at Delhi and outside. It is submitted that the plaintiff had not been updating the day to day progress of the cases to the defendant as a result whereof, there had been communication gap between the plaintiff and the defendant. It is further submitted that the plaintiff proceeded on maternity leave w.e.f 01.12.2005 to 01.03.2006 initially for 90 days and later on, sought it to be extended till 01.04.2006. It is further submitted that subsequent to the extension of maternity leave, the plaintiff did not attend the office of the defendant and as such, the defendant suffered adverse orders in the courts. It is denied that the defendant was quite irregular in reimbursing the fees of the plaintiff and the amount was always released quite late. It is denied that an amount of Rs.1,11,080/- was outstanding against the defendant. It is submitted that the question of compliance of demand notice allegedly sent by the plaintiff did not arise and the contents of the alleged bill raised by the Suit No. 162/09 4 of 10 plaintiff are concocted and without any basis and hence denied.
5. In the replication to the written statement, the contents of the written statement are denied and the contents of the plaint are reaffirmed.
6. From the pleadings of the parties, following issues were framed vide order dated 03.04.2010:-
1. Whether the plaintiff in providing legal services to the defendant, had availed the professional services of Sh. Rajesh Tiwari, Advocate with due information to the defendant? OPP.
2. Whether the plaintiff had been regularly rendering professional services to the defendant and had been attending different forums/ Courts at Delhi as well as out of station namely Meerut, Ghaziabad, Noida (U.P), Gurgaon, Jind (Haryana), Dehradun (Uttaranchal) etc.? OPP.
3. Whether the defendant was irregular in reimbursing the fee to the plaintiff? OPP.
4. Whether the defendant defaulted in making payment of professional fee to the plaintiff with effect from May, 2008 till July, 2009? OPP.
5. Whether the plaintiff has not adhered to the terms of the offer of retainership from the defendant and accepted by her? OPD.
6. Whether the plaintiff is taking advantage of her own wrongs and thus, is abuse of process of law? OPD.
7. Whether the suit has not been verified as per law? OPD.
8. Whether the suit has not been properly valued for the purpose of court fee? OPD.
9. Whether this court has no jurisdiction to entertain and proceed with the suit as the courts at Mumbai have jurisdiction to try the present suit? OPD.
10.Relief.
7. Thereafter, on failure of the defendant to appear before the court, the defendant was proceeded ex-parte by my learned predecessor on 05.06.2010. Thereafter, the plaintiff led her evidence and examined herself as PW1. Thereafter, an application under Order IX Rule 7 CPC was moved on behalf of the defendant which was dismissed by my learned predecessor on 28.08.2010.
Suit No. 162/09 5 of 10
8. I have heard learned counsel for the parties and perused the record very carefully. My issue wise findings are as under:-
ISSUE NO. 1 :-
Whether the plaintiff in providing legal services to the defendant, had availed the professional services of Sh. Rajesh Tiwari, Advocate with due information to the defendant?OPP.
9. The plaintiff appearing as PW1 deposed that she was retained as a consultant by the defendant company vide letter of appointment Ex.PW1/1. She further deposed that as per the letter of appointment, she could take the services of another advocate and she availed the services of her husband Sh. Rajesh Tiwari, Advocate. This testimony of the plaintiff has been entirely unrebutted and I have no reasons to disbelieve the testimony of the plaintiff. However, this testimony only proves that the plaintiff had availed the legal services of Sh. Rajesh Tiwari. It does not prove that she availed these services with due information to the defendant. I, accordingly, find that the plaintiff had availed the services of Sh. Rajesh Tiwari as she was authorized to do vide letter Ex.PW1/1. However, the same was not under due information of the defendant.
10. The issue no. 1 is accordingly disposed of.
ISSUE NO. 2:-
Whether the plaintiff had been regularly rendering professional services to the defendant and had been attending different forums/ courts at Delhi as well as out of station namely Meerut, Ghaziabad, Noida (U.P), Gurgaon, Jind (Haryana), Dehradun (Uttaranchal) etc.? OPP.
11. The plaintiff appearing as PW1 deposed that she had been rendering her professional services to the defendant and in this regard, had been attending courts at Delhi and also courts at outside places such as Meerut, Suit No. 162/09 6 of 10 Ghaziabad, Noida (U.P), Gurgaon, Jind (Haryana), Dehradun etc. This testimony of the plaintiff has also been entirely unrebutted. The issue no. 2 is accordingly decided in favour of the plaintiff.
ISSUE NO. 3:-
Whether the defendant was irregular in reimbursing the fee to the plaintiff? OPP.
12. The plaintiff appearing as PW1 deposed that the defendant was quite irregular in reimbursing her fees. Her testimony in this regard, has entirely been unrebutted. The issue no. 3 is accordingly decided in favour of the plaintiff.
ISSUE NO. 4:-
Whether the defendant defaulted in making payment of professional fee to the plaintiff w.e.f May, 2008 till July, 2009? OPP.
13. The plaintiff appearing as PW1 deposed that the defendant defaulted in making the payment of professional fee to the plaintiff w.e.f May, 2008 till July, 2009. She further deposed that she gave a notice for termination/ withdrawal of agreement on 19.03.2009. The notice is Ex.PW1/3. Vide this notice, the defendant was also asked to pay a sum of Rs.1,11,080/-. From this testimony of the plaintiff, it is proved that since May, 2008, the defendant did not make any payment of the dues of the plaintiff. As the plaintiff has deposed that she terminated the contract vide letter dated 19.03.2009, it stands proved that the plaintiff had worked for the defendant till 19.03.2009. Vide Ex.PW1/3, the plaintiff had made clear that she would withdraw herself from the matters attended by her within fifteen days, meaning thereby, that she had worked for the defendant till April, 2009. Hence, it stands proved that the defendant did not make the payment of the fees to the plaintiff from May, 2008 till March, 2009. The issue no. 4 is accordingly disposed of.
Suit No. 162/09 7 of 10 ISSUES NO. 5, 6, 7, 8 AND 9:-
5. Whether the plaintiff has not adhered to the terms of the offer of retainership from the defendant and accepted by her? OPD.
6. Whether the plaintiff is taking advantage of her own wrongs and thus, is abuse of process of law? OPD.
7. Whether the suit has not been verified as per law? OPD.
8. Whether the suit has not been properly valued for the purpose of court fee? OPD.
9. Whether this court has no jurisdiction to entertain and proceed with the suit as the courts at Mumbai have jurisdiction to try the present suit? OPD.
14. The onus to prove these issues was upon the defendant. However, the defendant did not led any evidence to prove these issues. The issues are accordingly decided against the defendant.
RELIEF:-
15. The plaintiff has claimed recovery of Rs.1,29,330/-. While appearing as PW1, the plaintiff has deposed that when the fees of the plaintiff became due, she constantly demanded the same from the defendant through e-mails and various phone calls and the text of e-mail messages are Ex.PW1/2. She further deposed that she gave a notice of termination/ withdrawal of agreement on 19.03.2009. Vide this notice, the defendant company was asked to pay a sum of Rs.1,11,080/-. The notice is Ex.PW1/3. She further deposed that she also sent a bill of Rs.1,21,080/- to the defendant which is Ex.PW1/4. She further deposed that the notice was duly received by the defendant company through its General Manager, Sh. Vijay Dhole, who sent a message dated 20.03.2009 whereby, he asked the plaintiff to hold the matter and undertook to resolve the matter in a short while. The text of the Suit No. 162/09 8 of 10 message is Ex.PW1/5. She further deposed that the concerned official visited Delhi around 17/18 April 2009 and met the plaintiff and assured to release the amount within a few days but, the amount was never released. She further deposed that she has also claimed Rs.8,250/- by way of interest on unpaid dues. The calculation sheet of interest is Ex.PW1/6. This testimony of the plaintiff has been entirely unrebutted. It is admitted that the plaintiff was given an offer letter Ex.PW1/2 which clearly shows that she was to be paid Rs.8,000/- towards retainer fees and Rs.2,000/- towards travelling expenses. The plaintiff has further proved that she was diligently rendering her professional services to the defendant. She further proved that the defendant has defaulted in making the payment of her fees w.e.f May, 2008 to March, 2009 (the month when her contract was terminated). Thus, I find that the plaintiff is entitled to recover a sum of Rs.1,10,000/- towards her fees.
16. Further, the plaintiff has claimed a sum of Rs.7,000/- as other expenses w.e.f February, 2008 to March, 2009. However, no detail of the said amount has been given that why, under what circumstances and under what heads, these expenses have been incurred, have been shown. Neither any documentary evidence has been filed to show that these expenses were incurred by the plaintiff. In absence of these, the said amount cannot be awarded to the plaintiff.
17. The plaintiff has further claimed Rs.4,080/- towards TDS amount deduction. However, the plaintiff has not filed copies of her pay slips which could show that the said amount was deducted from her salary. In these circumstances, this amount also cannot be awarded to the plaintiff.
18. As regards the interest, the plaintiff has unilaterally claimed interest @ 10% per annum, which cannot be awarded to the plaintiff as the plaintiff Suit No. 162/09 9 of 10 has not led any evidence to show that she was entitled to interest upon the amount due even before filing of the present suit. The same is also declined.
19. In view of the above discussion, the suit of the plaintiff is decreed. A decree of Rs.1,10,000/- alongwith interest @ 6% per annum from the date of filing of the suit till the date of realization of the decreetal amount is passed in favour of the plaintiff and against the defendant. Costs of the suit are also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the (PRAVEEN SINGH) open court on 15.02.2011 Additional Senior Civil Judge, (This judgment contains ten pages (New Delhi District), New Delhi. and each page bears my signatures.) Suit No. 162/09 10 of 10