Delhi District Court
Kapil Kumar Jeswani vs . M/S Investor Clinic Infratech (P) Ltd. on 16 August, 2018
Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
IN THE COURT OF MS. JYOTI KLER, ADDL. DISTRICT JUDGE-05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
C.S. No. 8232/16
Case ID No. DLST01-000618-2013 Digitally
signed by
In the matter of:
JYOTI JYOTI KLER
Date:
Kapil Kumar Jeswani
S/o Sh. Basant Lal
R/o H.No. 3240-41
KLER 2018.08.16
18:42:19
Vikram Street, Bahadurgarh Road
+0530
Delhi-110006
.............Plaintiff
Versus
M/s Investor Clinic Infratech Pvt. Ltd.
Through Its CEO
Having its Head Office
Tapasya Corp. Heights
Floor No.5, E-F-G-H-
Sector-126, Noida - 201303, U.P.
Contact No. 0120-4247285
And
Its Business Sales Office
E-29, South-Extension, Part-II,
New Delhi
Contact No. 9711989148
9810246662
..............Defendant
CS No.8232/16 Page 1 of 15
Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
Date of Institution : 27.09.2013
Date of Reserving the Judgment : 08.08.2018
Date of Pronouncement : 16.08.2018
Decision : Dismissed
JUDGMENT IN A SUIT FOR RECOVERY FOR A SUM OF RS.29,52,000/-
AND INTEREST PENDENTE-LITE.
1.Plaintiff is the ex-employee of the defendant company. The defendant is a private limited company transacting the business of sale / purchase of flats and other properties being developed by different companies, on commission basis.
Case of the Plaintiff
2. Plaintiff was employed by the defendant company as a Business Development Manager vide appointment letter dated 02.11.2009 on consolidated package of Rs.17,000/- per month apart from incentive @10% on the direct sale proceeds / booking of flats in different projects. He was posted at the corporate office of the defendant company at Noida. He was promoted to the post of Estate Manager where incentive was increased to 15%, then as Port-folio Manager where incentive increased to 25% and lastly as Senior Manager, Sales & Marketing where incentive increased to 30% & salary was revised to Rs.26,000/- per month. Plaintiff worked on various projects undertaken by the defendant company at Noida and Noida Extension. He resigned on 19.08.2011. He earned commission of CS No.8232/16 Page 2 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
approximately Rs.22,00,000/- for which details were submitted to the defendant company till April, 2012. A legal notice dated 20.04.2012 was sent to the defendant company for payment of dues earned towards commission. Even after April, 2012 and till June, 2013, plaintiff earned further commission of Rs.4,00,000/- on the bookings done by him during his service thereby raising the total commission to Rs.26,00,000/- Defendant made some payments to the plaintiff towards commission/incentive initially between December, 2010 to April, 2011. The amount of Rs.26,00,000/- is due as on date towards incentive against the defendant company after excluding the amount already paid. The defendant company had also issued a cheque in the sum of Rs.90,000/- in favour of the plaintiff towards part payment of his commission which was destroyed by a machine in the bank. A replacement was requested but new cheque was never issued. Defendant company did not pay the incentive amount and sent a false reply dated 16.05.2012 to the notice dated 20.04.2012. Plaintiff sent a rejoinder dated 09.07.2012. When the money was not paid, plaintiff instituted the instant suit for recovery of Rs.29,52,000/- with pendente lite and future interest @12% per annum.
Case of the Defendant
3. Defendant admitted that plaintiff was its employee. It is case of the defendant that no incentive was ever agreed to be paid by the defendant to the plaintiff and his basic salary was Rs.17,000/-, which was CS No.8232/16 Page 3 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
revised from time to time. The defendant also states that documents relied upon by the plaintiff are from the confidential data of the defendant company which is supposed to remain with Directors. This data has been stolen by the plaintiff and he ever forged it so as to reflect his name against the name of actual official who had done the sale. The plaintiff has not given any details how he arrived at the figure of Rs.29,52,000/-. Some of the data relied by the plaintiff pertains to the date before he joined the defendant company. The plaintiff concealed that defendant had paid a total sum of Rs.8,16,939/- to the plaintiff, majority of which was to be adjusted against his salary and subsequent incentives. The e-mails relied upon by the plaintiff do not emanate from the official e-mail ID of the defendant, and even if these e-mails are admitted, plaintiff is entitled to incentive only w.e.f. January, 2011 and not before that. Defendant also pleaded that this Court has no territorial jurisdiction to entertain and try the present suit. Defendant admitted that it had issued a cheque in the sum of Rs.90,000/- to the plaintiff, and that the plaintiff had requested for issuance of new cheque, but did not produce any material to show that the cheque got destroyed, so new cheque was not issued.
Rejoinder
4. In the replication, plaintiff denied the case of the defendant in entirety and reiterated averments of the plaint. He also stated that record relied upon by him was available with him because he had kept a copy CS No.8232/16 Page 4 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
when the bills were raised by him. Plaintiff states that the sum of Rs.29,52,000/- claimed by him in the present suit is towards incentives accumulated through passage of time and this amount is being claimed on the basis of documents annexed with the plaint.
Issues
5. On the basis of the pleadings, following issues were framed vide order dated 27.05.2016: -
i) Whether the plaintiff has stolen confidential and proprietary data from the records of the defendant, if so its effects? OPD
ii) Whether the defendant made a total payment of Rs.8,16,939/- to the plaintiff , if so its effect? OPD
iii) Whether the plaintiff was entitled to commission @10% on direct sales? OPP
iv) Whether plaintiff is entitled for recovery of suit amount? OPP
v) Whether plaintiff is entitled for recovery of interest, if so at what rate and for which period? OPP
vi) Relief.
6. The admission / denial of documents was conducted before framing of issues during which defendant admitted four documents of the plaintiff. These documents are as below: -
i) Ex.P-1: Appointment letter dated 02.11.2009.
ii) Ex.P-2: Promotion letter dated nil.
iii) Ex.P-3: Legal notice dated 20.04.2012 sent by the
plaintiff to the defendant.
CS No.8232/16 Page 5 of 15
Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
iv) Ex.P-4: Reply dated 16.05.2012 sent by the
defendant to the plaintiff.
Plaintiff's Evidence
7. Plaintiff examined himself as PW1 by way of evidence affidavit Ex.PW1/A. He reiterated contents of the plaint in his evidence affidavit and relied upon the following documents: -
S.No. Documents Exhibit numbers
1. Ex.P-1 to Ex.P-4 are renumbered as
Ex.PW1/1, Ex.PW1/2, Ex.PW1/12
and Ex.PW1/13 respectively in the
evidence affidavit.
2. Copy of the salary / incentive Ex.PW1/3
justification chart.
3. Print out of e-mail dated Ex.PW1/4
14.04.2011.
4. Computer print outs reflecting Ex. PW1/5
bookings done on behalf of the
defendant company from
02.11.2009 till 19.08.2011.
5. Statement of account of bank Ex. PW1/6
account of plaintiff reflecting
payment of Rs.1,57,218/- on
31.01.2011, Rs.95,988/- on
31.01.2011, Rs.1,00,000/- on
22.02.2011 and Rs.80,522/- on
01.11.2011 by way of cheques.
6. Computer print out reflecting daily Ex.PW1/7 sales report.CS No.8232/16 Page 6 of 15
Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
7. Photocopy of trophy for best achiever Ex. PW1/8 award.
8. Print out of e-mails dated 30.09.2011 Ex. PW1/9
9. E-mails exchanged between plaintiff Ex.PW1/10 and defendant from August 2011 till April 2012.
10. E-mail regarding acceptance of Ex.PW1/11 resignation.
11. Rejoinder sent by the plaintiff to the Ex.PW1/14 defendant dated 09.07.2012.
12. Copy of the resignation letter of the Mark C. plaintiff.
13. Copy of cheque dated 29.12.2010 (the Mark B. document is completely illegible).
14. Certificate under Section 65-B of Ex.PW P-2 Indian Evidence Act, 1872
8. PW1 was cross examined by the defendant. He admitted during cross examination that his appointment letter Ex.PW1/1 does not reflect that he was entitled to 10% commission / incentive on direct sales proceeds. He stated that the fact of commission / incentive was reflected in the e-mail dated 15.04.2011 which is Ex.PW1/4. He admitted that this e-mail was sent by the sender from his personal e-mail ID and not official e-mail ID. He stated that he used to communicate with the officials of defendant company from his personal e-mail ID. He also stated that e-mail Ex.PW1/3 mentions about details of the sale target. He admitted that he received Rs.8,16,939/- from the defendant company towards commission. He deposed that there CS No.8232/16 Page 7 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
was no full and final settlement between him and the defendant company at the time of his resignation and he had intimated the defendant company about his dues vide Ex. P-8 and e-mail dated 30.09.2011 with attachment Ex.PW1/7. He stated that sale data Ex.PW1/5 and Ex.PW1/7 were given to him by Ms. Renu Khandelwal, Cordinator of the defendant company. He denied the suggestion that nothing was due on defendant against him on account of incentive / commission.
Defendant's Evidence
9. Defendant did not lead evidence despite opportunities. The evidence of defendant was closed vide order dated 11.05.2018.
Final Arguments
10. Defendant did not even advance final arguments. No written arguments have been filed by the defendant. Final arguments have been advanced on behalf of the plaintiff. Written arguments have been filed.
11. Ld. Counsel for the plaintiff contended that documents Ex.PW1/5 and Ex.PW1/7 show the sales done by the plaintiff on behalf of defendant company and the commission to which he was entitled. This amount has not been paid by the defendant. Defendant has not proved its defence therefore case of the plaintiff stands proved on balance of probabilities.
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Findings
12. I have considered the contention of Ld. Counsel for the plaintiff. Record has been perused.
13. My issue wise findings on the basis of material proved on record are as below:-
Issue no.1: Whether the plaintiff has stolen confidential and proprietary data from the records of the defendant, if so its effects? OPD
14. Onus to prove issue no.1 was upon the defendant. The defendant has not led any evidence to prove that some confidential proprietary data of the defendant was stolen by the plaintiff. The plaintiff specifically stated in his cross examination that data was given to him by Ms. Renu Khandelwal, Coordinator of the defendant on which no further cross examination of the plaintiff was done. No suggestion was given to the plaintiff that he had stolen data of the defendant company. The defendant has therefore not been able to discharge its onus. Issue no.1 is accordingly decided against the defendant and in favour of the plaintiff.
Issue no.2: Whether the defendant made a total payment of Rs.8,16,939/- to the plaintiff, if so its effect? OPD CS No.8232/16 Page 9 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
15. Onus to prove issue no.2 was upon the defendant. During cross examination of PW1, he admitted that he had received a sum of Rs.8,16,939/- from the defendant company towards commission / incentive. In view of this admission, issue no. 2 stands sufficiently proved and accordingly held in favour of the defendant. Effect of this would be to discharge the defendant from obligation to pay the amount of commission to the extent of Rs.8,16,939/- in case same is found payable.
Issue no.3: Whether the plaintiff was entitled to commission @10% on direct sales? OPP
16. Onus to prove issue no.3 was upon the plaintiff. The plaintiff relied upon his appointment letter Ex.PW1/1, promotion letter Ex.PW1/2 and e-mail with incentive chart Ex.PW1/3 and Ex.PW1/4 in support of his case that he was entitled to incentive @10% while he was at the post of Business Development Manager and later @15%, 20% and 30% on each promotion.
17. PW1 admitted in his cross examination that his appointment letter does not specify anything about the commission/incentive that was to be received by him. The contract letter of the plaintiff, which too is on record and has been admitted by both the sides, also does not specify anything about the incentive.
CS No.8232/16 Page 10 of 15Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
18. Only document which reflects regarding incentive are the e-
mails Ex.PW1/3 and Ex.PW1/4. These e-mails were denied by the defendant. The case of the defendant is that these e-mails are exchanged between the employees on their personal e-mail ID and were not sent through official e-mail ID of the defendant. Plaintiff admitted in his cross examination that the e-mails Ex.PW1/3 and Ex.PW1/4 were exchanged through personal e-mail IDs of the employees of the defendant. He further deposed that the personal e-mail ID was used because other employees in HR department of the defendant company were also using their personal e- mail ID to communicate. The e-mails show that plaintiff was entitled to commission which otherwise also has been admitted by the defendant impliedly in the written statement and during cross examination of PW1.
19. The defendant company stated in his written statement that sum of Rs.8,16,939/- was paid to the plaintiff by the defendant apart from his salary. The case of the defendant company in written statement is that this money was paid as advance that was to be adjusted later on against salary and subsequent incentives, if any. During cross examination of PW1, however, it was suggested to him that Rs.8,16,939/- was received by him towards commission / incentive which fact was admitted. This sufficiently proves that plaintiff was receiving incentive over and above his monthly salary. The e-mails Ex.PW1/3 and Ex.PW1/4 have been denied merely on the basis that these have not been exchanged from official e-mail ID of the CS No.8232/16 Page 11 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
defendant company. However, defendant has failed to prove what action it had taken against the employees for using their personal e-mail IDs for official communications. The fact that no action was taken, itself is sufficient to assume that officials of defendant company were using their personal e-mail IDs for official communications with authority of the company.
20. The plaintiff thus has been able to prove that he was entitled to commission for sales done by him, as per promotion activity chart Ex.PW1/3 (colly). This issue accordingly is decided in favour of the plaintiff and against the defendant.
Issue no.4: Whether plaintiff is entitled for recovery of suit amount?
OPP
21. Onus to prove issue no. 4 was upon the plaintiff. The plaintiff has proved that he was entitled to receive commission on promotion of sales done by him on behalf of defendant company. However, plaintiff was also duty bound to prove how many sales were done by him for defendant company and how much incentive was he entitled to receive against each of the said sales. The plaintiff was bound to prove each transaction, done by him on behalf of defendant company, separately. In order to prove the said fact, plaintiff has relied upon some print outs in the form of excel sheets which are Ex.PW1/5 and Ex.PW1/7. These sheets are neither signed nor CS No.8232/16 Page 12 of 15 Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
bear stamp of the defendant company. The sheets are titled as project bills. The plaintiff has not proved each of the transaction detailed in these sheets which he was bound to prove by leading cogent and reliable evidence. The unstamped unsigned record cannot per se be relied upon without proof of transaction, entries of which are made in these excel sheets.
22. PW1 deposed in his cross examination that these excel sheets were received by him from one of the employee of the defendant company. The said employee however was not produced in the witness box for proving excel sheets. The case of the defendant is that these sheets were stolen and do not pertain to the booking done by the plaintiff on behalf of the defendant company. It is stated that these bookings were done by some other employees of the defendant company. Defendant has not proved this defence of its, however, onus was upon the plaintiff to stand on his own legs and prove his case on the balance of probabilities. Plaintiff has failed to prove each of the transaction which is part of the excel sheets Ex.PW1/5 and Ex.PW1/7. No account statement was furnished detailing the amount against each sale and the amount paid by the defendant company till date, which could have shown that balance incentive amount on the date of filing of the suit was Rs.26,00,000/-.
23. It is the case of the plaintiff that defendant had issued a cheque of Rs.90,000/- which amount is part of total incentive of Rs.26,00,000/-.
CS No.8232/16 Page 13 of 15Kapil Kumar Jeswani Vs. M/s Investor Clinic Infratech (P) Ltd.
Issuance of cheque is admitted by the defendant. Plaintiff alleged that the cheque was destroyed by the machine of bank which fact was not admitted however. Plaintiff failed to prove the fact that cheque was destroyed. No evidence was called from the concerned bank in this regard. Date of issuance of cheque was not disclosed. Number of cheque was neither disclosed nor an attempt was made to call records from defendant company in this regard. The fact that cheque was not encashed also was not proved.
24. In view thereof, I am of the considered opinion that plaintiff has not discharged his onus to prove issue no.4, which is accordingly decided against the plaintiff.
Issue no.5: Whether plaintiff is entitled for recovery of interest, if so at what rate and for which period? OPP
25. The issue no.5 emanates from issue no.4. Since issue no.4 has not been proved by the plaintiff, issue no.5 also is held against the plaintiff.
Relief
26. In view of discussion above, it is held that though the plaintiff has been able to prove that he was entitled to commission / incentive because sales were done by him on behalf of defendant company, he has not proved the total bookings done by him and the amount of commission accrued in his favour. Hence, plaintiff is not entitled to any relief.
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Decision
27. The suit is dismissed. No order as to cost.
28. Decree sheet be prepared accordingly.
29. File be consigned to Record Room.
Announced in the open (JYOTI KLER)
Court on 16.08.2018 ADJ-05 (SOUTH DISTRICT)
(Judgment contains 15 pages) SAKET COURTS, NEW DELHI
CS No.8232/16 Page 15 of 15