Delhi District Court
Susanta Majumdar vs M/S Swift Freight (India) Pvt. Ltd on 29 July, 2015
Civil Suit No.312/13
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.312/13
Unique Case ID No.02406C0301262013.
Susanta Majumdar
S/o Sh. Sambhu Vishnu Majumdar
R/o RZE27B, Flat No. 202
Mahavir Enclave
New Delhi110045 .......Plaintiff.
Versus
M/s Swift Freight (India) Pvt. Ltd.
Regd. office at 3C2, Gundecha Enclave
C Wing, 3rd Floor, Kherani Road
Saki Naka Andheri (E)
Mumbai400072, and a
Branch Office at:
802, Sahyog Building
Nehru Place
New Delhi
represented by its director. .......Defendants.
Date of institution :10.07.2012
Date of reserving the judgment : Nil
Date of pronouncement : 29.07.2015.
Decision :Decreed.
SUIT FOR RECOVERY OF A SUM OF Rs. 2,44,960/
(TWO LAKHS FORTY FOUR THOUSAND NINE HUNDRED AND
SIXTY RUPEES ONLY) ALONGWITH INTEREST PENDENTLITE
AND FUTURE AND COST OF THE SUIT.
Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page1 of 11
Civil Suit No.312/13
Present : None.
JUDGMENT
The present suit has been filed by the plaintiff seeking recovery of Rs. 2,44,960/ alongwith interest at the rate 18% per annum from the from the date of filing till realization of the decreetal amount. Though the plaint was was never amended however, in the replication it was admitted that Rs. 30,000/ were received by the plaintiff from the defendant therefore the amount to be sought was modified to be Rs. 2,12,700/. Plaintiff's version as per the plaint.
2.1 Succinctly, facts leading to the present dispute are as follows:
(i) The plaintiff was appointed as manager vide appointment letter dated 17.05.2011 issued by the defendant and was posted at Delhi.
(ii) The gross salary was Rs. 60,013/ per month, conveyance was Rs. 3,000/ including reimbursements, cell phone expenses of Rs. 1,500/ as well as special quarterly payments at the rate Rs. 11,200/ per month were also agreed making it to a total of Rs.75,713/
(iii) The plaintiff joined the service on 18.05.2011 however, he was not paid the monthly emoluments for months of November 2011 to January 2012. Through various emails dated 29.12.2011, 02.01.2012 and 19.01.2012 demands were made and ultimately legal notice dated 10.02.2015 was issued and reply to the notice dated 01.03.2012 was received.
2.2 It is the claim put forth by the plaintiff that he is entitled to recovery of Rs. 2,44,960/ (later mentioned to be Rs.2,12,700/) alongwith Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page2 of 11 Civil Suit No.312/13 interest at the rate 18% per annum and hence the present suit has been filed. Defendant's version as per the written statement.
3.1 On notice, written statement was filed by the defendant admitting the fact that the plaintiff was appointed by them and he had joined from 18.05.2011. The defence put forth by the defendant are as follows.
(i). Gross monthly salary was agreed to be Rs. 60,013/ per month and cheque no. 880417 dated 25.01.2012 for Rs. 30,000/ has been already issued to the plaintiff.
(ii). As the head office is in Mumbai, this court does not have the jurisdiction.
(iii). The plaintiff left the organization at his own will without tendering any resignation.
(iv). The plaintiff had played fraud with the defendant and had caused wrongful loss and damage. He had booked many shipments without any approval from the company and also hatched conspiracy with the clients of defendant and had misappropriated the proceeds.
3.2 The reply sent to the legal notice was admitted. It was prayed that suit be dismissed.
Replication.
4. The plaintiff had filed replication admitting that he had received Rs. 30,000/ and he restricted his claim subtracting Rs. 30,000/ from the amount sought. He maintained that the gross salary was Rs. 60,013/ per month but he was also entitled to conveyance, cell phone expenses and special quarterly payments. It was maintained that this court has the jurisdiction to Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page3 of 11 Civil Suit No.312/13 decide the present matter. It was maintained that the plaintiff had informed the defendant that he would not appear from month of February, 2011 if the arrears of his salary were duly paid. Therefore, the plaintiff did not see any necessity to tender formal resignation to the defendant. The allegations made in the written statement were categorically denied and the claim sought was modified to Rs. 2,12,700/ alongwith interest and costs.
Identification of issues.
5.1 Admission/denial was not conducted. The parties had opted for mediation however, the proceedings failed. From the pleadings of the parties following issues were framed:
Issue no.1 Whether the plaintiff is entitled to decree for a recovery of an amount of Rs. 2,12,700/?OPP.
Issue no.2 Whether the plaintiff is entitled to interest, if yes, then at what rate?OPP.
Issue no.3 Whether the present suit is not maintainable because the plaintiff has approached the court with unclean hands and has suppressed material facts from the court?OPD.
Issue no.4 Whether the suit is not maintainable as the suit has been filed without cause of action?OPD.
issue no.5. Relief.
5.2 It is pertinent to mention that the issue regarding territorial jurisdiction was not pressed by Ld. counsel for defendant.
Evidence.
6.1 The plaintiff himself stepped into the witness box and deposed through his affidavit Ex. PW1/X and Ex. PW1/Y placing reliance upon the Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page4 of 11 Civil Suit No.312/13 following documents:
Sr. No. Exhibit/Mark Nature of Document 1. Mark D Email dated 09.05.2011. 2. Ex. PW1/2 appointment letter dated 17.05.2011 3. Ex. PW1/3 legal Notice dated 10.02.2012. 4. Ex. PW1/4 Reply to the legal notice dated 01.03.2012 5. Mark A Email dated 29.12.2011 6. Mark B Email dated 02.01.2012 7. Mark C Email dated 09.01.2012. 6.2 The witness was cross examined by Ld. counsel for defendant and
thereafter, vide a separate statement dated 29.10.2014, the plaintiff closed his evidence.
6.3 The AR appointed by the defendant, Sh. Mohd. Sadik stepped into the witness box as DW1 and deposed through his affidavit Ex. DW1/A. The witness did not rely upon the any document. He was cross examined at length by Ld. counsel for plaintiff and vide a separate statement the evidence was closed on 01.07.2015.
6.4 This is the entire evidence produced by both the parties in the present case.
Arguments.
7.1 Written submissions were filed by both the parties. The plaintiff maintained his claim in the written submissions. It was submitted that through the defence put forth by the defendant it was reflected that two clients (with whom the plaintiff had dealt) had defaulted in making payments to the Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page5 of 11 Civil Suit No.312/13 defendant. The clients were mentioned to be M/s Zapato Exports Private Limited of Agra and M/s Alfa Freight Movers of Delhi. It was mentioned that the plaintiff had only acted on behalf of defendant and he had made requests to the clients to make payments. It was also submitted that the plaintiff managed to get Rs. 73,000/ from the M/s Alfa Freight Movers of Delhi. It was also mentioned that the defendant has already got a decree against M/s Alfa Freight Movers of Delhi and M/s Zapato Exports Private Limited of Agra. It was also submitted that there is no dispute about the amount of Rs. 1,97,139/ therefore it was prayed that the suit be decreed.
7.2 On the other hand, the defendant also filed written submissions wherein it was submitted that during the evidence, the plaintiff admitted collecting amount of Rs. 73,000/ on behalf of defendant but the same amount has not been deposited by the defendant. It was also submitted that it has come by way of evidence that the plaintiff did not seek any instructions from his superiors before extending credit to some customers in an authorized way and therefore the plaintiff is not entitled to the relief claimed. It was prayed that the suit be dismissed.
7.3 I have perused the written submissions/arguments submitted in court by both the parties. I has also meticulously perused the entire case record consisting of the pleadings of the parties, testimonies on record as well as documentary evidence produced. My issue wise findings are as below:
Issue no.1 & 2 Whether the plaintiff is entitled to decree for a recovery of an amount of Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page6 of 11 Civil Suit No.312/13 Rs. 2,12,700/?OPP.
Whether the plaintiff is entitled to interest, if yes, then at what rate?OPP.
8.1 Issue no.1 pertains to amount sought and Issue no.2 to the interest claimed. As both these issues refer to appreciation of same evidence these issues are taken together to avoid repetition and for sake of convenience. 8.2 The onus to prove these issues was upon the plaintiff. The plaintiff maintained through out that he is entitled to the amount claimed as these are the arrears of the salary that have accrued in his favour for the months of November 2011, December, 2011 and January, 2012. In order to prove his claim, the plaintiff also placed on record Mark D and Ex. PW1/2. As Mark D has not been formal proved hence the same is not read however, the appointment letter dated 17.05.2011 that is Ex. PW1/2 is on the letter head of the defendant company and also bears the stamp of the defendant company. The appointment letter clearly mentions that the basic salary of the plaintiff would be Rs. 32,150/ and gross salary would be Rs. 60,013/ per month in the grade plus all the allowances and perquisites as per the rules of the company applicable to the grade. This clearly shows that the amount was beyond Rs. 60,013/ per month as they were certain allowances and perquisites as well. 8.3 The plaintiff claims these perquisites and allowances, conveyance to be telephone expenses and special quarterly payments. There was no question or suggestion put to the witness PW1 about the gross salary or any other emoluments. Rather there was no question or suggestion made upon the amount received by the plaintiff. The defendant had put forth as defence that Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page7 of 11 Civil Suit No.312/13 the gross salary is Rs. 60,013/ and the plaintiff is not entitled to other allowances etc however, by not asking even a single suggestion, the defendant has in a way admitted the salary to be above more than Rs. 60,013/ per month. 8.4 Moreover, the defendant has not produced any documentary evidence to show that the salary was given at a fixed amount of Rs. 60,013/ per month.
8.5 In light of the above, it can be concluded that the plaintiff was entitled to a salary at the rate of Rs. 75,713/ per month. 8.6 It is also not disputed fact that the salary for months of November 2011 to January 2012 was not paid therefore, the plaintiff was entitled to the salary of three months at the rate 75,713/ per month. It is also admitted that out of these Rs. 30,000/ has been already received by the plaintiff. However, it can be observed from Ex. PW1/2 itself that the plaintiff was under probation period and the notice period was for seven days. Therefore, salary for seven days is also deductable as admittedly no notice in writing was given to the defendant by the plaintiff. The plaintiff has submitted that he had not given the notice as he did not deem it necessary however, if the plaintiff is relying upon the appointment letter for claiming his entitlement he was also duty bound to issue notice of his resignation. Therefore, the plaintiff is not entitled to salary for seven days.
8.7 The plaintiff has included the amount Rs. 15,561/ as interest at the rate 18% per annum from first January till the filing of the suit. There is no agreed or stipulated rate of interest between the parties and further 18% per Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page8 of 11 Civil Suit No.312/13 annum appears to be an exorbitant rate of interest hence, the court adjudges 6% per annum simple interest as the applicable rate of interest which would serve the interest of justice in the present matter. 8.8 To conclude, the plaintiff is entitled to recovery of arrears of salary (however, the salary for seven days needs to be deducted from this amount) and the pre litigation interest from 01.02.2012 till 08.07.2012 shall be calculated at 6% per annum. These issues is accordingly decided in favour of the plaintiff.
Issue no.3 & 4.
Whether the present suit is not maintainable because the plaintiff has approached the court with unclean hands and has suppressed material facts from the court?OPD.
Whether the suit is not maintainable as the suit has been filed without cause of action?OPD.
9.1 The onus to prove these issues was upon the defendant. Both these issues challenge the maintainability of the suit on similar grounds hence, these issues are taken together.
9.2 The onus to prove these issues was upon the defendant. The defendant challenged the suit on the ground that the plaintiff has not approached the court with clean hands and has suppressed material facts from the court and further that there is no cause of action. These issues are basically based upon the defence of the defendant that the plaintiff had played fraud upon the defendant by misappropriating the funds. As far as any fraud as alleged in the written statement, the defendant has not led any evidence specifically whereas onus to proving fraud lies upon the person who alleges. Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page9 of 11 Civil Suit No.312/13 There is no specific evidence pointing out that the plaintiff has misappropriated the funds. Though in the cross examination Ld. counsel for defendant had asked questions about the clients such as M/s Alfa Freight Movers of Delhi and M/s Zapato Exports Private Limited of Agra however, nothing material was extracted from the witness which shown that there was any element of fraud or disobedience that could have been reflected from the service of the plaintiff. The plaintiff had also called for attendance register to which the defendant had assured that they would produce it however, the registers were also not produced which implies that the plaintiff had a attended his service for the period of November, 2011 to January, 2012. There was a suppression of receipt of Rupees 30,000/ by way of cheque in the plaint however, the some was clearly mentioned in the replication and the claim was duly modified.
9.3 This court does not see any suppression or concealment which proves to be fatal to the case of the plaintiff similarly, there is cause of action in the favour of the plaintiff.
9.4 However, it is important to mention that vide Ex. PW1/Y, the plaintiff had deposed that he had received Rs. 73,000/ from the one of the clients of the defendant that is M/s Alfa Freight Movers of Delhi. It has not come anywhere in deposition that the amount has been remitted to the account of the defendant. In case the some has not been remitted, it has to be adjusted with the amount claimed.
9.5 In light of the above discussion, these issues are decided against Sushanta Majumdar Vs. M/s Swift Freight India Pvt. Ltd. Page10 of 11 Civil Suit No.312/13 the defendant and in favour of the plaintiff.
Relief.
10.1 Consequent to the findings of issue no.1 and 2, this court is of the considered opinion that the suit of the plaintiff has merit and same is hereby decreed with costs against the defendant. The plaintiff is entitled to the amount of Rs.1,79,473/ with interest at the rate of 6% per annum from 01.02.2011 till actual realization. The amount of Rs. 73,000/ received from M/s Alfa Freight Movers of Delhi, if not remitted to the account of defendant till date, be adjusted.
10.2 Decree sheet be drawn accordingly. File be consigned to the record room after indexing, pagination and completion. Announced in the open court on 29th July 2015. (TANVI KHURANA) The judgment contains 11 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 29.07.2015.
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