Delhi District Court
Shervani Hospitality Ltd. vs . Kunal Sabharwal on 29 April, 2013
Civil Suit No.115/12
Shervani Hospitality Ltd. Vs. Kunal Sabharwal
29.04.2013
ORDER
( On application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure 1908)
1. The defendant has filed the present application under order VII rule 11 read with Section 151 of Code of Civil Procedure 1908 seeking rejection/dismissal of suit with cost as the suit has been filed without any cause of action and is barred under the law.
2. It is contended on behalf of the defendant that material facts have not been disclosed by the plaintiff as the plaintiff has not mentioned the other office addresses; that there is no cause of action and the suit is not maintainable as clause 14 of appointment letter at page 7 was planted only to file the present suit and has not been signed by the defendant; that in the appointment letter the place of posting at Sunder Nagar was not mentioned but it was mentioned that the units of the plaintiff were at New Delhi, Nainital, Nehru Place and Rodeo; that the resolution in favour of Sh. Ashok Kumar Patra was premature and original Board Resolution/ Minutes of Meeting/ Memorandum of Association/ Articles of Association etc had not been filed and hence the suit was not instituted by a competent person; that defendant was never entrusted with vital and confidential documents relating to the plaintiff and no details of amount had been provided by the plaintiff to show the calculation of the amount claimed.
3. It is further contended that the suit is barred by the Companies Act, Delhi Civil Suit No.115/12 Shervani Hospitality Ltd. Vs. Kunal Sabharwal Page 1 of 5 Police Act, Evidence Act, Contract Act and plaintiff has failed to place on record any document to prove its allegations especially in respect of the recruitment process, extensive training, entrustment of vital and confidential documents, article of association minutes book etc as well as the calculation sheet.
4. The application has been opposed on the ground that the application is a gross abuse of the process of law as the application is vague. It has been contended that in view of the appointment letter dated 05.09.2011 the plaintiff was not bound to mention any other office/unit address as the place of posting had been specified as Sunder Nagar. The plaintiff has also relied on the signatures of the defendant on the office copy of the appointment letter to contend that the defendant had put his signature on the same.
5. It has been contended that Board Resolution dated 15.12.2011 had been duly passed in the Board meeting by the Directors as per provisions of the Companies Act 1956 and Sh. Ashok Kumar Patra was duly authorized to look after the matter pending in the courts. It has been contended that the plaintiff was not required to produce and annex the original minutes of the Board Resolution and that the allegations with respect of training and entrustment of the documents were a matter of trial and beyond the scope of order 7 rule 11 CPC. It is stated that the plaintiff has claimed the suit amount on the basis of clause 14 of the Contract i.e. appointment letter dated 05.09.2011. Rest of the grounds raised by the defendant have been opposed as being irrelevant for the purpose of order 7 rule 11 CPC and have been denied on merits.
6. During the course of the arguments Ld. Counsels reiterated the contents of Civil Suit No.115/12 Shervani Hospitality Ltd. Vs. Kunal Sabharwal Page 2 of 5 their application and reply respectively. I have carefully considered the submissions made by the Ld. counsels and carefully perused the material on record.
7. It is a settled preposition of law that while deciding an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 only the averments made in the plaint as well as the documents filed alongwith the plaint are to be looked into. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases. So long as the plaint discloses some cause of action which requires determination by the court, the plaint cannot be rejected under Order 7 Rule 11 CPC.
8. In the case at hand, the plaintiff has relied upon clause 14 of the Civil Suit No.115/12 Shervani Hospitality Ltd. Vs. Kunal Sabharwal Page 3 of 5 appointment letter as the basis of its claim. The cause of action is stated to have arisen on 19.08.2011 when the offer letter was issued to the defendant, on 23.08.2011 when the defendant joined the plaintiff company, on 05.09.2011 when the appointment letter was issued, on 10.12.2011 when the resignation was sent by the defendant to the plaintiff company, on 20.12.2011when the show cause notice/charge sheet was issued to the defendant and on 21.12.2011 when it was replied to vide an email and also on 05.01.2012 when the legal notice was served upon the defendant. The offer letter, appointment letter, charge sheet, email dated 21.12.2011 as well as the legal notice have been placed on record. Thus from the entirety of the plaint and the accompanying documents it can not be said that that plaint is devoid of any cause of action.
9. The question whether or not the plaintiff has approached the court with clean hands is a question of fact which requires the defence of the defendant to be looked into which is not permissible under order 7 rule 11 CPC. Further as in the appointment letter relied upon by the plaintiff the place of posting has been mentioned as Sunder Nagar Office and hence the suit as per the plaint has been filed before the appropriate court. Further whether or not the defendant has signed page No.7 of the appointment letter is a matter of trial. Further the contention that the Board Resolution authorizing Sh. Ashok Kumar Patra is premature and hence the suit has not been filed by a competent person is also beyond the scope of order 7 rule 11 CPC. The grounds raised by the defendant in his application form part of the defence of the defendant and can not be looked into under order 7 rule 11 CPC application.
10 The contention of the defendant that no documents have been placed on Civil Suit No.115/12 Shervani Hospitality Ltd. Vs. Kunal Sabharwal Page 4 of 5 record to prove the averments of the suit in respect of reputation, goodwill, number of employees, recruitment process, extensive training, entrustment of vital and confidential documents are premature and can not be looked into at this stage as for the purpose of ascertaining whether any cause of action is disclosed in the plaint the averments made in the plaint are accepted to be true. Further the extract of the resolution has been filed by the plaintiff and non filing of the Article of Association, Minutes Book and Memorandum of Association do not fall under any category of order 7 rule 11 CPC. The failure on the part of the plaintiff to file statement of accounts to show the alleged loss is not sufficient to conclude that no cause of action has been disclosed in the plaint.
11. The contention of the defendant in respect of the suit being barred under Companies Act, CPC, Delhi Police Act, Evidence Act and Contract Act are vague and hence from the plaint and accompanying documents it can not be said that the plaint does not disclose either any cause of action or is barred by law. The judgments relied upon by the defendant merely reiterate the settled proposition of law in respect of the application under order 7 rule 11 CPC but do not assist the defendant in view of the aforesaid discussion. In view of the above the present application being an abuse of process of law is dismissed with a cost of Rs.5,000/ to be paid to the plaintiff.
12. Application disposed off accordingly.
(Pooja Gupta) CJ03(South)/29.04.2013 Civil Suit No.115/12 Shervani Hospitality Ltd. Vs. Kunal Sabharwal Page 5 of 5