Delhi District Court
Mohan Hirani vs . Russell Nde Systems Inc., & Ors on 30 March, 2016
Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
In the matter of:
Suit No. 366/15
Case ID No. 02406C0242612010
Mohan Hirani,
s/o Sh.K.G.Hirani
R/oD2/2449, Vasant Kunj, New Delhi110070
.............Plaintiff
Versus
1. Russell NDE Systems Inc.,
490975 Avenue, T6B253, Alberta Edmonton,
Canada.
Service may be effected through
defendant no.2 at their address.
2. Russell Technologies India Pvt. Ltd.
C2/290 Sector F, Janaki Puram, Lucknow223021
............Defendants
Date of Institution : 22.07.2010
Date of reserving the Judgment : 23.03.2016
Date of pronouncement : 30.03.2016
Decision : Dismissed
Suit No.366/15 Page 1 of 18
Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
SUIT FOR RECOVERY OF RS.5,39,900/(RUPEES FIVE
LACS THIRTY NINE THOUSAND NINE HUNDRED ONLY)
JUDGMENT
1. This is suit for recovery of Rs.5,39,900/ (Rupees Five Lac Thirty Nine Thousand Nine Hundred Only) filed by plaintiff.
2. It is averred in the plaint that the defendant no.1 is a Corporation incorporated in Canada. It is further averred in the plaint that for the purpose of dealing in India, defendant no.1 promoted a private limited company under the name and style of defendant no.2, its subsidiary company. It is further stated that defendant approached the plaintiff and in terms of the appointment letter dated 15.06.2009, the defendants appointed the plaintiff as Director, Operation w.e.f. 01.06.2010 at a monthly salary of Rs.60,000/. It is further stated that plaintiff was asked to complete all the formalities of incorporation of defendant no.1 and ultimately the defendant no.2 issued certificate of incorporation on 10.09.2009. It is further stated that since the plaintiff was Director Operation, defendant asked the plaintiff to incur expenses in the account of defendant and during the course of employment the plaintiff incurred same from his own pocket. It is further stated that the defendants made part payment in that account.
Suit No.366/15 Page 2 of 18Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
3. It is further averred in the plaint that balance sum of Rs.4,90,000/ is outstanding against the defendant and the statement of account of the expenses/reimbursement and pending material given in Annexure C to plaint may be read as part of the suit.
4. It is further averred in the plaint that defendant wrote a number of mails through internet. It is further stated that a legal notice was sent to the defendant to which reply dated 03.03.2010 was given and to the reply rejoinder dated 01.04.2010 was also given by plaintiff. It is further stated that the defendants have illegally withheld the balance sum and are liable to pay interest @18%p.a which is the lending rate of the banks and as such a sum of Rs.47,400/ is outstanding against the defendants on account of interest and besides this plaintiff had incurred Rs.2,500/ on account of notice charges which amount the defendant is further liable to pay.
5. Plaintiff has therefore averred in the plaint that following sum are outstanding against the defendants:
I. Balance sum payment : 4,90,000/
2. Interest w.e.f. 01.01.2010
@ 18% : 47,400/
3. Notice charges : 2,500/
TOTAL : 5,39,900/
Suit No.366/15 Page 3 of 18
Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
6. It is further averred in the plaint that plaintiff was appointed as Director Operation in Vasant Kunj, Delhi. It is further stated that service of plaintiff was terminated in terms of termination letter dated 31.12.2009 at Delhi and the expenses were incurred in Delhi and were to be reimbursed in Delhi. Therefore, plaintiff prayed for decree for sum of Rs.5,39,900/ in favour of plaintiff and against the defendants with cost and with pendente lite and future interest @ 18% per annum. Further it is prayed that any other relief to which the plaintiff is entitled may also be granted.
Written statement by defendant no.1:
7. Defendant no.1 filed written statement stating therein that no cause of action is available to the plaintiff against the defendant who has been dragged into unnecessary luxurious litigation. It is further stated that even the plaintiff in his plaint has not disclosed any cause of action against the defendant no.1 as such the suit qua defendant no.1 is liable to be dismissed.
8. It is further stated that defendant no.1 has been incorporated in Canada under the laws of the Government of Canada and as such he is not governed by the laws in India. It is further stated that defendant has neither any office in Delhi Suit No.366/15 Page 4 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors nor does it work for gain in Delhi, as such the Court does not have territorial jurisdiction to entertain the present suit of the plaintiff qua the defendant.
9. It is further stated that plaintiff filed the suit for recovery of Rs.5,39,900/ on which he was required to pay advalorum court fee of Rs.7,595/ as per the Court Fee Act applicable in Delhi whereas only Rs.6615/ of court fee has been affixed as such the plaint is deficit of court fee of Rs.980/ and the suit of plaintiff is liable to be dismissed. It is further stated that there is no privity of contract between the plaintiff and defendant no.1.
Reply on merits by defendant no.1
10. It is stated on merits that the answering defendant is a corporation incorporated in Canada. It is denied that defendant no.1 promoted a private limited company in India under the name and style of defendant no.2 as its subsidiary company. It is stated that the defendant no.1 has no concern with any appointment letter and terms of the alleged appointment letter allegedly issued to the plaintiff. As such, it is denied that the plaintiff was appointed as Director Operations w.e.f. 01.06.2010 at monthly salary of Rs.66,000/ or any salary. It is further denied that plaintiff was asked to take steps to complete the formalities of incorporation of Suit No.366/15 Page 5 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors defendant no.1. It is further stated that defendant no.1 had already been incorporated in Canada long back.
11. It is further denied by defendant no.1 that balance sum of Rs.4,90,000/ or any other balance is outstanding against him. It is further denied that any legal notice was sent to defendant and any reply dated 03.03.2010 was given by the defendant no.1 or any rejoinder dated 01.04.2010 to the alleged reply was received by defendant no.1. It is further stated that defendant no.1 is not liable to pay any interest at any rate or to sum of Rs.47,400/ or any other amount of interest is outstanding against him.
12. It is further stated that plaintiff was required to affix court fee of Rs.7595/ whereas he paid court fee of only Rs.6615/ as such court fee of Rs.980/ is deficit. Defendant no.1 prayed for dismissal of the suit.
Written statement by defendant no.2 Preliminary objections
13. It is stated that as per the case of plaintiff as stated in the plaint the total amount claimed by the plaintiff equals to Rs.5.399 lacs, but the documents filed by the plaintiff purporting to be the expense report made by plaintiff shows the expenses for the period starting from 2.5.09 till 11.09.09, Suit No.366/15 Page 6 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors when the plaintiff as per his case was not even employed with the defendant no.2.
14. It is further stated that even if the alleged expenses for the period starting from 2.5.09 till 04.09.2009 are for the period when the defendant no.2 was not even in existence. The date of incorporation of defendant no.2 is 10.09.09 as evident from the certificate of incorporation issued by Registrar of Companies on form I as per the Company Act filed by the plaintiff hence the above noted period and expenses claimed by the plaintiff do not pertain to the defendant no.2. further the amount of Rs.1.8 lac claimed by plaintiff as 'pay' for the period of January to March, 2010 is liable to be ignored as the same is for the period after the admitted termination of the plaintiff by the defendant no.2. As a consequence the amount claimed by plaintiff totaling to Rs.4.9 lac is liable to be read as minus Rs.30,000/, thus the plaint does not disclose any cause of action.
15. It is further stated that plaintiff filed letter of termination dated 21.12.09 issued by defendant no.2. the said document filed by the plaintiff is an admitted document and by filing the same, the plaintiff has admitted the terms and contents of the same and the plaintiff has admitted in subordination, violation of confidentiality as stated in Suit No.366/15 Page 7 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors termination letter.
16. It is further stated that appointment letter dated 15.06.09 clearly manifest that the plaint does not disclose any cause of action in as much as the plaintiff claims to have an appointment letter dated 15.06.09 whereas the certificate of incorporation as filed alongwith the plaint clearly stated that the date of incorporation of the defendant no.2 was 10.09.09 and on this count alone the present suit is liable to be rejected under the provisions of Rule VII R 11 CPC.
17. It is further stated that falsehood of the plaintiff's case is writ large on the face of the plaint which claims that the plaintiff was appointed on 01.06.2010 and he was asked to complete the formalities of incorporation of defendant no.1. Defendant no.1 is a corporation incorporated in Canada much prior to the alleged date of the appointment. It is further stated that it is false as per the case of plaintiff that defendant no.2 issued certificate of incorporation on 10.09.09. It is further stated that defendant no.2 is admittedly not a public authority nor the Registrar of Companies as such the plaint is not maintainable. It is further stated that the plaintiff has mentioned and claimed the expenses form the period from May to September, 2009 whereas he was not even employed by and with the defendant no.2 as per the statements of Suit No.366/15 Page 8 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors plaintiff contained in para 1 of the plaint. It is further stated that the documents filed by the plaintiff, claimed to be the appointment letter dated 15.6.09 is an unsigned document and no reliance can be placed on the same. It is further stated that case set up by plaintiff is false because he claims to be appointed vide appointment letter 15.06.09 whereas another document filed by the plaintiff is an appointment letter issued by the defendant no.2 dated 14.09.2009. It is further stated that the documents filed with the plaint cannot be taken on record as the same have not been filed as per the list of documents and the present suit is abuse of process of law.
Reply on merits by defendant no.2
18. It is admitted that the defendant no.1 is a corporation incorporated in Canada. It is further admitted that the defendant no.2 is a company incorporated in India and date of incorporation is 10.09.09. It is denied that the defendant no.1 promoted a private limited company under the name and style of defendant no.2. It is stated that it is wrong that defendant no.2 approached the plaintiff and in terms of the appointment letter dated 15.6.09 defendant appointed the plaintiff as Director Operation w.e.f. 1.6.09 at monthly salary of Rs.60,000/. It is further denied that plaintiff was asked to complete all the formalities of incorporation of defendant no.1 and ultimately defendant no.2 issued certificate of Suit No.366/15 Page 9 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors incorporation on 10.09.09.
19. It is further stated plaintiff owes a considerable sum of money to defendant no.2 and the defendant no.2 reserves his right to file a comprehensive suit for recovery of money of the said amount and other reliefs against the plaintiff before appropriate forum. It is further stated that documents filed by the plaintiff are false and fabricated and same have no value in the eyes of law. It is further denied that balance amount of Rs.5.9 lac is outstanding against the defendant no.2. It is further stated that the statement of account is false and fabricated. It is further stated that plaintiff has illegally detained the material as shown in Annexure C which is the property of the defendant no.2 alongwith other material over which plaintiff has no right, title and entitlement whatsoever. It is further stated that the defendant wrote mails through internet and the details of E mail and reply filed by the plaintiff are wrong. It is further stated that the legal notice sent to defendant no.2 by plaintiff also contains false avernments and is malafide and further the reply and rejoinder by the plaintiff dated 01.04.2010 is wrong. It is further denied that defendant no.2 is liable to pay interest @18%p.a which is the lending rate of the banks and as such a sum of Rs.47,400/ is outstanding against the defendant on account of interest. It is further denied that besides this plaintiff had incurred Rs.2,500/ on Suit No.366/15 Page 10 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors account of notice charges which amount the defendant is liable to pay. It is further denied that balance sum of Rs.4.9 lac and interest @18% amounting to Rs.47,400/ and notice charges of Rs.2,500/ totaling to Rs.5,39,900/ is outstanding against him.
20. It is further stated that plaintiff was not employed as Director Operation on 15.6.09 nor appointment letter was issued on 15.6.09. It is further submitted that the prayer set out in the plaint by plaintiff is not tenable in the law and same is not liable to be granted and accordingly the suit is liable to be dismissed with exemplary cost and defendant is liable to be awarded the cost of the litigation/suit.
REPLICATION:
21. Replication was filed by the plaintiff to the written statement of defendant no.1 and defendant no.2 reiterating the facts mentioned in the plaint and denying the allegations made in the written statements of both the defendants.
ISSUES:
22. From the pleadings of the parties following issues were framed on 23.04.2011:
(1) Whether the plaintiff is entitled to the decree of recovery, as prayed for? OPP.Suit No.366/15 Page 11 of 18
Mohan Hirani Vs. Russell NDE Systems Inc., & Ors (2) Whether the plaintiff has no cause of action to file the present suit? OPD.
(3) Relief
23. Thereafter on 02.05.2013 fresh issues were framed in view of written statement filed on behalf of defendant no.1:
(1) Whether plaintiff is entitled to a decree of recovery of Rs.5,39,900/ alongwith pendente lite and future interest at a rate of Rs.18% per annum as claimed in the plaint? OPP.
(2) Whether the plaintiff has no cause of action to file this suit? OPD.
(3) Whether this court has no territorial jurisdiction to try this suit? OPD (4) Whether plaintiff has affixed proper Court fee as claimed in the WS? OPD.
(5) Whether there is no previty of contract between the plaintiff and defendant No.1 if so, to what effect? OPD.
(6) Whether defendant has committed contempt of Court U/S 2C r/w Section 14 of the Contempt of Court Act for falsely prospecting the plaintiff as claimed in the application moved by the plaintiff? OPP.
(7) Relief
24. Plaintiff appeared in witness box as PW1 and proved on record certificate of incorporation of defendant no.2 Suit No.366/15 Page 12 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors as Ex.PW1/1, details of the expenses and the salary payable to the plaintiff as shown in annexure A and b are Ex.PW1/2 and Ex.PW1/3, statement of pending expenses and reimbursement and pending material given in annexure C as Ex.PW1/4, legal notice dated 24.03.2015 given by plaintiff to defendant as Ex.PW1/5, copy of reply given by defendants to plaintiff as Ex.PW1/6, copy of the rejoinder of the notice dated 13.3.10 as Ex.PW1/7, copy of record of Email as Ex.PW1/8 (colly).
25. DW 1 Sh. Rajeev Rai Saxena, Authorized representative of defendant no.1 tendered his evidence by way of affidavit and reiterated the facts mentioned in written statement.
26. Sh.Upendra Vajpayee, Director of defendant no.2 company appeared as DW2. He proved on record Board Resolution as Ex.DW2/1, application (Form 1) and Memorandum and Articles of Association of defendant no.2 company as Ex.DW2/2 and Ex.DW2/3.
27. I have considered the arguments advanced by Sh.Vishal Saxena and Sh. Vipin Yadav, Advocates for plaintiff and Sh.Kaushubh Bhardwaj and Sh.Ajay Sejwal, Advocates for defendants and have carefully perused the evidence and Suit No.366/15 Page 13 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors material on record.
28. The issue wise findings of the court is as follows:
Issue no.1:
Whether plaintiff is entitled to a decree of recovery of Rs.5,39,900/ alongwith pendente lite and future interest at a rate of Rs.18% per annum as claimed in the plaint? OPP.
Onus to prove this issue was on the plaintiff. Learned counsel for the plaintiff has relied upon Ex.PW1/8 referring it as an appointment letter issued by the defendant no.1, in which plaintiff was allegedly appointed as Director, Operations with the defendant.
29. It is rightly submitted by Sh.Kaushubh Bharadwaj that this letter is unsigned. Further it is issued by one Sh.Ankit Bajpai. There is no pleading in the plaint as to who that Ankit Bajpai was. As per the plaint certificate of incorporation of defendant no.2 was issued on 10.09.2009. This letter was purpotedly issued on 15th June, 2009 meaning thereby that defendant no.2 was not even in existence at the time of issuance of this letter. Hence, defendant no.2 cannot be held responsible for any liability, if any arising out of this letter.
Suit No.366/15 Page 14 of 18Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
30. In the entire evidence plaintiff has failed to show any connection of defendant no.1 with this letter. Moreover, the document proved by plaintiff appears to be merely a photocopy. Learned Counsel for plaintiff, at this stage, has submitted that this was received by plaintiff through Email. No certificate of Section 65B of the Indian Evidence Act has been proved on record by plaintiff.
31. In the facts and circumstances this document cannot be relied upon by the plaintiff against either of the defendant.
32. The other document to reflect the dues pending against the defendant is the expense report maintained by the plaintiff. This account was allegedly maintained by the plaintiff. Defendant has denied this document. Plaintiff has not supported the expense report Ex.PW1/2 with any receipt or voucher through which the expenses in different heads were incurred by him.
33. In the facts and circumstances, it is held that plaintiff has miserably failed that he is entitled for a decree for recovery of money as prayed by him against either of the defendant.
Suit No.366/15 Page 15 of 18Mohan Hirani Vs. Russell NDE Systems Inc., & Ors
34. This issue is decided accordingly against the plaintiff.
Issue no.2:
35. Whether the plaintiff has no cause of action to file this suit? OPD.
The onus to prove this issue was upon the defendant. The cause of action of filing the suit is to be seen from the plaint. The plaint discloses the cause of action for filing the present suit. The issue is accordingly decided against the defendant.
Issue no.3:
36. Whether this court has no territorial jurisdiction to try this suit? OPD In paragraph 10 of the plaint and in the corresponding paragraph in evidence by way of affidavit it is stated by the plaintiff that he was appointed as Director, Operation in Vasant Kunj, New Delhi and was working and discharging his duties for defendants in Delhi. His services were terminated at Delhi. The expenses were incurred by him in Delhi and the same were to be reimbursed in Delhi and therefore this Court has territorial jurisdiction to try and tentertain the present suit.
37. The territorial jurisdiction has to be seen from the avernments in the plaint. The avernment in plaint reflect that this Court has the territorial jurisdiction. This issue is accordingly decided against the defendant.
Suit No.366/15 Page 16 of 18Mohan Hirani Vs. Russell NDE Systems Inc., & Ors Issue no.4:
38. Whether plaintiff has affixed proper Court fee as claimed in the WS? OPD.
In the written statement defendant no.1 stated that plaintiff was required to pay a court fee of Rs.7,595/ but had actually paid the court fee of Rs.6,615/ only.
39. It is seen that when the suit was filed by plaintiff, same was annexed with the court fee of Rs.7,615/. As per the schedule of court fee, the plaintiff was required to pay the court fee of Rs.7,613/ only. The plaintiff has paid the proper court fee for the relief claimed by him.
40. This issue is therefore decided against the defendant.
Issue no.5:
41. Whether there is no privity of contract between the plaintiff and defendant No.1 if so, to what effect? OPD. Onus to prove this issue was on the defendant. It is rightly submitted by learned counsel for defendant that as per the plaint, the defendant no.1 and defendant no.2 are two distinct entities. Plaintiff has failed to prove any letter or request issued by defendant no.1, through which plaintiff was engaged for any act or service required to be performed by him on behalf of defendant no.1. Plaintiff has even failed to establish Suit No.366/15 Page 17 of 18 Mohan Hirani Vs. Russell NDE Systems Inc., & Ors any connection of defendant no.1 with defendant no.2. It is therefore held that there is no privity of contract between the plaintiff and the defendant no.1. The issue is accordingly decided in favour of the defendant no.1.
Issue no.6:
42. Whether defendant has committed contempt of Court U/S 2C r/w Section 14 of the Contempt of Court Act for falsely prospecting the plaintiff as claimed in the application moved by the plaintiff? OPP.
Onus to prove this issue was upon the plaintiff. During the course of final arguments no argument was advanced by counsel for plaintiff on this issue. No reference for contempt of Court was pressed. Otherwise also the Court do not see any facts which entitle the plaintiff for making of reference under the Contempt of Court Act and which make the defendant liable under Section 2C read with Section 14 of Contempt of Court Act. This issue is accordingly decided against the plaintiff.
Relief:
43. In view of the aforesaid discussion of the Court, the suit of the plaintiff is dismised with cost.
44. Decree sheet be drawn accordingly.
45. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 30.03.2016 ADJ05 (SOUTH DISTRICT)
(Order contains 18 pages) SAKET COURTS, NEW DELHI
Suit No.366/15 Page 18 of 18
Mohan Hirani Vs. Russell NDE Systems Inc., & Ors Suit No.366/15 Page 19 of 18