Delhi District Court
Devendra Singh vs M/S Tamta Construction Company Pvt. Ltd on 26 September, 2022
Suit No. 786/2018 1
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 786/2018
CNR No. : DLSW01-014595-2018
Devendra Singh
S/o Sh. Balwant Singh
R/o Flat No. 83, Block-D1,
Lodhi Colony,
New Delhi-110003
.....Plaintiff
Versus
M/s Tamta Construction Company Pvt. Ltd.
Having its office at:
T-2, 3rd Floor, Pankaj Arcade,
Plot no. 7, Pocket-IV, Sector-11
Dwarka, New Delhi-110078
Through its Managing Director
.....Defendant
SUIT FOR RECOVERY OF RS. 40,59,000/
DATE OF INSTITUTION : 04.08.2018
DATE OF FINAL ARGUMENTS : 15.09.2022
DATE OF DECISION : 26.09.2022
JUDGMENT
1. The plaintiff has filed the present suit seeking recovery of (a) Rs. 40,59,000/- and (b) interest at the rate of 12% per annum on Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 2 the decreetal amount from August 2017 till its realization. PLAINT
2. In the plaint of this suit, the plaintiff had pleaded that plaintiff is a qualified Civil Engineer and a competent professional with 18.6 years of experience in Construction Management and Project Management having hands-on experience in completing projects as per schedules within budget by proper planning of activities and deploying resources and in managing execution of general buildings, elevated metro station projects, stadiums, hospital and educational buildings, High Rise Group housing Buildings Industrial building, etc. Plaintiff has averred that defendant company was incorporated under the Companies Act engaged in the activities of construction work. It is further averred by plaintiff that M/s Sun Ganga Construction Co. Private Limited is a sister concern of the defendant company as the Directors in both the companies are one and the same people and the employees of the defendant are also engaged to work for M/s Sun Ganga Construction Co. Private Limited and the payment is made by either of the companies to its employees. It is further averred in the plaint that the Managing Director of defendant company, who belongs to the native place of the plaintiff, approached the plaintiff and solicited him to work for his company and promised Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 3 him to pay more than what he was getting from his previous employer and also offered the plaintiff a handsome salary and an additional amount of yearly incentive. Plaintiff has averred that he joined the defendant company on 11.04.2011 as Project Manager for a salary of Rs. 75,000/- per month. It is also averred in the plaint that the plaintiff was promoted to the post of Project In-charge in the year 2012 and in addition to his salary, the defendant company promised to pay incentive of Rs. 7,00,000/- per year starting from the year 2013. Plaintiff further averred that the defendant company increased the salary of plaintiff in April, 2014 to the tune of Rs. 1,35,000/- per month along with an additional yearly incentive of Rs. 7,00,000/-. In the plaint, plaintiff has also averred that he had been assigned to look after/supervise the work of a number of very reputed clients of the defendant such as Unnity Fortune Ltd. in the year 2012, the work of Jaypee Associates Ltd/Jaypee Sports International Ltd. in the year 2011 and the work of IIPM Complex, Indian Oil Corporation Ltd. Gurgaon (HR) in the year 2017 as Project In-charge etc.
3. It has been further averred in the plaint that defendant company failed to make the timely payment of salary to the plaintiff as well as to many other employees after May 2016 and the salary for the month of June 2015 was paid in the month of October 2015 and after the payment of salary for the month of July 2016, defendant company did not make the payment of salary till the resignation of the Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 4 plaintiff, nor did he pay the yearly incentive of Rs. 7,00,000/- as promised. Plaintiff further avers that defendant company sought some time to make payments citing funds scarcity due to demonetization. Plaintiff has pertinently mentioned in the plaint that all the salaries, service benefits and other incidental payments were made in the bank account of plaintiff at Andhra Bank, Branch Sector-11, Dwarka, New Delhi. Plaintiff further avers in the plaint that on 18.05.2017, the Managing Director of defendant company held a meeting with the plaintiff and its other five employees to resolve the issue of unpaid salaries and decided to release the same for the month of June 2017 to be paid by the end of August 2017 and thereafter, a copy of the minutes of meeting and acknowledgement of the dues to the tune of Rs. 40,25,000/- was given to the plaintiff. In the plaint, plaintiff has averred that he had worked with the defendant company up to the month of June 2017, though till that time, his salary from August 2016 to June 2017 and other payments including promised incentive amount w.e.f. the year 2014 and House Rent from June 2016 to June 2017 was not paid, however, the TDS amount due on salary of the plaintiff, as per law, was regularly deposited by the defendant company till March 2017. Plaintiff further mentioned in the plaint that defendant company did not pay the TDS amount aggregating to Rs. 34,000/- as promised on 18.05.2017.
4. Plaintiff further avers that he had resigned from the Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 5 services of the defendant company on 30.06.2017 and made several requests and demands. Thereafter, plaintiff sent a legal notice to the defendant company on 23.05.2018 through speed post demanding unpaid salary and other dues which was duly served upon the defendant company on 25.05.2018 but till date no payment has been made to the plaintiff. On these grounds, the plaintiff has filed the present suit for recovery of Rs. 40,59,000/- along with interest @ 12% per annum.
WRITTEN STATEMENT, REPLICATION, ADMISSION-DENIAL OF DOCUMENTS AND FRAMING OF ISSUES 5. A perusal of the Court file reveals that the
summons was ordered to be issued qua the defendant company, on 04.08.2018 and Written Statement was filed by the defendant company on 20.11.2018. An application under Order XI R 12 read with Section 151 of CPC was filed on behalf of plaintiff seeking directions to defendant company to produce/discover on oath Minutes of Meeting dated 18.05.2017 along with salary details of plaintiff. Reply to the said application was filed by the defendant company on 07.03.2019. Thereafter, the aforesaid application was disposed off.
6. In the WS, the defendant took the plea that the present suit is liable to be dismissed as the plaintiff had not served 30 days Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 6 legal notice of demand for filing the suit for recovery. Defendant further avers in the WS that the plaint of the plaintiff did not disclose a definite/specified quantum of money recoverable from the defendant company and the amount of damages has not been specified in the plaint. In para no. 10, 12 and 14 of the WS, defendant company had admitted that payment of Rs. 6,36,000/- was made to the plaintiff through RTGS against balance salary.
7. No admission-denial of documents was conducted on behalf of both parties. On 10.05.2019, following issues were framed:
(I) Whether plaintiff is entitled to recover Rs. 40,59,000/-
towards unpaid salary and dues? (OPP) (II) Whether plaintiff is entitled to interest, if so, at what rate and for which period? (OPP) (III) Whether yearly incentive of Rs. 7,00,000/- as claimed by plaintiff was never agreed between parties and defendant has paid Rs. 6,36,000/- against final claim of salary excluding house rent of Rs. 2,60,000/- as settled between parties on 18.05.2017?
(OPD) (IV) Relief.
Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 7 No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.
EVIDENCE LED BY THE PARTIES
8. On 18.07.2019, PW-1 Sh. Devendra Singh tendered his evidence by way of affidavit Ex. PW-1/1 and relied upon the following documents:
(I) Completion certificate issued by the Unnati Fortune Holding Ltd. in favour of defendant as Ex. PW-1/A; (II) Certificate under Section 65B of Indian Evidence Act as Ex. PW-1/B;
(III) Copy of minutes of meeting dated 18.05.2017 as Ex.
PW-1/D;
(IV) Copy of salary sheet as Ex. PW-1/E; (V) Legal notice dated 23.05.2018 as Ex. PW-1/F and (VI) Postal receipt and delivery report as Ex. PW-1/G. PW-1 was cross examined and discharged.
9. PW-2 Sh. Sanjay Bhatnagar tendered his evidence by way of affidavit Ex. PW-2/A and relied upon document already exhibited as Ex. PW-1/D. PW-2 was cross examined and discharged. PW-3 Sh. Rakesh Tewari also tendered his evidence by way of affidavit Ex. PW-3/A and he also relied upon document already Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 8 exhibited as Ex. PW-1/D. PW-3 was cross examined and discharged. No other witness was examined on behalf of plaintiff and plaintiff's evidence was closed on 28.09.2019 vide separate statement of Ld. Counsel for plaintiff and matter was proceeded for defendant's evidence.
10. Affidavit of evidence was not filed on behalf of defendant company and last and final opportunity was granted to defendant on 18.02.2020 to file the same subject to payment of cost of Rs. 20,000/- to be paid to the plaintiff, failing which DE would be closed.
11. Meanwhile, arguments were heard on behalf of both parties on the execution application under Section 36 of CPC moved on behalf of plaintiff. Also, an application was filed on behalf of defendant on 18.07.2019 seeking some more time to pay Rs. 6,36,000/- to the plaintiff. However, the same was withdrawn on 19.04.2022 on the ground that the same was filed inadvertently. Therefore, in accordance of order dated 19.04.2022, execution application under Section 36 of CPC was dismissed.
12. Defendant company had paid Rs. 10,000/- as partial cost as imposed on them vide order dated 18.02.2020. However, no affidavit of evidence or list of witnesses was filed on behalf of defendant company despite several opportunities and imposition of cost. Therefore, opportunity of defendant company to lead evidence Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 9 was closed vide order dated 28.07.2022 and matter was proceeded for final arguments.
CONTENTION OF PARTIES
13. Final arguments were heard on behalf of plaintiff on 15.09.2022. Arguments were not heard on behalf of defendant company as none had been appearing on behalf of defendant company. Ld. Counsel for the plaintiff has argued that the plaintiff has been able to prove his case on a balance of probabilities and that the defendant has failed to prove its case with respect to the salary paid and that the Ex. PW-1/D and Ex. PW-1/E would show that the total balance amount to be paid was Rs. 40,59,000/- and therefore, the case of the plaintiff stands proved. It has been submitted that the defendant has played fraud on the Court in as much as in reply to the application under Order XI R 12 of CPC, it has not filed the complete documents and in fact, has hidden the original document i.e. Ex. PW-1/E. The defendant did not appear for addressing the final arguments and in fact, no one appeared for the defendant even today when the matter was reserved for judgment.
ISSUE WISE FINDINGS
14. I have perused the record and heard the Ld. Counsel for Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 10 plaintiff. I would decide the issue no. 3 first and issues no. 1 and 2 together.
ISSUE NO. 3
"Whether yearly incentive of Rs. 7,00,000/- as claimed by plaintiff was never agreed between parties and defendant has paid Rs. 6,36,000/- against final claim of salary excluding house rent of Rs. 2,60,000/- as settled between parties on 18.05.2017? (OPD)"
15. The onus of this issue was on the defendant. However, no evidence was led by the defendant to discharge its onus. Therefore, the said issue is decided in favour of the plaintiff and against the defendant.
ISSUES NO. 1 and 2
"Whether plaintiff is entitled to recover Rs. 40,59,000/- towards unpaid salary and dues? (OPP)"
"Whether plaintiff is entitled to interest, if so, at what rate and for which period? (OPP)"
Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 11
16. In his evidence, the plaintiff has reiterated the pleadings in his plaint. It is not disputed by the defendant in the WS that the plaintiff was a salaried employee of the defendant. The only dispute raised by the defendant in the WS was with respect to the incentive of Rs. 7,00,000/- that was to be paid as per the plaintiff for the years 2014, 2015, 2016 and 2017. The other dispute raised by the defendant is that Rs. 6,36,000/- were paid to the plaintiff against the balance salary of Rs. 15,75,000/- by way of RTGS. However, no evidence, as already noted above, has been adduced by the defendant in this regard. Therefore, the only question to be decided is with respect to the incentive as claimed by the plaintiff which amounts to Rs. 24,50,000/-. The plaintiff has claimed this yearly incentive on the basis of the document Ex. PW-1/E. From a perusal of the document, it appears that the typed written portion acknowledges balance salary of Rs. 15,75,000/-. This portion is admitted, in as much as, in reply to the application under Order XI R 12 of CPC, the defendant was directed to file the copy of the minutes of meeting i.e. Ex. PW-1/D wherein, it is recorded that salary of the five employees including the plaintiff herein, would be paid as per the salary sheet. In response to the application under Order XI R 12 of CPC, the defendant filed a self attested copy of Ex. PW-1/D which is not a disputed document. The salary sheet which was filed by the defendant only includes typed written portion of salary sheet but not handwritten portion of incentive Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 12 which has been produced by the plaintiff and exhibited as Ex. PW-1/E. The document has been extracted herein for convenience.
17. As can be seen from the perusal of the document Ex. PW-1/E, it appears that below the salary sheet which is in computer Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 13 typing, the yearly incentive has been recorded and net dues of Rs. 40,25,000/- has been recorded. The said document as per the testimony of the plaintiff, bears his signature and the signature of Sh. C.B. Tamta, who is stated to be the CMD of the defendant company. It is only the handwritten portion which is disputed by the defendant company. In the reply to the application of the plaintiff under Order XI R 12 of CPC, the defendant has stated on affidavit that the plaintiff has written the handwritten part on his own. It has been further averred that the original document has been misplaced due to the employees of the defendant company.
18. The question that arises, as per this Court, is firstly, whether the plaintiff has been able to prove the handwritten portion of Ex. PW-1/E being photocopy and whether he was entitled to lead secondary evidence. If yes, then whether the said document can be relied on and the net dues of Rs. 40,25,000/- including the yearly incentive can be decreed.
19. Section 65 of the Indian Evidence Act reads as under:
"65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power-- of the person against whom the Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 14
document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;........
........(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;........"
20. I find that the plaintiff was entitled to prove secondary evidence of Ex. PW-1/E which is the photocopy for the reason that admittedly, even as per the case of the defendant, the documents Ex. PW-1/E and Ex. PW-1/D are stated to have been lost due to the negligence of the employees. Therefore, it is not disputed that the original Ex. PW-1/E is lost. Therefore, plaintiff is entitled to prove secondary evidence under Section 65 (c) of the Indian Evidence Act. I find that even, under Section 65 (a) of the Indian Evidence Act, there is an entitlement of the plaintiff to prove secondary evidence as even though, a reasonable notice was given to the defendant company, it could not produce the document in original which is Ex. PW-1/E nor could it produce the electronic record of the said document along with certificate u/s 65B of the Indian Evidence Act.
21. Now the question arises with respect to the veracity and Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 15 reliability of the said document. Such veracity and reliability has to be inferred from the surrounding facts and circumstances and the evidence led by the parties. It is not disputed that Ex. PW-1/E was annexed along with the list of documents and filed along with the plaint. However, nowhere in the WS has the defendant specifically averred that the sign of the CMD Sh. C.B. Tamta who has also signed on admitted document Ex. PW-1/D, has been forged or fabricated. Order VI R 4 of CPC requires allegations of forgery and fabrication to be specific. The defendant company has carefully avoided to plead that the signature of Sh. C.B. Tamta on Ex. PW-1/E is not, in fact, his signature and that the same has been forged by the plaintiff. Notice can be taken of the fact that no complaint has been moved under Section 340 Cr. P.C. and nor did the defendant intimate or plead at any point of time that they have filed any FIR under Section 467 IPC against the plaintiff for forging the signature on valuable security/acknowledgment of debt which offence also carries a sentence of life imprisonment. During the cross examination of PW-1, no suggestion even has been given that the signatures of Sh. C.B. Tamta on Ex. PW-1/E are forged or fabricated by the plaintiff in order to make a wrongful claim and cause a wrongful loss to the defendant. No effort has been made by the plaintiff to request the Court for getting the signatures of Sh. C.B. Tamta on Ex. PW-1/E compared by a handwriting expert. In fact, on perusal of Ex. PW-1/D which is an Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 16 admitted document which has also been produced by the defendant in reply to the application under Order XI R 12 of CPC and which bears the signatures of Sh. C.B. Tamta, and on perusal of Ex. PW-1/E, it appears prima facie that the same person has signed on both the documents. It can also be noted that PW-2 and PW-3 who were also the employees whose salary remained unpaid, were not confronted or even given any suggestion that the sign of Sh. C.B. Tamta on Ex. PW- 1/E has been forged. At this stage, it also becomes relevant to notice that Sh. C.B. Tamta did not appear and depose before this Court and also did not have the courage to stand cross examination. Adverse inference can also be drawn from the fact that the defendant company did not produce the original document and did not substantiate its claim that the documents have been lost by some official of the company. No such official was produced before this Court to prove such loss of documents. Though, the defendant had intimation of Ex. PW-1/E at the outset, but there is no pleading in the WS that such document has been lost nor is there any pleading that signatures of Sh. C.B. Tamta are forged and fabricated. A perusal of Ex. PW-1/E would show that the second part of pending yearly incentive has been noted and a net total balance of unpaid salary amounting to Rs. 15,75,000/- and yearly incentive of Rs. 24,50,000/- have been added and the net dues till date of 18.05.2017 are shown as sum amounting to Rs. 40,25,000/-. Below the same, the signatures have been made as Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 17 already noted above by Sh. C.B. Tamta. It has not been disputed by the defendant company that Sh. C.B. Tamta was authorized to make such acknowledgement. Therefore, I find that the Court can rely upon Ex. PW-1/E and that the plaintiff has been able to prove that the defendant company owes him a sum of Rs. 40,25,000/-. The plaintiff had also argued that a further sum of Rs. 34,000/- was also owed as TDS, however, I find that the plaintiff has not been able to substantiate this portion of his claim. With respect to the interest, I find that the interest on the sum of Rs. 40,25,000/- at the rate of 6% per annum from the date of filing this suit till date of realization would suffice the interest of justice. Therefore, issues no. 1 and 2 are decided accordingly in favour of the plaintiff and against the defendant company.
RELIEF
22. Therefore, the suit of the plaintiff is decreed for a sum of Rs. 40,25,000/- in favour of the plaintiff and against the defendant company. Interest would be payable on the aforesaid sum at the rate of 6% per annum from the date of filing of the suit till date of realization of the amount. Costs of the suit are awarded to the plaintiff, to be paid by the defendant company. Ld. Counsel for the plaintiff has also filed Pleader Certificate pleading fee of Rs. 55,000/- to form part of the costs awarded to the plaintiff. The same is also allowed and the Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd. Suit No. 786/2018 18 pleader's fee of Rs. 55,000/- shall form part of the cost of the suit awarded to the plaintiff.
23. Decree sheet be prepared accordingly.
24. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2022.09.26
16:04:07
+0530
Announced in the open court (Sh. Divyang Thakur)
On 26.09.2022 ADJ-03/South West
Dwarka / New Delhi
Devendra Singh Vs. M/s Tamta Construction Company Pvt. Ltd.