Delhi District Court
Top Rankers Management Consultants vs Amit Sharma on 15 May, 2019
IN THE COURT OF MS. PRIYA MAHENDRA, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 5845/16
Top Rankers Management Consultants
Office at: C-7/188, Safdarjung Development Area,
New Delhi-110016. .........Plaintiff
Versus
Amit Sharma
R/o FM-2, Minal Apartments,
Sector-5, Rajinder Nagar,
Sahibabad, Ghaziabad, UP. ......Defendant
Date of institution of the suit :06.03.2013
Date reserved for judgment :14.05.2019
Date of pronouncement of judgment :15.05.2019
Suit for recovery of Rs. 2,60,000/- & damages.
JUDGMENT
1. The brief factual matrix of the case as stated in the plaint is that the plaintiff is engaged in the business of employment consultancy for last many years and is undertaking recruitment of employees for its clients. One amongst the reputed client of the plaintiff is in manufacturing of tyres and tubes by the name of M/s Metro Tyres Ltd. (hereinafter referred to as 'MTL'), having its office at C-49, Sector-62, NOIDA-201301. Plaintiff by way of an agreement with MTL has the requisite mandate to C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 1/32 provide suitable candidates to MTL on terms and conditions which includes minimum employment tenure of recommended employee for three months to secure the remuneration for undertaking selection by the plaintiff. The remuneration for executive level is minimum one month salary. However, if the recommended employee leaves/abandons the employment within three months, the same has serious reflection on the repute of selection process of the plaintiff. It is further submitted that the defendant is an opportunist who pretended as a job seeker to bargain perks with existing employer and then abandoned new appointment conveniently. The defendant was initially working as a Senior Manager (International Marketing), with one M/s Noslar International Ltd. (hereinafter referred to as 'NIL') which is a rival company of MTL. However, since January 2009, defendant showed interest in other employment opportunity for better prospect and accordingly defendant applied against the position of AGM (Exports) which was assigned to plaintiff by MTL for placement. The job profile against the above post required experience in International Marketing which defendant claimed to possess by submitting a CV with the plaintiff.
1.2 It is further submitted that the plaintiff based on assurance of defendant to accept the offer if given an opportunity by MTL, C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 2/32 recommended defendant's name for engagement as AGM (Export) and defendant confirmed his availability after severing relationship with the then employer NIL. Due to aforesaid, the plaintiff did not find any need to recommend any other bona fide aspirants available for aforesaid job since defendant had confirmed his availability to work with MTL. This assurance was received after defendant disclosed knowledge about job profile and working environment of MTL. It is further submitted that the aforesaid was done to avoid immediate discontentment or possibility of leaving job early. The plaintiff throughout enjoyed tremendous goodwill with MTL in the matter of placements. MTL never questioned or re- examined any of recommendations of plaintiff including the recommendation of defendant to MTL. It is further submitted that the defendant knew at the time of recommendation of defendant's name to MTL that plaintiff under the arrangement was to receive professional fees for placement only after completion of minimum three months period by defendant in MTL.
1.3 It is further submitted that the defendant caused serious embarrassment to plaintiff when he discontinued the employment with MTL, just one day after his joining in the year 2009 and abandoned the job with MTL without any intimation to the plaintiff. It is only after C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 3/32 inquiries, the plaintiff learnt that the defendant resumed working with his previous employer namely, NIL which made it apparent for plaintiff to understand that the above appointment process with MTL was used as a tool to bargain perks with the existing employer NIL. The ploy used by the defendant was nothing but breach of understanding and wholesome misrepresentation to the extent of unequivocal assurance of leaving the employment with NIL under all circumstances. It is based on this assurance, the plaintiff began the selection process. This assurance has been essence of the entire selection process so undertaken. The defendant, therefore, has made unlawful gains at the expense of the plaintiff.
1.4 It is pertinent to mention here that the defendant has in his e-mail dated 31.05.2012 to plaintiff has candidly admitted to the fact of his joining MTL in 2009 and even of the fact of abandoning the said job only due to emotional blackmailing by previous employer i.e NIL. It is further stated that on account of above misrepresentation of defendant, the plaintiff suffered monetary loss in terms of remuneration which was not less than Rs. 1,20,000/- at that point of time in 2009. It is further submitted that surprisingly, it is in the month of May 2012 that the defendant once again approached the plaintiff seeking recruitment with C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 4/32 emphasis for employment with MTL only, which is evident from the e- mail dated 31.05.2012 sent by defendant to plaintiff. It is further submitted that the plaintiff keeping in mind, the defendant's earlier track record declined to recommend defendant's name for any post to any of its client including that of MTL. However, it is on defendant's insistence and repeated assurance not to commit such breach in future and request to give one and only chance, the plaintiff agreed to help. It was a sheer co- incidence that the post which was offered earlier became again available for recruitment with MTL. Due to defendant's repeated apologies for past commissions which is discernible from the e-mail dated 02.06.2012 sent by defendant to plaintiff, the plaintiff was prevailed upon to recommend defendant's name again to MTL. It is further submitted that the plaintiff under these circumstances issued a letter of intent on 20.06.2012, confirming defendant's joining with MTL on 02.07.2012 which was duly accepted by defendant on his date of joining with MTL vide letter dated 02.07.2012. Furthermore at request of plaintiff, the defendant even went to the extent of forwarding to the plaintiff his resignation from 'NIL' with effect from 20.06.2012. However, this time shockingly the defendant communicated to MTL of discontinuing the employment again after 14 days and further informed the rejoining of his previous employer NIL. The same is evident from the e-mail dated 17.07.2012 sent by the C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 5/32 defendant to MTL wherein defendant again admitted to the fact of abandoning the job first in 2009 and was guilty conscious. It is further stated that the defendant also took a flimsy and false excuse to abandon the job with MTL again after 14 days in July 2012 on the ground that defendant was not given the appointment letter despite admitting the fact in e-mail dated 17.07.2012 that delay in giving appointment letter was not a big thing and the fact that the defendant was disturbed with alleged activities of ex-employee of MTL with which MTL had nothing to do. This is nothing but a cooked up story and an after thought on part of the defendant to again join back his previous employer NIL. The defendant was duly informed about the factum of his receiving appointment letter after 15-20 days of joining and that it was otherwise as per normal process particularly in a case like of the defendant. It was otherwise known to defendant that the appointment letter involves signature of senior management and thus it usually takes some time to provide the appointment letter to new recruits. However, as already admitted by defendant in his e-mail dated 17.07.2012 that in the intervening period he went to Bhopal to meet someone from NIL and after again bargaining perks with NIL, defendant abruptly on citing frivolous excuses, abandoned the job with MTL again. The defendant despite appreciating the staff of MTL and finding MTL to be a genuine place to work in the e- C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 6/32 mail dated 17.07.2012 abandoned the job with MTL yet again in July 2012. It is further stated that the plaintiff was informed that MTL after conducting the enquiry found that some of their trade secrets including names of the buyers were tampered and hacked. MTL is convinced based on above enquiry now that each time, the defendant purposely sought employment with MTL and it was based on this design chose the plaintiff as job consultant. That the plaintiff has reasons to conclude that the defendant joining MTL under a design of espionage which is fully accomplished and the plaintiff's reputation has suffered serious beating. 1.5 It is further stated that the plaintiff's reputation and goodwill with MTL was seriously jeopardized due to above design of the defendant and it is clear that the plaintiff was used as a tool to accomplish design of espionage with rival company. The plaintiff suffered direct pecuniary loss on account of recommendation and loss of reputation due to defendant's deliberate omission resulting in tremendous loss of faith to plaintiff's clientèle particularly MTL. The loss on account of goodwill is incalculable, however, the plaintiff is fixing the same a nominal amount of Rs. 5,00,000/- over and above the direct pecuniary losses at Rs. 2,60,000/-. It is further stated that the plaintiff was warned by MTL way back in 2009 when defendant abandoned the job for the first time and in C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 7/32 2012 MTL held plaintiff guilty of professional mismanagement. MTL was also aggrieved by action of defendant and held plaintiff responsible for the same. There is a huge loss of reputation to the plaintiff due to the above. It is further stated that the plaintiff sent a legal notice dated 03.08.2012 to defendant claiming a total amount of Rs. 2,60,000/- and an unqualified apology for the harm caused by defendant to plaintiff's reputation, failing which additional sum of minimum Rs. 10 lacs was claimed as damages alongwith action for cognizance of various offences committed by defendant. The plaintiff, accordingly, is claiming a nominal sum of Rs. 5 lacs on that account. It is further stated that the defendant replied to the above legal notice vide reply dated 03.09.2012 refuting all the above claims of plaintiff and has instead set up a new story which is nothing but a ploy and a design by defendant to walk away from his liability. It is further stated that since the defendant has failed to pay the above amount despite legal notice dated 03.08.2012, plaintiff is constrained to file the present suit having left with no other option.
2. Written statement was filed on behalf of defendant wherein the defendant disputed and denied the contents of plaint. It is stated in the Written Statement that the suit is bad for non-joinder of the parties i.e M/s Metro Tyres Ltd which is a necessary party to the suit. There is no privity C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 8/32 of contract between the plaintiff and the defendant; the suit is barred by limitation as per Limitation Act, 1963. It is further stated that the plaintiff has claimed amount of Rs. 1,20,000/- towards monetary loss allegedly suffered by the plaintiff in the year 2009. The said claim of the plaintiff is barred by limitation.
2.1 On merits, it is stated that the defendant is not aware of any alleged arrangement/understanding between the plaintiff and MTL. The defendant has no concern at all with any agreement that may have executed, if at all exists, between the plaintiff and MTL. The defendant, as such, cannot be made liable for any breach of the alleged agreement as the defendant is not a party to it. It is specifically denied that the defendant is an opportunist or that he pretended as job seeker to bargain perks with existing employer or that he abandoned new appointment conveniently. It is stated that the defendant has applied for the said post on his own merits and no favour is done by the plaintiff for getting the said job for the defendant. It is further stated that the defendant passed through the rigours of selection of the candidates based on C.V and subsequent carrying out of interviews. It is only after the selection of the defendant after meeting all applicable norms, the defendant was selected for the said post by MTL. It is pertinent to mention that for the job in C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 9/32 MTL, the C.V of the defendant was considered because he has experience of 14 years in Tyres and Tubes Business, and MTL is in the same business. Thus, no special efforts were made by the plaintiff for seeking the job for the defendant. It is also stated that it was the duty of MTL to examine the recommendation of the plaintiff and the recommendation by the plaintiff for the defendant was duly considered on merits by MTL before offering the job to the defendant.
2.2 It is specifically denied that any assurance was given by the defendant to the plaintiff while accepting the offer or that the defendant confirmed his availability after severing relationship with the then employer M/s Noslar International Ltd. The defendant also never represented or requested to the plaintiff for not recommending any other aspirants for the said job.
2.3 It is specifically denied that the defendant knew at the time of recommendation of his name through MTL that the plaintiff under arrangement was to receive professional fees for placement only after completion of the minimum three months period by the defendant in MTL. It is stated that the defendant was never told about the alleged arrangement either by the plaintiff or by MTL. The defendant never agreed to work for minimum three months period with MTL and he never C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 10/32 represented anyone that he will work for at least three months with MTL. It is further stated that there is no privity of contract between the plaintiff and the defendant and the defendant is not liable for payment of any professional fees for any of the service of the plaintiff. The plaintiff instead of claiming its alleged dues from the MTL, has chosen to file the present false and frivolous case against the defendant. 2.4 It is specifically denied that the defendant caused serious embarrassment to the plaintiff by discontinuing employment with MTL just one day after joining in the year 2009. It is further denied that the defendant abandoned the job with MTL without any intimation to the plaintiff. It is submitted that the defendant was constrained to leave MTL on the same day as there was conflict between one of the employees, who was working with the plaintiff as he demanded Rs. 50,000/- from the defendant for availing services of the plaintiff. The defendant did not agree to pay the same as there was no understanding or agreement for payment of Rs.50,000/- by the defendant to the plaintiff but as there was continuing harassment made by the plaintiff for payment of the said amount of Rs. 50,000/-. The defendant was constrained to leave the services of the MTL the same day. It is submitted that it is the defendant, who suffered not only monetary loss but also loss of opportunity of C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 11/32 working with MTL due to malafide conduct of the plaintiff. It is further submitted that e-mail dated 31.05.2012 as sent by the defendant to the plaintiff on the instance of the plaintiff to write such e-mail. It was represented by the plaintiff that defendant does not write e-mail in the manner asked by the plaintiff, defendant will not be considered for the post by MTL. Thus, the defendant was constrained to write e-mail in the manner represented by the plaintiff. The plaintiff asked the defendant not to mention any incident about the demand of Rs. 50,000/- by the plaintiff at the time of earlier joining in the year 2009 as it would affect the relations of the plaintiff with MTL. It is, for this reason, that the actual position was not disclosed by the defendant while sending e-mail dated 31.05.2012. It is also denied that the plaintiff agreed to help the defendant again in the year 2012 and defendant's repeated assurances and requests. It is submitted that on 31.05.2012, the defendant received a phone call from the plaintiff offering him an opportunity for the post of AGM (Export) in MTL in corporate office based at NOIDA (UP). The defendant considered the same and agreed to apply for it. 2.5 It is stated that after the defendant was selected by MTL, the defendant received an e-mail dated 20.06.2012 sent by the plaintiff attaching therewith a Letter of Intent dated 20.06.2012 stating therein that C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 12/32 the defendant has successfully qualified the interview and the joining date was given as 02.07.2012. The said letter also stated that defendant's salary will be disbursed as accepted and the appointment letter would be issued to him on the date of his joining. It is submitted that no terms and conditions were mentioned in the letter of intent dated 20.06.2012. The defendant believing upon the said letter of intent joined the corporate office of MTL on 02.07.2012. However, to his utter shock and dismay, no letter of appointment was issued to him till 12.07.2012 despite his repeated requests and reminders made to the management of MTL as well as the plaintiff. On 13.07.2012 and 14.07.2012, the defendant was on leave due to personal exigencies. 15.07.2012 was a holiday being Sunday and thus the defendant once again telephonically requested to the management of MTL on 16.07.2012 for issuance of his appointment letter. However, the same was not issued to the defendant. In the absence of any appointment letter by MTL, despite being so promised and agreed by the plaintiff initially, the defendant did not have any other option but to leave the services of MTL. Accordingly, even after waiting for considerable time since 02.07.2012, the defendant resigned from MTL on 16.07.2012 and e-mail dated 16.07.2012 was sent to MTL. A letter was also sent to registered post to MTL on 21.07.2012 with a copy to the plaintiff for information. As is clear from the above, there was no fault C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 13/32 on the part of defendant, and on the contrary, it was MTL and the plaintiff who made the defendant to leave the job. Thus, the allegations made by the plaintiff regarding the alleged abandoning of the job by the defendant are false and frivolous having no iota of truth in it.
2.6 It is specifically denied that there was any inquiry or that the trade secrets including the names of buyers were tampered and hacked. It is further denied that there was any illegal design of the defendant of espionage or that the plaintiff's reputation has suffered serious beating. It is submitted that the defendant is not an IT Expert and he only knows basic functions related to Export Marketing like e-mailing, writing a letter or excel work. The alleged tampering and hacking of data is beyond the professional knowledge and capacity of the defendant. It is submitted that the plaintiff has made false and baseless allegations against the defendant, and the defendant reserves his right to take appropriate legal action against the plaintiff or tarnishing the image of the defendant. It is specifically denied that the plaintiff's reputation and goodwill with MTL was seriously jeopardized due to defendant or that the plaintiff was used as a took to accomplish design of espionage with rival company. It is specifically denied that the plaintiff suffered any pecuniary loss on account of recommendation and loss of reputation or that there was any C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 14/32 deliberate omission by the defendant. It is further denied that the loss on account of goodwill is in calculable or that the plaintiff has suffered any loss much less Rs. 5,00,000 or Rs. 2,60,000/-. It is respectfully submitted that the defendant was well within his rights to resign from the job, and there was no term and condition which could have bound him continue in the job. It is submitted that the appointment letter was not given to the defendant despite passage of several days since the date of his joining, and thus he was constrained to leave the job. It is submitted that the defendant has not committed any fault and has not violated any term or condition. It is pertinent to mention here that before filing of the present suit, the plaintiff again called upon the defendant for the same job in Metro Tyres during October 2013 which the defendant denied. After his denial only, the plaintiff chose to file the present case for harassing the defendant to extract money from the defendant by using arm twisting tactics.
3. In the Replication, the plaintiff has denied the contents of the Written Statement. Plaintiff has reiterated & reaffirmed the contents of the plaint. It is denied that no cause of action arose against the defendant and in favour of plaintiff. It is denied that the present suit is barred by limitation as per Limitation Act, 1963. It is further denied that the C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 15/32 defendant is not liable to pay any amount to the plaintiff. It is submitted that in January 2009, when the defendant left M/s Metro Tyres Ltd. Only after one day and thereafter on July, 2012 when the defendant shockingly discontinued the employment only after 14 days with MTL and further when in August, 2012 when the defendant failed to pay the amount claimed by the plaintiff the cause of action has arose against the defendant and in favour of plaintiff. It is submitted that the defendant is liable to pay Rs. 2,60,000/- alongwith pendentelite interest @ 18% per annum from the date of institution of this suit, till the realization of the claim and further an amount of Rs. 5 lacs as damages towards the loss of goodwill and reputation.
3.1 It is submitted that M/s Metro Tyre Ltd. has engaged the plaintiff only to get a best employee from the market on a reasonable salary. It is prevalent in market that the minimum period of working in a company is at least 3 months. The small company in market which hires the HR agency for recruiting employee, pays remuneration to the consultant only if the employee works for minimum period of three months, if the employee work less than 3 months then it is the responsibility of the employee to pay the cost of the consultant. It is submitted that the plaintiff has not received any amount on account of remuneration from C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 16/32 the MTL for recruiting the defendant as the defendant has quit the job before completion of minimum period i.e three months. It is denied that there is no privity of contract between the plaintiff and the defendant and as such the present suit is not maintainable in the eyes of law. It is submitted that, the defendant cause serious embarrassment to plaintiff in the year 2009 when he discontinued the employment with MTL just one day after his joining. It was a breach of contract by the defendant as the defendant was in knowledge that after completion of minimum period of three months, the plaintiff was entitled to remuneration from M/s Metro Tyres Ltd. It is submitted that in the month of May 2012, the defendant once again approached the plaintiff seeking emphasis for employment with MTL, again the defendant made an offer to the plaintiff for recommending his name for the same post. It is submitted that defendant's repeated apologies and promise to pay an amount of Rs. 1,20,000/- on account of earlier professional fee for past omission the plaintiff was prevailed upon to recommend defendant's name again to MTL which became a contract between plaintiff and the defendant. It is submitted that plaintiff under these circumstances issued a letter of intent on 02.06.2012 confirming defendant's joining with MTL on 02.07.2012 which was duly accepted by defendant on his date of joining with MTL vide letter dated 02.07.2012 which concluded the contract. It is submitted C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 17/32 that after 14 days shockingly the defendant communicated to MTL of discontinuing the employment. The defendant once again breached the contract. It is submitted that all above shows that there was a privity contract between the plaintiff and defendant and the breach of contract by defendant.
3.2 It is denied that the suit is liable to be dismissed for non-joinder of necessary party. It is denied that M/s Metro Tyres Ltd is a necessary party to the suit and the suit cannot be properly adjudicated in its absence. It is denied that the plaintiff has deliberately and mischievously not impleaded M/s Metro Tyres Ltd as a party to the present suit as such the present suit is liable to be dismissed out-rightly. It is submitted that M/s Metro Tyres Ltd is not a necessary party to the suit as its the defendant who has misrepresented the plaintiff and the defendant is liable to pay a monetary loss at Rs. 2,60,000/- and loss on account of goodwill which is incalculable but the plaintiff has fixed it to a nominal amount of Rs. 5 lacs. It is submitted that it is the defendant, who has defaulted and is liable to pay the suit amount and not M/s Metro Tyres Ltd. and, therefore, the MTL is not a necessary party to the present proceedings. It is submitted that only on the repeated apologies and assurance of the defendant to pay an amount of Rs. 1,20,000/- as remuneration of 2009, C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 18/32 the plaintiff entertained the defendant second time in May, 2012 and the name of the defendant was recommended second time to M/s Metro Tyres Ltd. It is submitted that on this assurance that the amount will be payable by the defendant to the plaintiff after getting the job in MTL in 2012. The claim is not barred by limitation as the payment of 2009 was promised by the defendant in 2012 and the present suit is filed within limitation in 2013.
3.3 It is denied that it was the duty of M/s Metro Tyres Ltd. to examine the recommendation of the plaintiff and the recommendation by the plaintiff for the defendant was duly considered on merits by MTL before offering job to the defendant. It is submitted that the plaintiff is charging for the efforts and services made for the selection of the defendant. It is submitted that it was the plaintiff, who only after the selection of the defendant, after meeting all applicable norms selected the defendant for the said post on behalf of Metro Tyres Ltd. It is denied that for the job in MTL, the CV of the defendant was considered because he has an experience of 14 years in tyres and tubes business. It is denied that no special effort was made by the plaintiff for seeking the job for defendant. It is submitted that it is only because of the plaintiff and the efforts of plaintiff the defendant was selected for the position in MTL. It is C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 19/32 submitted that the plaintiff has informed the defendant about the arrangement between the plaintiff and MTL. It is submitted that only after informing the defendant about the arrangement between the plaintiff and MTL, the plaintiff suggested the name of the defendant and the defendant was specifically in the knowledge that if he will work for minimum three months with MTL then only the plaintiff will be receiving the amount of remuneration. It is submitted that it is only because the defendant quit the job before the minimum period, the plaintiff did not receive the remuneration from MTL and only because of the defendant the said amount is now payable by the defendant. It is denied that the defendant was constrained to leave MTL on the same day as there was a conflict between one of the employer of the plaintiff, who demanded Rs. 50,000/- from the defendant for availing the services of the plaintiff. It is submitted that the defendant used the plaintiff just to bargain perks with the existing employer. It is denied that the e-mail dated 31.05.2012 was sent by the defendant on asking of the plaintiff to write such e-mail. It is denied that it was ever represented by the plaintiff that if the defendant does not write e-mail in the manner asked by the plaintiff, the defendant will not be considered for the post with MTL.
3.4 It is denied that the defendant never agreed to pay any amount to C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 20/32 the plaintiff nor represented that he will continue the services for minimum three months. It is denied that the tampering and hacking of data is beyond the professional knowledge and capacity of the defendant. It is denied that the plaintiff has made a false and baseless allegations against the defendant. It is submitted that the trade secrets, including the name of the buyers which were tempered and hacked by the defendant can be done even by a person having computer skills like Internet. It is submitted that the defendant is a graduate in science and also having computer skills like Internet, as reflected from his resume. It is submitted that this was also one of the purpose of the defendant to join MTL.
4. From the pleadings of the parties, the following issues were framed on 18.10.2014:
ISSUES
(i) Whether the suit is barred by limitation? OPD
(ii) Whether M/s Metro Tyres Ltd is a necessary party to the suit?
OPD
(iii) Whether there is no privity of contract between plaintiff and defendant, if so, its effect? OPD
(iv) Whether plaintiff has suffered any loss of goodwill and reputation on account of acts of defendant? OPP
(v) Whether plaintiff is entitled for recovery of any amount towards loss of goodwill and reputation, if so, what amount?
OPP C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 21/32
(vi) Whether plaintiff has suffered pecuniary losses on account of professional misconduct on the part of defendant? OPP
(vii) Whether plaintiff is entitled for any damages on account of professional misconduct, if the previous issue/issue No. (vi) is decided in favour of plaintiff? OPP
(viii) Relief.
5. In support of his evidence, the plaintiff examined two witnesses in all.
5.1. Plaintiff examined Sh. Veer Sant Kumar Sood as PW-1. PW-1, Sh. Veer Sant Kumar Sood tendered his evidence by way of affidavit Ex.PW1/A and reiterated and reaffirmed the contents of the plaint in his affidavit. He has relied upon following documents:
1. Ex. PW1/1 is the e-mail dated 31.05.2012.
2. Ex. PW1/2 is the e-mail dated 31.05.2012.
3. Ex. PW1/3 is the e-mail dated 02.06.2012.
4. Ex. PW1/4 is the e-mail dated 20.06.2012.
5. Mark 'A' is the e-mail dated 02.07.2012.
6. Ex. PW1/6 is the e-mail dated 20.06.2012.
7. Ex. PW1/7 is the e-mail dated 17.07.2012.
8. Ex. PW1/8 is the Legal Notice dated 03.08.2012.
9. Ex. PW1/9 is the reply dated 03.09.2012 to the legal notice.
5.2 PW-2 Sh. Gulfam tendered his evidence by way of affidavit Ex.PW2/A and reiterated and reaffirmed the contents of the plaint in his C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 22/32 affidavit. He has relied upon the documents already Ex. PW1/1, Ex.
PW1/3 to Ex. PW1/9.
5.3 No other PW was examined and PE was closed vide order dated 21.03.2018.
6. In its defence, the defendant examined only one witness. 6.1 DW-1, Sh. Amit Kumar Sharma tendered his evidence by way of affidavit Ex.DW1/A and reiterated and reaffirmed the contents of the plaint in his Written Statement. He has relied upon following documents:
1. Ex. DW1/1 ( the e-mail dated 17.07.2012 already Ex. PW1/7 ).
2. Reply dated 03.09.2012 to the legal notice already Ex. PW1/9.
3. Ex. DW1/P1 is the Curriculum Vitae of defendant.
4. Ex. DW1/P2 is the Letter of Intent dated 20.06.2012 issued by plaintiff.
6.2 No other DW was examined and DE was closed vide order dated 19.12.2018.
7. I have carefully considered the arguments advanced and perused the record.
8. Detailed final arguments heard. My findings on the issues are as follows:
C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 23/32 ISSUES No.(i): Whether the suit is barred by limitation? OPD
9. The defendant has stated that the claim of Rs.1,20,000/- raised by the plaintiff towards monetary loss alleged suffered by the plaintiff in the year 2009, is barred by limitation. The plaintiff has claimed monetary loss from the defendant on the ground that he only served MTL for a day when he joined MTL through the plaintiff. The present suit is filed by the plaintiff in the year 2013. The plaintiff has not proved any written acknowledgement of liability by the defendant within the limitation period triggering reckoning of fresh period of limitation and, therefore, claim made by the plaintiff in respect of transaction in the year 2009 is patently barred by limitation. So, this issue is decided in favour of the defendant and against the plaintiff.
ISSUES No (ii): Whether M/s Metro Tyres Ltd is a necessary party to the suit? OPD
10. The question of impleadment of a party has to be decided on the touch stone of Order I Rule 10 which provides that only a necessary or a proper party may be added. A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 24/32 complete and final decision on the question involved in the proceeding. 10.1 In Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay and Ors., the Apex Court laid down the law that:
''14. The person to be joined must be one whose presence is necessary as a party. What makes a person a necessary party is not merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e. he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights''.
10.2 Examining the facts of the present case in light of the law reproduced herein above, MTL is not a necessary party to the suit as it has no direct legal interest in the result of the present suit. So, this issue is decided in favour of the plaintiff and against the defendant.
ISSUES No (iii): Whether there is no privity of contract between C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 25/32 plaintiff and defendant, if so, its effect? OPD
11. The plaintiff has failed to prove that any commission was agreed to be paid by the defendant to the plaintiff for the services rendered by the plaintiff as a consultancy firm. The plaintiff has also failed to prove any agreement that defendant agreed to pay commission to the plaintiff, if he fails to serve MTL for a minimum period of three months. In these circumstances, the defendant cannot be fastened with any liability to pay commission to the plaintiff and thus there is no privity of contract between the plaintiff and defendant. So, this issue is decided against the plaintiff and in favour of the defendant.
ISSUES No (vi): Whether plaintiff has suffered pecuniary losses on account of professional misconduct on the part of defendant? OPP And ISSUES No (vii):Whether plaintiff is entitled for any damages on account of professional misconduct, if the previous issue/issue No. (vi) is decided in favour of plaintiff? OPP
12. Both the issues are decided together as they are inter related. Ex. PW1/1 establishes that the defendant approached plaintiff which is a consultancy firm for considering him for opening of AGM (Exports) in MTL. The plaintiff has also been able to prove that even in the year 2009, the defendant approached the plaintiff for opening available in C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 26/32 MTL and the defendant was selected and joined MTL. Further, the defendant joined MTL only for a day and left his services of MTL. Now the question which is to be determined is that whether the defendant is liable to pay any consultancy fees to the plaintiff company for carrying out the process of forwarding his C.V to MTL and further arranging interviews. The plaintiff has not filed any document on record which contains terms and conditions regarding commission which has to be paid to the plaintiff by MTL on joining of defendant with MTL. The plaintiff has not led any documentary evidence that MTL agreed to pay commission to the plaintiff only if the defendant/selected candidate would have served MTL for period of three months. PW-1 also admitted that no written agreement or document has been filed on record by the plaintiff to show that the defendant ever agreed to pay any compensation/commission/damages to the plaintiff, if he leaves MTL within three months.
12.1 PW-2, in his cross-examination, stated that it is a common practice in the industry for employee to work for minimum period of three months and thereafter the employer hiring the employee pays commission to consultancy firm. Besides oral testimony of PW-2, no document has been placed on record to prove that any such common practice is prevalent in C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 27/32 the industry. The plaintiff has not summoned any witness from MTL to prove any oral agreement between the plaintiff and MTL about payment of commission to plaintiff only on the defendant working with MTL at least for three months. It is a settled law that the plaintiff has to stand on his own legs and cannot take advantages of weakness of the defence of the defendant. The plaintiff has failed to prove any oral agreement between the plaintiff and the defendant whereby defendant undertook to serve MTL for a minimum period of three months or was aware of any oral agreement between the MTL and the plaintiff that plaintiff would be remunerated, if the defendant serves MTL for minimum period of three months.
12.2 The defendant has accused the plaintiff of professional misconduct and contended that defendant joined MTL only to accomplish design of espionage with rival company and to negotiate better salary and perks with his previous/existing employer. Ex.PW1/1 and Ex.PW1/3 reflects that the defendant apologized to the plaintiff with regard to the incident of the year 2009 and requested plaintiff to consider him for the opening with MTL. The defendant has failed to prove that the said apology was not voluntarily tendered by the defendant and was tendered at the instance of the plaintiff. However, the plaintiff has failed to prove that espionage C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 28/32 activities were conducted by the plaintiff while serving with MTL for 14 days. PW1 stated in his cross-examination that he does not know about the trade secrets, name of buyers, tampering or hacking as it is mentioned by him in para no. 14 of his evidence by way of Affidavit Ex.PW1/A. He volunteered that it is internal matter of MTL. He admitted that no written document has been filed on record by the plaintiff which may show that MTL ever conducted enquiry against the defendant. PW2 also stated in his cross examination that he is not aware about any document which would show that defendant joined MTL only as a tool to negotiate his salary with his previous employer. DW1 stated in his evidence that he joined Noslar International Limited in the same package which was his package in the year 2012 when he left Noslar International Limited for joining MTL. The defendant/DW1 also stated that he joined his previous company as he was not having any job option at that time and he has a family to run. Furthermore, the defendant joined MTL on 02.07.2012. No appointment letter was issued to the defendant till 12.07.2012. Ex.DW1/P2, letter dated 20.06.2012 issued by the plaintiff reflects that the defendant was assured that the appointment letter will be issued to the defendant by MTL on his joining. No reason/explanation has been furnished for not issuing of appointment letter by MTL to the defendant till 12.07.2012. A salaried employee depend on his salary for running his C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 29/32 household and uncertainty of job is great concern for any salaried employee. In absence of appointment letter by MTL, the job of defendant was not secure with MTL and therefore, the act of defendant in leaving the services of MTL for non issuing appointment letter cannot be termed as a professional misconduct. Thus, the plaintiff failed to prove on record an oblique motive of defendant in approaching plaintiff for considering him for his placement in MTL and joining MTL.
12.3 The plaintiff has pegged his pecuniary loss of Rs. 2,60,000/- on which it has sought pendente lite and future interest @ 18% per annum. The plaintiff has not explained in the pleadings how it has assessed its total pecuniary loss to Rs. 2,60,000/-. In fact, in the legal notice, the plaintiff stated in Para No.13 that "our client has suffered direct pecuniary loss of Rs. 1.48 Lacs on account of recommendations alongwith interest therein @ 18% p.a and comes to Rs. 80,000/- additionally and loss of reputation due to your deliberate omission resulting in tremendous loss of faith to their clientele particularly MTL". This shows that there is no consistency in the claim made by the plaintiff with regard to the alleged pecuniary loss suffered by the plaintiff.
PW1 and PW2 admitted that plaintiff has not filed any document to show that monetary loss suffered by the plaintiff was not C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 30/32 less than Rs. 1,20,000/- at the time of leaving of services of MTL by defendant in the year 2009. The alleged pecuniary loss suffered by the plaintiff in the year 2009 is even otherwise barred by limitation. PW-2 has admitted that the plaintiff has not produced any document on record that any client of the plaintiff paid one month's salary of any employee as a commission to the plaintiff. The plaintiff has, thus, not led any evidence to establish how much commission was fixed and pecuniary loss suffered by the plaintiff. So, the plaintiff failed to prove the quantum of pecuniary loss suffered by the plaintiff due to the defendant's leaving MTL within 14 days of his joining the MTL in the year 2012. So, both issues are decided in favour of the defendant and against the plaintiff. ISSUES No (iv): Whether plaintiff has suffered any loss of goodwill and reputation on account of acts of defendant? OPP And ISSUES No (v): Whether plaintiff is entitled for recovery of any amount towards loss of goodwill and reputation, if so, what amount? OPP
14. The plaintiff has not led any evidence to show that due to the act of the defendant, the plaintiff lost complete business from the MTL. No documentary evidence has been placed on record that goodwill and reputation of the plaintiff took a beating due to act of the defendant. The C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 31/32 plaintiff has not furnished any parameter on the basis of which the plaintiff has assessed quantum of damages as Rs. 5 lacs. In his legal notice Ex. PW1/8, the plaintiff demanded Rs. 10 lacs as damages whereas in the present suit, the plaintiff has claimed damages to the tune of Rs. 5 lacs. The stark variation in damages demanded in legal notice and present suit reflects that amount claimed is arbitrary and whimsical. Moreover, no evidence has been adduced by the plaintiff to show any actual loss having been suffered by plaintiff and in absence of same, the plaintiff is not entitled to any damages. So, these issues are decided against the plaintiff.
RELIEF
15. In view of the above discussions, the suit of the plaintiff is dismissed.
16. No order as to cost.
17. Decree sheet be prepared, accordingly.
18. File be consigned to the Record Room.
Announced in the open court. (PRIYA MAHENDRA)
Dated:15.05.2019 ADJ-04 (South)
Saket Courts/New Delhi
C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 32/32
C.S. No. 5845/16 Top Rankers Management Consultants vs. Amit Sharma 33/