Delhi District Court
In Re vs M/S Pci Limited on 25 August, 2015
Suit No. 193/14/09
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL DISTRICT JUDGE03, WEST,
TIS HAZARI COURTS, DELHI.
Suit No. 193/14/09
Case ID No. 02401C0042982009
In re:
Sh. Akash Sharma
S/o Sh. R. B. Sharma
R/o Ocean Palace, C16/17,
Flat No. G5, Shalimar Garden ExtensionII,
Sahibabad, District Ghaziabad,
U.P.201005 ......Plaintiff
Versus
M/s PCI Limited
Prime Group Building,
14/5B, Pusa Road, New Delhi
Through its Authorised
Representative/Director ......Defendant
Date of institution of suit : 31.01.2009
Date of judgment : 25.08.2015
EXPARTE JUDGMENT:
1.This is a suit for recovery of Rs.9,28,550/ alongwith interest at the rate of 18% per annum.
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2. The case of the plaintiff is that he was appointed as Manager (Marketing) by the defendant company on 23.01.2003 at a monthly salary of Rs. 16,900/. At the time of appointment, it was agreed that the defendant company shall also pay 0.65% of the total sale/business as incentive apart from the salary and shall also provide company car, yearly bonus, traveling allowance, medical benefits and other service benefits to the plaintiff. It has been averred that the defendant company neither gave any appointment letter nor disclosed any term of appointment in writing to the plaintiff but later on, took his signature on an appointment letter dated 04.03.2003 which was subsequently manipulated by changing the first two pages for its own benefits. The defendant company deliberately did not provide the service benefits to the plaintiff and compelled him to resign from the job on 29.01.2007. The resignation of the plaintiff was accepted by the defendant company without any objection vide its letter dated 01.02.2007. According to the plaintiff, he was sent to USA for promotion of sales and before going, he had submitted the complete tour plan with the HR Department which had been approved by the MD of the defendant company but only the tickets from India to Houston and New York to Delhi were got booked by the defendant Akash Sharma V. M/s PCI Limited Page No. 2/22 Suit No. 193/14/09 company. It has been averred that the plaintiff left from Houston to New York on 15.12.2006 to see the tourist places and all the expenses of air ticket from Houston to New York and stay in hotel at New York from 15.12.2006 to 17.12.2006 were borne by him. It has further been averred that during the course of his employment, the plaintiff met with an accident on 01.08.2006 and was admitted to Sarvodya Hospital and as per the terms agreed at the time of appointment, the defendant company had to pay all the expenses of the treatment of the plaintiff but the defendant company paid only the expenses which were available under the mediclaim. All the other medical expenses as well as the expense of Rs. 50,000/ towards special diet were not paid to the plaintiff despite the fact that all the said expenses had been paid to the coemployee Sh. Himanshu Tripathi, who had also met with the accident alongwith the plaintiff. It has further been alleged that the defendant company illegally and arbitrarily also did not pay the 50% of the salary for the month of September, 2006 which comes to Rs. 21,750/ and bonus of Rs. 15,800/ for the year 200607 to the plaintiff. According to the plaintiff, the defendant company has withheld the following amounts illegally: S. No. Heads Amount (in Rs.) Akash Sharma V. M/s PCI Limited Page No. 3/22 Suit No. 193/14/09
(i) Sale incentive for the year 200506 Rs. 1,60,000/
(ii) Sale incentive for the year 200607 Rs. 3,31,000/ Total sale incentive Rs. 4,91,000/
(iii) 50% salary of month of September, Rs. 21,750/ 2006
(iv) Bonus of the year 200607 Rs. 15,000/
(v) T.A expenses approximately Rs. 50,000/
(vi) Medical expenses and special diet Rs.50,000/ It has been averred that the defendant company did not pay the above amounts despite repeated requests and reminders and filed a suit no. 197/2007 for recovery of Rs. 15,00,000/ against the plaintiff alleging that without being relieved, he had joined M/s Preditech Inc. 11011, USA on the post of Regional Manager against the terms of appointment letter. According to the plaintiff, the suit had been filed by the defendant company on the basis of false and frivolous allegations as the plaintiff had remained unemployed from February, 2007 to May, 2007 and had started a new company namely Predictech (India) Pvt. Ltd. with his wife, which was got incorporated under the provisions of Companies Act w.e.f 13.06.2007. It has been averred that the company of the plaintiff dealt with M/s Preditech, USA as per its business terms and conditions and was nowhere related to the goodwill of the defendant company as the defendant company Akash Sharma V. M/s PCI Limited Page No. 4/22 Suit No. 193/14/09 had no relation with M/s Preditech Inc. w.e.f 2006 onwards. It has been averred that the defendant company had also filed another false and frivolous suit bearing no. 139/08 for recovery of Rs. 10 lac on account of damages and mandatory injunction against Ms. Sarika Sharma, who is one of the employees of the plaintiff's company alleging that in order to cheat the defendant company and to sell its trade secrets, the said Sarika Sharma connived with the plaintiff and copied various information from the computer assigned to her and provided the same to the plaintiff. It has been averred that on the basis of false and manipulated telephone call details, Smt. Sarika Sharma was forced to resign on 15.03.2007 from the defendant company. It has been averred that the allegations made by the defendant company in both the suits were defamatory in nature and had been made to defame and malign the goodwill and reputation of the plaintiff and his company in the eyes of the public and therefore, the defendant company is also liable to pay a sum of Rs. 2,50,000/ on account of damages in order to compensate the said loss. Hence, the present suit for recovery of Rs. 9,28,550/ alongwith interest at the rate of 18% per annum has been instituted by the plaintiff.
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3. The defendant company filed its written statement wherein it took the preliminary objections that the suit is barred by limitation; that the plaintiff has not approached the court with clean hands; that the suit has not been properly valued; and that the suit does not disclose any cause of action. On merits, though it has been admitted that the plaintiff was appointed as Manager (Marketing) on 23.01.2003 and that the appointment letter was given to him on 04.03.2003 but it has been denied that any commission on the sales as the part of incentive was ever agreed to be paid to the plaintiff by the defendant company. According to the defendant company, despite being given all the benefits as stated in the appointment letter, the plaintiff failed to abide with the terms of the appointment letter and joined hands with the principal company M/s Preditech, USA for which the defendant company was a channel partner in India. It has been averred that the appointment letter had been signed by the plaintiff after going through the terms and conditions mentioned therein. It has been denied that the said appointment letter was ever manipulated by the defendant company or that the plaintiff was compelled to resign from the job on 29.01.2007. It has been averred that in order to enhance the skills of the plaintiff, he was sent to USA for training scheduled from 10.12.2006 to Akash Sharma V. M/s PCI Limited Page No. 6/22 Suit No. 193/14/09 13.12.2006 and after the completion of the said training, the plaintiff went for a vacation to the nearby places and as agreed, the defendant company paid all the expenses incurred by the plaintiff during the training period but the expenses for the vacation tour were not paid. It has been averred that on 01.08.2006, the plaintiff and one more employee Sh. Himanshu Tripathi met with an accident as the plaintiff was driving the car in intoxicated condition and had rammed into a stationary truck parked on the road. After the accident, the defendant company duly paid the expenses met by the insurance company. It has been denied that the plaintiff was entitled to any amount towards salary for the month of September, 2006 and bonus for the year 200607. It has been averred that the defendant company had filed suits against the plaintiff and Smt. Sarika Sharma as they both had connived with each other and had played fraud upon the defendant company causing damage to its position in the market. It has been denied that allegations made in the said suits are defamatory or that the plaintiff is entitled to claim any damages for the same. The defendant company thus made a prayer for the dismissal of the suit.
4. The plaintiff filed the replication wherein averments of the Akash Sharma V. M/s PCI Limited Page No. 7/22 Suit No. 193/14/09 written statement were denied and the contents of the plaint were reiterated.
5. On 11.11.2009, following issues were framed by the court: (1) Whether the plaintiff committed breach of terms of contract of appointment?OPD (2) Whether the defendant has committed tort of defamation and caused loss of reputation to the plaintiff?OPP (3) Whether the plaintiff is entitled to a recovery of Rs.
9,28,550/ as claimed in the prayer clause?OPP (4) Whether the plaintiff is entitled to interest, if so, at what rate and for what period?OPP (5) Relief.
6. In support of his case, the plaintiff appeared in the witness box as PW1. He led evidence on affidavit wherein he supported the averments of the plaint and placed on record the computer generated copies of the purchase order reports of the year 2006 07 for incentive as Ex. PW1/1, and purchase orders of the year 200506 as Ex. PW1/2, copy of the notice under Order 12 Rule 8 CPC sent to the defendant for providing the original purchase orders as mentioned in Ex. PW1/1 and Ex. PW1/2 as Ex. PW Akash Sharma V. M/s PCI Limited Page No. 8/22 Suit No. 193/14/09 1/3, letter dated 20.10.2006 issued by the defendant showing the payment of Rs. 1,84,676/ towards incentive and bonus for the year 200506 to the plaintiff as Ex. PW1/4, original letter dated 13.03.2003 issued by the defendant for payment of incentive of Rs. 24,750/ for the year 200102 as Ex. PW1/5, certified copy of letter dated 01.02.2007 issued by the defendant accepting the resignation of the plaintiff as Ex. PW1/6, certified copy of details of Best Western Kennedy Airport as Ex. PW1/7, certified copy of his electronic ticket as Ex. PW1/8, copy of traveling bills as Ex. PW1/9 (colly), certified copy of the medical certificate of the plaintiff as Ex. PW1/10, certified copy of the complaint made to the concerned police station on 03.08.2006 as Ex. PW1/11, certified copy of the medical bills paid to Sh. Himanshu Tripathi as Ex. PW1/12, certified copy of pay slips of the plaintiff for the month of August and September, 2006 as Ex. PW1/13 (colly), certified copy of judgment dated 09.02.2010 passed in the suit no. CS 197/07 instituted by the defendant company against the plaintiff as Ex. PW1/14, certified copy of the plaint of the said suit as Ex. PW1/15, certified copy of incorporation of the plaintiff's company as Ex. PW1/16, certified copy of the change in the name of the Akash Sharma V. M/s PCI Limited Page No. 9/22 Suit No. 193/14/09 plaintiff's company as Ex. PW1/17, certified copy of Memorandum and Article of Association as Ex. PW1/18, certified copy of the plaint of suit bearing CS No.139/08 filed by the defendant company against Smt. Sarika Sharma as Ex. PW 1/19, certified copy of judgment dated 16.12.2009 passed in the said suit as Ex. PW1/20, certified copy of the letters dated 27.04.2014 and 19.01.2006 issued by the Director of the defendant company to Ms. Sarika Sharma as Ex. PW1/21 to Ex. PW1/22 respectively.
On 10.03.2015, the plaintiff filed an additional affidavit wherein he clarified the amounts claimed by him under various heads and restricted his claim to recovery of Rs.8,78,550/.
7. Here, it is pertinent to mention that during the course of proceedings, the defendant company was repeatedly proceeded exparte from time to time. Thus not only the testimony of PW1 remained unrebutted but no evidence could be lead by the defendant company in its defence.
8. I have heard the counsel for the plaintiff and gone through the written submissions filed on behalf of the defendant company.
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9. My issue wise findings are as follows: Issue No.1:
"1. Whether the plaintiff committed breach of terms of contract of appointment?OPD"
Onus of proving this issue was cast upon the defendant. Since the defendant not only failed to cross examine the plaintiff (PW
1) but also did not lead its own evidence, it failed to discharge the onus. This issue is, therefore, decided against the defendant.
Issue No.2:
"2.Whether the defendant has committed tort of defamation and caused loss of reputation to the plaintiff?OPP"
It is not in dispute that the defendant company had filed civil suit no. 197/07 seeking recovery of Rs. 15,00,000/ on account of damages against the plaintiff and civil suit no. 139/08 for recovery of Rs. 10,00,000/ on account of damages against one of its ex employee Ms. Sarika Sharma. Certified copy of the plaint and judgment passed in both the suits have been placed on record by the plaintiff as Ex. PW1/14, Ex. PW1/15, Ex. PW 1/19 and Ex. PW1/20 respectively. According to the plaintiff, since the averments made by the defendant company in both the above suits were defamatory in nature and the said suits have Akash Sharma V. M/s PCI Limited Page No. 11/22 Suit No. 193/14/09 been dismissed, he is entitled to compensation to the tune of Rs. 2,50,000/ from the defendant company.
In order to succeed in his action for defamation, it was incumbent upon the plaintiff to prove:
(i) that the statement complained of refers to him;
(ii) that the statement was defamatory in nature;
(iii) that the statement was published by the defendant to a third person or persons; and
(iv) that the statement was not protected under Common Law by defences like Justification, Fair Comment, Privilege etc. As a principle of equity, every man is entitled to have his reputation preserved intact. Any words, either oral or written, calculated to cause harm to his reputation affords a good cause of action. But there are certain occasions when the law recognizes that the right of free speech outweighs the plaintiff's right to reputation. Law treats such occasions to be "privileged" and a defamatory statement made on such occasions is not actionable. Privilege is of two kinds: 'Absolute Privilege' and 'Qualified Privilege'. A statement is said to be 'Absolutely Privileged' when it is of such a nature that no action will lie for it Akash Sharma V. M/s PCI Limited Page No. 12/22 Suit No. 193/14/09 however false and defamatory it may be, and even though it is made maliciously, that is to say, from some improper motive. The occasions of the absolute privilege may be grouped under the heads 'Parliamentary Proceedings', 'Judicial Proceedings' and 'Act of State'. Indian Courts have recognized and held in catena of judgments that the statements made in the course of the judicial proceedings are immune from an action for defamation being Absolutely Privileged. Reference may be made to K. Daniel v. T Hemavathy Amma, AIR 1985 Ker 233, Pandey Surinder Nath Singh v. Bageshwari Prasad AIR 1961 Patna 164, Ali Mohammad v. Manna Lal AIR 1929 All 972 and Duraiswami v. Lakshmanan, AIR 1933 Mad 537. Similar view has also been taken by the Hon'ble Delhi High Court in Nau Nihal Singh Rana v. Sunil Kumar (2013) 202 DLT 465 and B.C. Rana v. Seema Katoch (2013) 198 DLT 35. Thus, even if it is presumed that the averments made by the defendant company in both the suits against the plaintiff were defamatory in nature, the same are not actionable on the ground of Absolute Privilege.
The counsel for the plaintiff has placed reliance upon B.M. Thimmaiah v. T.M. Rukhmini & Ors., AIR 2013 Karnataka 81 Akash Sharma V. M/s PCI Limited Page No. 13/22 Suit No. 193/14/09 to stress that for the defamatory statements made in the pleadings, a party can be directed to pay compensation to the injured for bringing down his reputation in the eyes of general public. The above judgment does not render any assistance to the plaintiff. In the said case, the plaintiff claimed damages alleging that the defendants had in the written statement filed in another suit between the parties had used defamatory statement imputing questionable and doubtful relationship between her on the one hand and one of the coplaintiffs on the other wherein they were seeking declaration that the resolution passed by the defendants in the said suit with regard to management and affairs of the School were illegal. After observing that the defendants had made allegations attacking the character of the plaintiff which can not be regarded as allegations made in connection with their overall activities pertaining to the society and its affairs, the court had awarded damages. However, in the present case, a perusal of plaint of CS No. 197/07 instituted by the defendant company against the plaintiff shows that it had alleged that the plaintiff, without being relieved from the defendant company, had joined M/s Preditech Inc. USA on the post of Regional Manager whereas in CS No. 139/08 against Ms. Sarika Sharma, it had alleged that she had connived with the Akash Sharma V. M/s PCI Limited Page No. 14/22 Suit No. 193/14/09 plaintiff and had left the defendant company after passing all the relevant information to the plaintiff. The allegations made by the defendant company against the plaintiff in both the suits were completely relevant in order to succeed in its claim for compensation and can not be said to be irrelevant or uncalled for from any angle.
Since the allegations made in both the suits by the defendant company were absolutely privileged, the action to claim damages is not maintainable against the defendant company. Hence, the above issue is decided against the plaintiff and in favour of the defendant company.
Issue No.3:
"3. Whether the plaintiff is entitled to a recovery of Rs. 9,28,550/ as claimed in the prayer clause?OPP"
Though in the plaint, the plaintiff had sought recovery of Rs. 9,28,550/ but as mentioned earlier, in his additional affidavit filed on 10.03.2015, the plaintiff restricted his claim to the sum of Rs. 8,78,550/. For the sake of convenience, the claim of the plaintiff to recover the said amount under different heads are being discussed as follows: Akash Sharma V. M/s PCI Limited Page No. 15/22 Suit No. 193/14/09
(a) Sale Incentive:
The case of the plaintiff is that at the time of his appointment by the defendant company as Manager (Marketing) on 23.01.2003, it was agreed that the defendant company shall also pay 0.65% of the total sale/business as incentive apart from the salary. According to the plaintiff, though he was constrained to resign on 29.01.2007 and the defendant company accepted the resignation without any objection vide letter dated 01.02.2007 but it failed to pay a sum of Rs. 1,60,000/ being sale incentive for the year 200506 and a sum of Rs. 3,31,000/ being sale incentive for the year 200607 to him. Admittedly, the defendant company had issued an appointment letter dated 04.03.2003 to the plaintiff. The said letter would have contained the terms and conditions of plaintiff's employment with the defendant company. However, it has not been produced on record by the plaintiff. In order to support his claim for recovery of total amount of Rs. 4,91,000/towards sale incentive, he has placed on record letters dated 20.10.2006 (Ex. PW1/4) and 13.03.2003 (Ex. PW1/5) issued by the defendant company to show that the incentive of Rs. 2,51,553/ and Rs. 35,750/ were paid to him for the financial years 200506 and 200102 respectively by the defendant company. From a perusal of both the letters, it is seen Akash Sharma V. M/s PCI Limited Page No. 16/22 Suit No. 193/14/09 that neither the amount of total sales made during the relevant years nor the rate at which the incentive had been paid have been mentioned therein. In the absence of any document showing the agreed rate at which the incentive on the total sales was to be paid to the plaintiff, the amount of sale incentive for the year 200506 and 200607 as claimed by him can not be awarded. The claim of the plaintiff for recovery of Rs. 4,91,000/ towards sale incentive is therefore declined.
(b) Salary for the month of September, 2006:
The plaintiff has averred that 50% of his salary for the month of September, 2006 had been withheld by the defendant company without any justification and therefore, he has also sought recovery of a sum of Rs. 21,750/ on the said account. Salary slip of the plaintiff for the month of September, 2006 has been produced on record as Ex. PW1/13. It shows that out of the total number of working days, the plaintiff had attended the office on 15 days and had remained absent on 15 days. If the plaintiff had remained on leave without permission for a period of 15 days, it can not be said that the withholding of 50% salary by the defendant company was unjustified. Here, it is pertinent to mention that the plaintiff had also placed on record his pay Akash Sharma V. M/s PCI Limited Page No. 17/22 Suit No. 193/14/09 slip for the month of August, 2006 (Ex. PW1/13 colly) and in the said month, proportionate amount of his salary for a period of seven days during which he remained absent from the office had also been deducted. Deduction of said amount from the salary in the month of August, 2006 has not been challenged by the plaintiff. This leads to the inference that as per the terms and conditions of his employment, the plaintiff was not entitled to receive salary for the period of his absence from the office. Accordingly, the claim of the plaintiff for recovery of Rs. 21,750/ is also declined.
(c) Bonus of the year 200607:
As mentioned earlier, the appointment letter dated 04.03.2003 issued to the plaintiff has not seen the light of the day. Merely because the testimony of plaintiff (PW1) has remained unrebutted would not entitle the plaintiff to the grant of bonus. The claim of the plaintiff is of such a nature that it was required to be substantiated by documentary evidence. In the absence of proof of contractual terms between the parties, the claim for the bonus has remained unproved and is therefore declined.
(d) Traveling Allowance Expenses.
The case of the plaintiff is that the defendant company had sent Akash Sharma V. M/s PCI Limited Page No. 18/22 Suit No. 193/14/09 him to USA as a promotion of sales at Preditech Houston and despite the fact that his complete tour plan had been approved by the Managing Director of the defendant company, expenses of air ticket from Houston to New York and all the expenses of the hotels at New York from 15.12.2006 to 17.12.2006 were borne by him. In its written statement, the defendant company has averred that the plaintiff had been sent to USA for training which was to he held from 10.12.2006 to 13.12.2006 and since the training period was to end on 13.12.2006, the plaintiff requested for a vacation to tour the nearby places which was granted and all the expenses incurred by him for his training period were paid but the defendant company was not liable to pay for his vacation tour. In the replication, the plaintiff has only disputed the purpose of visit to USA but has not denied that the programme was scheduled from 10.12.2006 to 13.12.2006. Though the plaintiff alleged that the entire tour plan was approved by the defendant company but nothing has been produced on record by him to show that the defendant company had also agreed to bear the expenses of his visit to the nearby tourist places after the completion of the programme. In support of his claim for recovery of Rs. 50,000/ on account of travelling allowance, the plaintiff has placed on record four travelling bills Akash Sharma V. M/s PCI Limited Page No. 19/22 Suit No. 193/14/09 (Ex. PW1/9 colly) i.e. bill for the period 31.07.2006 to 01.08.2006 for a sum of Rs. 5688/, bill for the period 01.12.2006 to 07.12.2006 for a sum of Rs.20,000/, bill for the period 16.10.2006 to 18.10.2006 for a sum of Rs. 23,237/and bill for the period 11.07.2006 to 16.07.2006 for the sum of Rs. 13,536/. Besides the fact that none of the said bills pertain to the USA tour of the plaintiff, all of them are photocopies and in the absence of the original bills, the same can not be said to have been proved in accordance with law. Though the plaintiff has also placed on record a bill for the period 15.12.2006 to 17.12.2006 as Ex. PW1/7 but in the absence of proof of approval by the defendant company to bear the expenses for the visit of the plaintiff to nearby tourist places after the completion of programme in USA, the amount of the said bill can not be granted. Accordingly, the plaintiff is not found entitled to recover the sum of Rs. 50,000/ on account of travelling expenses.
(e) Medical Expenses.
The case of the plaintiff is that during the period of his employment with the defendant company, he and another employee namely Mr. Himanshu Tripathi had met with an Akash Sharma V. M/s PCI Limited Page No. 20/22 Suit No. 193/14/09 accident on 01.08.2006 and had remained admitted in Saryodya Hospital but in violation of terms agreed between the parties at the time of appointment, the defendant company paid only the expenses available under the mediclaim but failed to pay the expenses incurred on medication as well as special diet to the plaintiff despite the fact that the same had been paid to the co employee Mr. Himanshu Tripathi. A perusal of the record shows that to substantiate his claim, the plaintiff has placed on record only his medical certificate as Ex. PW1/10 which mentions that he had remained in the hospital from 02.08.2006 to 17.10.2006. Nothing has been brought on record by the plaintiff to show either the nature and extent of injuries sustained by him or the expenses actually incurred by him on medicines and special diet. Apart from the fact that the reimbursement bills of Mr. Himanshu Tripathi (Ex. PW1/12 colly) produced on record by the plaintiff are again the photocopies and have not been proved in accordance with law, it can not be the case that the injuries sustained by the plaintiff and Mr. Himanshu Tripathi were of the same nature. Needless to say, the nature and extent of the injury were important factors to be taken into consideration. Further, merely because one employee had been reimbursed a particular amount can not be a ground to claim the same amount by the Akash Sharma V. M/s PCI Limited Page No. 21/22 Suit No. 193/14/09 plaintiff. In the absence of the said documents and the proof of contractual terms of employment between the parties, the claim of the plaintiff for recovery of Rs. 50,000/ can not be sustained.
In view of the above head wise discussion of the claims of the plaintiff, the present issue is decided against the plaintiff and in favour of the defendant company.
Issue No. 4:
"4. Whether the plaintiff is entitled to interest, if so, at what rate and for what period?OPP"
Since the issue no. 2 & 3 have been decided against the plaintiff, the question of awarding interest does not arise. This issue is, therefore, also decided against the plaintiff.
Relief: In the light of findings on issue no. 2 to 4, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (Smita Garg)
on 25.08.2015 Addl. District Judge03 (West)
Tis Hazari Courts, Delhi.
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