Delhi District Court
Chand Ravi vs M/S Soby Travels Pvt. Ltd on 31 July, 2018
IN THE COURT OF SH. ATUL KRISHNA AGRAWAL, JUDGE SMALL CAUSE COURT
ADDL. SENIOR CIVIL JUDGEGUARDIAN JUDGE, NEW DELHI DISTRICT, PATIALA
HOUSE COURTS.
Civil Suit no: 57248/16
Chand Ravi, Advocate
S/o Sh,. Ram Swaroop
R/o K2, Mahipalpur Extn.
Mahipalpur, New Delhi. ... Plaintiff.
Versus
M/s Soby Travels Pvt. Ltd.
Through its Director
Shri Paras Gupta
Office at:
624, Ansal ChamberII,
Bhikajicama Place,
New Delhi110066. ... Defendants
Date of Institution : 20.10.2015
Date of pronouncing judgment : 31.07.2018
Decision : Partly decreed
SUIT FOR RECOVERY OF RS. 60,500/
J U D G M E N T :
1.Brief facts of the present case as discernible from plaint and the documents filed by the plaintiff are that the plaintiff is an advocate practicing from chamber no. 874, Patiala House Courts. It is the case of plaintiff that he had been retained by defendant as a retainer for providing legal assistance in respect of matter relating to the business of defendant company M/s Soby Travels Private limited, for the period 20132014, which CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
plaintiff had been doing with dedication and efficiency.
2. It is further the case of plaintiff that in the first week of January 2014, the then directors of defendant, Sh. Paras Gupta and Sh. H. L. Bhutan (defendant no.2 since deleted), approached him (plaintiff) and handed over certain documents to him along with emails dated 12.09.2013, 19.08.2013 and 22.08.2013 and asked him to send a legal notice to one of the clients of the defendant company namely Dharamjit Saini for calling upon the said client to pay an outstanding dues of Rs.95,082/ to the defendant. Accordingly, on the basis of documents handed over to the plaintiff, he issued a legal notice dated 08.01.2014 to said Dharamjit Saini which was dispatched by him to the client on 27.01.2014, as per instructions of defendant, after waiting for about 20 days.
3. It is further stated by plaintiff that thereafter, he raised a bill dated 10.10.2014 upon the defendant for the job/legal services rendered to defendant for the above period for an amount of Rs.60,500/. However, the defendant company failed to pay the said dues of plaintiff despite repeated requests and thereafter, the plaintiff issued a legal notice dated 10.11.2014 to the defendant calling upon to pay outstanding dues of Rs.60,500/. However defendant sent a false reply to the legal notice instead of making payment. Consequent upon failure of defendant to pay the outstanding dues despite receipt of the legal notice, plaintiff was compelled to institute this suit for recovery of the said amount.
4. After the institution of the present suit, the plaintiff got the name of one of the two directors of defendant company namely Sh. H. L. Buttan, deleted from the array of parties vide order dated 22.02.2016 and also amended the suit. Thereafter the defendant company was sued by plaintiff through its director Sh. Paras Gupta.
CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
5. After appearing in response to the summons issued by the court, defendant had filed written statement wherein it had been claimed that the present suit has been instituted on the basis of concocted story of the plaintiff, who had never been appointed as retainer for legal assistance by the defendant company. It was further submitted on behalf of the defendant company that the board of directors of the defendant company had never passed any resolution and took decision to enter into retainership arrangement for any legal service with the plaintiff as claimed by him. Besides no written or verbal agreement had been executed between the plaintiff and defendant company for the purpose of fixation of any fees for issuance of legal notice by the plaintiff, on behalf of the defendant.
6. It was admitted by the defendant that the company had to recover a sum of Rs.95,082/ from its client namely Dharamjit Saini. However, it was denied that the defendant company had approached the plaintiff for issuance of any legal notice. On the contrary, it is contented that the plaintiff being a close friend of Sh. H. L. Buttan (one of the directors) had himself proposed to send a legal notice to Dharamjit Saini without charging any professional fees. It was further claimed that whatever discussion took place between Sh H. L. Buttan and plaintiff, was a personal and friendly discussion and there was no record of any confirmation or agreement whereby defendant had authorized the plaintiff or its own director Mr. H. L. Bhuttan, to act on behalf of defendant company for sending any legal notice. It is claimed that the defendant came to know about the issuance of legal notice only when the defendant received a bill from plaintiff for recovery of charges of issuance of legal notice. It was also claimed in the WS of defendant company that apart from issuing and dispatching a legal notice to the client of defendant company Sh.Dharamjit Saini, the plaintiff had not provided any legal services and CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
therefore defendant was not liable to pay any amount to the plaintiff. All other contentions were denied and prayer was made for dismissal of the suit.
7. Plaintiff preferred not to file any replication to the written statement of defendant. After completion of pleadings, following issue were framed by the learned Predecessor of the court vide order dated 22.02.2016 :
i) Whether plaintiff is entitled to the decree of recovery of Rs.60500/ along with interest @18% per annum from the date of filing of the suit till realization of the amount? OPP.
ii) Relief.
8. After settlement of issues, opportunity was given to plaintiff as well as defendant to lead evidence in support of their respective version of the case. Plaintiff examined two witnesses in support of his case. A brief account of deposition made by the witnesses of plaintiff is reproduced below:
9. PW1/plaintiff Chand Ravi had reiterated the contents of the plaint in his deposition by way of affidavit Ex. P1. He had relied upon the following documents in support of his testimony:
(i) Copies of email dated 19.08.2013 and 22.08.2013 exchanged between the employee of defendant company and its client sh. Dharamjit Saini in respect of outstanding dues of Rs.95,082/ to be recovered from the said client, Mark A.
(ii) Legal notice dated 08.01.2014 issued by plaintiff on behalf of the defendant company Ex.PW1/B whereby Sh. Dharamjit Saini was called upon to pay outstanding dues of Rs.95,082/.
CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
(iii) Original bill dated 10.10.2014 Ex.PW1/C whereby plaintiff had demanded a sum of Rs.60,500/ from defendant company including a sum of Rs.55,000/ as retainership charges and Rs.5,500/ as professional fees for drafting and issuance of legal demand notice 08.01.2014.
(iv) Original legal demand notice dated 10.11.2014 Ex.PW1/D whereby plaintiff had called upon defendant to pay retainership and professional fess of Rs.60,500/
(v) Original returned envelopes Ex.PW1/E containing legal demand notice dated
10.11.2014 received back unserved.
(vi) original letter dated 28.01.2015 Ex.PW1/F issued by director of defendant whereby Sh. Paras Gupta had sought clarifications from plaintiff regarding name of the official of defendant company who authorized plaintiff to issue legal notice on its behalf.
(vii) Original invoice dated 23.06.2004 Ex.PW1/G whereby plaintiff had raised bill of Rs.1,04,262/ upon a sister concern of defendant company namely Satellite Energy private Limited in respect of two cases of the said company in which he had represented the said company as an advocate.
(viii) copy of bill dated 22.07.2004 Mark B whereby plaintiff had demanded payment of Rs.9,000/ from another sister concern of plaintiff namely Satellite Energy Systems Pvt. Ltd. for representing the said company in MCD Court.
(ix) Three Original bills dated 30.08.2005 Ex.PW1/I (colly.) raised by plaintiff on company's name Satellite Energy Systems Pvt. Ltd., Sobi Satellite Pvt. Ltd. And Satellite Energy Systems Pvt. Ltd. in respect of his fees as an Advocate of the CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
said companies in various cases.
(x) Original Form 16A dated 24.10.2007 Ex.PW1/J i.e. certificate of tax deducted at source from the payment received from Satellite Energy Systems Pvt. Ltd. by plaintiff for the period between 01.04.2006 to 31.03.2007.
(xi) Copy of Form 16A dated 08.03.1999, Form 16A dated 28.04.2000 and 28.06.2004 Mark X1, X2 and X3 respectively i.e. certificate in respect of tax deducted at source from the payment received from companies name Sobi Satellite Pvt. Ltd. and Satellite Energy Systems Pvt. Ltd. for the relevant period between 1999 to 2004.
10. He was duly crossexamined by defendant's counsel. PW2 Harbans Lal Buttan deposed that he had been working in the defendant company since the said company came into existence and had served as Director of the said company till 2015. He clarified that apart from him, Sh. Paras Gupta, Sh. Triloki Sinha and Dr. Aparna Gupta had also worked as Directors in the said company. He clarified that he alongwith Sh. Paras Gupta had served as Directors in another company name Sobi Satellite Pvt. Ltd. since last 30 years and Sh. S.S. Kushwaha had served as Chairman in the said company. He stated that plaintiff had also served as a Legal Consultant of Sobi Satellite Pvt. Ltd. He correctly identified his signatures on copies of Form 16A Mark X1, X2 and X3 and after correct identification of his signatures by PW2, the said Form 16A issued by Satellite Energy Systems Pvt. Ltd. and Soby Satellite Pvt. Ltd. were exhibited as Ex.PW2/1 and Ex.PW2/2 and Ex.PW2/3 respectively. He deposed that the defendant company was incorporated in the year 2010 by Ms. Aparna Gupta wife of Mr. Paras Gupta and Sh. Triloki Nath Sinha and he alongwith Mr. Paras Gupta had joined the said company as Directors in the year CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
2012. He deposed that it was orally settled between the plaintiff and Mr. Paras Gupta, the Directors of the defendant company that the plaintiff would be paid annual retainership amount of Rs.55,000/ alongwith the sum of Rs.5,000/ as professional fee for issuance of each legal notice on behalf of the defendant apart from other misc. charges. He further deposed that the plaintiff had been taken to Jalandhar for settlement in respect of recovery of certain amount by the defendant company and the plaintiff had also issued legal notice Ex.PW1/B to the said client of defendant vide email Mark A. He was also duly crossexamined.
11. After the plaintiff closed his evidence, an opportunity was given to the defendant to prove defence version of the case by leading evidence in support of the same. Sh. Rajesh Kumar, AR for the defendant company had examined himself as DW1 and had tendered his evidence by way of affidavit Ex. DW1/A wherein he had reiterated the facts narrated in the WS of the defendant company. He produced his appointment letter to the post of Account Manager dated 01.10.2012 Ex. A.
12. After the defendant closed its evidence, final arguments have been heard from plaintiff. None appeared for defendant to address arguments.
13. I have duly considered the arguments advanced before me and perused the record. My issue wise finding are as under:
Issue no. 1:
Whether plaintiff is entitled to the decree of recovery of Rs.60500/ along with interest @18% per annum from the date of filing of the suit till realization of the amount ?
CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
14. The onus to prove this issue was on plaintiff. The plaintiff has filed this suit for recovery of Rs. 60,500/ which he is claiming on account of legal services rendered by him to the defendant company. Though it is not specifically mentioned in the amended plaint, however, from the crossexamination of PW1, it transpires that annual retainer ship fee is alleged to be Rs. 55,000/ per annum. Besides the said amount, plaintiff is also seeking fees of Rs. 5500/ regarding legal notice issued by him on behalf of the defendant company to one Sh. Dharamjit Saini, from whom defendant had to recover an amount of Rs. 95,082/ with interest.
15. The claim of the plaintiff is that he was appointed as legal retainer by the defendant company and rendered his legal services for the period of 201314. In order to prove his case, plaintiff has exhibited various documents however, except legal notice Ex.
PW1/B issued to client of defendant and connected documents with respect to issuance of legal notice Mark A and Ex. PW1/F, there is absolutely no other document regarding any legal work having been done by plaintiff for defendant company.
16. Plaintiff has not even mentioned the date on which he was appointed as legal retainer by defendant and the date of termination of his legal retainership and it is vaguely stated that he rendered legal services during 201314 on an annual fees of Rs.55,000/. There is no document issued by defendant company in favour of the plaintiff appointing him as a legal retainer for any period. Infact, plaintiff has not even produced on record any legal work having been done by him for the defendant company during this period except one legal notice Ex. PW1/B having been issued by him on behalf of the defendant company for which even otherwise, plaintiff has claimed separate amount of Rs. 5500/.
17. The case of the plaintiff is further that he was appointed as legal retainer by the CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
directors Sh. Paras Gupta and Sh. H.L. Bhuttan, who authorized him to provide legal services to the defendant company. However, there is no document on record to even show that the said directors were authorized by the board of directors to engage plaintiff for providing legal services. As per plaintiff, he had rendered day to day consultancy services and issued legal notice on behalf of the defendant company but he admitted that he had no document to prove his work on retainership. He has also not filed copies of the alleged other legal notices issued by him on behalf of defendant company. This is all the more surprising considering the fact that plaintiff is not a layman but an advocate who understands the importance of documents.
18. At this stage, it is also worth stating that the defendant is a private limited company, whose books of accounts are required to be mandatorily audited, every year. As per law, a limited company has to maintain record of every penny earned and spent. Any liability of the defendant has to be duly reflected in the books of account of the defendant company. Under such circumstances, it is an unsustainable plea on the part of plaintiff that there was a verbal agreement between aforesaid directors and him, who verbally appointed him as legal retainer subject to retainership fee of Rs. 55,000/ per annum.
19. Plaintiff has also relied upon the testimony of PW2 Sh. H.L. Buttan who was one of the directors of defendant company during the alleged period of appointment of plaintiff as legal retainer, in order to prove his case. At the outset, it is pertinent to mention that the evidence of PW2 has to be read with caution since it has come on record that defendant company had terminated his directorship in the year 2015 which as per PW2 was an illegal termination, without informing him or sending any notice in this regard. So this witness has every reason to depose against the defendant company. Further it is also CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
on record that this witness was earlier cited as defendant no.2 by plaintiff but later on, plaintiff chose to proceed only against defendant's director Sh. Paras Gupta and got defendant no. 2 deleted from array of defendants.
20. As far as his crossexamination is concerned, PW2 H.L. Buttan stated in the first line of his crossexamination that he was aware about the facts of the case as told to him by Sh. Paras Gupta, probably in the month of May or June, 2016. So this witness is admittedly a hearsay witness and is himself not aware about the facts of the present case. There is also a contradiction in the testimony of this witness as he stated in his examinationinchief that it was orally settled between the plaintiff and Sh. Paras Gupta (who was director of defendant company) that retainership amount would be Rs. 55.000/ per annum and fee of Rs. 5,000/ per notice plus other miscellaneous charges. However, in his crossexamination, he stated that he (PW2) had orally appointed the plaintiff as legal retainer in defendant company. He further admitted that no board of resolution was passed in his favour authorizing him to appoint plaintiff as a legal retainer nor any meeting of board of directors was called for this purpose. This witness has also admitted that he knew the plaintiff for last 30 years which creates further doubt on his testimony as witness appears to be an interested witness.
21. Further, even this witness PW2 could not produce any record of any legal work having been done by plaintiff on behalf of the defendant company except deposing about sending legal notice Ex. PW1/B nor could he orally give reference of such work. Infact, DW1 has clearly alleged in his evidence by way of Affidavit Ex. DW1/A that plaintiff had approached PW2 H.L. Buttan (director of defendant company) who were close friends to each other and himself agreed to send legal notice to the client on behalf of defendant, without any professional fees. He clearly deposed that no record of confirmation or CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
agreement exists in the record of the defendant company authorizing plaintiff to provide legal services to defendant company. However there is no crossexamination of DW1 on these vital facts. Facts not traversed by way of crossexamination are deemed to be admitted as per law.
22. Infact most of the crossexamination of DW1 is centered around proving that plaintiff was earlier working for companies namely Soby Satellite Pvt. Ltd. and Satellite Energy System Pvt. Ltd. which were sister concerns of defendant. Even documents filed by the plaintiff are with respect to his legal work done on behalf of above two companies and not for the defendant except legal notice Ex. PW1/B. For the sake of arguments, even if plaintiff has worked for the above two companies, it does not lead to any conclusion that the plaintiff has similarly worked as legal retainer even on behalf of defendant company. It is to be kept in mind that a private limited company is a separate legal entity and even if the director of two companies are one and the same, still for all purposes of law, both the companies will be treated as separate legal entities. It is further a matter of great surprise that the plaintiff is having those documents available with him regarding work done in the above two companies but not of any work done by him in the defendant company. Plaintiff has himself admitted in his crossexamination that documents Ex. PW1/B, Mark B, Ex. PW1/I (colly.), Ex. PW1/J, Mark X1 (later on Ex. PW2/2), Mark X2 ( later on Ex. PW 2/3) and Mark X3 ( later on Ex. PW2/4) do not pertain to the defendant company.
23. So there is no proof regarding plaintiff having been appointed as legal retainer or having rendered legal services at retainership fees of Rs. 55,000/ per annum for the defendant company. As regards issuance of legal notice Ex. PW1/B is concerned, DW1 the AR of defendant company denied that the said legal notice was issued on the instructions of the defendant however, it is admitted fact that the said legal notice was CS No. 57248/16 iji Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
indeed issued by the plaintiff and on the instructions of then director Sh. H.L. Buttan. Hence, plaintiff is entitled to claim legal fees amount for sending the legal notice Ex PW1/B. This issue is partly decided in favour of plaintiff.
Relief:
24. In view of my above discussions and findings, the suit of the plaintiff is partly decreed for a sum of Rs. 5,500/ toward legal fees for sending notice Ex. PW1/B. As regards claim of Rs. 55,000/ towards retainership fees, the suit is dismissed on this aspect. Plaintiff is also entitled to interest at the rate of 9% per annum on the aforesaid legal fees w.e.f from the date of filing the suit till its realisation. Parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 31.07.2018. (Atul Krishna Agrawal ASCJJSCCGuardian Judge, Patiala House Courts, New Delhi.
This judgment contains 12 pages and each page is signed by me.
CS No. 57248/16 iji
Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
CS No. 57248/16
Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.
31.07.2018
Present: None for plaintiff.
Defendant is exparte.
Vide separate judgment of the even date, the suit of the plaintiff is partly decreed for a sum of Rs. 5,500/ toward legal fees for sending notice Ex. PW1/B. As regards claim of Rs. 55,000/ towards retainership fees, the suit is dismissed on this aspect. Plaintiff is also entitled to interest at the rate of 9% per annum on the aforesaid legal fees w.e.f from the date of filing the suit till its realisation. Parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room.
(Atul Krishna Agrawal
ASCJJSCCGuardian Judge
31.07.2018
CS No. 57248/16 iji
Chand Ravi vs. M/s Soby Travels Pvt. Ltd. & Anr.