Delhi District Court
Judge Code Dl0804 vs Era Infra Engineering Ltd on 17 March, 2018
IN THE COURT OF MS.NUPUR GUPTA, CIVIL JUDGEI, NEW DELHI
Judge Code DL0804
C.S. No.58096/16
Unique Case ID No.
P.C. Arora
R/o C2/2381, Vasant Kunj, New Delhi 70 ... Plaintiff
Versus
Era Infra Engineering Ltd.
Through its Chairman & Managing Director
Having its registered office at :1107, Indraprakash Building
21, Barakhamba Road, New Delhi 110001
And Head Office at : C56/41, Sector 62, Noida 201301
Uttar Pradesh ... Defendant
Date of Institution : 05.02.2016
Date of Reserving Judgment : 22.02.2018
Date of Judgment : 17.03.2018
SUIT FOR RECOVERY OF RS. 1,68,540/ (RUPEES ONE LAC SIXTY
EIGHT THOUSAND FIVE HUNDRED AND FORTY ONLY) ALONGWITH
PRE SUIT, PENDENTELITE AND FUTURE INTEREST @ 18% PER
ANNUM AND DAMAGES
JUDGMENT
1. By filing the present suit, the plaintiff has sought a recovery of Rs. 1,68,540/ towards the retainership fees for the consultancy services rendered during the months of April and May 2013 alongwith interest accrued @ 18% per annum from the date of retainership fees became due and payable upto the date of actual payment of the principal amount. Further, the plaintiff has sought a recovery of Rs.
CS No.58096/16 1/11One lac as damages for the mental agony, torture, distress and hardships suffered by him as well as costs of the present suit from the defendant.
PLAINTIFF'S VERSION AS PER PLAINT
2. Succinctly, the plaintiff has asserted that he was retired from the CPWD, Government of India as a Chief Engineer in August 2005. Thereafter in January 2010, the plaintiff joined the defendant company as Senior Vice President and subsequently, after relieving the said post on 30.11.2012, he was appointed as a consultant on contractual basis for a period of 12 months in the defendant company for a consolidated retainership fee of Rs. 75,000/ per month vide appointment letter bearing no. EIEL/HR/CORP/13 dated 01.04.2013. It is submitted that in terms of the said appointment letter, the plaintiff was required to attend the corporate office of the defendant company at least once a week to render his advisory services on various matters concerning arbitration cases, including but not restricted to, drafting of notices for appointment of arbitrators, framing of claims, drafting statement of facts, discussions with officials of the defendant company etc.
3. It is further submitted that the plaintiff had submitted an invoice dated 11.05.2013 to the defendant company towards the consultancy fees of Rs. 75000/ for the period 01.04.2013 to 30.04.2013. However, the said invoice was remained unpaid and the plaintiff in good faith, had continued to render his services during the month of May 2013 believing that the said invoice shall be cleared by the defendant company. It is further submitted that vide email dated 22.05.2013, the plaintiff requested Mr. Raj Sharma (Group HR Head) of the defendant to release the said amount and in response to the said email, Mr. Raj Sharma had replied the plaintiff CS No.58096/16 2/11 vide email dated 25.05.2013 that the certain formalities had not yet been completed. Therefore, the plaintiff was constrained to discontinue the consultancy services of the defendant company with effect from June 2013.
4. It is further submitted that by emails dated 03.09.2013 and 24.10.2013, the plaintiff informed the management of the defendant company that despite repeated requests, the retainership fees towards the consultancy services rendered during the months of April and May 2013 had not been paid by the defendant company. Even in the email dated 31.08.2015, the plaintiff had also mentioned that on two occasions in May 2015 and on 22.08.2015, Mr.T.D. Arora, whole time director of the defendant company had scheduled meetings with the plaintiff which were cancelled at the last moment. Thereafter, the plaintiff had sent a legal notice dated 10.09.2015 to the defendant company to make the payment of Rs. 1,68,540/. Hence, the present suit has been filed against the defendant for recovery of Rs. 1,68,540/ alongwith presuit , pendentelite and future interest @ 18% per annum and damages as well as cost of the suit.
DEFENDANT VERSION AS PER WRITTEN STATEMENT
5. On notice, defendant has filed written statement contesting the present suit. It is stated in the written statement that the plaintiff was appointed as a consultant vide appointment letter dated 01.04.2013 by the defendant company for a fixed period of 12 months on contractual basis for a consolidated retainership fee of Rs. 75000/ per month. It is stated in the written statement that in the appointment letter, the plaintiff required to attend the corporate office at 153 Okhla Industrial Estate, New Delhi at least once a week, however, the plaintiff never visited the said CS No.58096/16 3/11 office of the defendant during his employment. It is further stated in the written statement that the plaintiff did not complete the assignment assigned to him and when it was telephonically enquired by the defendant about his not coming to the defendant, he was given excuses on one pretext or to other. It is stated in the written statement that the defendant was constraint to cancel meetings on all occasions because the plaintiff had failed to complete the assignment awarded to him and due to which the defendant suffered a lot.
REPLICATION
6. On 18.07.2016, plaintiff had filed a replication to the written statement of defendant reiterating the averments in the plaint. The contents of the written statement were denied and the contents of the plaint were reaffirmed and the claim was maintained.
IDENTIFICATION OF ISSUES
7. Admission/ denial of documents was not conducted. The parties did not opt for any means provided under Section 89 of the Code of Civil Procedure, 1908. From the pleadings of the parties, following issues were framed vide Order dated 07.02.2017 :
1. Whether the plaintiff is entitled to a decree for a sum of Rs.1,68,540/, as prayed for? OPP.
2. Whether the plaintiff is entitled to interest ? If yes, at what rate? OPP.
3. Whether the plaintiff is entitled to decree for a sum of Rs.one lac as damages? OPP.
CS No.58096/16 4/114. Relief.
EVIDENCE
8. PW1/plaintiff Puran Chand Arora stepped into the witness box and deposed vide his affidavit Ex.PW1/A. He relied upon the following documents: S.No. Exhibit/Mark Nature of Document 1. Ex.PW1/1
2. Ex.PW1/2 Email dated 03.12.2012 sent by the plaintiff to defendant company.
3. Ex.PW1/3 Email dated 25.02.2013 sent by the plaintiff to defendant company.
4. Ex.PW1/4 Email dated 26.02.2013 sent by the plaintiff to defendant company.
5. Ex.PW1/5 Email dated 26.02.2013 sent by the plaintiff to defendant company.
6. Ex.PW1/6 Email dated 18.03.2013 sent by the plaintiff to defendant company.
7. Ex.PW1/7 Email dated 28.03.2013 sent by the plaintiff to defendant company.
8. Ex.PW1/8 Email dated 06.4.2013 sent by the plaintiff to defendant company.
9. Ex.PW1/9 Email dated 10.04.2013 sent by the plaintiff to defendant company.
10. Ex.PW1/10 Email dated 11.04.2013 sent by the plaintiff to defendant company.
11. Ex.PW1/11 Email dated 17.04.2013 sent by the plaintiff to defendant company.
12. Ex.PW1/12 Email dated 04.05.2013 sent by the plaintiff to defendant company.
CS No.58096/16 5/1113. Ex.PW1/13 Email dated 04.05.2013 sent by the plaintiff to & Ex.PW1/14 defendant company.
14. Ex.PW1/15 Email dated 09.5.2013 sent by the plaintiff to defendant company.
15. Ex.PW1/16 Email dated 11.05.2013 received from Khushi Ram Gairola.
16. Ex.PW1/17 Invoice dated 11.05.2013 towards the consultancy fees of Rs. 75000/ for the period 01.04.2013 to 30.04.2013.
17. Ex.PW1/18 & Emails dated 22.05.2013 received from Raj Ex.PW1/19 Sharma.
18. Ex.PW1/20 & Emails dated 23.05.2013 received from Raj Ex.PW1/21 Sharma.
19. Ex.PW1/22 Emails dated 22.05.2013 & 25.05.2013 sent by the & Ex.PW1/23 plaintiff.
20. Ex.PW1/24 & Emails dated 15.05.2013 & 16.05.2013 sent by the Ex.PW1/25 plaintiff to Mr.Aniruddha Kumar and Mr. TD Arora.
21. Ex.PW1/26 Statement of claim in the matter of ERA VS NTPC.
22. Ex.PW1/27 Email dated 27.05.2013 sent by the plaintiff.
23. Ex.PW1/28 Copy of notice of arbitration to be served on Indian Oil Corporation Ltd.
24. Ex.PW1/29 Invoice dated 01.06.2013 towards the consultancy fees of Rs. 75000/ for the period 01.5.2013 to 31.05.2013.
25. Ex.PW1/30 & Copies of letter dated 24.7.2013 sent by the plaintiff Ex.PW1/31 alongwith service tax registration certificate.
26. Ex.PW1/32 & Emails dated 03.09.2013 & 24.10.2013 sent by the Ex.PW1/33 plaintiff.
27. Ex.PW1/34 Email dated 25.06.2015 sent by the plaintiff.
28. Ex.PW1/35 Email dated 31.08.2015 sent by the plaintiff.
29. Ex.PW1/36 Legal notice dated 10.09.2015 sent to the CS No.58096/16 6/11 defendant company.
30. Ex.PW1/37 Original postal receipts and proof of & Ex.PW1/38 acknowledgment of receipt of the legal notice.
9. The witness was cross examined at length by counsel for the defendant. Thereafter, plaintiff evidence was closed on 29.07.2017. This is entire evidence of the plaintiff adduced in the present case.
10. DW1 Ms. Harpreet Kaur stepped into the witness box and deposed vide her affidavit Ex.DW1/A.
11. This witness was cross examined at length by counsel for the plaintiff. Thereafter, defence evidence was closed on 09.01.2018. This is entire evidence of both the parties adduced in the present case.
ARGUMENTS
12. Ld.counsel for the plaintiff has argued that the plaintiff had joined the defendant company vide appointment letter dated 01.04.2013 on a contractual basis for a consolidated retainership fee of Rs. 75,000/ and the service tax over and above the said amount. Ld.counsel for the plaintiff further submitted that plaintiff had rendered his services to the defendant company from 01.04.2013 to 30.05.2013, however, the defendant had failed to pay the retainership fee as agreed between the parties. Therefore, the present suit for recovery has been filed against the defendant.
13. Per contra, ld. counsel for the defendant has argued that it was written in the appointment letter that the plaintiff is required to attend the office of the defendant company atleast once a week, however, the plaintiff never visited the said office during his employment. Also, it was further argued that due to act of the CS No.58096/16 7/11 plaintiff, defendant had to cancel various meetings and assignments due to which defendant had suffered huge losses.
14. I have heard the submissions of counsel for the defendant and the counsel for the plaintiff. I have also gone through the entire case record meticulously with the kind assistance of both the counsels of the parties. After weighing the rival contentions and after appreciating the evidence adduced, my issuewise findings are as below : ISSUES NO.1 & 2 Whether the plaintiff is entitled to a decree for a sum of Rs.1,68,540/, as prayed for? OPP.
Whether the plaintiff is entitled to interest ? If yes, at what rate? OPP.
15. The onus to prove theses issues is upon the plaintiff. Since both these issues require same appreciation of evidence, in order to avoid repetition, they both are being dealt together. It is the case of the plaintiff that he joined the defendant company for a consolidated retainership fee of Rs. 75,000/ per month plus service tax vide appointment letter dated 01.04.2013 as per which plaintiff was supposed to attend the office of defendant company at least once a week. As per the plaintiff, despite working for two months i.e. April and May, 2013, defendant has not paid the retainership fee of the plaintiff. The defendant has neither denied the appointment of the plaintiff nor is he disputing the amount of retainership fees. The defence raised in the written statement by the defendant is limited to the extent that as per the defendant, plaintiff had never attended the office and have failed to comply with the terms of the contract and therefore, he is not entitled to any amount as claimed by CS No.58096/16 8/11 him.
16. Plaintiff has placed on record the copy of the invoice dated 11.05.2013 raised by him upon the defendant for the period 01.04.2013 to 30.04.2013 which is exhibited as Ex.PW1/17 which is duly proved by the plaintiff and has not been disputed by the defendant. Moreover, plaintiff has placed on record the copy of email dated 22.05.2013 vide which the issue of signing of attendance register by the defendant was raised for the first time and on 23.05.2013, plaintiff had replied to the said email which is Ex.PW1/19 by which he had informed the defendant about the dates of his visits and assured him regarding signing of attendance register. Thereafter plaintiff has also placed on record the copy of email sent by the defendant to the plaintiff stating that his visit to the office shall be recorded and it would take some more time to prepare the cheque for his payment. Perusal of the said email and various other emails placed on record by the plaintiff shows that defendant has never raised the issue that plaintiff has not attended the office and therefore, he is not entitled for payment rather the issue was regarding signing of attendance register which also seems to be resolved when defendant in his email sought time for clearing the payment of the plaintiff. In none of the emails placed on record by the plaintiff, defendant has stated that plaintiff is not entitled for the retainership fee claimed by him.
17. Also, if for the sake of arguments it is assumed that, plaintiff has not attended the office at any point of time, then onus was upon the defendant to prove that fact which defendant has miserably failed to discharge. Defendant has failed to place on record even a single document or communication to show that plaintiff has never attended the office. Perusal of the record shows that defendant is a company and is expected to maintain the written communication with the employees in case of CS No.58096/16 9/11 any breach of contract. Moreover, it is hard to believe that in case plaintiff has failed to attend office for two months, defendant company has not taken any action against him either by giving any notice or by terminating the contract. Defendant has miserably failed to place on record any such document. Moreover, AR of the defendant who was examined as DW1 as a sole witness of the defendant pleaded ignorance to almost all the questions put to her in her cross examination dated 09.01.2018. AR of the defendant has infact admitted that defendant has not filed any document establishing the allegations made in the written statement or the evidence by way of affidavit against the plaintiff.
18. In these facts and circumstances, plaintiff has been able to prove that he is entitled for the retainership fee @ 75,000/ per month plus service tax as per the terms of appointment letter for the month of April and May, 2013 alongwith interest @ 6% per annum from the date of filing of the suit till its realization.
19. The issues are accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.3 Whether the plaintiff is entitled to decree for a sum of Rs.one lac as damages? OPP.
20. The onus to prove this issue is upon the plaintiff. As far as damages of Rs. 1 lakh are concerned, no facts were averred in the plaint, which could form basis for raising such a claim. The pleadings of the parties are to be specific and they must provide essential details in respect of the damages sought for. Damages on the general averment of harassment or mental torture per say would be inconsequential. In addition thereto, the plaintiff has led no evidence in support of his claim of CS No.58096/16 10/11 damages. In his entire statement, the plaintiff himself bitterly failed to depose in his examinationinchief that he was entitled to recover Rs. one lac on account of damages for suffering any mental or physical torture for any period. Therefore in the absence of any facts deposed by PW1 regarding any amount, that was spent by the plaintiff for his suffering physical or mental torture, and that such amount was due and recoverable from the defendant, I find that the plaintiff has failed to prove his entitlement to recover any amount on account of damages for suffering his mental or physical torture or any humiliation after the alleged termination of his service.
RELIEF
21. Consequent to the findings on above issues, this Court is of the considered opinion that the suit of the plaintiff is liable to be decreed to the extent of Rs.1,68,540/ (Rupees One Lac Sixty Eight Thousand Five Hundred and Forty only) along with pendente lite and future interest at the rate 6% per annum from the date of institution till its actual realization against the defendant. No order as to cost in light of the circumstances of the matter.
22. Decree sheet be drawn accordingly. File be consigned to the record room after due indexing, pagination and completion.
Announced in the open Court (Nupur Gupta)
on 17.03.2018 Civil JudgeI, New Delhi District
New Delhi
The judgment contains pages 1 to 11
all checked and signed by me.
CS No.58096/16 11/11