Delhi District Court
Optimus Information India Private ... vs Swati Gakhar on 24 December, 2022
IN THE COURT OF MS. CHITRANSHI ARORA
CIVIL JUDGE-02, SOUTH-EAST DISTRICT
SAKET COURTS, NEW DELHI.
CS SCJ 216/2016 52317/16
Optimus Information India Private Limited Vs Swati Gakhar
and Another
In the matter of:-
Optimus Information India Private Limited
Havinig its Registered Office At:
72, Taimur Nagar, New Friends Colony,
New Delhi-110065
And its Branch Office also at:
7th Floor, A-42/6, Pinnacle Tower,
Sector-62, Noida-201301,
Uttar Pradesh ...............Plaintiff
Vs.
1. Ms. Swati Gakhar
D/o Mr. Suraj Prakash
H. No. 92-93, Adarsh Nagar,
Bhiwani,
Haryana-127021
2. Mr. Suraj Parkash
H. No. 92-93, Adarsh Nagar,
Bhiwani,
Haryana-127021 ...........Defendants
Digitally signed
by CHITRANSHI
CHITRANSHI ARORA
ARORA Date: 2022.12.24
16:19:48 +0530
CS SCJ 216/2016 52317/16
Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 1 of 26
SUIT FOR RECOVERY & MANDATORY INJUNCTION
Date of institution of the suit : 04.07.2016
Judgment reserved on : 06.12.2022
Date of judgment : 24.12.2022
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs.2,10,000/- (Rupees Two Lacs Ten Thousand Only) with pendente lite and future interest and for mandatory injunction filed by the plaintiff against the defendant.
BRIEF FACTS AS PER THE PLAINT:-
2. The Plaintiff is a private limited outsourcing company engaged in the business of providing Information Technology services to global clients and has an immense experience and name and fame in the field of its work. The plaintiff recruits fresh graduates from universities and colleges and trains them for a sufficient period of time to develop into responsible IT professionals. The screening test is called AMCAT.
3. Defendant No. 1 was an Engineering Under-
Graduate at the relevant time and expecting to be awarded the B.Tech. degree in August, 2015, in response to the AMCAT Drive in June, 2015, expressed her interest to join Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:19:55 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 2 of 26 the plaintiff as Software Engineer Trainee. The defendant evinced keen interest in becoming a member of the plaintiff's team.
4. Plaintiff, after conducting the aptitude test, machine test, technical round and final round tests, issued the joining letter dated 16.06.2015 to the defendant no.1. By the letter dated 16.6.2015, the defendant no.1 was taken on probation as Software Engineer Trainee. The duration of the probation was six (6) months. The defendant no.1 was entitled to a stipend/salary of Rs. 3,50,000/- including Rs. 50,000 ex-gratia per annum during the period of probation and for 6 months thereafter.
5. Defendant no. 1 unconditionally and without any demur, accepted the terms of the letter of appointment and, agreed, assured and undertook to serve the plaintiff for a minimum term of 24 months and even thereafter. The defendant no.1 also executed an Indemnity Bond undertaking to pay an amount of Rs. 2,00,000/- as partial reimbursement of the cost of training to be provided by the plaintiff to the defendant no.1. The indemnity bond further stipulated complete confidentiality on the part of defendant no.1. Defendant no.1 undertook not to disclose the plaintiff company's technical, trade or business data, customer names/business details or any other information that might come to get knowledge or possession which according to the plaintiff company are valuable property of the plaintiff. The defendant no.1 also undertook not to take up Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:20:07 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 3 of 26 employment or enter into any type of business/ commercial association with any of the plaintiff company's client or associates for a period of two years from the date of cessation of employment. The defendant no.2 stood as surety for the due performance of the terms of employment by the defendant no.1 and executed a surety bond.
6. Plaintiff provides rigorous specialized training, the cost of which is in excess of Rs. 5,00,000 approximately but the plaintiff only covers itself for a nominal amount of Rs. 2,00,000 from the trainees. Immediately after the appointment of the defendant no.1, as the Software Engineer Trainee, the plaintiff commenced imparting training to the defendant no.1. Defendant No. 1 was provided quality training and assistance by the plaintiff so as to enable the defendant no.1 to effectively learn and understand the work in the profile assigned to her. Plaintiff invested considerable time and money and incurred huge expenditure in imparting the training to defendant no.1 based on her undertaking to use her best efforts in performing her duties and responsibilities and abide by the rules and regulations of the Plaintiff. As the performance of the defendant no.1 was satisfactory, the plaintiff had assigned the defendant no.1 to the team handling some of the most prestigious time bound overseas and domestic assignments so that she also got trained in maintaining the professional discipline and performing the work in the manner expected.
Digitally signed by
CHITRANSHI CHITRANSHI
ARORA
ARORA Date: 2022.12.24
16:20:13 +0530
CS SCJ 216/2016 52317/16
Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 4 of 26
7. After undergoing the high quality training during the probation period and shortly before her confirmation when the plaintiff would have been expecting returns from the training imparted to the defendant no.1, the defendant no.1, in the most unprofessional and unethical manner, stopped attending the plaintiff's office from 02.11.2015 and did not even deem it necessary to inform the plaintiff in regard to the same. Further, despite the best efforts of the plaintiff, the defendant no.1 could not be reached or contacted by any means. The plaintiff sent the letter dated 13.11.2015 to the defendant no.1 enquiring of her unauthorized absence from duty after which the defendant no.1 communicated that she had left the services of the plaintiff company.
8. As a result of the unauthorized absence from work on the part of the defendant no.1, the entire work which was assigned to her came to a grinding halt and got unduly delayed due to which the plaintiff had to face loss of business, reputation, financial loss and operational delays. It took four months to fill up the vaccum created by the defendant no.1.
9. The indemnity and the surety bond executed by the defendants clearly mentions that in the event the defendant no.1 left the service of the plaintiff in any manner or failed to report in the services of the plaintiff for more than 7 business days, without prior approval of the plaintiff, the defendants shall be jointly and severally liable to Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:20:20 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 5 of 26 compensate the plaintiff for an amount of 2 lacs along with interest at the rate of 12 percent from the date of resignation till the date of realization of the amount.
10. On account of failure to discharge her liability as per the bond, the plaintiff issued the letter dated 30.11.2015 to the defendant no.1 asking her to pay the liquidated amount of Rs. 2,00,000/- (Rupees Two Lacs only) on her behalf in terms of the Indemnity Bond. However, the said letter was returned to the plaintiff without being received or acknowledged by the defendant no.1.
11. The defendant no.1 did not even submit a proper resignation. Instead, by way of her letter dated 26.11.2015, she stated that the working conditions of the plaintiff were not acceptable to her and that she had not violated the terms of the bond or employment. The contents of her letter are absolutely fake and baseless and an afterthought.
12. Thereafter, the plaintiff issued a legal notice dated 04.01.2016 calling upon the defendants to pay the bond amount of Rs. 2 lacs within 15 days along with interest at the rate of 12 percent per annum from 2.11.2015 till the realisation of the said amount. The defendants replied to the said notice raising false and fabricated contentions.
13. Thus, the plaintiff has filed the instant suit for recovery of Rs.2 lacs along with interest at the rate of 12 percent till the date of filing the suit amounting to Rs.10,000/- along with pendente lite and future interest.
Digitally signed by
CHITRANSHI CHITRANSHI ARORA
ARORA Date: 2022.12.24
CS SCJ 216/2016 52317/16 16:20:31 +0530
Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 6 of 26
The plaintiff has also sought the relief of injunction praying that defendant no.1 be restrained from breaching the confidentiality clause of the terms of employment and be directed to maintain secrecy in respect of any technical, trade or business data, customer's names/business details or any other information that would have come to her knowledge or possession, which according to the company are necessarily confidential and form valuable property of the company and against the disclosure of any confidential data of the plaintiff in any manner whatsoever and from taking up employment or entering into any type of business/commercial association with any of the Plaintiff's clients or their associates for a period of two years from date of cessation of employment.
WRITTEN STATEMENT FILED BY THE DEFENDANTS :-
14. In the written statement, the defendants raised the following preliminary objections: -
1. the plaintiff has concealed material facts;
2. this court does not have the territorial jurisdiction to entertain the suit;
3. the plaintiff has no cause of action against the defendants;
4. the suit is not maintainable in the present Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 16:20:37 +0530 CS SCJ 216/2016 52317/16 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 7 of 26 form and has not been properly valued.
15. In para-wise reply to the plaint on merits, the defendants have denied the averments of the plaint. The defendants have asserted that the plaintiff had a requirement of employees and the defendant no.1 approached the plaintiff at its Noida office for employment and joined the plaintiff after satisfying the plaintiff about her qualification and ability to work for which no training of any nature was provided by the plaintiff to the defendant no.1. The defendant no.1 has admitted that she was appointed on probation by way of letter date 16.06.2015, by the plaintiff as Software Engineer Trainee for a period of 6 months at a salary of Rs.3.50 lacs including Rs.50,000/- Ex-gratia per annum during the period of probation and 6 months therafter.
16. The defendant no. 1 has asserted that the plaintiff got the letter of appointment signed by the defendant no.1 as a routine process without disclosing its contents and without supplying its copy to the defendants. The plaintiff pressurized the defendant no.1 to work in the office beyond working hours and to come on Saturday. Due to this, the defendant no.1's health got effected and even on the request for leave due to ill health, the same was denied by the plaintiff. The indemnity bond was also taken by the defendant as a routine process of employment. The plaintiff has not given different types of training to the defendant no.1. No organizational policies and practices or Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:20:45 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 8 of 26 any project training session was imparted to the defendant by the plaintiff except those which come in routine during the working of the defendant no.2 but no specialized training was given to her.
17. The defendant no. 1 has admitted that the indemnity bond and surety bond provided for the liquidated damages of Rs 2 lacs. The defendant no.1 has denied that she abstained from work since 2.11.2015, without intimation. She asserted that she had informed the plaintiff through her incharge but the same was not acceptable to the plaintiff, so the defendant no.1 handed over all the assignment to her incharge and stopped coming to office due to her ill health and intimated the same in writing when the same was asked by the plaintiff through written communication. The letter issued by the plaintiff was dated 17.11.2015 and not 13.11.2015, the same was replied by the defendant no.1.
ISSUES FRAMED: -
18. After completion of pleadings, the following issues were framed by the Ld. Predecessor of this Court vide order dated 17.08.2018: -
1. Whether the plaintiff is entitled to the decree of recovery of Rs.2.10 lakhs against the defendants jointly and severally? OPP
2. Whether the plaintiff is entitled to pendente lite and future interest, if so, for what period and at what Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:20:50 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 9 of 26 rate? OPP
3. Whether the plaintiff is entitled to mandatory injunction against defendant no. 1 as prayed for?
OPP
4. Whether the defendant no. 1 has not complied with the terms of offer of appointment dated 16.06.2015? OPP
5. Whether the present suit has not been filed by a duly authorized person? OPD
6. Whether this court does not have territorial jurisdiction to entertain the present suit? OPD
7. Whether the indemnity bond dated 20.07.2015 executed by defendant no. 1 is barred U/s 27 of the Indian Contract Act? OPD
8. Whether the plaintiff has played fraud upon the defendants while taking indemnity and surety bond? OPD
9. Relief PLAINTIFF'S EVIDENCE: -
19. In plaintiff evidence, Sh. Vipul Kurukshetra, the director of the plaintiff company, deposed as PW-1, vide affidavit of evidence, exhibited as Ex.PW1/A, bearing his Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:20:55 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 10 of 26 signature at Point A and Point B, wherein he reiterated the contents of the plaint.
20. For the sake of brevity and to avoid repetition, the contents are not being reproduced again. The plaintiff relied upon the following documents :-
S. Documents Exhibits
No.
1. The certified copy of the Ex. PW1/1
board resolution dated
25.04.2016
2. Original Joining letter Ex.PW1/2
dated 16.06.2015 issued by
the plaintiff to the
defendant no.1
3. The indemnity bond dated Ex. PW1/3
20.07.2015 executed by
defendant no.1 and the
defendant no.2 in favour of
plaintiff
4. True office copy of letter Ex.PW1/4
dated 13.11.2015 by the
plaintiff to the defendant
5. Office copy of letter dated Ex.PW1/5 30.11.2015 of the defendant no.1 to the plaintiff
6. Office copy of letter dated Ex.PW1/6 30.11.2015 by the plaintiff to the defendant no.1
7. Office copy of the legal Ex. PW1/7 Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:21:04 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 11 of 26 notice dated 04.01.2016 issued by the plaintiff to the defendant
8. Office copy of reply dated Ex.PW1/8 19.01.2016 of the defendant's advocate
21. PW-1 was partly cross examined by Ld. Counsel for defendant. However, the defendants stopped appearing and the right to further cross examine PW-1 was closed vide Order dated 07.06.2022.
DEFENDANT'S EVIDENCE :-
22. The matter was then listed for defendant's evidence.
However, despite grant of opportunity, the defendants neither appeared nor filed their evidence. The right to lead defence evidence was closed vide Order dated 10.10.2022.
FINAL ARGUMENTS :-
23. Arguments were advanced by the Ld. Counsel for plaintiff. I have heard the submissions advanced by the Ld. counsel for the plaintiff. I have also perused the entire case record meticulously.
ISSUE WISE FINDINGS: -
Issue no.4-Whether the defendant no. 1 has not complied with the terms of offer of appointment dated 16.06.2015? OPP Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:21:09 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 12 of 26 And Issue no.1- Whether the plaintiff is entitled to the decree of recovery of Rs.2.10 lakhs against the defendants jointly and severally? OPP
24. Issue no.1 and issue no.4 are being dealt together since they are connected. The burden to prove both the issues lies upon the plaintiff. The plaintiff has asserted that the defendant no. 1 was appointed as Software Engineer Trainee, by the plaintiff, on probation for six (6) months, vide letter dated 16.06.2015. The defendant no.1 was entitled to a stipend/salary of Rs. 3,50,000/- including Rs.
50,000 ex-gratia per annum during the period of probation and for 6 months thereafter. The defendant no. 1 has admitted the same. The joining letter dated 16.06.2015, is exhibited as Ex. PW1/2. The plaintiff has asserted that the defendant has signed and agreed to the terms of the indemnity bond exhibited as Ex.PW1/3. Though the defendant no.1 has admitted to signing the same, she has asserted that the same was signed in a routine manner.
25. Thus, the appointment of the defendant no.1 with the plaintiff and the signing of the indemnity bond and surety bond is admitted by the defendants. The main dispute between the parties is that the plaintiff has asserted that the defendant no. 1 stopped reporting to work since 2.11.2015, without giving any intimation to the plaintiff and has thus breached the terms of its employment. On the other hand, the defendant no.1 has asserted that due to Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:21:15 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 13 of 26 extra working hours and work on holidays, the health of the defendant no. 1 had deteriorated, due to which she stopped going to office. She had intimated the same to her incharge, however, the same was not acceptable to the plaintiff. She has admitted that she informed the same by way of a written communication only after it was asked by the plaintiff.
26. This very fact shows that the defendant has admitted that she stopped going to office without informing the plaintiff, since a bare assertion that she had intimated the same to her incharge, without leading any evidence or examining any witness to prove the same, does not give any weight to her bald submissions. Infact, the admission of defendant no.1 that she gave a written communication to the plaintiff regarding the same only after it was asked by the plaintiff, strengthens the averment of the plaintiff that the defendant no. 1 had stopped coming to the office without any intimation.
27. Now, the next question is, if this act of the defendant no.1 amounted to a breach of the terms of her appointment dated 16.06.2015?
28. To decide this, it is imperative to peruse some of the clauses of the Indemnity Bond dated 20.07.2015 exhibited as Ex. PW1/3 and the terms of the appointment offer exhibited as Ex.PW1/2.
Digitally signed Clause 1 of Indemnity Bond- CHITRANSHI by CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:21:21 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 14 of 26
"1. In compliance of the aforesaid condition in Offer of Appointment subject to which the Employer Company has agreed to give appointment to the Employee, the Employee hereby undertakes to undergo the probation at Optimus Information India Pvt. Ltd., without interruption whatsoever and serve Optimus Information India Pvt. Ltd. on its various projects at any location, in India or abroad, for a minimum period of twenty four (24) months from the date of joining. This INDEMNITY BOND WITH SURETY will be applicable after Employee completes 5 (Five) working days from the date of joining the Employer Company."
Clause 5 of the Indemnity Bond-
"5. The terms and conditions of the service agreement, offer of Appointment and Indemnity bond will be considered breached by the Employee in the following cases from 24 months of his joining:
a. If employee chooses to resign from the services of the employer.
b. If employer is constrained to terminate the employment of the employee for his misdemeanor and indiscipline in the organization.
c. If the employee absconds OR does not report into services of the employer for more than 7 business Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:21:26 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 15 of 26 days without prior approval.
29. Annexure -I of the Appointment offer exhibited as Ex. PW1/1, provides the terms and conditions of appointment.
Clause II 2(a) provides that -
"Team members covered by the indemnity agreement will need to comply with the terms of this agreement in the event of leaving the employment before expiry of 24 months."
Clause III sub clause 4) stipulates that -
"If you absent yourself without leave or remain absent beyond the period of leave originally granted or subsequently extended in writing, you shall be considered as having voluntarily terminated your employment without giving any notice unless you
a) Return to work within seven days of the commencement of such absence, &
b) Give an explanation in writing to the satisfaction of the company regarding such absence.
30. Clause 5(c) of the indemnity bond provides in clear terms that if the employee absconds or does not report for work for more than 7 business days without prior approval, it will be considered as breach of the terms and conditions Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:21:32 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 16 of 26 of the service agreement, offer of appointment and Indemnity bond. This, read in conjunction, with clause II (2) (a) of the Annexure I- terms and conditions of the Appointment, shows that the defendant no.1 had not complied with the terms of the offer of appointment dated 16.06.2015, since the defendant no.1 absented herself from reporting to duty from 2.11.2015, and had admittedly communicated the same in writing to the plaintiff only after receiving the letter of the plaintiff, which as per the averments in the Written statement, was dated 17.11.2015. This means that the written communication was made by the defendant no.1, only after 17.11.2015, which is beyond 7 days from 2.11.2015. Thus, it is a clear case where the defendant no.1 has breached the terms of its offer and indemnity bond. In view of the discussion, the issue no.4 stands decided in favour of the plaintiff and against the defendant.
31. Now, the next question is, whether the plaintiff is entitled to the relief of recovery as claimed by it.
32. Clause 6 of the Indemnity bond provides that -
"Whereas in case the services of the Employee gets terminated due to the reasons mentioned above the Employee and/or surety agree to pay an amount of Rs. 200,000/- (Rupees Two Lac only) with the interest thereon @ 12% per annum from the date of breach of the above till payment as liquidated damages/cost of training including on the job training, and the expenses which the Company Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 16:21:38 +0530 CS SCJ 216/2016 52317/16 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 17 of 26 has incurred/may have to incur in recruiting another employee at his/her place, and also on account of business loss suffered/to be suffered by Employer-Company during intervening period. The employee and surety agrees that assessment of liquidated damages as assessed as Rs. 200,000/-(Rupees Two Lac only) are reasonable, which they both agree to pay jointly and/or severally in case demand is made by the Employer Company."
33. Qua the liability of the surety, clause 4 stipulates that - "The party of the second part i.e. (surety) Sh.Suraj Parkash has on request of the Employee agreed to stand as Surety for the due performance of the obligation of the Employee under this agreement of indemnity. In case of breach of the terms and conditions of Offer of Appointment, Service Agreement and this indemnity by the Employee and failure to indemnify the Company, the Surety shall be jointly and severally liable to pay the aforesaid amount of Rs.200,000/-(Rupees Two Laconly)to Employer Company as penalty for breach of service agreement, offer of Appointment and Indemnity Bondof which the Employer shall be the Sole Judge, with interest at the rate as specified below immediately on demand.
34. The above mentioned two clauses, read with clause 5 (c) of Indemnity Bond show it has been agreed that the defendant no.1 as the employee and defendant no.2 as the surety, will be liable to pay liquidated damages to the extent of Rs.2 lacs in case of breach of any of the terms of Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:21:49 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 18 of 26 the employment or indemnity bond, on account of cost of training imparted to the defendant no.1, on account of expenses which the Company has incurred/may have to incur in recruiting another employee at his/her place, and also on account of business loss suffered/to be suffered by the company in the intervening period.
35. The amount of liquidated damages has already been quantified at Rs.2 lacs. However, it is imperative to note that this is the maximum amount that the plaintiff can claim for the breach of the terms of the appointment letter and the indemnity bond. The real question is if the plaintiff is entitled to the maximum amount or not. Section 74 of the Indian Contract Act, provides that damages in the nature of penalty cannot be granted and only reasonable compensation due for breach of contract shall be granted. The law is well settled that in a case where a Court is unable to assess the reasonable or actual compensation due for a breach of the contract, the Court may in such circumstances take into consideration the damages predetermined by the parties as measures of reasonable compensation.
36. In the instant case, the plaintiff has pre estimated the damages for breach at Rs.2 lacs, for the cost of training, cost of appointing another employee in place of defendant no.1 and the loss of business in the intervening period. Though the plaintiff has not brought on record any document to show the cost of training imparted to the Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 16:21:54 +0530 CS SCJ 216/2016 52317/16 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 19 of 26 defendant no.1, it is admitted by the defendant no.1 that regular routine training was provided to the defendant no. 1 and that she was working on an assignment, when she stopped reporting to office from 02.11.2015. Thus, there is no doubt that the plaintiff has suffered due to breach of agreement and the plaintiff is entitled to damages, which are not in the nature of penalty.
37. The plaintiff has quantified the amount of Rs.2 lacs as damages to be paid by the defendant, in case she violates the terms of the appointment offer and indemnity bond and in case she leaves the company before 2 years. The defendant no.1 was appointed on 16.06.2015 and stopped reporting to office on 2.11.2015, while as per the agreement, she had to continue her services in the company till atleast 24 months. Hence, proportionate damages can be granted. Reliance is placed on the case of Ashwani Bahl vs Air India Ltd., Delhi High Court, FAO no. 222/2012 decided on 21.01.2014, wherein the maximum liquidated damages stipulated in the contract amounting about Rs. 7.5 lacs were not awarded to the plaintiff and the arbitrator as well as the Hon'ble High Court had awarded proportionate damages amounting to Rs.6,42,857/- only to the plaintiff.
38. In the instant case, the proportionate damages will be for the 19.5 months not served by the defendant no.1 with the plaintiff, which amount to Rs. 1,62,500/-(rounded off to the nearest rupee), along with interest at the rate of Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:22:00 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 20 of 26 12 percent per annum calculated from 07 business days after 02.11.2015 to the date of filing of the suit i.e 04.07.2016. The defendants are jointly & severally liable to make the payment to the plaintiff.
39. Thus, the issue no.1 is partly decided in favour of the plaintiff and against the defendant.
Issue no.2- Whether the plaintiff is entitled to pendente lite and future interest, if so, for what period and at what rate? OPP
40. The plaintiff has claimed interest at the rate of 12 percent per annum. However, this appears to be at a higher side. Therefore, interest at the rate of 6 per cent per annum from the date of filing the suit till the date of realisation on the Principal recovery amount of Rs.1,62,500/-, is granted to the plaintiff to be recovered from the defendants.
Issue no.7- Whether the indemnity bond dated 20.07.2015 executed by defendant no. 1 is barred Us 27 of the Indian Contract Act? OPD
41. The burden to prove this issue lies on the defendant.
The defendant has asserted that the indemnity bond dated 20.07.2015, is barred under section 27 of the Indian contract Act. The defendant has not explained as to how the indemnity bond is barred under section 27 of the Indian contract Act. The defendant has not even addressed final arguments to advance submissions regarding the said issue. Be that as it may, the law is well settled that Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:22:05 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 21 of 26 stipulations in contracts of employment binding the employees to serve the employer for a specific reasonable period of time, are not in restraint of trade under section
27. Reliance is placed on the judgment passed by Hon'ble Supreme Court of India in the case of Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co., Ltd. AIR 1967 SC 1098, wherein the Hon'ble Supreme Court held that "15. The result of the above discussion is that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract than those in cases where it is to operate during the period of the contract. Negative covenants operative during the period of the contract of employment when the employee is bound to serve his employer exclusively are generally not regarded as restraint of trade and therefore do not fall under Section 27 of the Contract Act. A negative covenant that the employee would not engage himself in a trade or business or would not get himself employed by any other master for whom he would perform similar or substantially similar duties is not therefore a restraint of trade unless the contract as aforesaid is unconscionable or excessively harsh or unreasonable or one sided as in the case of W.H. Milsted and Son Ltd., 1927 WN 233 (Supra)."
42. Therefore, the indemnity bond Ex.PW1/3 which binds the defendant no.1 to remain in employment of the plaintiff company for a period of two years to derive Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:22:11 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 22 of 26 benefit from the investment made by the plaintiff in training the defendant no.1 does not violate the provision of Section 27 of the Indian Contract Act.
43. Thus, this issue stands decided in favour of the plaintiff and against the defendants.
Issue no.3-Whether the plaintiff is entitled to mandatory injunction against defendant no. 1 as prayed for? OPP
44. The burden to prove this issue lies on the plaintiff.
The plaintiff has prayed that the defendant no.1 be restrained from breaching the confidentiality clause of the terms of employment and be directed to maintain secrecy in respect of any technical, trade or business data, customer's names/business details or any other information that would have come to her knowledge or possession, which according to the company are necessarily confidential and form valuable property of the company and against the disclosure of any confidential data of the plaintiff in any manner whatsoever and from taking up employment or entering into any type of business/commercial association with any of the Plaintiff's clients or their associates for a period of two years from date of cessation of employment.
45. Though the plaintiff has sought the relief of injunction, there is no averment in the plaint that there is an apprehension or reasonable threat that the defendant no.1 will divulge any confidential information of the Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:22:17 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 23 of 26 plaintiff or that the plaintiff is likely to enter into business association with the plaintiffs clients. In absence of necessary averments in the plaint and in absence of evidence to prove the same, the relief sought by the plaintiff cannot be granted.
46. Thus, this issue stands decided in favour of the defendant no.1 and against the plaintiff.
Issue no.5- Whether the present suit has not been filed by a duly authorized person? OPD
47. The burden to prove this issue lies on the defendants. The defendants have asserted that the present suit has not been filed by an authorized person. However, this is just a bald averment made by the defendants, without any substance to prove the same. The plaintiff has placed on record the certified copy of the board resolution dated 25.04.2016, exhibited as Ex.PW1/1, which authorised Sh. Vipul Kurukshetra to file, institute, sign and verify the present suit. Thus, this issue stands decided in favour of the plaintiff and against the defendants.
Issue no.6- Whether this court does not have territorial jurisdiction to entertain the present suit? OPD
48. The burden to prove this issue lies on the defendants. However, the defendants have not been able to prove the same. On the contrary, the plaintiff has asserted that the offer of appointment in favour of defendant no.1 Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.12.24 CS SCJ 216/2016 52317/16 16:22:23 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 24 of 26 was issued at the registered office of the plaintiff at New Delhi, the indemnity bond was submitted at the registered office of the plaintiff, entire expense on training was incurred from the office of plaintiff at New Delhi and probrata annual salary of Rs. 3.50 lacs was also processed from office of plaintiff at New Delhi. Thus, the plaint reflects that part cause of action has arisen within the jurisdiction of this court. Accordingly, this issue stands decided in favour of the plaintiff and against the defendants.
Issue no.8- Whether the plaintiff has played fraud upon the defendants while taking indemnity and surety bond? OPD
49. The burden to prove this issue lies on the defendants. The defendants have asserted that the plaintiff got the indemnity bond signed as a matter of routine and has played fraud upon the defendants. This remains a bald averment, without any material on record to prove the same. Thus, this issue stands decided in favour of the plaintiff and against the defendants.
RELIEF: -
50. In view of the aforesaid discussion, the facts and circumstances of the case, the finding given in the above issues, documents placed on record and evidence led, the suit is partly decreed in favour of the plaintiff and against the defendants. The plaintiff is held entitled to recover Rs.1,62,500/- along with interest at the rate of 12 percent Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 216/2016 52317/16 ARORA Date: 2022.12.24 16:22:37 +0530 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 25 of 26 per annum to be calculated from 07 business days after 02.11.2015 till the date of filing the suit and interest at the rate of 6 percent per annum from the date of filing the suit till the date of realisation. Both the defendants are jointly & severally liable to make the payment to the plaintiff.
51. Costs of the suit is awarded to the plaintiff.
52. Decree sheet be prepared.
53. File be consigned to record room after due compliance.
Digitally signed byPronounced in the open court CHITRANSHI CHITRANSHI ARORA Today on 24.12.2022 ARORA Date: 2022.12.24 16:22:30 +0530 (Chitranshi Arora) Civil Judge-02/ SED/Saket Courts New Delhi/24.12.2022 CS SCJ 216/2016 52317/16 Optimus Information India Private Limited Vs Swati Gakhar & Anr. Page no. 26 of 26