Delhi District Court
M/S Dolphin Mart Ltd vs Ms. Jyoti Negi on 23 August, 2018
M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi
Suit no. 84018/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURTS, NEW DELHI
In the matter of:
Suit no.84018/16
CNR No. DLST030003502013
M/s Dolphin Mart Ltd.
D189, Okhla Industrial Area, PhaseI
New Delhi.
...............Plaintiff
Versus
Ms. Jyoti Negi
H.No. 439, Chauhan Mohalla,
Near Asia Pacific Hostel
Madanpur Khaddar
New Delhi110076.
Also at:
C/o M/s BAP Creations Pvt. Ltd.
A81, Sector5, Noida, UP ...............Defendant
Date of Institution : 17.01.2013.
Date of Pronouncement : 23.08.2018.
Decision : Partly Decreed
SUIT FOR DAMAGES/ RECOVERY OF RS. 2,00,000/ (RUPEES
TWO LAKHS ONLY)
Present: None.
JUDGMENT:
1. This is a suit for recovery of Rs.2,00,000/(Rupees Two Lakhs only) filed by the plaintiff against the defendant as damages for breach of contract that prohibited the defendant from joining a competitor within 24 Page no. 1 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 months of termination of her employment with the plaintiff. Averments in the plaint:
2. The case of the plaintiff is that it is engaged in the business of retail, and defendant is its exemployee. In 2011, plaintiff appointed defendant as a commercial executive vide appointment letter dated 28.01.2011. Defendant joined the plaintiff's company, and accepted the terms and conditions of the appointment letter, and worked till 09.11.2011. During her service period, defendant worked as a commercial executive, and was given access to top business secrets, and the contact addresses of its valuable clients. On 09.11.2011, defendant resigned from the services of the plaintiff company, and submitted an undertaking. Through one of its clients, plaintiff came to know that defendant had joined M/s BAP Creations Pvt. Ltd., who is a competitor of the plaintiff, with mala fide intention and had shared various business secrets, and information about valuable clients (including suppliers and customers of the plaintiff) with it. Defendant thereby violated the terms of appointment letter dated 28.01.2011, particularly clause 7(a). Legal notice dated 01.09.2012 to this effect was also sent to the defendant. However, no reply was filed by the defendant. Plaintiff company has suffered loss of business caused on account of disclosure of business secrets to the competitor in breach of terms of employment. The losses suffered by plaintiff are huge and irreparable in nature. Since financial position of defendant is not known, Rs. 2,00,000/ is claimed as token amount of compensation from defendant, through this suit.
Written statement:
3. By virtue of the written statement, suit has been opposed and termed as false and fabricated. It is submitted that the terms of Page no. 2 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 appointment on basis of which the plaintiff is claiming damages are one sided and contrary to law. Joining of the competitor's firm by the defendant does not confer the right on the plaintiff to claim damages in absence of proof of loss. It is true that defendant joined M/s BAP Creations Pvt. Ltd.
but the defendant never shared/ handed over any business secrets to M/s BAP Creations Pvt. Ltd. Defendant signed appointment letter since she was in need of job, but the terms are unreasonable and cannot be strictly followed. Notice sent by plaintiff was false and baseless. Defendant joined M/s BAP Creations Pvt. Ltd. only on 12.12.2012. No loss was incurred by the plaintiff on account of defendant's joining the competitor. Therefore, the suit be dismissed.
Replication:
4. By virtue of the replication, the contents of the plaint have been reiterated and the contents of the written statement have been denied. Issues:
5. Vide order dated 24.09.2013, following issues were framed in this matter:
Issue no.1 Whether the plaintiff is entitled to the decree of Rs. 2,00,000/ as claimed for in the plaint?OPP Issue no.2 Whether the suit of the plaintiff is not maintainable? OPD Issue no.3 Relief.
Evidence:
6. In support of its case, the plaintiff examined Sh. Shashi Ranjan, company secretary of the plaintiff's company for the period 01.07.2009 to 10.02.2014 as PW1. He tendered his evidence by way of affidavit, Ex. PW1/A. He relied upon following documents:
Page no. 3 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16
(i) Ex. PW1/1 i.e. copy of board resolution;
(ii) Ex. PW1/2A i.e. appointment letter;
(iii) Ex. PW1/2B i.e. Addendum to appointment letter;
(iv) Ex. PW1/3 i.e. undertaking dated 09.11.2011;
(v) Ex. PW1/4 i.e. copy of notice dated 01.09.2012; and
(vi) Ex. PW1/5 i.e. plaint.
7. Sh. Lalit Kumar Sharma, subsequent AR of the plaintiff company was examined as PW2. PW2 tendered his evidence by way of affidavit Ex. PW2/A. He relied upon Ex. PW2/1 i.e. certified copy of board resolution dated 19.07.2013.
8. Both the witnesses were duly crossexamined by Ld. counsel for defendant. Thereafter, plaintiff's evidence was closed. Defendant's Evidence:
9. Defendant examined herself as DW1 and tendered her evidence by way of affidavit Ex. DW1/1. She relied upon document Ex. DW1/A i.e. copy of appointment letter dated 11.12.2012 executed with M/s BAP Creations Pvt. Ltd.
10. DW1 was duly crossexamined by Ld. Counsel for plaintiff. During crossexamination, email dated 28.11.2012 along with Section 65B certificate were exhibited as Ex. DW1/P1 (colly).
11. Vide a separate statement, defendant's evidence was closed. Findings:
12. Learned counsels put forward their arguments in accordance with their pleadings. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsels for both sides. My issuewise findings are as under:
Page no. 4 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 Issue no.1 :
Whether the plaintiff is entitled to a decree of Rs. 2,00,000/ as claimed for in the plaint?OPP
13. The onus of proof of this issue is on the plaintiff. The claim of the plaintiff is based on the assertion that the defendant acted in breach of clause no. 7(a) and 7(h) of her appointment letter dated 28.01.2011 i.e. Ex. PW1/2A by joining M/s BAP Creations Pvt. Ltd. (which is a competitor of the plaintiff) within 24 months of resigning from the services of the plaintiff.
14. In support of its case, PW1 exhibited original appointment letter Ex. PW1/2A as well as addendum to the appointment letter Ex. PW1/2B, both of which are admitted by the defendant. Para 7(a) and 7(h) of Ex. PW1/2A read as follows:
"7(a). At least for a period of 24 months after disassociation with us, you shall not associate either directly or indirectly and get yourself associated (with or without monetary consideration) with any competitor's activities in connection with or related to the assignments handled by you during the course of your association with us. Any breach of the terms and conditions including this clause shall make you liable for consequences as if you have committed breach of trust".
"7(h). You shall not directly, or indirectly, either during your employment with the company or thereafter, divulge to any person whatsoever any information as to the practice, business dealing, processes, methods, machines, ideas or any other information whether tangible or intangible, concerning the business of the company and affairs of the company which come to your knowledge during the course of your employment, or use any of the same for your benefit".
Page no. 5 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16
15. Plaintiff has also relied on admitted email Ex. PW1/3, whereby an undertaking is given by the defendant stating that she had acquired information regarding the plaintiff during her employment, the same was confidential and that she would maintain strict secrecy regarding the same. As per Ex. PW1/3, "I acknowledge that in the course of working at Dolphin Mart Ltd (henceforth referred to as "DML"), I have seen, heard, or otherwise acquired information (written or oral, whether in the form of data, knowledge, techniques, processes, systems, formulas, designs, statistics, records or otherwise) relating to DML, its partners or employees. I accept that such information is confidential and will be maintained in strict secrecy and undertake that I will keep the information confidential and will not use it for my own or another's benefit or disclose it to any other person, Firm or Company".
16. Further, plaintiff has relied on legal notice Ex. PW1/4 whereby on 01.09.2012, the defendant was put to notice that she had joined its competitor M/s BAP Creations Pvt. Ltd. and shared confidential information related to the plaintiff with it, and had been called upon to pay a sum of Rs. 2,00,000/ as damages.
17. It was strongly argued by ld. Counsel for plaintiff that the said notice Ex. PW1/4 was issued on 01.09.2012 i.e. within the 24month period provided for by the appointment letter, and in the said notice, it was clearly written that defendant had joined M/s BAP Creations Pvt. Ltd., while the defendant is denying that she had joined M/s BAP Creations Pvt. Ltd. at that time. The defendant claims that she joined M/s BAP Creations Pvt. Ltd. on a subsequent date i.e. 12.12.2012, which is only to escape the 24month period and liability under the agreement.
18. The said argument, does not assist the plaintiff in any Page no. 6 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 manner, since even assuming that defendant joined M/s BAP Creations Pvt. Ltd. on 12.12.2012, that is still within 24month of resigning from the plaintiff i.e. on 09.11.2011. Therefore, for the purposes of considering breach of clause 7(a) of Ex. PW1/2A, it is immaterial whether defendant had joined M/s BAP Creations Pvt. Ltd. on the date of notice or subsequently in December 2012.
19. During crossexamination, PW1 has stood firm on his testimony and has stated that the defendant used to have direct dealing with the clients on behalf of Chief Marketing whenever asked. Further, M/s BAP Creations Pvt. Ltd. is one of the competitors of the plaintiff's company. No suggestion was put to PW1 about M/s BAP Creations Pvt. Ltd. not being a competitor, and there is no such averment in the written statement challenging that M/s BAP Creations Pvt. Ltd. was a competitor.
20. PW2, who was subsequently made the authorized representative of the defendant, was also examined by the plaintiff. Objection to the questions put to the witness in crossexamination was raised by the ld. counsel for plaintiff on the ground that they are beyond the affidavit and pleadings. However, the objection is not sustainable since in the affidavit of evidence Ex. PW2/A, PW2 has clearly stated that he is well conversant with the facts of the case and, therefore, defendant had every right to crossexamine the plaintiff regarding the same.
21. During crossexamination, PW2 admitted that defendant was on probation for a period of six months and no written communication regarding confirmation was placed on record. In light of this admission, defendant contends that the terms of appointment letter were not applicable to defendant. However, in the appointment letter Ex. PW1/2A, no distinction has been made between the applicability of the terms and Page no. 7 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 conditions of the appointment letter during and after the period of probation. Therefore, even if defendant was on probation, she was bound by the terms and conditions of Ex. PW1/2A.
22. During crossexamination of plaintiff's witness, the focus of defendant was to prove that the defendant did not have access to confidential information. Even during her own crossexamination, DW1 admitted that she was secretary to the CEO of the plaintiff but has denied access to confidential information. However, the same is contradictory to the defence in the written statement wherein defendant has admitted to having received confidential information, and has only disputed that she shared the same with M/s BAP Creations Pvt. Ltd. It is specifically stated in para 7 of reply on merits in the written statement that "the contents of para 7 of the plaint are true to the extent that the defendant joined the competitor's concern but never shared any business secrets of plaintiff company. It is further submitted that joining the competitor's firm is one aspect/ part of the terms of Appointment. It is further submitted that important is handing/ sharing with the business secrets of the plaintiff firm's which have neither been shared to the company, plaintiff joined nor handed over to any of the competitor, It is further submitted that as the appointment's terms are only in the interest of plaintiff and one sides only and the defendant signed the same as she was in need of job. It is further submitted that by strictly following this the defendant will remain out of employment for the whole life. As for first 2 years she will not work with the competitor or the trade for which she has experience and after this period she will forget all the knowledge she acquired till than and thereafter nobody will keep her." Thus, by virtue of this para, defendant is justifying her joining the competitor within the period of 24 months by Page no. 8 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 calling the clause unreasonable. Also, her sole focus is that although she had joined the competitor but she did not share any business secrets. She has nowhere denied that she was not privy to any business secrets of the plaintiff.
23. Further, in Ex. PW1/3 as well, defendant has admitted that she had obtained confidential information of the plaintiff. Therefore, law of estoppel now bars the defendant from seeking to prove that she had no access to confidential information. Attempt to do so also raises question on the truthfulness of the defendant's deposition.
24. In support of its defence, defendant has also relied on Ex. DW1/A, which is photocopy of appointment letter with M/s BAP Creations Pvt. Ltd. However, the same is not admissible in evidence. As per provisions of Indian Evidence Act, 1872, a document is required to be proved by the original unless grounds for leading secondary evidence are made out. As per Section 64 of the Indian Evidence Act, a document must be proved by primary evidence except as provided in the Act itself. The law relating to proving of documents by way of secondary evidence has been discussed and settled in a catena of judgments.
25. In the case of U.Sree v. U. Srinivas,1 it has been held by the Hon'ble Apex Court that in the absence of foundational evidence for leading secondary evidence, secondary evidence is not admissible. The Hon'ble Supreme Court referred to the case of Ashok Dulichand v. Madahavlal Dube2 wherein it has been held that:
"7....... According to clause (a) of Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or 1 (2013) 2 SCC 114 2 (1975) 4 SCC 664 Page no. 9 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 power of the person against whom the documents is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it."
26. The Hon'ble Supreme Court further referred to the case of J. Yashoda v. K. Shobha Rani3, wherein after analyzing the language employed in Section 63 and 65 (a), the Hon'ble Court held as follows:
"9..... Section 65, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in the section. (Emphasis supplied)."
27. The Hon'ble Apex Court also cited the case of M. Chandra v. M. Thangamuthu4, wherein it has been held that:
"47..... It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party. (Emphasis supplied)."
3 (2007) 5 SCC 730 4 (2010) 9 SCC 712 Page no. 10 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16
28. Further, the Hon'ble Apex Court referred to its judgments in H. Siddiqui v. A. Ramalingam5, wherein while dealing with Section 65 of the Evidence Act, the Hon'ble Apex Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations, and held:
"12.... In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the nonproduction of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. (Emphasis supplied)."
29. In the present case, defendant has not produced the original appointment letter, and has also not shown sufficient grounds enabling her to rely upon a copy thereof. It is claimed that the original appointment letter is not traceable, however, no attempt was made to summon the original appointment letter from the records of M/s BAP Creations Pvt. Ltd. No foundational evidence has been led to authenticate that the copy Ex. DW1/A is in fact a true copy of the original appointment letter. Thus, Ex. DW1/A is not admissible in evidence.
30. Besides, signatures on Ex. DW1/A are put only on the last page and the other pages are unsigned. The signatures of the signatory and his authority to sign the document on behalf of M/s BAP Creations Pvt. Ltd., have also not been proved. This raises serious doubts regarding the authenticity and execution of Ex. DW1/A. It can also not be lost sight of 5 (2011) 4 SCC 240 Page no. 11 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 that Ex. PW1/A is a verbatim copy of the appointment letter Ex. PW1/2A executed between the plaintiff and the defendant.
31. As far as Ex. DW1/P1 which is an email dated 28.11.2012 is concerned, the same also does not inspire any confidence as no email IDs, either of the recipient or of the sender, have been specified therein. Section 65B certificate, accompanying this document is also very vague. Ex. DW1/P1 is not specified in this certificate. It does not make clear whether the printout of alleged email was taken from mobile or computer. The affidavit does not make any reference to the email, does not identify the email account or the email ID. No date of printout has been specified.
32. Having said that, even if Ex. DW1/A and Ex. DW1/P1 are assumed to be proved, the admitted date of joining, as per these documents is also 13.12.2012, which is within 24 months of resignation from plaintiff company.
33. In light of the above analysis, it is proved that M/s BAP Creations Pvt. Ltd. is a competitor of the plaintiff; defendant had gained access to confidential information while working with the plaintiff, and defendant had joined M/s BAP Creations Pvt. Ltd. within 24 months of disassociation from the plaintiff. It has not been established that any confidential information was shared/ not shared by the defendant with M/s BAP Creations Pvt. Ltd. However, it is noted that clause 7(a) of the appointment letter Ex. PW1/2A bars the defendant from joining a competitor company within 24month, and no additional requirement of sharing confidential information is specified in this clause, thereby making mere joining a competitor within 24 months, a breach of contract. In fact, it is clause 7(h) that restrains the employee from divulging any confidential information to any other person. Thus, by joining M/s BAP Creations Pvt.
Page no. 12 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 Ltd. within 24month, defendant breached para 7(a) of appointment letter Ex. PW1/2A.
34. Next, the validity of this clause 7(a) needs to be examined mainly on two counts i.e. whether it is void being in restraint of trade 6 or voidable7 on account of undue influence8 exercised by plaintiff on defendant at the time of execution.
35. In Niranjan Shanker Golikari v Century Spinning & Mftg. Co. Ltd.9 it was held that negative convenants in service contracts operating during the period of the contract of employment are not generally regarded as in restraint of trade. If the restraint is to operate after the termination of employment, it does not amount to restraint of trade unless the contract is unconscionable or excessively harsh or unreasonable or onesided. In this case, while engaging the defendant as its employee, 6 As per Section 27 of The Indian Contract Act: Agreement in restraint of trade, void. Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.
7 As per Section 19A of The Indian Contract Act: Power to set aside contract induced by undue influence - When consent to an agreement is caused by undue influence, the agreement is a contract voidable at the option of the party whose consent was so caused.
Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it has received any benefit thereunder, upon such terms and conditions as to the Court may seem just.
8 As per Section 16 of The Indian Contract Act: 'Undue influence' defined - (1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. (3) where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the subsection shall affect the provisions of section 111 of the Indian Evidence Act, 1872.
9 AIR 1967 SC 1098.
Page no. 13 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 the company secured an undertaking from him that for five years, he shall not serve anywhere else having similar or substantially similar work, even if he left the company's employment. This condition was upheld as valid by the Hon'ble Supreme Court, and it was held that: "In the present case, the injunction issued against the appellant was restricted as to time, the nature of the employment and as to area and could not therefore be said to be too wide or unreasonable or unnecessary for the protection of the interest of the respondent company".
36. Analyzing the case at hand in light of the principles laid down in the aforesaid precedents, clause 7(a) restrains the employee from joining a competitor engaged in similar activities/ assignments only for a limited period of 2 months, thereby being restricted as to time as well as nature of employment, and thus not being unconscionable, excessively harsh, unreasonable or onesided. Therefore, clause 7(a) of Ex. PW1/2A does not fall foul of Section 27 of The Indian Contract Act.
37. Next, defendant has alleged that terms of contract were one sided and were agreed by her only because she was desperately in need of a job. Therefore, it was under undue influence that she agreed to the same.
38. In this regard, explaining the scope of undue influence in a contract, the case of Raghunath Prasad v Sarju Prasad10, it has been held that:
" ....The relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated then only unconscionableness of the bargain is to be considered i.e. whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi (burden of proof)."
10 AIR 1924 PC 60.
Page no. 14 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16
39. Further, in the case of Shrimati v Sudhakar R. Bhatkar11, it was held that:
"Influence in the eye of law has to be contradistinguished with persuasion. Any and every persuasion by one party to the other to contract cannot lead to inference/ conclusion that such party has influenced the other party. One may by his act/ conduct convince and persuade the other party to do a particular act and if the other party does such an act freely and of own volition (may be to his/ her prejudice or to his/ her disadvantage or even to his/ her peril), it cannot be said that such act was influenced by the other".
It was further held that:
"Unconscionableness of the transaction can be gone into without deciding whether one party was in a position to dominate the will of the other and whether the transaction was the result of undue influence. The question of onus of proof arises only thereafter".
40. As held in para 36 above, the terms of clause 7(a) are valid, not unconscionable, and necessary to secure the interests of the plaintiff. There is no evidence to the effect that defendant was in such economic/ mental distress as would have enabled the plaintiff to dominate her will, and get her to sign the contract that she otherwise would not have done. Therefore, in light of the precedents above, contract is not hit by undue influence.
41. Thus, so far it is found that defendant acted in breach of contract Ex. PW1/2A, more particularly clause 7(a); and that clause 7(a) is valid and enforceable. That brings us to the last point which is the damages payable for breach of contract.
42. It is contended by the defendant that since losses have not been proved by plaintiff, he cannot be awarded the same. Admittedly, 11 AIR 1998 Bom 122.
Page no. 15 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 losses have not been proved by the plaintiff. It was stated by PW1 during evidence that details of losses have not been filed since these are not quantifiable. However, same are assessed at Rs. 2,00,000/ on account of loss of business to plaintiff.
43. Therefore, the plaintiff has been able to establish breach of contract but has not been able to prove any loss suffered on account of such breach. In such a case, since there is an infraction of a legal right, in recognition of the same, plaintiff is entitled to nominal damages even when no actual damage has been suffered/ proved by the plaintiff. The gross salary of defendant as per Ex. PW1/2A was Rs. 13,052/ per month. In view of the same as well as other facts and circumstances of the case, nominal damages of Rs. 11,000/ appear just and reasonable to be awarded to the plaintiff. Accordingly, this issue is partly decided in favour of the plaintiff.
Issue no. 2:
Whether the suit of the plaintiff is not maintainable? OPD
44. The onus of proof of this issue is on the defendant. Although bald allegations have been made in the written statement that the suit is not maintainable, defendant has not disclosed the basis for such contention nor has led any evidence in proof of the same. Defendant has failed to discharge her onus. This issue is accordingly decided in favour of the plaintiff and against defendant.
Issue no.3:
Relief
45. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led by the parties, on the scale of preponderance of probabilities, plaintiff has been able to prove Page no. 16 of 17 M/s Dolphin Mart Ltd. v. Ms. Jyoti Negi Suit no. 84018/16 breach of contract by the defendant but has failed to prove the quantum of losses/ damages.
46. Thus, the suit of the plaintiff is partly decreed for an amount of Rs.11,000/ (Rupees Eleven Thousand only) to be paid by the defendant as nominal damages along with interest @ 6% per annum till its realization. Cost of the suit is also awarded in favour of the plaintiff. Decreesheet be drawn accordingly.
47. File be consigned to record room after due indexing and completion.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 23.08.2018 Announced by me in the open court today on 23.08.2018. All the seventeen pages of this order have been checked and signed by me.
Digitally signed by NEHA NEHA PRIYA
Date:
(NEHA PRIYA)
Civil Judge01 (South)
PRIYA
2018.08.27
15:02:00 Saket Courts/New Delhi
+0530
23.08.2018
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