Delhi District Court
Mr. Dilshad Mohammad vs M/S Sbicap Securities Ltd on 27 September, 2022
IN THE COURT OF SH. MAYANK MITTAL
ACJCCJARC(EAST), KARKARDOOMA COURTS,
DELHI
CS NO. 6831/2016
IN THE MATTER OF:
Mr. Dilshad Mohammad
S/o Sharafat Ali
R/o M132, Laxmi Nagar
Delhi110092. ...Plaintiff
vs
M/s SBICAP Securities Ltd
Mafatlal Chambers, AWing
2nd Floor, N M Joshi Marg
Lower Parel, Mumbai400013
Through its Managing Director
Branch Office at:
M/s SBICAP Securities Ltd
9, New Rajdhani Enclave, Delhi110092
Regional office at:
M/s SBICAP Securities Ltd
11, Parliament Streets
Ground Floor, New Delhi
Through its Principal Officer.
....Defendant
DATE OF INSTITUTION : 16.02.2015
DATE OF RESERVING THE ORDER : 24.09.2022
DATE OF DECISION : 27.09.2022
CS No. 6831/2016 Page No. 1/16
SUIT FOR RECOVERY OF Rs. 88,666/
JUDGMENT
1 Vide this judgment, I shall dispose off the present suit filed by the plaintiff seeking the recovery of a sum of Rs. 88,666/. 2 The brief facts of the plaintiff's case are as follows:
(i) That the plaintiff alongwith his family is residing at the address mentioned in the title of the suit and defendant is a company incorporated under the Companies Act, 1956 and running its business in India interala from the offices situated at 11 Parliament Street, New Delhi.
(ii) That the plaintiff was appointed as Relationship Manager by the defendant vide appointment letter dated 11.8.2010. It is stated that under the terms of appointment, the plaintiff had to undergo the probation period of one year and vide letter dated 11.9.2011, the plaintiff was confirmed on the post of Relationship Manager w.e.f 25.8.2011. The plaintiff had rendered his services bonafidely but the defendant neither promoted the plaintiff to the higher post nor praised his services by increasing his salary despite outstanding performance.
(iii) That finding no appraisal from the defendant, the plaintiff tendered his resignation to the defendant vide registered letter dated 18.7.2014 and his resignation was accepted by the defendant w.e.f. 18.7.2014. The plaintiff relies on his original resignation dated 18.7.2014 which is in power and possession of the CS No. 6831/2016 Page No. 2/16 defendant.
(iv) That after resignation of the plaintiff from his services of the defendant, the plaintiff sent communications dated 15.9.2014 and 19.9.2014 to the defendant for settlement and payment of his full and final dues. It is stated that the defendant neglected to settle the dues of the plaintiff. The defendant did not pay the monthly salary of the plaintiff w.e.f. 1.5.2014 till 18.7.2014 @ Rs. 17,500/ per month total amounting to Rs. 45,500/. It is further stated that besides this, the plaintiff was also entitled to an incentive of Rs. 8000/ for the month of January, 2014, Rs. 2500/ as referral policy. The plaintiff was also entitled to accumulated permanent leave encashment for 56 days which amounted to Rs. 32,666, for the years 20112014. Thus, the plaintiff is entitled to total amount of Rs. 88,666/.
(v) That the plaintiff has also requested the defendant for clearance of his EPF dues, but the defendant has not approved the same and has, thus, violated the statutory provisions of Employes Provident Funds Act.
(vi) That the plaintiff has sent legal notice dated 11.10.2014 (wrongly mentioned as 12.10.2014) to the defendant calling upon the defendant to pay his outstanding dues as well as for issuance of approval under the EPF Act in the prescribed Form, within seven days of receipt of the legal notice. It is submitted that the defendant has replied the aforesaid legal notice making false and baseless allegations against the plaintiff and the defendant has CS No. 6831/2016 Page No. 3/16 demanded Rs. 72,905/ from the plaintiff. The aforesaid reply of the defendant is false, baseless and defamatory and the said reply to the legal notice has been filed by the defendant with sole aim to usurp the dues of the plaintiff. The defendant has not made the payment despite legal notice, hence the present suit. 3 The summons for settlement of issues were issued and duly served upon the defendant. Defendant filed its WS. 4 The defendant in his WS, has taken the following preliminary objections:
(i) That the present suit is not maintainable and is liable to be dismissed as this court has no jurisdiction to try, entertain and decided the present suit. It is stated that as per sub clause (u) of Clause 4 of Letter of Appointment dated 11.8.2010, it is clearly stated that any disputes between the plaintiff and defendant company of whatsoever nature will be subject to the appropriate courts in Mumbai jurisdiction only. The Mumbai Court only will have jurisdiction to try and entertain, try and decide the present suit.
(ii) That That the present suit is not maintainable and is liable to be dismissed as the plaintiff has not approached this Court with clean hands and has concealed the true facts. It is stated that plaintiff was appointed as a Relationship Manager with defendant company vide appointment letter dated 11.8.2010 and services of the plaintiff were confirmed vide letter dated 11.11.2011 w.e.f.
26.8.2011. It is further stated that the plaintiff has resigned from CS No. 6831/2016 Page No. 4/16 the service of the defendant vide his email dated 19.5.2014 and resignation of the plaintiff was accepted by the defendant company vide email dated 2.6.2014, subject to completion of exist formalities mentioned in the said email. It is further stated that when the defendant was in the process of settling the claim of the plaintiff, a complaint was received from Sh. Bhim Puri, one of the customer of the defendant to the effect that the complainant was having a credit balance of Rs. 1,65,241/ in his account in the month of January, 2014 and the said fund was utilized unauthorizedly without his consent by the plaintiff for carrying out future and options (F&O) trade in is account. It is further stated that said complainant Sh. Bhim Puri has also lodged a complaint with Security Exchange Board of India (SBI) claiming the aforesaid amount of Rs. 1,65,241/. The plaintiff was informed by Sh. Amit Sharma, Area Manager of the defendant, by visiting the house of the plaintiff to visit the office of the defendant regarding the aforesaid complaint but the plaintiff did not turn up and contacted the office of the defendant. It is further stated that on detailed investigation and verification of the record, it was revealed that Sh Bhim Puri was having credit balance of Rs. 1,36,313.69P in his account in the month of January, 2014 and said funds were utilized by the plaintiff towards F&O trades in the account of Sh Bhim Puri without his consent and there is no supporting slip/voice recording available on record which would show authenticity of the trades executed in the account of the CS No. 6831/2016 Page No. 5/16 complainant Sh. Bhim Puri.. It is further stated that Investigator Grievance Redressal Panel (IGRP) OF National Stock Exchange of India Ltd had also confirmed the aforesaid claim of the complainant. Later on, the defendant company had paid the amount of Rs. 1,17,241/ as a full and final settlement amount to the said complainant Sh. Bhim Puri. It is further stated that the defendant vide its reply dated 28.10.2014 and letter dated 9.2.2015 has requested the plaintiff to deposit a sum of Rs. 72,905/ with the defendant being the difference amount paid to Sh. Bhim Puri i.e. Rs. 1,17,241/, after adjusting full and final settlement amount of plaintiff i.e. Rs. 44,336/.. It is further stated that it is the plaintiff who is liable to pay Rs. 72,905/ to the defendant towards payment of the claim of Sh. Bhim Puri on account of unauthorized trades by the plaintiff in the account of Sh. Bhim Puri. The suit of the plaintiff is liable to be dismissed as the defendant is not liable to pay any amount to the plaintiff whatsoever. On merits, all the contents of the WS with respect to recovery of Rs. 88,666/ were denied by defendant in toto.
5 During plaintiff's evidence, the plaintiff has examined himself as PW1 and proved his affidavit of evidence as Ex. PW1/A. He has testified on the same line as that of plaint. PW1 has also relied on and proved the following documents:
(i) Original appointment letter dated 11.08.2010 is Ex PW1/1.
(ii) Original confirmation in service dated 11.11.2011 is Ex PW 1/2.
CS No. 6831/2016 Page No. 6/16(iii) Photocopy of legal notice dated is Mark E (Ex. PW1/3 is accordingly deexhibited).
(iv) Postal receipt is Ex PW1/4.
(v) Postal receipt is Ex PW1/5.
(vi) Original reply of legal notice dated 28.10.2014 is Ex PW
1/6.
(vii) Photocopy of resignation is Mark A.
(viii) Photocopy of acceptance dated 02.06.2014 of the plaintiff's resignation is Mark B.
(ix) Photocopy of salary slip is Mark C.
(x) Photocopy of statement of account of the plaintiff is Mark D. 6 During crossexamination, PW1 has stated that he was employed with the defendant as Relationship Manager in Madhuban Branch, Delhi and he has resigned from the defendant company. He has denied the suggestion as wrong that he has resigned under apprehension of complaints of misappropriation of funds against him. PW1 has further stated that he knows Mr. Bhim Puri, who was customer of Madhuban Branch and having its trading account in the said branch of the defendant. PW1 has denied that suggestion as wrong that he has done fraudulent trade in the trading account of said Bhim Puri. PW1 has stated that only after his resignation, he (PW1) came to know that Bhim Puri has filed a complaint before SEBI claiming a sum of Rs 1,65,241/ on account of fraudulent transfer from his account. He has voluntarily CS No. 6831/2016 Page No. 7/16 stated that he came to know about the said fact when the defendant had replied to his legal notice dated 28.10.2014. PW1 further stated that he has no personal knowledge whether any amount of Rs. 1,17,813.69/ was awarded by investor service cell in favour of said Mr. Bhim Puri on account of fraudulent transaction in his account. PW1 further stated that he had no knowledge that the defendant had paid the said amount of Rs. 1,17,813.69/ to Mr. Bhim Puri on account of alleged fraudulent transaction in his account. It is stated by PW1 that he has no knowledge about notice dated 22.07.2014 received by the defendant from Investor Service Cell on complaint made by Mr. Bhim Puri that the trading was done in his account without his knowledge. PW1 has denied the suggestion as wrong that Mr. Amit Sharma, Area Manager and Mr. Shariq Faiz (Regional Mananger) tried to contact him or they had ever visited at his residence regarding the said notice dated 22.07.2014 or that despite having knowledge of said notice dated 22.07.2014, he (PW1) did not respond. PW1 also denied the suggestion as wrong that he was appointed as dealer by defendants and was allotted CTCL Terminal ID No. 110092001001130 for placing orders. PW1 stated that he has received a letter dated 28.10.2014 from the defendant as a reply of his legal notice dated 12.10.2014. He also stated that he has received a letter dated 09.02.2015 from the defendant whereby he (PW1) was advised by the defendant to deposit a sum of Rs. 72,905/ being a difference amount of claim after adjusting his final settlement. PW1 further CS No. 6831/2016 Page No. 8/16 stated that on receiving the above said letter, he had informed his counsel about the letter and besides that, he had not done anything in pursuance of the said letter. PW1 has denied the suggestion as wrong that he did not respond to the said letter dated 09.02.2015. PW1 has stated that he did not made any police complaint or filed any court case with regard to the allegations of fraudulent transfer by him from the account of Mr. Bhim Puri. He has not filed any replication in this case. He has denied the suggestions as wrong that he is not entitled to incentive amount and leave encashment amount as claimed by him in the present case and/or that defendant has not violated any statutory provision of Employee Provident Fund Act. PW1 has also denied the further suggestion that defendant is not liable to pay any amount or interest or that PW1 is liable to pay total amount Rs. 1,17,241/ to the defendant. 7 During defendant's evidence, the defendant has examined six witnesses in all.
8 DW1 Sh. Raman Kalra has proved letter dated 22.7.2014 Ex. DW1/1.
9 DW2 Sh. Naveen has proved the letter dated 8.9.2014 as Ex. DW2/1.
10 DW3 Sh. Gautam Gupta has proved letter dated 19.9.2014 as Ex. DW1/3.
11 DW4 Sh. Bhim Puri has proved letter dated 3.9.2014 as Ex. PW4/1. He hs also proved another letter dated 19.8.2014 as Ex. DW4/2 by identifying his signatures thereon. DW4 has also CS No. 6831/2016 Page No. 9/16 identified his signatures on the settlement between the defendant and him and proved the same as Ex. DW4/3.
12 DW5 Ms. Tusharika Sharma has proved the Arbitration Award dated 7.11.2014 and IGRP proceedings dated 18.8.2014 as Ex. DW5/1 and Ex. DW5/2 respectively. 13 DW6 Sh. Amit, AR of the defendant, has tendered his affidavit Ex. DW6/A and has proved the following documents:
1) Authority letter dated 15.4.2015 Ex. DW6/1.
2) Appointment letter dated 11.8.2010 Ex. DW6/2.
3) Confirmation letter dated 11.11.2011 Ex. DW6/3.
4) Emails Mark A. 5) Copy of reply dated 28.10.2014 Mark A1 (de exhibited) 6) Copy of letter dated 9.2.2015 Mark A2 (deexhibited). 14 DW6 has also reled on the documents already exhibited by DW1, DW2, DW3, DW4 and DW5 during their evidence/statement, including WS. 15 During crossexamination, DW6 has stated that he is
working in the defendant company since May, 2012, however, he has not filed any document on record reflecting that he is working with defendant since May, 2012. He does not have with him the minutes of meeting vide which he was authorized to depose in this case on behalf of the defendant. DW6 has denied the suggestion as wrong that authority letter issued to him does not authorize him to depose in this case or that he is not an authorized person to CS No. 6831/2016 Page No. 10/16 depose on behalf of defendant in this case.
To a specific Question: "I put it to you that you have alleged in para 7 of affidavit Ex. DW6/A from point A to A1 that Bhim Puri in his complaint has stated that he was having credit balance of Rs. 1,65,241/ in his account in the month of January, 2014 and said fund was utilized unauthorizedly without his consent by the plaintiff for carrying out future and options (F&O) in his account. In reply to specific question, whether, you have filed the said complaint/documents on record in which Mr. Bhim Puri has alleged that plaintiff has utilized the alleged fund unauthorizedly without his consent by the plaintiff?" The witness has stated in affirmative "Yes", and stated that he had have filed the same in the judicial file which are Ex. DW1/1, DW4/1, DW4/2 and DW4/3. DW6 has admitted it as correct that in none of the complaints/documents filed by Mr. Bhim Puri, it is mentioned that plaintiff has unauthorizedly used his funds. To further specific question: "Who has conducted the investigation as mentioned in paragraph no. 8 of your affidavit and when same was conducted?", the witness has stated that National Stock Exchange has conducted the said investigation. It is further stated that he does not remember the time when it was conducted, however, it is matter of record. DW6 has admitted it tobe correct that defendant company has not conducted any investigation. He has voluntarily stated they had complied the directions of National Stock Exchange. He further stated that he has not filed any CS No. 6831/2016 Page No. 11/16 proof/document on record to show that employees/agents of defendant company used to record voice while accepting the orders from their clients, while trading and that the plaintiff has not utilized unauthorizedly any fund of company or its clients in his own account. DW6 further admitted it to be correct that no complaint or any other dispute has been communicated to the plaintiff by the defendant company prior to receiving of notice dated 12.10.2014 sent to defendant by the plaintiff in respect of complaint made by alleged Bhim Puri and plaintiff was not a party to the interse dispute between Bhimpuri and defendant company in any of the proceedings. It is stated by DW6 that defendant company has not filed any suit or counter claim or set off for alleged losses suffered by the defendant company as stated in the WS. DW6 has denied the suggestion as wrong that the defendant has not suffered any loss due to any act of the plaintiff, therefore, defendant has not filed any suit/counter claim/set off. DW6 further stated that he has not filed any record reflecting the efforts made by Area Manager to contact the plaintiff as stated in the WS. DW6 has denied the suggest as wrong that defendant company has not made any effort to contact the plaintiff as stated in WS. It is stated that he has not filed any proof regarding visit of Shariq Faiz (Relationship Manager) to the residence of the plaintiff on 22.7.2014. DW6 has stated that letter dated 9.2.2015 was sent to plaintiff through courier, however, he is not sure. It is stated that he (DW6) has not filed any proof regarding mode of service of CS No. 6831/2016 Page No. 12/16 letter dated 9.2.2015. DW6 has denied the suggestion as wrong that letter dated 9.2.2015 is a manipulated , bogus and fabricated document and same has not actually been issued and sent to the plaintiff.
16 I have heard the arguments in detail and perused the record including the final submissions filed by counsel for both the parties.
17 In the present case, the plaintiff has sought the relief of recovery of Rs. 88,666/ on account of salary of plaintiff from 1.5.2014 to 18.7.2014 (Rs. 45,500/) incentive for month of January,2014 (Rs.8000/), referral policy (Rs. 2,500/), leave encashment from year 2011 to year 2014 (Rs. 32,666/). The plaintiff has examined himself as the only witness to depose during plaintiff's evidence. He has proved his salary slip to show that has monthly salary was Rs. 15, 471/ per month. PW1/plaintiff has not brought any evidence, in any form to show and prove that he was entitled to incentives (and what was the basis of receiving incentives), some monetary benefit on account of Referral Policy ( and its basis) and to leave encashment (and rules of leave encashment). For the purpose of his above said entitlement, the plaintiff is relying on legal notice Mark E issued by the plaintiff to the defendant and Ex. PW1/6 which is reply to legal notice, Mark E. It is the contention of Ld. Counsel for the plaintiff that defendant has nowhere denied in Ex. PW1/6, the claim of the plaintiff w.r.t. the incentive, Referral Policy and leave encashment CS No. 6831/2016 Page No. 13/16 and has just tried to create a false defence in reply Ex. PW1/6. It is the claim of the counsel for the plaintiff that these documents are there in the sole possession of the defendant and that is why plaintiff could not bring and prove the relevant documents. It is submitted that it was for the defendant to bring the relevant documents to disprove the case of the plaintiff in this regard as plaintiff has already stated his entitlement in the legal notice Mark E as well as in the plaint in the present case. However, it is worthwhile to point out that if a particular document was in the exclusive possession and counsel for the defendant, which was required to be proved by the plaintiff, he plaintiff should have served a notice for production of the same to the defendant as per the provisions of Sec. 66 of Indian Evidence Act, and also must have written the same in the index as mentioned in Order VII Rule 14 CPC. The plaintiff could have also resort to the provisions of Order 11 CPC, whereby directions could have been issued by the Court to the defendant to produce the relevant documents in possession of defendant. The plaintiff has brought on record his bank statement Mak D in which there is an entry dated 18.3.2014 whereby a sum of Rs. 5,875/ has been stated to be transferred in the account of plaintiff by the defendant. Nothing has come on record, on what account this transfer was made by the defendant to the plaintiff. Even, during arguments, it could not also be properly explained 18 In his defence, the defendant has brought on record CS No. 6831/2016 Page No. 14/16 the fact of complaint made by one Mr. Bhim Puri to Security Exchange Board of India and also the fact that in the arbitration entered into between Mr. Bhim Puri and defendant in persuance of the complaint, the defendant company has already paid an amount of Rs. 1,17,241/ to Mr. Bhim Puri. It is pleaded that Mr. Bhim Puri has filed complaint as plaintiff while acting in discharge of his official duties has unauthorizedly utilized a credit balance of Rs. 1,65,241/ in the account of Mr. Bhim Puri without his consent. It has been submitted that as defendant has paid an amount of Rs. 1,17,241/ to Mr. Bhim Puri due to unauthorized activity of plaintiff, now plaintiff is liable to pay Rs. 72,905/ to the defendant after full and final settlement ( Rs. 1,17,241 44,336 = Rs. 72,905/).
19 However, the defendant could not bring on record nor could explain in arguments that whether it was plaintiff who was exclusively dealing with the account of Mr. Bhim Puri at the relevant time in such a manner that no other person can make any transaction from that account except the plaintiff or that whether it was the standard procedure of working to record the voice memo of the the customer or that whether any criminal proceedings have been registered by Mr. Bhim Puri or the defendant against the plaintiff. There is admitted position that Mr. Bhim Puri has not filed any complaint against the plaintiff and also that the defendant has not filed any civil proceedings for recovery against the plaintiff. Even in the present suit also, no set off or counter claim CS No. 6831/2016 Page No. 15/16 has been filed on account of the defendant against the plaintiff. It is also an admitted fact that no complaint made by Mr. Bhimpuri was communicated to the plaintiff by the defendant prior to receiving of notice dated 12.10.2014 by the defendant. 20 The net result of the above discussion and analysis is that the plaintiff could only prove the nonpayment of the salary by the defendant to the plaintiff from 1.5.2014 to 18.7.2014 @ Rs. 17,500/ amounting to Rs. 45,000/. However, the plaintiff could not prove his entitlement to incentive, referral policy and leave encashment. Further, the defendant could not prove that amount of Rs. 1,17,241/ paid by the defendant to Mr. Bhim Puri was on account of misconduct/mistake of the plaintiff. 21 In view of the same, plaintiff is entitled to the decree of Rs. 45,000/ with interest of 10% per annum from the date of filing of the present suit till actual recovery. Plaintiff is also entitled to the cost as well. The suit of the plaintiff is partly decreed, accordingly.
22 Reader is directed to draw decree only on payment of deficient court fee (regarding damages).
23 File be consigned to record room as per rules. Announced in the open Court on this 27th Day of Sept., 2022 (MAYANK MITTAL) ACJ/ARC/CCJ (East) Karkardooma Courts, Delhi CS No. 6831/2016 Page No. 16/16