Delhi District Court
M/S Sakha Services Pvt. Ltd vs Mrs. Hemalatha W/O Mr. Chinnappavan on 5 May, 2014
IN THE COURT OF Ms. TANVI KHURANA,CIVIL JUDGE1(South)
SAKET COURTS NEW DELHI
In the Matter of
Civil Suit No.102/13
Case ID No. 02406C0047772014
M/s Sakha Services Pvt. Ltd.
Having its registered office
161/L, Hans Mansion,
Yusuf Sarai, New Delhi 110049 .........Plaintiff
Versus
Mrs. Hemalatha W/o Mr. Chinnappavan
R/o H. No. 387, DDA Khirki Village,
Near Malviya Nagar, New Delhi110017. .........Defendant
Date of institution : 03.02.2012/08.08.2013
Date of reserving the judgment : 28.04.2014
Date of pronouncement : 05.05.2014
Decision : Dismissed
Suit for Recovery of Damages of Rs. 2,20,000/ (Two Lacs
Twenty Thousand Rupees only) along with interest and costs
Present: None for the plaintiff.
Defendant in person.
JUDGMENT:
The plaintiffs have filed the present suit seeking recovery of damages to the tune of Rs. 2,20,000/ for the loss, injury and harassment caused to the plaintiff on account of defendant's act and omissions along with Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 1 of 18 interest at the rate 24 % per annum from the date of accrual till its realization.
Plaintiff's Version:
2. Succinctly, the facts as mentioned in the plaint are that the plaintiff is a Private Limited Company registered under the Companies Act,1956 engaged in the business of Engineering Services and is carrying on its business in India under the name and style of M/s Sakha Services Pvt. Ltd.
having its registered office at 161/L, Hans Mansion, Yusuf Sarai. Mr. Vinod Kumar Bhandari (Vice President) is the authorised representative of the plaintiff duly authorised vide board resolution dated 26.07.2011.
3. It is further averred that the defendant was appointed as Assistant Manager w.e.f. 01.06.2007 by the plaintiff. The Appointment LettercumAgreement dated 25.02.2008 was issued and executed in Delhi containing terms and conditions which were accepted by the defendant. It is submitted that defendant was promoted from Assistant Manager to Deputy Manager (Marketing) w.e.f. 01.05.2009 vide letter dated 20.07.2009. It is submitted that defendant joined on 01.06.2007 on a total compensation payable at the rate of Rs. 12,500/. It is also submitted that defendant resigned w.e.f. 05.10.2010 through Email by giving thirty days notice to the plaintiff. It is the grievance of the plaintiff that resignation was not in accordance with the terms and conditions of the appointment letter as the defendant failed Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 2 of 18 to pay relocation charges and also took away various sales documents duly signed by the clients of the plaintiff. It is also alleged that various statutory compliance were not complied by her causing loss to the plaintiff in form of penalty imposed due to untimely remittances made by the plaintiff. It is also alleged that the defendant deliberately kept the work pending and did not carry out reconciliation thereby causing loss of over Rs. 2.2 Lacs as the quantum of sales could not be reconciled with the receipts and remittances received by the plaintiff from its clients. It is also alleged that defendant also violated the appointment letter as she was in touch with exemployees of the plaintiff and passed on the information relating to the plaintiff which was not permitted. It is also alleged that the defendant in violation of the rules sent Emails to the client to defame and tarnish the image of the company.
4. It is also averred that the defendant was also asked by the plaintiff vide one of its Emails dated 26.11.2009 not to send 'Facebook' requests through her official ID. Despite requests including Emails dated 09.02.2011, 11.02.2011 and 27.02.2011 defendant did not bother to perform her obligations. It is stated that legal notice dated 17.03.2011 was also sent by the defendant which was replied by the plaintiff on 13.05.2011.
5. It is averred that the defendant has no right to withhold firstly, one month salary in lieu of notice period Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 3 of 18 on submitting her resignation to the plaintiff and secondly, the relocation charges though notice was given and during the period she had not responded or reconciled the account. It is averred that plaintiff is entitled to recovery of damages to the tune of Rs. 2.2 lacs. Hence, the present suit seeking recovery was filed.
Defendant's Version:
6. On notice, defendant filed her written statement raising objections to the maintainability of the suit. It was stated that the suit has been filed by the plaintiff to absolve themselves from paying legitimate dues of the defendant and to coerce her to rejoin the plaintiff company. It is further stated that the defendant had sent several reminders for the payment for her dues but all in vain. It was further submitted that the suit has been filed just to harass the defendant as the plaintiff never mentioned any of these allegations during the notice period and had called the defendant for number of days to assist the plaintiff even after the notice period. It was submitted that the plaint is devoid of disclosure of cause of action.
7. On merits, the contents of the plaint were denied except the portion of appointment and promotion as well as the quantum of compensation. But it was stated that it was later increased to Rs. 21,000/ after the promotion. It was also stated that the allegation of taking away the sale documents was merely an after thought. It was also Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 4 of 18 submitted that sending 'Facebook' requests was not against the terms and conditions of appointment of letter and was sent inadvertently.
8. It is also submitted that the defendant had sent several mails to the plaintiff for payment of her dues but the plaintiff kept on avoiding and it was also submitted that even after expiry of notice period, the defendant attended office as goodwill gesture at the request of the plaintiff on 08,09,10,13 and 17th December 2010 for dealing with the clients on account on defendant's past experience. It was also submitted that the legal notice sent by her shows that the defendant had requested plaintiff for payment of her dues. Rest of the contentions were vehemently denied and dismissal of the suit was prayed for.
Replication:
9. The contents of written statement were denied in the replication. It was submitted that there was no harassment of the defendant by the plaintiff. It was also submitted that the defendant had also lodged false complaint with National Commission for Women. The claim in the plaint was reiterated and reasserted.
Identification of issues:
10. Admission/denial of the documents not conducted. From the pleadings of the parties, following issues were framed vide order dated 04.09.2012 by the Ld. Predecessor:
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 5 of 181.Whether the plaintiff is entitled to recover damages as claimed for in the plaint? OPP
2.Whether the plaintiff is entitled to the interest as claimed for in the plaint? If so, at what rate? OPP
3. Relief.
Evidence:
11. The plaintiff examined Mr. Ved Kumar Manuja/AR/PW1 and thereafter vide a separate statement PE was closed on 09.05.2013. Similarly, defendant herself stepped into witness box as DW1 and closed DE on 13.09.2013. In rebuttal evidence,the plaintiff filed additional documents on 18.12.2013.
12. In order to establish the case of the plaintiff, PW1/AR/Sh. Ved Kumar Manuja stepped into the witness box and vide his affidavit, Ex. PW1/A deposed reiterating the contents of the plaint. He stated that defendant was appointed on 01.07.2007, was promoted on 01.05.2009 and had resigned w.e.f. 05.10.2010. He further deposed that resignation was not in accordance with the terms and conditions. He also deposed that non compliance by the defendant costed penalties to the plaintiff. He also deposed that the defendant deliberately kept the work pending and did not carry reconciliation. He further reasserted the fact of communication with exemployees, defamatory emails, 'Facebook' requests and so on. He also deposed about the Emails dated 02.09.2011, 11.02.2011 and 27.02.2011 and that defendant did not reply or perform her obligations. He Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 6 of 18 also deposed that the defendant is liable to pay Rs. 2.2 lacs on account of loss, harassment and injury due to acts and omissions of the defendant. He also deposed that the defendant had sent a demand notice dated 04.04.2012 through Delhi Karamchari Sangh. He also deposed that the defendant even filed false complaint before National Commission for Women.
13. In his cross examination, the witness stated that he did not have any personal knowledge of the matter and had joined the plaintiff company in January 2013. He admitted that he was not present when the printout of the Emails (Ex. PW1/5 to Ex. PW1/7) were taken. He volunteered that the Email account was of their Director and Vice President. He stated that he was aware about the job profile of Deputy Manager (Marketing) who deals with clients regarding product and services, marketing and sales, sending quotations, receiving work orders etc. He stated that he did not remember the exact working days of the defendant when she reported for the work last time. He stated that it may be in October 2010. He admitted that defendant had reported for work on 8,9,10,13,17 of December 2010. He did not remember whether the defendant had dealt with clients on these dates or not. He stated that the legal notice dated 17.03.2011 was received by the plaintiff company by the "person in chair". The document was exhibited as Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 7 of 18 Ex.PW1/D1. He volunteered that they had sent a reply to Ex. PW1/D1.
14. He stated that the statutory compliances as stated in the plaint and his affidavit were not specifically written. He did not have any record at that time and it was hard for him to remember that whether any Government Department had imposed any penalty or the amount thereof. He stated that they had not placed on record any receipt of payment of penalty imposed on the plaintiff due to the work done by the defendant. He denied to the suggestion that no penalty was ever imposed on the plaintiff and that the duty to comply with the statutory compliances was not a part of the duty of the defendant. He further stated that no document has been placed on record showing remittance were not reconciled with the quantum of sales. He did not remember the name of exemployee who was allegedly in touch with the defendant. He stated that it was the confidential information of marketing and sales which the defendant shared with the exemployees. He did not remember that the information pertained to which client. He volunteered that the same was on record. He denied to the suggestion that there were no discrepancies between the quantum of sales and receipt and remittances.
15. He further stated that the defendant sold some goods without making challan and receiving Material Receipt Note (MRN) from the client for the goods supplied and resulting Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 8 of 18 in non realisation of payment causing loss to the company. He further stated that there were other similar cases in which payment realisation was pending due to non reconciliation and non receipt of MRN. He stated that the collective loss occasioned due to conduct of defendant was quantified as Rs. 2,20,000/. It was not in his knowledge that whether any documents/invoice/challan were placed on record. He volunteered that those documents were shown to the defendant. He denied the suggestion that there was no such record since no such incident had happened and no loss was occasioned to the company due to any act whatsoever on the part of the defendant. He also denied that the defendant had made wrongful gain or caused wrongful loss to the plaintiff. He further stated that the complaint before National Commission for Women was made by the defendant after filing the present suit. He admitted that the defendant resigned through Email by giving thirty days notice. He volunteered that she had not completed or attended office for complete thirty days. He denied to the suggestion that the plaintiff had not made the full and final payment to the defendant and on demand from defendant, the present false suit was instituted against her to avoid payment of legitimate dues to the defendant. He denied that he was deposing falsely. The documentary evidence adduced by PW1 is as follows:
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 9 of 18 Ex. PW1/1 Certificate of incorporation
Ex. PW1/2 Board resolution
Ex. PW1/3 Appointment cum agreement letter
dated 25.02.2008
Ex. PW1/4 Promotion letter dated 20.07.2009
Ex. PW1/5 Email dated 05.10.2010
Ex. PW1/6 Email dated 26.11.2010
Ex. PW1/7 (colly) Emails dated 09.02.2011, 11.02.2011, 27.02.2011 Ex. PW1/8 (colly) Reply dated nil, Legal notice dated 17.03.2011 Ex. PW1/9 Letter dated 04.04.2012 by Delhi Karamchari Sangh
16. On the other hand, the defendant herself stepped into the witness box and deposed vide her affidavit Ex. DW1/A, that she was appointed as Assistant Manager and later on promoted. She stated that her salary was increased to Rs.21,000/ after promotion. She stated that she had resigned w.e.f. 05.10.2010 through Email by giving thirty days notice to the plaintiff. She deposed that she had resigned in accordance with the terms and conditions of the appointment letter and the plaintiff had not complained about anything. She stated that she had not carried any sales document with her and had worked with atmost devotion. She further deposed that she had not violated any conditions of the appointment letter and friend requests from 'Facebook' were sent inadvertently.
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 10 of 18She also deposed that she had sent many Emails to the plaintiff seeking her dues and had attended office even after notice period as a goodwill gesture on 08,09,10,13 and 17 of December 2010.
17. In her cross examination, she stated that she had joined the company on 01.06.2007. She admitted that she had submitted her resignation to the plaintiff company on 05.10.2010 and as per the appointment letter the notice period of thirty days was mandatory. She stated that the reason for resigning from the plaintiff company was that the company was shifting to Gurgaon. She stated that Ex. PW1/6 was correct. She denied the suggestion that she had used the official ID for her personal use. She stated that she had not sent any objections/reply to the Email, Ex. PW1/6. She denied the suggestion that except Ex. PW1/6, there were any repeated warnings from the plaintiff company in regard to use of official ID for networking site.
18. She stated that the date of her resignation was 05.10.2010 and she had marked her presence in the attendance register even after 05.10.2010. She denied that she had not attended the office for entire month of October after her resignation. She volunteered that she had attended from 05.10.2010 to 04.11.2010. She denied the suggestion that she had not attended the office for official work on 08,09,10,13 and 17 December 2010. She admitted Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 11 of 18 that her visit to the plaintiff company on the above mentioned dates was to ask the department for full and final settlement and not for official work. She denied that she had not attended even a single day for official purpose after date of her resignation. She volunteered that she had attended the entire notice period for the official purpose. She stated that Ex. PW1/5 was correct. She admitted that the work assigned to her was not handed over till 05.10.2010 She denied that she had not handed over a complete assignment. She volunteered that whatever was sought was handed over. She stated that she was never harassed by the plaintiff company in relation to her modesty. She admitted that she had filed complaint at Delhi Karamchari Sangh in regard to the fact that the salary was not paid by the plaintiff company. She denied to the suggestion that it was made to harass the plaintiff company. She stated that she had taken the copy of complaint to National Commission for Women. She stated that the matter was still pending and she was following the case.
19. She stated that she had handed over work to Ms. Jyoti but had not taken receiving from her. She stated that she did not have any idea of the trend of the office for handing over the assignments. She denied to the rest of the suggestions put to her by Ld. counsel for the plaintiff. The witness had not produced any documentary evidence.
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 12 of 1820. In rebuttal evidence, the copy of letter dated 23.04.2012 and 12.05.2012 and photocopy of notice dated 24.09.2012 were filed. However, these are photocopy documents which are not tendered by way of affidavit.
21. This is the entire oral as well as documentary evidence adduced by the parties in the present case. Arguments:
22. Ld. counsel for the plaintiffs argued that defendant has not categorically denied the portions of the plaint specially paragraph no. 8 thereby admitting the same. He further argued that the defendant had denied the cause of action. He also pointed out that the plaintiff has not averred anywhere that she had worked till 04.11.2010 and therefore, she has admitted that the last day for attending office was 05.10.2010. It was argued that the para 3 of legal notice dated 17.03.2011 is contradictory to the written statement as the last day was 05.10.2010 and thirty days period was not served. It is also argued that the defendant has not proved by way of evidence that she had worked on 8,9,10,13 and 17 December 2010. He further argued that the defendant had given sudden resignation through email dated 05.10.2010 and failed to serve the mandatory notice period and therefore, she was called to complete her work on the above stated dates. He also argued that it is highly improbable that some could work even after the notice period as alleged by the defendant. He thereafter argued Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 13 of 18 that the defendant is liable to pay the amount of damages as she had not served the notice period and caused harassment to the plaintiff. He argued that the plaintiff had demanded the one month salary, however, the defendant lodged false complaints. He argued that owing to the documentary and oral evidence on record, the plaintiff has established its case. He prayed for the suit to be decreed.
23. Per contra, Ld. Counsel for the defendant argued that the present suit is a counter blast to the demand of legitimate dues put forth by the defendant. He stated that the legal notice dated 17.03.2011 clears the picture. He stated that the resignation was tendered vide email and notice period was also served. He pointed out to Ex. PW1/D1 and stated that the plaintiff has filed the present case only to harass the defendant.
24. I have heard the rival contentions raised by both the counsel and have also perused the case record meticulously with their kind assistance. The plaintiff has also submitted written submissions. My issue wise findings are as below:
Issue No. 1:
Whether the plaintiff is entitled to recover damages as claimed for in the plaint? OPP
25. The onus to prove this issue was upon the plaintiff. It was for the plaintiff to establish by leading evidence that it is entitled to damages to the tune of Rs. 2,20,000/.
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 14 of 1826. In order to prove the loss caused to the plaintiff company, the plaintiff examined the AR as PW1. However, it can be noted that the witness did not have any personal knowledge of the matter. He stated that the statutory compliances were not made but categorically answered in his cross examination that no penalties were imposed upon the plaintiff. He again admitted that the documents which reflected the non reconciliation of remittance and receipts with quantum of sales were not filed. He also did not remember any exemployee to whom the defendant allegedly disclosed confidential information. There is nothing on record to show that what kind of information was disclosed. For the very first time this witness stated that the defendant sold some goods without receiving Material Receipt Note (MRN). Nonetheless, firstly, this fact was not stated in the plaint. The plaint vaguely described the non compliances but the factum of non issuance of MRN was never raised prior to the testimony of PW1. Secondly, there is no document filed by the plaintiff to substantiate the fatum of non issuance of MRN. The witness has merely stated that the collective loss occasioned to the company was quantified as Rs. 2,20,000/, however, how did the plaintiff company reached at this figure remains a mystery completely. It is ironic that Ld. counsel for the plaintiff has argued that the defendant has not produced any document to show that she had attended office after tendering her Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 15 of 18 resignation whereas, the plaintiff themselves have not tendered any document to show the computation of damages as Rs. 2,20,000/.
27. There is no document to show that the plaintiff had not worked after tendering her resignation. The plaintiff company has placed reliance upon the Emails of the defendant which Ex. PW1/5 and Ex. PW1/7 (colly), however, the plaintiff has not placed on record even a single email depicting that the plaintiff had sought any explanation or issued any notice in regard to the defendant not serving the mandatory notice period. The demand was made for the very first time vide legal notice dated 13.05.2011, Ex. PW1/8 (colly) which was admittedly after the defendant had issued the legal notice dated 17.03.2011, Ex. PW1/D1.
28. Other then the above documents, there is nothing on file which provides any connection or nexus between the damages claimed and any act or omission on the part of the defendant. I do not find myself inconsonance with the arguments of Ld. counsel for the plaintiff that the defendant has admitted the claim of the plaintiff. On the other hand, the defendant categorically maintained that she had served the mandatory notice period. Moreover, the plaintiff has not taken this as a contention in the plaint that the defendant had not served the notice period.
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 16 of 1829. Whereas, the factum of non tendering of the work assigned is concerned, the plaintiff has not pleaded that what was the work assigned which was not handed over to the plaintiff. The entire plaintiff is silent about the work which the defendant was to submit. Further, the aspect of misrepresentation as claimed by the plaintiff is also not described clearly. It is settled law that the onus to prove misrepresentation is always on the person who agitates the same except certain provisos. However, the present case does not fall within any of the exceptions and the onus was upon the plaintiff to prove misrepresentation which has not been discharged.
30. The plaintiff has not been able to buttress the contentions raised in the plaint by any documentary evidence. It is settled law that the case of the plaintiff should stand on its own legs and the plaintiff can not take advantage of the deficiency in the case of the defendant. Be that as it may, the plaintiff is unable to establish its case. The civil jurisprudence is based upon preponderance of probabilities. However, even on preponderance of probabilities, the case of the plaintiff does not stand in dearth of the necessary evidence.
31. In light there of issue is decided against the plaintiff and in favour of the defendant.
Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 17 of 18Issue no. 2:
Whether the plaintiff is entitled to the interest as claimed for in the plaint? If so, at what rate? OPP
32. The onus to prove this issue was upon the plaintiff. It was for the plaintiff to establish that it was entitled to the interest. In light of finding of issue no. 1 it can be safely concluded that when the entitlement of the damages is not established then question of interest does not arise and hence, this issue is also decided against that plaintiff and in favour of the defendant.
Relief:
33. Resultant to the above discussion, especially owing to the finding of issue no.1, the suit of the plaintiff is dismissed as being devoid of merits. Parties to bear their costs. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 05th May 2014. (TANVI KHURANA) The judgment contains 18 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 05.05.2014 Suit No.102/13 M/s Sakha Services Pvt Ltd. Vs. Mrs. Hemalatha Page 18 of 18