Delhi District Court
M/S Gennext Infratech Pvt. Ltd vs Ajay Kumar on 29 November, 2022
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IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE, SOUTH
SAKET, NEW DELHI.
CIS RCA No. 8928/16
CNR No. DLST01-006051-2016
M/s GENNEXT INFRATECH PVT. LTD.
Registered Office at:
Flat No. 09, C-II/38, Raju Park
Khanpur, New Delhi - 110 062
Operation Office/
Corporate Office at:
W-6/29, Lane-6, Manekshaw Marg
Anupam Garden, Sainik Farm
New Delhi - 110 062
...APPELLANT
VERSUS
AJAY KUMAR
S/o Sh. Ganga Ram
R/o B-81, Street No. 3
Mohan Baba Nagar, Tajpur Extension
Badarpur, New Delhi - 110 044
... RESPONDENT
Date of Institution : 03.11.2016
Date of Arguments : 18.11.2022
Date of pronouncement of order : 29.11.2022
Argued by : Sh. Rakesh Kumar, Counsel for appellant.
Sh. Siddhant Gautam, Counsel for respondent.
JUDGMENT
29.11.2022
1. Present appeal is directed against ex-parte judgment dated 21.09.2016 passed by Civil Judge-02 (South), Saket vide which RCA No. 8928/16 Gennext Infratech Pvt. Ltd. Vs. Ajay Kumar Page No. 1 of 6 :: 2 ::
plaintiff's suit for recovery of Rs.2,54,611/- has been decreed with interest @ 6 per cent per annum.
2.1 Plaintiff/ present respondent had sought recovery of Rs.2,54,611/- on the ground that he had been employed with defendant/ appellant as Sales & Marketing Manager at a monthly salary of Rs.30,000/- per month along with commission of Rs.100 per sq. yards as incentive for deals for sale of land done through him. It was further the case of plaintiff that he remained employed for period 01.05.2012 to March, 2013, i.e. for 11 months and during the aforesaid period, he also got sold land measuring 3776.11 sq. yards and was therefore, entitled for commission of Rs.3,77,611.
2.2 It was further the case of plaintiff that he had borrowed an amount of Rs.1.13 lacs from the defendant for marriage of his brother. After adjusting the loan amount, plaintiff was entitled to Rs.2,54,611/-. Accordingly, an amount of Rs.2,54,611/- was sought to be recovered.
2.3 Though, the present appellant filed his written statement, but his defence was struck off and subsequently, he was proceeded against ex-parte.
2.4 Plaintiff examined himself as a sole witness in support of his case and his affidavit was tendered as Ex.PW1/1. His testimony RCA No. 8928/16 Gennext Infratech Pvt. Ltd. Vs. Ajay Kumar Page No. 2 of 6 :: 3 ::
remained unrebutted and the trial court accordingly decreed the suit.
3. Aggrieved by the aforesaid judgment and decree, appeal has been preferred.
4.1 Sh. Rajnish Kumar, Counsel for appellant has argued that plaintiff/ respondent joined the appellant company as freelance commission agent and received his entire commission for works completed by him. There was nothing due or outstanding against him. It is further argued that an amount of Rs.1.13 lacs had been taken as loan by respondent and the same has not been returned.
Assailing the judgment on merits, it has been explained that the written statement could not be filed in time, as the appellant's counsel was infected with chikungunya and he remained confined to bed for 15 - 20 days and during the intereggnum, appellant's right to file written statement was closed. During the said period, suit was decreed.
4.2 It has next been submitted by Sh. Rajnish Kumar that appellant/ defendant be afforded an opportunity by taking his written statement on record. It has further been submitted that appellant/ defendant be permitted to cross-examine respondent/ plaintiff and that an opportunity be afforded to him to lead evidence in his defence.
5.1 On behalf of the respondent, it has been argued that there is RCA No. 8928/16 Gennext Infratech Pvt. Ltd. Vs. Ajay Kumar Page No. 3 of 6 :: 4 ::
no reason to interfere with judgment and decree, as no facts were disputed during trial and even the witness/ PW-1 remained un- cross-examined.
5.2 Sh. Siddhant Gautam, Counsel for respondent/ plaintiff argued that plaintiff had moved an application before trial court under order IX Rule 11 CPC read with order VIII Rule 1 CPC seeking recall of order striking off defence of the appellant/ defendant. The said application was dismissed by trial court vide order dated 28.07.2016. It is further argued that the said order was never challenged and has thus, attained finality.
6. I have heard Sh. Rajnish Kumar, Counsel for appellant/ defendant and Sh. Siddhant Gautam. Counsel for respondent/ defendant. With their assistance, I have gone through the impugned judgment and trial court record.
7.1 It is noticed that by way of his appeal and written arguments, appellant/ defendant has not denied association of respondent/ plaintiff in the business. It has also not been denied that respondent/ plaintiff was entitled to commission for sales/ deals conducted through him. It is however, the case of appellant/ defendant that respondent/ plaintiff was paid his commissions and was not entitled to any salary. Nonetheless, his defence having been struck off by trial court and appellant having been proceeded ex-parte, the plaintiff's evidence has gone unrebutted.RCA No. 8928/16
Gennext Infratech Pvt. Ltd. Vs. Ajay Kumar Page No. 4 of 6 :: 5 ::
7.2 Study of respondent/ plaintiff's bank account statement (Mark A) has credit entries dated 14.09.2012, 09.10.2012, 29.10.2012, description of which is shown as 'Gennext Infratech PV67.1561 IC'. Further perusal of Mark A shows that there are certain credit entries dated 17.12.2012, 19.12.2012, 10.01.2013, 14.01.2013, 07.02.2013 and 27.02.2013 under the heads 'salary' and 'incentive'. The inference that can thus, be drawn from study of Mark A, is that the respondent/ plaintiff was drawing a monthly salary and incentive from Gennext Infratech Pvt. Ltd, i.e., appellant/ defendant. It thus, stands proved that the respondent/ plaintiff was employed with the appellant/ defendant's company on monthly salary basis and also, incentives.
7.3 Prayer of Sh. Rajnish Kumar to afford an opportunity to appellant/ defendant for taking on record his written statement and permitting him to cross-examine respondent/ plaintiff and also to lead evidence in his defence, shall amount to starting the trial de novo. Same shall result in putting the clock back by a period of almost seven years. I further find merits in the submissions of Sh. Gautam, Counsel for respondent/ plaintiff that appellant/ defendant did not pursue remedy available under the law on dismissal of application under order IX Rule 11 CPC.
Order dated 28.07.2016 passed by trial court vide which appellant's application was dismissed has attained finality and appellant shall be deemed to have been acquised to the situation.
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Now, six years subsequent to order dated 28.07.2016 and almost seven years subsequent to his right being closed, appellant cannot be permitted to re-open the case.
8. In view of the discussion made above, respondent/ plaintiff's employment stands established. Therefore, I find no reason to interfere with the judgment and decree passed by the trial court. Impugned ex-parte judgment and decree dated 21.09.2016 passed by Sh. Vishal Pahuja, Civil Judge-02 (South) are upheld. Appeal is therefore, dismissed.
9. Trial court record be sent back along with copy of the judgment.
10. No order as to the costs. Decree sheet be prepared.
11. Appeal file be consigned to Record Room.Digitally signed by NAROTTAM KAUSHAL
NAROTTAM Date: KAUSHAL 2022.11.29 Announced in the open Court 14:45:42 on this 29th day of November, 2022 +0530 (NAROTTAM KAUSHAL) Principal District & Sessions Judge South District: Saket Courts 29.11.2022 (v) RCA No. 8928/16 Gennext Infratech Pvt. Ltd. Vs. Ajay Kumar Page No. 6 of 6