Delhi District Court
Purab Saagar Saini vs Radius Synergies Pvt Ltd on 27 May, 2024
IN THE COURT OF SH. SOMITRA KUMAR,
DISTRICT JUDGE - 06 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
CNR NO.:- DLET01-002015-2019
CS NO.:- 155/2019
IN THE MATTER OF :-
Sh. Purab Saagar Saini
S/o Sh. Prem Sagar Saini
R/o 3E-183, NIT, Faridabad,
Haryana-121001
Currently Residing at:
17 Curtis Court,
Lyon Road, Harrow,
HA1 2EW, London
Through his Power of Attorney
Sh. Prem Sagar Saini ....Plaintiff
VERSUS
Radius Synergies Pvt. Ltd.
Through its Director
Sh. Shyam Sunder Singh,
Having its Regd. Office at:
311, ABC Complex,
20 Veer Savarkar Block,
Shakarpur, New Delhi-110092 ....Defendant
Date of institution of the suit : 02.03.2019
Date on which Judgment was reserved : 26.04.2024
Date of Decision : 27.05.2024
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 1 of 54
SUIT FOR RECOVERY OF RS. 27,17,077/- (RUPEES
TWENTY-SEVEN LACS SEVENTEEN THOUSAND SEV-
ENTY-SEVEN ONLY) ALONG WITH PENDENTE LITE
AND FUTURE INTEREST
JUDGMENT
1. By way of the present judgment, this court shall adjudicate upon a suit filed by the plaintiff for recovery of Rs. 27,17,077/- (Rupees Twenty Seven Lacs Seventeen Thousand Seventy Seven only) alongwith pendente lite and future interest.
CASE OF PLAINTIFF
2. The necessary facts for just adjudication of the present suit, as stated in the plaint, are as under: -
(i). That the plaintiff, Sh. Purab Saagar Saini, is an Indian citizen, who is currently residing at 17 Curtis Court, Lyon Road, Harrow HA1 2EW, London, has filed the present suit through Mr. Prem Sagar Saini, who has been duly authorized and empowered by the plaintiff to sign, file, verify, and institute the present proceed-
ings against Defendant vide General Power of Attor- ney dated 29.04.2017.
(ii). That the defendant, Radius Synergies Pvt. Ltd., is a company incorporated under the Companies Act, 1956, and having its registered office at 311, ABC Complex, 20 Veer Savarkar Block, Shakarpur, New Delhi 110092. The defendant company is engaged in CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 2 of 54 the business of engineering, procurement and commis- sioning of prepaid electric metering systems in resi- dential and commercial complexes, and providing an- nual maintenance services relating to the same.
(iii). That in and around July/August 2012, the plaintiff ap-
plied with the defendant company and was selected for the post of consultant for advisory matters in the finan- cial and legal matters and thus, the plaintiff and the de- fendant entered into a Consultancy Agreement (here- inafter 'agreement) dated 13.08.2012 which laid down the terms and conditions of the consultancy between the plaintiff and the defendant. The said agreement was executed between the plaintiff and the defendant at the office of the defendant in Delhi.
(iv). That pursuant to the said agreement, the plaintiff joined the defendant company on 13.08.2012 and ren- dered his services to the satisfaction of the defendant. The plaintiff received an amount of Rs.1,50,030/- per month towards his fee from the Defendant in lieu of the services rendered by the Plaintiff to the Defendant starting from September 2012 till December 2013. However, there were certain delays at the end of the Defendant in making payment of monthly salary from June/July 2013.
(v). That in January, 2014, the plaintiff travelled to the United Kingdom, however, the Plaintiff continued to provide his services to the Defendant while he was there, which is evident from several correspondences CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 3 of 54 between the plaintiff on one hand and Mr. H. S. Singh on the other which proves beyond doubt that the defen- dant Company continued to avail the services of the Plaintiff. The said e-mail correspondence sent by the defendant company was addressed to the official e- mail id '[email protected]', which was assigned by the defendant to the plaintiff.
(vi). That in April, 2014, the plaintiff returned to India and continued working as a consultant in the defendant company till September 2014. It is submitted that sev- eral e-mails were sent by Ms. Radhika Gupta of the Human Resources Department of the defendant com- pany between April, 2014 to September, 2014 whereby the Plaintiff, among other employees, was given in- structions with respect to swiping the access control cards to mark in and out timings from the office, ad- hering to dress codes, request to join birthday celebra- tions of fellow employees, to partake in Raksha Band- han, Diwali celebrations etc.
(vii). That in late September 2014, the plaintiff once again travelled to the United Kingdom, however, the Plain- tiff continued to render his services to the defendant company which is established from the series of corre- spondences exchanged between the plaintiff and the defendant. The officials of the defendant company used to send the relevant document and information, via e-mail, to the plaintiff, who in turn, would e-mail the work done. The work done by the plaintiff in-
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 4 of 54 cluded drafting, reviewing agreements, reviewing an- nual filings, rendering opinions, drafting legal notices, drafting official letters and e-mails sent to the Com- pany's banking partners and stakeholders in the joint venture, Radius Infratel Private Limited (RIPL) and advising Mr. H.S. Singh on various issues arising from his dispute with the other stakeholders in RIPL, man- aging the finalisation and filing of tax returns of com- panies forming part of the Radius Group, managing labour law compliances in relation to companies form- ing part of the Radius Group. The officials of the De- fendant company, also used to communicate to the plaintiff on 'Facetime' and 'Skype' calls regarding the consultancy work.
(viii). The defendant had never raised any dispute whatso-
ever with respect to the services provided by the plain- tiff and on the contrary, due to the plaintiff's impecca- ble performance, the defendant company continued to avail itself of the services of the plaintiff. A bare pe- rusal of the nature of the work performed by the plain- tiff would show that the plaintiff was pivotal to the functioning of the defendant company and was instru- mental in aiding the Defendant company in achieving its objectives.
(ix). That since the plaintiff was getting better opportunities in the United Kingdom, the Plaintiff terminated the Consultancy Agreement with the Defendant on 09.01.2015 i.e. w.e.f. 10.01.2015, which fact was com-
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 5 of 54 municated by Ms. Radhika Gupta to Ms. Chloe Baton, working in the HR Department of the Financial Con- duct Authority.
(x). That despite availing the services of the plaintiff, the Defendant company with malafide intention withheld the consultancy fee of the Plaintiff for the period from January, 2014 to 09.12.2015. During the course of the consultancy period with the defendant company, the plaintiff made several requests to the senior officials of the defendant to release the outstanding consulting fees, however, the officials of the defendant company assured the plaintiff that the same would be released in some time as the Defendant company is facing several financial difficulties.
(xi). That the plaintiff believed the assurances of the Defen-
dant to be true, the Plaintiff continued to provide his services to the defendant company. However, the De- fendant Company failed to pay even a single farthing for the services rendered by the plaintiff. The plaintiff continued to work with the Defendant company till 09.01.2015. Since then, the plaintiff has been request- ing the Defendant to remit the outstanding amounts due to him for the services rendered by him to the de- fendant during the period January 2014 till 9th Janu- ary, 2015. It is submitted that the plaintiff has sent sev- eral e-mails and reminders dated 11.06.2015, 30.01.2016, 5.07.2016, 30.09.2016 & 16.02.2017 to the defendant company and its senior officials request-
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 6 of 54 ing them to clear the outstanding payments, as promised, which were long due for rendering financial and legal services, said e-mails were neither replied nor the outstanding amount was paid by the Defendant Company. After August 2016, the officials of the De- fendant Company ignored the calls and e-mails sent by the plaintiff.
(xii). That the plaintiff received variables of an amount of Rs. 1,50,000/- each on 14.02.2014 and 06.05.2014. Further, the defendant company has also deducted and deposited TDS from the amount due to the plaintiff for the months of January 2014 and February 2014 with the Income Tax Authority. For the months of May 2014 and June 2014, the amount payable to the Plain- tiff was allocated to Radius Synergies International Private Limited (RSIPL), a company owned by Mr. H.S. Singh and belonging to the Radius Group, pro- moted by Mr. H.S. Singh. The reason told to the plain- tiff for the deduction of TDS by RSIPL was that the defendant company had initiated to move its business into RSIPL as the defendant company had a history of statutory non-compliances, including non-payment of service tax, not deducting and depositing tax at source on time, non-compliance of the provisions of Employ- ees Provident Fund and Employees State Insurance etc., and Mr. H.S. Singh wanted to correct that. The TDS deducted and deposited for the 4 months is re- flected in the plaintiff's Form 26AS available on the Income Tax Department website.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 7 of 54
(xiii).That accordingly, having left with no other alternative, the plaintiff was constrained to issue a legal notice dated 20.03.2017 through his counsel for payment of Rs. 27,00,000/- along with interest @ 24% p.a. within a period of fifteen days from the receipt of the notice. The defendant company sent a frivolous reply dated 20.04.2017 to the said legal notice to the plaintiff thereby denying the contents of notice dated 20.03.2017 and sought to raise false pleas for the first time, thus making it clear that the defendant company had no intention to clear the legitimate dues of the plaintiff.
(xiv).That being aggrieved from the aforesaid conduct of the Defendant, the plaintiff initiated proceedings against the defendant under the Insolvency and Bankruptcy Code before the National Company Law Tribunal (NCLT), New Delhi. It is submitted that the said peti- tion was dismissed by the NCLT, New Delhi vide or- der dated 16.02.2018 on the ground that there exists a dispute between the parties. As such, the Plaintiff is filing the present suit for recovery.
(xv). That the plaintiff had worked for the Defendant com-
pany from 13.08.2012 till 9.01.2015. The consultancy fee for the services rendered from January 2014 to De- cember 2014 for amount Rs. 20,00,400/-, consultancy fees of Rs. 50,010/- for the period 01.01.2015 to 09.01.2015, balance consultancy fees for the period between August 2012 to July 2013 of Rs. 1,00,000/-, CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 8 of 54 annual performance linked incentive for the period be- tween August 2013 to July 2014 of Rs. 4,00,000/- and proportionate amount of Rs.1,66,667 as annual perfor- mance linked incentive for the period between August 2014 to December 2014, all totaling to an amount of Rs. 27,17,077/- is due and payable by the defendant to the plaintiff along with interest on the said outstanding amount. Hence, the present suit is filed by the plaintiff against the defendant for the recovery of Rs.
27,17,077/- (Rupees Twenty Seven Lacs Seventeen Thousand Seventy Seven only) along with pendente lite and future interest at the rate of 18% per annum.
WRITTEN STATEMENT OF THE DEFENDANT
3. Upon service of summons of the suit, the defendant con- tested this suit by filing written statement. In the written state- ment, the defendant denied the claims of the plaintiff and it is pleaded as under:
(i) that the present suit for recovery, filed by the plaintiff, is a gross abuse of the process of law and the plaintiff has suppressed and manipulated material facts. The present suit is a suit for recovery of money against wages, allegedly due and payable between January, 2014 to 9.12.2015. The plaintiff admittedly terminated the Consultancy Agreement on 9.1.2015, to be given effect from 10.1.2015, hence, in no circumstances, the plaintiff can claim wages for the period during which CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 9 of 54 he did not render any services to the defendant Com-
pany.
(ii) That as per Part II of the Schedule of the Limitation Act, 1963, and more particularly by Section 7 (sic Ar- ticle 7) of the Schedule of the Limitation Act, a suit for recovery of wages ought to be filed within 3 (three) years, from the date of accrual of cause of action, that is, the date on which the wage became due and payable. It is the admitted case of the plaintiff that he received his last monthly salary in December, 2013, and did not receive any amount thereafter, from the de- fendant Company, till the date of termination of the Consultancy Agreement. As is evident, the cause of action for filing the present suit arose on or after De- cember 2013 and hence, it ought to have been filed on or before December, 2016. However, as could be seen, it has been filed in 2019, that is, 3 (three) years after the expiry of the period of limitation. The present Suit is hopelessly barred by Limitation and deserves to be dismissed on this ground alone.
(iii). That, notwithstanding the above, the period of Limita-
tion can be extended if it can be shown that, either the defendant paid a part of the outstanding wage to the plaintiff thereafter or acknowledged its liability to- wards the same. However, from the documents filed along with the plaint, there is nothing that could extend the period of limitation so as to bring the present suit within the period of limitation. The cause of action CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 10 of 54 does not arise with the issuance of Legal Notice rather, the issuance of Legal Notice is a part of the accrual of the cause of action. The present Petition deserves to be dismissed as hopelessly barred by limitation.
(iv). That, notwithstanding the above, it is a matter of record that the plaintiff had shifted to London, some- where at the end of January, 2014, or at the beginning of February, 2014, as he had married a girl, holding a British Passport. After shifting to London, the plaintiff applied for an extension of his existing Home Loan with HDFC Limited, as is evident, from the e-mail, dated 10.3.2014, whereby, HDFC sought certain infor- mation, in respect of his employment from the defen- dant Company. While replying to the communication, received from HDFC, the defendant, vide e-mail, dated 11.3.2014, furnished information sought by HDFC which included information on the tenure of his em- ployment with the defendant which reads as under:
"Number of Years in the Organization from 13 August 2012 to 18th January, 2014". Admittedly, these com- munications were marked to the plaintiff, as well, who did not question the correctness of tenure of his em- ployment with the defendant, thereby leaving no room for any doubt that he worked till 17.1.2014. Therefore, the present suit deserves to be dismissed as barred by limitation.
(v). That even the Final Settlement of the plaintiff, pre-
pared by the defendant leaves no room for any ambi-
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 11 of 54 guity with regard to his last working day with the de- fendant which is 17.1.2014 and the employee of the Company, namely, Alok was instructed by the defen- dant, vide its email, dated 14.1.2014 to take the laptop from the plaintiff in terms of Issued Material Detail, dated 20.8.2012. The email, dated 5.3.2014, from the plaintiff, substantially and fully corroborates the asser- tion that the plaintiff worked till January 2014 with the defendant and not till January, 2015, as has been al- leged by him. The plaintiff misused and exploited his association with the defendant Company to further his interest and take the Company for a ride can be gath- ered from the e-mail, dated 17.3.2014, which is self- explanatory.
(vi). That, notwithstanding the same, it is a matter of record that the plaintiff applied for a job, with the Financial Conduct Authority (FCA) and sought logistics support from the defendant, to the extent of letting him draft reply, to be sent to FCA to the E-mail, likely to be re- ceived from it, which is borne out of the Email, dated 23.12.2014, sent by the plaintiff to the defendant. As it is the plaintiff who had drafted the reply to the query of FCA (E-mail, dated 8.1.2015), he intentionally and deliberately omitted to mention his last working day with the defendant. However, the ambiguity, with re- gard to his employment, has been dispelled in the re- ply, dated 9.1.2015, whereby information was sought with regard to the plaintiff. A holistic reading of the communications, relied herein, leave no room for any CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 12 of 54 doubt that the plaintiff severed his relationship with the defendant Company in January, 2014, but re- mained in touch to further his vested interest wherein he misused the trust and confidence of the defendant Company with impunity.
(vii). That even his reference, albeit, occasionally, in some of the communications, after the cession of his rela- tionship with the defendant, was due to his earlier as- sociation with the projects and his knowledge about the same which was sought, as and when needed, al- beit, sporadically. However, seeking information from him was subjective, depending upon the person in- volved in the affairs of the project and there were no as such instructions by the defendant. Moreover, the de- duction of TDS on the salary for the month of Febru- ary 2014, is an example of bonafide inadvertence so much so that the account department of the defendant company was not aware of the same, due to non-sub- mission of Full and Final Account from his side. Moreover, after having come to know the discrepancy, the defendant Company toyed with the idea to reverse the entry but for the impassionate plea of the plaintiff who, literally, begged for financial help to tide over the crisis and that is why the amount was credited in May, 2014.
(viii). That, notwithstanding the same, claim of Performance Linked Incentive is not maintainable as the present suit has been filed based on the Consultancy Agreement CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 13 of 54 which determines the respective rights and obligations of the parties and Clause 1.2 of the Agreement spells out the criteria for ascertaining and determining the Annual Performance Incentive. The incentive linked with Performance cannot be claimed as a matter of right, unless the performance meets the parameter, laid down or agreed upon, as the case may be. It is obvious that the Annual Incentive is to be determined by the defendant Company by judging the performance of the plaintiff on the yardstick, set out by the Company. Ad- mittedly, such satisfaction has to be communicated by the defendant to the plaintiff before which such incen- tive could be claimed by latter. However, the plaintiff has filed nothing on record to show there is any recording satisfaction of the defendant in respect of the performance of the plaintiff.
(ix). That it is reiterated that the plaintiff severed his rela-
tionship with the defendant by canceling the Consul- tancy Agreement on 09.01.2014, to be effective from 10.01.2014. The plaintiff had gone on his own to United Kingdom, that too, after severing his ties with the defendant. It is vehemently denied that the services of the plaintiff were used by the defendant Company while he was in the United Kingdom rather, the fact re- mains that, as the plaintiff had gone without serving due notice on the defendant, information, with regard to projects in which he was involved, during his asso- ciation with defendant, was sought from him, that too, CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 14 of 54 by the officials without there being any official in- structions.
(x). That marking email does not necessarily mean that the plaintiff was in employment with the defendant Com- pany rather the mails were marked to solicit informa- tion, in respect of projects in which the plaintiff was involved during the course of his association with the defendant. Moreover, as the official website of the plaintiff was not deleted, at times, the information used to be shared by default as well. Even otherwise, the in- formation passed on by the plaintiff are in tits and bits and cannot be said to be complete in itself. Moreover, at times, his remarks were sought for clarificatory pur- poses in reciprocation to the help, being extended by the defendant.
(xi). That the plaintiff had disassociated himself long back and the defendant Company did not withhold any amount, due and payable to the plaintiff, but rather paid in excess against the services rendered by him. It is further stated that even if it is presumed, though not admitted, that the amount is due and payable, the same is hopelessly barred by Limitation and deserves to be dismissed on this ground alone.
REPLICATION
4. In replication, the plaintiff reiterated the contents of the plaint and made necessary denials of the defendants' averment in CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 15 of 54 the written statement. It is denied that the plaintiff is claiming "wages" of any sort. It is averred that the plaintiff has claimed consultancy fees due and payable by the defendant under the consultancy agreement dated 13.08.2012. It is denied that the plaintiff has claimed his fees for the work done by the plaintiff during the period between January 2014 to 09.12.2015, rather it was asserted that the plaintiff has claimed his fees for the work done by the plaintiff during the period between January 2014 to 09.01.2015. It is submitted that the present suit was filed well within the period of limitation by contending that plaintiff could not have filed a suit for claiming his consultancy fees while he was working for the defendant company when Mr. H.S. Singh was repeatedly making commitments that his dues would be cleared and vide e-mails dated 12.06.2015, 30.01.2016, 5.07.2016, 30.09.2016 & 16.02.2017, the plaintiff requested Mr. H.S. Singh to act upon his commitment and start paying pending salary to the plaintiff. It is further submitted that when the defen- dant did not respond to his requests, he was forced to issue legal notice dated 20.03.2017 and thereafter bonafidely and on legal advice pursued his legal remedy before NCLT under the IBC when it became clear that the defendant rejected his claim for the consultancy fees. After the dismissal of the petition of the plain- tiff by NCLT vide order dated 16.02.2018 on technical grounds, the plaintiff filed the present suit for recovery. It is submitted that the defendant in written statement makes a reference to the email dated 11.03.2014, however, no document evidencing the same has been brought on record. It is further averred that the plaintiff had questioned the content of the said email and Mr. H.S. Singh vide his email dated 20.03.2014 to HDFC clarified that the plain- CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 16 of 54 tiff has been working with Radius since 13.08.2012. The plaintiff further denied the alleged settlement prepared by the defendant and it is submitted that the alleged email appears to have been exchanged between Kavita and H. S. Singh. It is also submitted that said alleged settlement was neither discussed with the plain- tiff nor any email regarding the aforesaid settlement was ever sent to the plaintiff. It is submitted that the defendant company allowed the plaintiff to retain the laptop and allowed to use the official email id of the defendant company as the plaintiff contin- ued to work for the company.
ISSUES
5. On the basis of the pleadings, the following issues were framed on 17.01.2020 by Ld. Predecessor of this Court:
1) Whether the plaintiff is entitled to recovery of the suit amount? OPP
2) Whether the plaintiff is entitled for any interest? If yes, at what rate and for what period on the suit amount? OPP
3) Whether the suit of the plaintiff is barred by limitation? OPD
4) Relief.
PLAINTIFF'S EVIDENCE
6. Vide order dated 02.03.2022, the plaintiff's evidence was recorded before the Ld. Local Commissioner Sh. R. K. Sharma, Advocate.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 17 of 54 7.1 The plaintiff got himself examined as PW-1. In his exami- nation in chief, PW-1 tendered his evidence by way of an affi- davit Ex.PW1/A, and relied upon the following documents:-
(i). A copy of the consultancy agreement dated 13.08.2012 executed between the parties, which is hereto marked and exhibited as Ex.PW1/1.
(ii). Copy of e-mails exchanged between the parties in the year 2014 is hereto marked and exhibited as Ex.PW1/2 (colly.).
(iii). Copy of e-mails exchanged between the parties in the year 2015 is hereto marked and exhibited as Ex.PW1/3 (colly.).
(iv). Copy of e-mails exchanged between the parties in the year 2016 and 2017 is hereto marked and exhibited as Ex.PW1/4 (colly.).
(v). Copy of plaintiff's bank account between 1.12.2012 to 31.01.2015 is hereto marked and exhibited as Ex.PW1/5 (Colly.).
(vi). Copy of plaintiff's TDS certificate pertaining to the A. Y. 2014-15 and 2015-16 is hereto marked and exhibited as Ex.PW1/6 (Colly.).
(vii). Copy of the plaintiff's phone call details is hereto marked and exhibited as Ex.PW1/7.
(viii). Copy of the screenshot of plaintiff's phone is hereto marked and exhibited as Ex.PW1/8.
(ix). Copy of legal notice sent by the plaintiff to the de- fendant dated 20.03.2017 is hereto marked and exhibited as Ex.PW1/9.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 18 of 54
(x). Copy of the defendant's reply to legal notice sent by the plaintiff dated 20.04.2017 is hereto marked and ex- hibited as Ex.PW1/10.
(xi). Copy of insolvency notice dated 04.09.2017 is hereto marked and exhibited as Ex.PW1/11.
(xii). Copy of insolvency notice dated 10.11.2017 is hereto marked and exhibited as Ex.PW1/12.
(xiii). Copy of order dated 16.02.2018 passed by the Hon'ble NCLT (IB) 577 (ND)/2017 is hereto marked and exhibited as Ex.PW1/13.
7.2 The PW-1 was cross-examined at length by Ld. Counsel for the defendant. During cross-examination, plaintiff/PW1 deposed that the terms of his employment is governed by the agreement dated 13.08.2012 and in terms of agreement, he was required to advice on legal and financial matters; that he used to report to Mr. Hari Shankar Singh, who was the director of the company at that point of time; that the Defendant company had not sent him abroad for any work assignment during his tenure of employment; he voluntarily states that he was not sent abroad on specific assignment but he was allowed to work from there; that he had taken home loan from HDFC bank and had requested for enhancement of home loan from HDFC but he cannot tell the month or the day in which he had requested for enhancement of home loan; that HDFC had asked him to confirm his employment; that he shared the details of the defendant company, and the name of the M.D. of Defendant company and his email ID with HDFC from his official email Id with copy to H.S. Singh; that he received email dated 10.03.2014 which is on page 11 of the written statement; that the defendant company CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 19 of 54 confirmed his employment through email dated 20th March, 2014, written by H.S. Singh and copied to him on his official I.D.; that he wrote email dated 05.03.2014 to Mr. Rajeev; he voluntarily states that he was requesting his company or people working there that if someone from HDFC comes for confirmation, please confirm that he is working with the company; that he denied that he requested to Rajeev because he was not in employment since January, 2014; he voluntarily states that his employment was confirmed by Mr. H.S. Singh by his email dated 20.03.2014 and this mail was sent from the company's official mail and during this period from January, till this email sent to Rajeev, there are many emails on which he has been asked to do some work after January, 2014 including by Mr. Rajeev; that he did not take permission in writing before going to England but after discussion, he took permission from Mr. H.S. Singh verbally; he voluntarily states that he took permission verbally from H.S. Singh, the same is reflected from the Emails which he received from the company to do company's work while being in England; that the email dated 17.03.2014 at page 18 of written statement was written by him; he voluntarily states that he wrote this email because Mr. H.S. Singh requested him to draft an appropriate response as his English is poor in writing formal email; that email dated 23.12.2014 to Ms. Radhika Gupta was sent by me from my official email ID requesting my employer to confirm my employment and written after discussion with Mr. H.S. Singh who asked me to sensitize Ms. Radhika Gupta that she will get email for confirmation of my employment from F.C.A. (Financial Conduct Authority); that as was asked by H.S. Singh, Ms. Radhika shared email which came from FCA CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 20 of 54 asking for the confirmation of his employment and the reply to this email was sent by Ms. Radhika Gupta, C.C. to Mr. H.S. Singh that he is working with the company; that he denied that the email dated 09.01.2015, on page 23 of the written statement was drafted by him; that he has been using the email ID [email protected]; he denied the suggestion that Ms. Kavita Upreti vide Email dated 11.03.2014 had confirmed his employment with HDFC and had mentioned his tenure of employment in the Defendant company from August, 2012 to January, 2014; that he did not write to Ms. Kavita Upreti seeking clarification regarding tenure of his employment with Defendant company; he voluntarily states that he directly spoke to Mr. H.S. Singh that is why he confirmed his employment in his email dated 20th March, 2014 and in this mail, he confirmed he is still working with Defendant company; that he denied that the email dated 09.01.2015 sent to FCA from the Defendant company was drafted by him; that he further denied that [email protected] email ID is used by him; that he denied that he had received consultancy fee till January, 2014; that he terminated the consultancy agreement on 09.01.2015 w.e.f. 10.01.2015, and he did not terminate the consultancy agreement in writing; he voluntarily states that he spoke to Mr. H.S. Singh and communicated this to him who happily accepted this; that he was in U.K. when he terminated the consultancy agreement; that there was no full and final settlement of his account with Defendant company subsequent to termination of his consultancy agreement; that he did not return the laptop of company after the termination of consultancy agreement as he was in U.K.; that he did not intimate the company in black and CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 21 of 54 white to surrender the laptop after termination; he voluntarily states that he spoke to Mr. H.S. Singh about returning the laptop when he conveyed to him about the termination of his agreement and he asked him to keep the laptop; that he did not ask to use the official email ID of the company after termination of consultancy agreement; that he denied that the full and final settlement could not be done due to his failure to handover the property of the company; he voluntarily states that full and final settlement was not done because the company turned dishonest and did not want to clear the outstanding dues; that he did not write to the account department of Defendant company regarding his outstanding dues; he voluntarily states that he wrote many emails to Mr. H.S. Singh regarding his outstanding dues which is already on record including email dated 05.07.2016 at Page No.210 of Suit; that there was no such process to ask for No Dues; that second time, he went to England in September, 2014; he was not given such option in writing by the defendant company; he voluntarily states that he worked from England after agreeing with Mr. H.S. Singh; he denied that he requested H.S. Singh to keep the laptop of the company as it was needed for you for his future employment; that he does not know how many persons in the Defendant company knew about his visit to U.K. in the month of January, 2014 and September, 2014 except Mr. H.S. Singh; that he does not remember whether he shared the piece of information with any other person in the Defendant company except H.S Singh; that he replied that he does not know what was told to them to the suggestion of the defendant that since your full and final account was not settled, the person interacting with you did not come to know about the fact that you are no longer with CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 22 of 54 Defendant company and hence continued to mark the emails to you as well; that he does not remember whether he has completed his assignment before going to U.K. in January, 2014 or September, 2014; that he voluntarily states that he was not working on assignment basis in the company and there were many things which were going on and there was no discontinuation between them; he denied the suggestion that since, some of the work assigned to him was not completed before leaving for U.K., the concerned person of the Defendant company used to seek clarification regarding the work from him and there was no fresh work assignment given to him after January, 2014; he voluntarily states that the nature of work given to him can be seen from the emails he has attached, from which it is clear that these were of not clarificatory nature; that the company did not admit the claim in writing, however, H.S. Singh orally admitted it many times; that first time, he claimed this amount when he sent the notice; he does not remember that if got anything in writing from the Defendant company regarding your Annual Performance Linked Incentive; that the consultancy agreement is already on record which refers to the performance Linked Incentive.
DEFENDANT'S EVIDENCE
8. Vide order dated 16.07.2022, the defendant's evidence was also recorded before the Ld. Local Commissioner Sh. R. K. Sharma, Advocate.
9.1 Defendant got its Authorized Representative Sh. H. S. Singh examined as DW1. During examination in chief, DW1 CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 23 of 54 tendered his evidence by way of an affidavit Ex.DW1/A and relied upon the following documents:-
(i). A copy of Resolution is marked as DW-1/1.
(ii). A copy of E-mail/reply dated 11.03.2014 is exhibited as Ex.DW-1/1A. (Marked as DW-1/2 in the affidavit).
(iii). A copy of E-mail dated 17.03.2014 is exhibited as Ex.DW-1/1B. (Exhibited as Ex.DW-1/3 in the affidavit).
(iv). A copy of final settlement dated 30.04.2014 is marked as DW-1/2. (Marked as DW-1/4 in the affidavit).
(v). A copy of E-mail dated 14.01.2014 sent by Ms. Kavita Upreti is marked as DW-1/3. (Marked as DW-1/5 in the affidavit).
(vi). A copy of E-mail dated 05.03.2014 is exhibited as Ex.DW-1/1C. (Exhibited as Ex.DW-1/6 in the affidavit).
(vii). A copy of E-mail dated 23.12.2014 is exhibited as Ex.DW-1/1D. (Exhibited as Ex.DW-1/7 in the affidavit).
(viii). A copy of E-mail dated 08.01.2015 is marked as DW-1/4. (Marked as DW-1/8 in the affidavit).
(ix). A copy of reply dated 09.01.2015 sent by Plaintiff is marked as DW-1/5. (Marked as DW-1/9 in the affidavit).
9.2 During his cross-examination, DW-1 deposed that DW-1 deposed that the plaintiff joined the Defendant company in August, 2012; he voluntarily states that he left the company in mid of January, 2014; that defendant executed a Consultancy Agreement dated 13.08.2012 with Plaintiff; that he personally interacted with the Plaintiff on behalf of the Defendant company; that the role/duty of plaintiff in the defendant company is CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 24 of 54 financial and legal consultant; that he does not recollect that under the Consultancy Agreement, the consultancy fee of the Plaintiff was Rs.24,00,400/- which is inclusive of annual performance linked incentive of Rs.4,00,000/-, but it is a matter of record; that the terms and conditions of the Consultancy Agreement are binding on the Defendant company; that Official- mail ID of the defendant company is [email protected] and the official-mail ID of Plaintiff was [email protected]; he voluntarily states that the plaintiff was using another email ID while working in Defendant company, he again said:
[email protected] and other email ID as well; that he was Director in the Defendant company during 2012 to 2015; that there may be correspondence exchanged between Plaintiff and DW-1 and other employees of the Defendant company during the period 09.01.2014 to 09.01.2015; he voluntarily states that though plaintiff had resigned from the company in mid of January, 2014, but plaintiff had requested deponent to allow the plaintiff to use the official laptop as well as the Email ID so as to give impression that the plaintiff has been working with Defendant company to realize his personal objectives and to show his continuity of employment with Defendant company, and it was his personal request which was conceded to, by him in his personal capacity; that he denied that the plaintiff rendered consultancy services to the Defendant company during the period 09.01.2014 to 09.01.2015 for which several emails were exchanged between the Plaintiff and the employees of Defendant company including himself; that he does not recollect as to whether Defendant company had terminated the consultancy agreement; he voluntarily states that as per the record CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 25 of 54 maintained by H.R. of the Defendant company, the last working day of the plaintiff was mid of January, 2014; that officially the Defendant company had not terminated the consultancy agreement; he voluntarily states that on humanitarian ground, he had asked the H.R. department to show the plaintiff's employment with Defendant company though, his last day of working in the Defendant company was in the mid of January, 2014, which was communicated to him on his email ID, being a matter of record; that he does not recollect that during the period 09.01.2014 to 09.01.2015, the Plaintiff had rendered various consultancy services including drafting, reviewing agreement, reviewing annual filing, rendering opinions, drafting legal notices, drafting official letters etc., which was all done through emails exchanged between employees of the Defendant company including yourself; he again said "no" in reply to the question regarding rendering of the aforesaid services; he voluntarily states that the plaintiff might have rendered some services which were pending at his end and moreover, he was using the official laptop and email Id of the company; that he does not recollect that the Plaintiff terminated the consultancy agreement w.e.f. 10.01.2015; that he does not recollect whether Plaintiff had contacted him and wrote several emails to him and other employees of Defendant company between 09.01.2015 to 31.03.2017, requesting to pay the outstanding consultancy fee for the period 09.01.2014 to 09.01.2015; that the payment of Rs.
15,00,000/- on 14.02.2014 was made inadvertently as the finance department of the Defendant company was not informed about termination of consultancy agreement by the H.R. department on my instructions and so far as the payment of 16.05.2014 is CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 26 of 54 concerned, I do not recollect as to why and how the payment was made; that he has not filed any legal proceedings for recovery of the amount; he denied the suggestion that a sum of Rs.1,50,000/- each was paid by the Defendant to the Plaintiff on 14.02.2014 and 16.05.2014 towards the consultancy services rendered by the Plaintiff to the Defendant company; that he is not able to recollect whether this amount of Rs.1,50,000/- was paid by the Defendant company to the Plaintiff towards annual performance for the period August, 2012 to July, 2013; he voluntarily states that the performance was not up to mark; that it is correct that Ms. Radhika Gupta was working with the Defendant company in the year 2015 and her official email ID was [email protected]; that it is correct that that email dated 09.01.2015 was sent by Ms. Radhika Gupta to Chloe Baton wherein the Defendant acknowledged the status of Plaintiff working with Defendant company as on that date; he voluntarily states that this mail was written by Ms. Radhika Gupta under instructions of Plaintiff wherein, she was requested to forward the email to the plaintiff so that reply to the same could be drafted by the plaintiff to be sent to Chloe Baton and this was allowed by the deponent on humanitarian ground; that the email dated 30.04.2014 was never communicated to the Plaintiff but he denied that it is not a fabricated document; he voluntarily states that this email was not sent to the plaintiff to avoid complications in his future employment prospect on his request; that though as per email dated 14.01.2014 shown, it was never marked to the Plaintiff; he voluntarily states that it was sent to the Plaintiff as well; he denied the suggestion that plaintiff was working with the Defendant company till 9th January, 2015 and therefore, there CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 27 of 54 was no occasion for the Defendant to either handover the company's properties or to ask for finalization of full and final accounts; that he denied that the Plaintiff is neither the sender nor recipient of email dated 09.01.2015 as shown on page 23 and 24 of the written statement; he denied that Radius Synergies International (P) Ltd. (RSIPL) is connected or linked with Defendant company, meaning thereby whether these two companies are having common accounts of common funds or common employees; that he was Director in RSIPL in the year - 2014-15; that he does not remember whether RSIPL deducted TDS for the payment made to Plaintiff in May, 2014; that he does not recollect exactly whether defendant company deducted TDS from the amounts due to the Plaintiff for the month of January and February, 2014, despite having not paid the consultancy fees; he voluntarily states that TDS might have been deducted by the accounts department due to want of information of Plaintiff being not in employment at the given point of time; that he did not receive emails dated 12.06.2015, 30.01.2016, 05.07.2016, 30.09.2016 and 16.02.2017 sent by the plaintiff to the defendant; he voluntarily states that the emails sent from addresses other than Radius.co.in or other corporate entities, goes to Spam and/or in the box designated as unimportant emails; that it depends upon the individual as to how IT department configure their inbox; that he denied that email dated 09.01.2015 was received by him; he voluntarily states that it was marked by Ms. Radhika Gupta to him; he again said she may have marked/shown it to him; that he denied the Plaintiff requested him to release his outstanding dues towards consultancy fees as there was none, however, whenever the plaintiff met him once or CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 28 of 54 twice or spoke to him over telephone, he requested him to help him financially. DW1 denials about the claim of the plaintiff regarding sums payable by Defendant to the Plaintiff under different heads.
FINAL ARGUMENTS:
10. Final arguments were advanced at length by Ld. Counsel for the plaintiff Sh. Siddharth Jain and Ld. Counsel for defendant Sh. Neeraj Kumar Singh. Written arguments were also filed on behalf of the plaintiff and the defendant.
11. During the argument, the Ld. Counsel for the plaintiff reiterated the case of the plaintiff as averred in the plaint. It is submitted by the Ld. Counsel for the plaintiff that emails dated 30.04.2014 and 12.1.2-14 which are described as "Final settlement with Purab S. Saini" & "Handing Over of IT" were never communicated and even marked to the plaintiff, and have been fabricated by the defendant. It is further submitted that DW1 during his cross examination admitted that the consultancy agreement was never terminated by the defendant, which is in contradiction to the averment in the written statement, and therefore, fabricated email relied upon by the defendant reflecting full and final settlement of the plaintiff by the defendant company. It is also submitted that DW1 also admitted the email dated 09.01.2015 sent by the employee of the defendant company Ms. Radhika Gupta, who acknowledged and confirmed the status of the plaintiff working with the defendant company. It is further submitted that during cross-examination CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 29 of 54 DW1/Mr. H.S. Singh admits the use of the official laptop, official email id, and exchange of emails between the plaintiff and officials of the Defendant Company and also admitted to the facts that the plaintiff rendered services to the defendant company during the period 01.10.2014 to 09.01.2015. The DW1 also admitted TDS certificate placed on record by the plaintiff, however, failed to give any reason for the same. It is also submitted that the emails dated 12.06.2015, 30.01.2016, 5.07.2016, 30.09.2016, & 16.02.2017, were never disputed by the defendant. It is also submitted that the DW1 admitted to having spoken on the phone with the plaintiff and met him in person during the period from 2015 to 2017. It is further submitted that on behalf of the defendant company, Mr. H.S. Singh promised him that his account would be settled and payment of outstanding consultancy fees would be made and believing the said aforementioned representation of the defendant company, the plaintiff was estopped from taking any legal recourse. It is submitted that the right to sue finally accrued to the plaintiff under Article 113 of the Schedule to the Limitation Act, 1963 when the defendant company vide reply dated 20.04.2017 refused to settle the account of the plaintiff and pay the outstanding consultancy fees as per the consultancy agreement.
12. In support of his contention on limitation, the Ld. Counsel for the plaintiff relied on two judgments of the Hon'ble Supreme Court in the case of Major (Retd.) Inder Singh Rekhi Vs. Delhi Development Authority reported in (1988) 2 SCC 338 and Shakti Bhog Food Industries Limited vs. Central Bank of India and Anr.
reported in (2020) 17 SCC 260 and a judgment of the Hon'ble CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 30 of 54 High Court of Delhi in Milano International (India) Pvt. Ltd. Vs. Union of India and Anr. (RFA No. 614/2006, DoD: 19.04.2012).
13. Per contra, Ld. Counsel for the defendant reiterated the case of the defendant as averred in the written statement. It is further argued by the Ld. Counsel for the defendant that even if it is presumed though not admitted that the consultancy agreement was terminated on 09.01.2015, the plaintiff during his cross- examination on 29.04.2022, improvised his version regarding the termination of the consultancy agreement in as much as in his cross examination the plaintiff improved upon the version in the plaint by deposing that he did not terminate the consultancy agreement in writing. Further, it is argued that even if it is admitted that the plaintiff terminated the consultancy agreement on 09.01.2015 with effect from 10.01.2015, the cause of action to file the present suit qua the outstanding dues arose on or after 10.01.2015 when the plaintiff severed its ties with the defendant company. Therefore, in view of Article 7 of the Schedule to the Limitation Act, 1963, the present suit is time barred as the prescribed time period to file a suit in relation to a contract for wages is three years. It is also argued that the plaintiff has not been able to prove any acknowledgment of liability by the defendant company in writing or part payment of the consultancy fees before the expiration of the period of limitation for availing fresh period of the limitation from such acknowledgment or payment as per the Limitation Act, 1963 as the plaintiff himself in the cross examination on 10.05.2022 admitted that the defendant company did not admit his claim in writing. It is further submitted that the claim of the plaintiff that the right to sue accrued to the plaintiff when the defendant company refuted CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 31 of 54 the claim of the plaintiff vide reply dated 20.04.2017 to the legal notice dated 20.03.2017 of the plaintiff is baseless and unfounded and the present suit deserves to be dismissed as barred by limitation. It is argued that the vide email dated 03.11.2014, at running page 12 of the documents filed along with the written statement which was sent by the defendant to the HDFC pursuant to the request of the plaintiff as well as forwarded to the plaintiff on his email address [email protected], the last working day of the plaintiff with defendant company was referred to as 18.01.2014, and the said email has not been disputed much less disproved by the plaintiff. It is submitted that the email dated 09.01.2015, at running page 23 of the documents filed along with the written statement, to Dr. Chloe Baton should be seen in light of the email dated 09.01.2015 sent by the plaintiff to the defendant at running page 19. It is argued that the said email to Dr. Chloe Baton was drafted by the plaintiff in a manner so as to conceal breakage in his employment. It is submitted that the said inference gets fortified by the observation of Hon'ble National Company Law Tribunal (NCLT) in order dated 16.02.2018, wherein it has been observed that all queries made to the corporate debtor were first forwarded to the operational creditor and he drafted the replies to be sent back. It is argued that the plaintiff worked with the defendant company till 18.01.2014 and his claim of the plaintiff having rendered services till 09.01.2015 is false, bogus and fabricated and the plaintiff was only communicating with the official of the defendant in relation to the pending work. In written argument, the defendant also objected that this court does not have territorial jurisdiction to entertain and try the present suit as no CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 32 of 54 part of the cause of action arose within the jurisdiction of this Court as the plaintiff admittedly worked at the Noida office, U.P. of the defendant company.
FINDINGS:
14. I have considered the submissions and perused the record carefully. The written arguments filed by the plaintiff and defendant have also been perused carefully. Before giving findings on the issues framed in the matter, the Court deems it appropriate to address the objection qua territorial jurisdiction of this Court which the defendant took at the time of final arguments.
15. In written arguments, the Ld. Counsel for the defendant took an objection as to the territorial jurisdiction of this Court to entertain and try the present suit on the ground that the plaintiff rendered services in the Noida, Uttar Pradesh office of the defendant company pursuant to the consultancy agreement and no part of the cause of action arose in Delhi to confer territorial jurisdiction on this Court.
16. In this connection, it is pertinent to mention that the plaintiff has averred in the plaint that the Consultancy Agreement between the plaintiff and the defendant was executed at the registered office of the defendant company which is at Shakarpur, Delhi. The defendant has not denied this fact in his written statement. Further, as per clause 9 of the Consultancy Agreement, in respect of the dispute arising out of or in connection with this Agreement, courts at New Delhi shall have jurisdiction to adjudicate. Thus, as the Consultancy Agreement CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 33 of 54 was executed at the defendant's registered office at Shakarpur, which is not disputed by the defendant, the part cause of action arose within the jurisdiction of this Court. Therefore, this Court has territorial jurisdiction to entertain and try the present suit as per section 20 of CPC and hence the argument/objection of the defendant to territorial jurisdiction of this Court at this stage is without merit.
17. Having decided the objection qua the territorial jurisdiction, the Court shall now proceed to deal with issues framed in suit as under:
ISSUE NO. 3:
"Whether the suit of the plaintiff is barred by limitation? OPD"
(As issue no. 3 impinges on the maintainability of the present suit, therefore, the said issue is being decided first.)
18. The onus to prove the said issue is on the defendant. Mr. H. S. Singh appeared on behalf of the defendant to depose as the defendant's witness to prove the case of the defendant. However, during the examination in chief of DW1/Mr. H.S. Singh, an objection was raised by the plaintiff regarding the competency of Mr. H.S. Singh to depose on behalf of the defendant company as no resolution of the board of directors of the defendant company authorizing Mr. H.S. Singh to depose on behalf of the defendant company was filed on record. In response to the said objection, the Ld. Counsel for the defendant submitted that the said resolution was filed, however, the same was not served upon the CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 34 of 54 plaintiff. Now, a perusal of the record shows that no such board resolution in favour of Mr. H.S. Singh is present on the court record. Hence, in the absence of the resolution of the board of directors of the defendant company or any other authorisation in favour of Mr. H.S. Singh on record, the defendant has failed to establish the authority of DW/Mr. H.S. Singh to depose on behalf of the defendant.
19. Be that as it may, qua the issue under consideration, the defendant averred in the written statement that the plaintiff severed his relationship with the defendant company by cancelling the consultancy agreement on 09.01.2014, to be effective from 10.01.2014. It is also averred by the defendant that based on the email communication relied upon by the defendant, the plaintiff worked with the defendant company till 17.01.2014, therefore, the present suit deserves to be dismissed being barred by limitation. The defendant further contended that the period of limitation commenced in the present case on the date on which the amount allegedly became due and payable, and even if it is considered that the plaintiff worked with the plaintiff till January 2015, the alleged outstanding consultancy fees became due and payable in January 2015 and as per Article 7 of the Schedule of the Limitation Act, the limitation period for the same is three years as the consultancy fees is only a species of the "Wages" as mentioned in the Article 7 of the Schedule of the Limitation Act, 1963. It is further contended by the defendant that the plaintiff has not been able to prove any acknowledgment of liability by the defendant company in writing or part payment of the alleged consultancy fees before the expiration of the period of limitation CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 35 of 54 for availing fresh period of limitation from such acknowledgment or payment, therefore, the present suit is barred by limitation.
20. On the contrary, it is contended by the plaintiff that the consultancy fees are not "wages" and therefore, the limitation period for the recovery of the consultancy fees shall be governed by Article 113 of the Schedule to the Limitation Act, 1963 which provides for a limitation period of three years to file a suit from the date when the right to sue accrues and in the present case, the right to the sue accrued to the plaintiff upon the refusal of the defendant company to pay outstanding consultancy fees to the plaintiff vide reply dated 20.04.2017 to the legal notice dated 20.03.2017 issued by the plaintiff.
21. The plaintiff has led evidence to establish that the present suit is within the limitation period by showing that the plaintiff severed his relationship with the defendant company with effect from 10.01.2015, and till 09.01.2015 the plaintiff was in the employment of the defendant company and after that the plaintiff continuously approached the defendant company to settle his account and pay his outstanding fees by way of emails Ex.
PW1/4 (Colly) as well as personal meetings and telephonic conversations.
22. To prove his contention regarding his employment till 09.01.2015, the plaintiff brought on record numerous emails Ex. PW1/2 (colly) to establish that he rendered services to the defendant company for the entire year of 2014. The said emails were not controverted by the defendant in written statement and in fact, it has been admitted by the defendant that the information has been sought from the plaintiff on account of his involvement CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 36 of 54 and knowledge of the projects. During cross examination conducted on 10.05.2022 of the plaintiff/PW1, the defendant gave suggestion that the plaintiff was completing unfinished assignments and was seeking clarification regarding the same through the aforesaid emails Ex. PW1/2 (colly). Further, during cross examination of the DW1 on 25.02.2023, he admitted that the plaintiff used the official laptop and official email ID of the defendant company and that there was an exchange of emails between the plaintiff and officials of the defendant company. DW1 also admitted the fact that the plaintiff has rendered services in relation to the pending work to the defendant company during the period 01.01.2014 to 09.01.2015.
23. A perusal of the said emails, Ex. PW1/2 (colly.) shows that services rendered by the plaintiff to the defendant company do not merely relate to seeking information and clarification for the unfinished or pending assignment but they pertain to substantial work that was carried out by the plaintiff for the defendant including drafting and reviewing agreements including non- disclosure agreements (NDAs), reviewing annual filing, providing legal opinions including in relation to tax laws, drafting official letters and legal notice including reply to the complaint made to Registrar of Companies (RoC), drafting emails sent to the company's banking partners and stakeholders in the joint venture, Radius Infratel Private Limited (RIPL) and advising Mr. H.S. Singh (Managing Director of the defendant company at the relevant time) on various issues arising from his dispute with the other stakeholders in RIPL, managing the finalization and filing of tax returns of the defendant company, managing labour law compliance of the defendant company, CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 37 of 54 engagement in the selection of the account executives for the defendant company and involvement in full and final settlement of other employees of the defendant company, which are more than seeking clarification or sharing of information or merely rendering of services for finishing of the pending work. From the perusal of the said email, it is clearly revealed that the plaintiff was the go-to person for matters legal and financial in the defendant company and was an integral part of the defendant company during the entire year 2014.
24. Further, the contention of the defendant that it allowed to the plaintiff to use the official email Id and official laptop on the request of the plaintiff to show his continuity in service on the plaintiff's request is not plausible as the defendant company has not explained as to why a technology company like that of the defendant would allow an ex-employee to retain its laptop which has confidential and sensitive information about the defendant company and the so called ex-employee is rendering official work for the company as well as allowing him to access official email id which was functional for almost a year after his alleged severance of relationship with the defendant company.
25. The defendant sought to rely upon email dated 11.03.2014, Ex. DW1/1A on page 12 of the written statement in support of his contention that the employment of the plaintiff with the defendant company ended in January 2014. The email dated 11.03.2014 was allegedly sent by the official of the defendant company indicating the tenure of the plaintiff's employment with the defendant company from 13.08.2012 to 18.01.2014. The plaintiff clarified in replication that he had questioned the CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 38 of 54 contents of the said email dated 11.03.2014 and thereafter, the correct status regarding his employment was conveyed by Mr. H.S. Singh to HDFC vide email dated 20.03.2014 which is on record forming part of Ex. PW1/2 (colly) at page 53. The defendant contends that the said email dated 11.03.2014 has been admitted by the plaintiff during the cross examination conducted on 15.04.2022. However, a perusal of the cross examination of the plaintiff/PW1 conducted on 15.04.2022 reveals that the plaintiff only admitted email dated 10.03.2014 written by an official of HDFC Bank to the plaintiff on his official email Id and email dated 17.03.2014 written by the plaintiff to the official of HDFC Bank providing name, email Id of the Managing Director, Mr. H.S. Singh of the defendant company. The cross examination of the plaintiff nowhere shows that the plaintiff/PW1 admitted the contents of email dated 11.03.2014 relied upon by the defendant. On the contrary, in response to the question on said email dated 11.03.2014, the plaintiff/PW1 deposed that his employment information was confirmed by the defendant company through email dated 20.03.2014 written by Mr. H.S. Singh/DW1 to the HDFC which was copied to the plaintiff on his official email Id. The defendant never disputed the said email dated 20.03.2014, forming part of Ex. PW1/2 (colly) at page 53, written by Mr. H.S. Singh to the official of HDFC Bank wherein Mr. H.S. Singh clearly stated the plaintiff is working with the defendant company and further informed the official of the HDFC Bank that the plaintiff has been working with the defendant company since August 13th, 2012. Therefore, email dated 11.03.2014, Ex. DW1/1A, cannot be relied upon to establish the employment of the plaintiff with the defendant CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 39 of 54 company ended in January 2014. Moreover, emails Ex. PW1/2 (colly) show that the plaintiff kept on rendering services for the defendant company for the entire year 2014.
26. Further, it is also seen that as per clause 3.13.2 of the Consultancy Agreement, Ex. PW1/1, upon the termination of the consultancy agreement for any reason, the account of the plaintiff was required to be settled in full and an acknowledgment of such settlement was to be recorded in writing. However, the defendant has not placed any such acknowledgment on record to show that the account was settled. Rather, DW1 admitted in his cross examination that till date account of the plaintiff has not been settled nor any acknowledgment of the same was communicated to the plaintiff. The defendant has relied upon the emails dated 14.01.2014, Mark DW1/3 and 30.04.2014, Mark DW1/2 to aver that he had settled the account and conveyed the same to the plaintiff. However, a perusal of these emails show that these emails were internal communication between the officials of the defendant company and had not been sent to the plaintiff. Further, during cross-examination of the plaintiff conducted on 29.04.2022 and 10.05.2022, the defendant gave suggestions that full and final settlement could not be done due to the failure of the plaintiff to handover the property of the company and that the emails continued to be marked to him as the full and final settlement of the plaintiff was not done. The said deposition is in contradiction with the stand taken by the defendant in the written statement that he had done full and final settlement of the plaintiff. Further, during the cross examination of the DW1 conducted on 13.05.2023, he deposed that the email dated 30.04.2014, was never communicated to the plaintiff and he tried CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 40 of 54 to explain the non-communication by saying that emails were not communicated in order to avoid complications in future employment prospects of the plaintiff at his request. Perusal of the email dated 30.04.2014 Mark DW1/2, shows that it contains tabular details about the full and final settlement of the plaintiff. However, as the said email was never communicated to the plaintiff, he cannot be deemed to have knowledge of the same. During the same cross examination, DW1 also admitted that the email dated 14.01.2014, Mark DW1/3 was not marked to the plaintiff, but added it was sent to the plaintiff as well. The said email does not show that it was sent to the plaintiff. It is inexplicable that if the said email was not marked to the plaintiff, how it could be sent to the plaintiff. Further, during cross examination conducted on 25.02.2023 DW1 deposed that he could not recollect whether the defendant ever terminated the consultancy agreement with the plaintiff. The said deposition is in complete contradiction with the averment in the written statement and emails placed on record wherein the defendant claimed to have settled the full and final account of the plaintiff.
27. Moreover, the DW1 in cross examination conducted on 13.05.2023 admitted that the email dated 09.01.2015 to Chloe Baton of the Financial Conduct Authority (FCA) was sent by Ms. Radhika Gupta of the defendant company. In the said email dated 09.01.2015, Ex. PW1/3 (page 208) the defendant company confirmed the current employment of the plaintiff with the defendant company by stating "Purab is currently working with us since 13/08/2012". The said email dated 09.01.2015 clearly reflects the employment of the plaintiff with the defendant company as on 09.01.2015. When cross examined qua the said CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 41 of 54 email, DW1 gave evasive reply that Ms. Radhika Gupta may have marked/shown the said email to him. The defendant company sought to explain the email by stating that the said email was drafted by the plaintiff and was sent at the request of the plaintiff on humanitarian grounds. However, even if the said email was drafted by the plaintiff, it is inexplicable as to why a company, would confirm that an ex-employee is currently working with it and that too to a Regulator of financial services of a foreign country United Kingdom, which may amount to misrepresentation of fact to an important organization, unless the said person was in fact working with them. Further, it is evident from the emails Ex. PW1/2 that the plaintiff was genuinely rendering services for the defendant company and was an integral part of the defendant company throughout the year 2014 and the first week of January 2015.
28. Further, in view of the above discussion, the observations of Hon'ble National Company Law Tribunal (NCLT) in order dated 16.02.2018 qua the certificate of employment to the plaintiff being given on the specific request of the operational creditor (i.e. plaintiff) and the operational creditor drafting replies to all queries addressed to the Corporate Debtor (i.e. defendant company) regarding his employment, do not in any way assist the defendant in refuting the claims of the plaintiff.
29. Moving further, the defendant company credited payments of Rs. 1,50,000/- each on 14.02.2014 and 16.05.2014 to the account of the plaintiff as reflected in the statement of bank account of the plaintiff filed on record, Ex. PW1/5 (colly). In written statement, there is no averment regarding payment of Rs.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 42 of 54 1,50,000/- on 14.02.2015 and as regards the payment in the month of May 2014, in written statement, it is averred by the defendant that the amount was credited to the account of the plaintiff as he begged for the financial help. However, in cross examination conducted 25.02.2023, the DW1 deposed that the said payment on 14.02.2014 was credited to the account of the plaintiff as the finance department of the defendant company was not informed about the termination of the consultancy agreement with the plaintiff by the H.R. department on his instruction. The said deposition of the DW1 is not tenable on account of the fact that if the said amount was paid inadvertently, the defendant company has nowhere stated that it demanded the return of the money till date. It is inexplicable as to why the defendant never demanded a return of the aforesaid amount if it was indeed paid to the plaintiff inadvertently. DW1 further deposed in his cross examination conducted on 25.02.23 that he could not recollect as to why and how the said payment of Rs. 1,50,000/- on 16.05.2014 was made to the plaintiff. The defendant took inconsistent stands and failed to provide any cogent and plausible explanation for the payments of Rs. 1,50,000/- each made on 14.02.2014 and 16.05.2015 to the plaintiff.
30. Therefore, considering the totality of facts and circumstances, it is established that the plaintiff rendered services to the defendant company for the full year 2014 as per the Consultancy Agreement and employment of the plaintiff with the defendant company was not terminated in January 2014.
31. As regards the aspect that the plaintiff continuously approached the defendant company to settle his account and pay CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 43 of 54 his outstanding consultancy fees by way of emails Ex. PW1/4 (Colly) as well as personal meetings and telephonic conversations, it is averred by the plaintiff in the plaint that Mr. H.S. Singh was repeatedly making commitments that his dues would be cleared and vide e-mails dated 12.06.2015, 30.01.2016, 5.07.2016, 30.09.2016, & 16.02.2017, Ex. PW1/4 (colly) the plaintiff requested Mr. H.S. Singh to act upon his commitment and start paying pending dues to the plaintiff. In written statement, the defendant did not dispute the aforesaid emails of the plaintiff. In his cross examination conducted on 29.04.2022, the plaintiff/PW1 specifically deposed that he wrote several emails to Mr. H.S. Singh including email on page 210 of the documents annexed with the plaint. However, no question or suggestion was put to the plaintiff/PW1 during his cross examination by the defendant impugning the said emails. In cross examination conducted on 25.02.2023, DW1 deposed that he does not recollect about the said emails. Further, during the cross examination conducted on 13.05.2023, DW1/Mr. H.S. Singh, gave evasive replies about the said emails, at first stating he did not receive the said emails and later on volunteering to say that said emails might have gone to Spam or to inbox designated for unimportant email and also stating that he does not recollect that the plaintiff wrote several emails to him and other employees of the defendant company between 09.01.2015 to 31.03.2017 requesting to pay the outstanding amount. Further, in his deposition during said cross examination, DW1, Mr. H.S. Singh who was the key person in the defendant company and had directly dealt with the plaintiff, admitted that the plaintiff met CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 44 of 54 him once or twice or spoke to him over the telephone during the period 2015-2017.
32. Thus, in view of non-denial of the e-mails dated 12.06.2015, 30.01.2016, 5.07.2016, 30.09.2016, & 16.02.2017, Ex. PW1/4 (colly) in the written statement and in the deposition of the defendant witness during cross examination as well as evasive testimony of the DW1 and lack of any suggestion on the part of the defendant to the plaintiff/PW1 during his cross examination impugning said emails, it is established that the aforesaid e-mails were sent by the plaintiff and were in the knowledge of DW1/Mr. H.S. Singh, but he chose to ignore the same for reasons best known to him. It is inexplicable that if nothing was due to the plaintiff why the defendant company did not refute the claim of the plaintiff for outstanding consultancy fees. The explanation offered by the DW1 during his cross examination, that the plaintiff requested for financial help during their meetings does not appeal to reason as the plaintiff had already shifted to London and his cross examination by the defendant does not establish that he was in a financial dire strait. Moreover, no such suggestion was put to the plaintiff that he was in financial need during his cross examination by the defendant. The defendant has not been able to establish that the plaintiff was under any financial hardship as sought to be averred by them. Therefore, it is clear that the plaintiff has approached the defendant company through numerous email correspondence Ex. PW1/4 (colly) as well as had personal meetings and telephonic conversations with Mr. H.S. Singh till February 2017 for settlement of his account and payment of his outstanding consultancy fees.
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33. Hence, it is only after the plaintiff received the reply dated 20.04.2017, Ex. PW-1/10 to his legal notice dated 20.03.2017 Ex. PW-1/9, wherein the defendant finally rejected the claim of the plaintiff for the outstanding consultancy fees, the plaintiff bonafidely pursued his legal remedy by filing a petition under the Insolvency and Bankruptcy Code (hereinafter "IBC") against the defendant before the Hon'ble National Company Law Tribunal (NCLT). After the dismissal of the said petition by the NCLT vide order dated 16.02.2018 on the ground that there is an existing dispute between the parties, the plaintiff filed the present suit for recovery.
34. At this stage, we may refer to the judgment of the Hon'ble Supreme Court in Shakti Bhog Food Industries Limited vs. Central Bank of India and Anr. reported in (2020) 17 SCC 260. The relevant extract of the said judgment is extracted hereinbelow:
22. It is well established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order VII Rule 11 of the CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the Regional Office and the Regional Office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8.5.2002 followed by another letter dated 19.9.2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent Bank could trigger the right of the appellant to sue the respondentBank. Moreover, the fact that the appellant had eventually sent a legal notice on 28.11.2003 and again on 7.1.2005 and then filed the suit on 23.2.2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 46 of 54 and legitimate, would be a mixed question of fact and law, depending on the response of the respondents.
23. Reverting to the argument that exchange of letters or correspondence between the parties cannot be the basis to extend the period of limitation, in our opinion, for the view taken by us hitherto, the same need not be dilated further.
Inasmuch as, having noticed from the averments in the plaint that the right to sue accrued to the appellant on receiving letter from the Senior Manager, dated 8.5.2002, and in particular letter dated 19.9.2002, and again on firm refusal by the respondents vide Advocate's letter dated 23.12.2003 in response to the legal notice sent by the appellant on 28.11.2003; and once again on the follow up legal notice on 7.1.2005, the plaint filed in February, 2005 would be well within limitation. Considering the former events of firm response by the respondents on 8.5.2002 and in particular, 19.9.2002, the correspondence ensued thereafter including the two legal notices sent by the appellant, even if disregarded, the plaint/suit filed on 23.2.2005 would be within limitation in terms of Article
113.
35. In this connection, we may also refer to a judgment of the Hon'ble High Court of Delhi in Milano International (India) Pvt. Ltd. Vs. Union of India and Anr. (RFA No. 614/2006, DoD:
19.04.2012), wherein it was observed as under::
8. The second argument is that the trial Court has wrongly held the suit to be barred by limitation, inasmuch as, before the letter dated 7.3.2001, Ex.PW1/23, there was never any refusal by the respondents to pay the premium. It was argued that unless there is a categorical refusal, there does not arise cause of action for filing of the suit and which suit is governed by Article 113 of the Limitation Act, 1963. It is argued that if the application of the appellant/plaintiff is kept pending, and unless there is a clarity of refusal, if the appellant/plaintiff had rushed to the Court, the suit in fact would have been premature.
9. In response, learned counsel for the respondents/ defendants argues that by mere writing of letters, limitation cannot be extended.
10. In my opinion, the arguments as raised on behalf of the appellant/plaintiff carries weight and the appeal deserves to be allowed on both the submissions as argued on behalf of the appellant/plaintiff. Firstly, the trial Court in view of Order 14 Rule 2 CPC ought to have given a finding on CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 47 of 54 issue No.1, and, if the trial Court would have given finding with respect to issue No.1, and which it was bound to do so in terms of Order 14 Rule 2 CPC, then today I would have decided the suit as a whole in terms of Order 41 Rule 24 CPC, however, since there is no finding with respect to issue No.1, I am forced to remand the matter, inasmuch as, I am of the opinion that the suit cannot be said to be barred by limitation.
11. I put it to learned counsel for the respondents/ defendants as to whether any letter was written by the respondents/defendants prior to 7.3.2001 specifically rejecting the claim of the appellant/plaintiff, and the counsel for the respondents had no option but to concede that before this letter no other letter was written specifically rejecting the claim of the appellant/plaintiff. In fact, learned counsel for the appellant/plaintiff has drawn my attention to repeated letters which were written by the appellant/plaintiff and which show that the matter was in fact kept pending at the end of the respondents/defendants.
These letters which were sent by the appellant/plaintiff to the respondents/defendants are : Ex.PW1/12A dated 10.6.1996 alongwith its receipt Ex.PW1/12B; letter dated 17.6.1996 Ex.PW1/13; letter dated 11.7.1996, Ex.PW1/14A alongwith its receipt Ex.PW1/14B; letter dated 10/18.4.1997 Ex.PW1/15A alongwith its receipt Ex.PW1/15B; letter dated 20.3.1998 Ex.PW1/17; letter dated 11.6.1998 Ex.PW1/18 alongwith its receipt Ex.PW1/19 and letter dated 13.12.1999 Ex.PW1/21, sending the requisite documents as asked for by the respondents/defendants vide its letter dated 16.11.1999.
12. Surely, unless there was a decision and clarity with respect to refusal of the claim of the appellant/plaintiff, the appellant/plaintiff could not have come to the Court because the decision was pending. Merely because a Government department keeps a decision pending cannot mean that it can turn around and say that the suit is barred by limitation, although no refusal is ever communicated in spite of repeated reminders on behalf of the appellant/plaintiff which show that a decision is still to be taken. Admittedly, except the letter dated PW1/23 dated 7.3.2001, no letter was ever written by the respondents/defendants in rejecting the claim of the appellant/plaintiff. Once limitation is counted from the letter dated 7.3.2001, i.e. three years from 7.3.2001, the suit filed on 24.10.2002 is surely within limitation.
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36. In view of the aforesaid discussion, it is established that the plaintiff continuously pursued the official of the defendant company from 2015 till February 2017 for the settlement of his account regarding outstanding consultancy fees. It is also established that the full and final settlement of the account of the plaintiff did not take place between the plaintiff and the defendant as per clause 3.13.2 of the Consultancy Agreement. Further, there is nothing on record to show that the defendant, before its reply dated 20.04.2017 Ex. PW1/10 to the legal notice dated 20.03.2017, Ex. PW1/9 issued by the plaintiff, refused the claim of the plaintiff to the outstanding consultancy fees. Therefore, in view of the aforesaid judgment in Milano International (India) Pvt Ltd. (supra) the present suit is governed by Article 113 of the Schedule to the Limitation Act, 1963 as the right to sue accrued in favour of the plaintiff only upon the defendant rejecting the claim of the plaintiff for the outstanding consultancy fees and informing the plaintiff there is nothing due towards the consultancy fees vide reply dated 20.04.2017. Unless there was a categorical refusal from the defendant, the right to sue did arise in favour of the plaintiff. The law of limitation has been designed not to reject claims of parties but to only ensure that old claims are not re-agitated and that there is a finality after a particular period. In the present case, once the limitation is counted from the date of refusal of the claim of the plaintiff on 20.04.2017, the present suit as filed 02.03.2019 is within limitation.
37. Consequently, it is held that the present suit as filed on 02.03.2019 was filed within the prescribed period of limitation.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 49 of 54 The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1:
"Whether the plaintiff is entitled to recovery of the suit amount? OPP"
38. The onus to prove the said issue was on the plaintiff. The plaintiff claimed consultancy fee for the services rendered from January 2014 to December 2014 amounting to Rs. 20,00,400/-, consultancy fees of Rs. 50,010/- for the period 01.01.2015 to 09.01.2015, balance consultancy fees for the period between August 2012 to July 2013 of Rs. 1,00,000/-, annual performance linked incentive for the period between August 2013 to July 2014 of Rs. 4,00,000/- and proportionate amount of Rs.1,66,667/- as annual performance linked incentive for the period between August 2014 to December 2014, all totaling to an amount of Rs. 27,17,077/-.
39. In view of the discussion under the head of issue no. 3 above, it is established that the plaintiff rendered services for the defendant company for the entire year of 2014 as per the Consultancy Agreement and the employment of the plaintiff with the defendant company was not terminated in January 2014. It is also evident that the plaintiff was not paid the consultancy fees for the complete period of 12 months of the year 2014.
40. The plaintiff admittedly received payments of Rs. 1,50,000/- each on 14.02.2014 and 06.05.2014 from the CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 50 of 54 defendant company. The plaintiff termed this payment as a variable payment. However, it is not explained by the plaintiff as to what this variable payment relates to. Further, in cross- examination of DW1 conducted on 25.02.2023, the plaintiff gave suggestion that the payments of Rs. 1,50,000/- each on 14.02.2014 and 06.05.2014 were made by the defendant company towards the consultancy services rendered by the plaintiff to the defendant company. Admittedly, the defendant company also deposited TDS for two months in the year 2014 on the consultancy fees of Rs. 1,66,700/- at the rate of 10% of the said consultancy fees. In view of this, the Court is inclined to consider the said payments of Rs. 1,50,000/- each on 14.02.2014 and 06.05.2014 as consultancy fees for two months of the year 2014 in which the plaintiff rendered services for the defendant company.
41. Further, the plaintiff has claimed consultancy fees for nine days in January 2015. However, in the consultancy agreement, there is no provision providing for proportionate payment of consultancy fees if the plaintiff does not render services for the full calendar month. In view of this, the Court is not inclined to grant any remuneration to the plaintiff for the nine days of the consultancy period. As regards the balance of the consultancy fees of Rs. 1,00,000/- for the period between August 2013 to July 2014, it is not explained by the plaintiff how he arrived at this figure of Rs. 1,00,000/- and no evidence has been led to justify the same. On the contrary, in evidence by way of affidavit, Ex. PW1/A, the plaintiff put this amount of Rs. 1,00,000/- under the head of "Balance of annual incentive portion of the Consultancy Fees for the period between August 2012 to July 2013". CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 51 of 54
42. Furthermore, for the claim of the plaintiff regarding performance linked incentive, the plaintiff apart from the averment in the plaint has not placed on record any document to justify the same. During his cross examination, the plaintiff/PW1 was not sure whether he received anything in writing from the defendant company regarding the Annual Performance Linked Incentive and the only thing on which the plaintiff relied on the Consultancy Agreement. Clause 1.2 of the said consultancy agreement provides that the amount of annual performance linked incentive payable to the plaintiff will be determined on the basis of performance parameters finalized and laid out by the Company and communicated to the plaintiff as per Annexure I. The plaintiff has not filed said Annexure I on record. Further, it is not averred by the plaintiff whether any performance evaluation was carried out by the defendant company and communicated to him. Therefore, the plaintiff by way of cogent evidence is not able to establish that he is entitled to the balance of the annual incentive portion of the consultancy fees from August 2012 to July 2013, annual performance linked incentive for the period from August 2013 to July 2014 and proportionate amount of annual performance linked incentive for the period between August 2014 to December 2014.
43. In view of the aforesaid discussion, it is established that the plaintiff is entitled to ten months of consultancy fees only at the rate of 1,66,700/- per month for the year 2014. Thus, the plaintiff is entitled to recover from the defendant consultancy fees of Rs. 16,67,000/- (Rupees Sixteen Lakhs and Sixty Seven Thousand only).
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44. Thus, issue no. 1 is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2:
"Whether the plaintiff is entitled for any interest? If yes, at what rate and for what period on the suit amount? OPP"
45. The onus to prove the said issue was on the plaintiff. As regards the payment of interest on the said amount of Rs. 16,67,000/- (Rupees Sixteen Lakhs and Sixty Seven Thousand only) is concerned, the plaintiff has prayed for interest at the rate of 18 percent per annum, which is excessive. It is seen that there is no contract between the plaintiff and defendant for payment of interest at the rate of 18% in case of payment of dues on account of consultancy fees. Therefore, keeping in mind the prevailing rate of interest and nature of the transaction as well as in view of the mandate of section 34 of CPC, the Court is inclined to grant reasonable pendent lite interest at the rate of 7% per annum and future interest at the rate of 6% per annum only.
46. Therefore, the plaintiffs are awarded a reasonable simple interest @ 7% per annum from the date of institution of the suit till the date of decree and future interest @6 % per annum simple on the principal sum adjudged from the date of decree till realization of the amount.
47. Thus, issue no. 2 is accordingly decided in favour of the plaintiff and against the defendant.
CS No.155/19 Sh. Purab Saagar Saini Vs. Radius Synergies Pvt. Ltd. Page No. 53 of 54 RELIEF
48. In view of my aforesaid findings, the suit of the plaintiff is decreed for recovery of the amount of Rs. 16,67,000/- (Rupees Sixteen Lakhs and Sixty Seven Thousand only) from the defendant company. The plaintiff is also awarded a simple interest @ 7% per annum from the date of institution of the suit till the date of decree and future interest @ 6 % per annum simple on the principal sum adjudged from the date of decree till realization of the amount.
49. Parties to bear their own cost.
50. Decree-sheet be prepared accordingly.
File be consigned to record room after due compliance.
Digitally signed by SOMITRA SOMITRA KUMAR
Pronounced in the open court KUMAR Date:
on 27th day of May, 2024 2024.05.27
17:18:01 +0530
(SOMITRA KUMAR)
District Judge-06, East
Karkardooma Courts, Delhi
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