Delhi District Court
Col. (Retd.) Satish Nangia vs M/S Dego International on 21 February, 2013
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI
C.S. No. 27/2011
Unique ID no. 02401C1137072008
Col. (Retd.) Satish Nangia
S/o Sh. Hari Krishan,
R/o P2C/102, Princeton Estate,
DLF PhaseV, Gurgaon,
Haryana ....Plaintiff
Versus
M/s Dego International
Marketing & Off Setting(P) Ltd.
Through its Managing Director
Sh. Vishal Singh
A15/28, Vasant Vihar,
New Delhi110 057
Also At:
D17, Third Floor,
Saket, New Delhi ....Defendant
Date of institution of the suit :29.08.2008
Reserved for judgment on :21.02.2013
Date of pronouncement of judgment :21.02.2013
Suit for recovery
J U D G M E N T: The facts in brief as propounded by the plaintiff are:
(i) The plaintiff has made a claim of Rs.6,10,500/ on the C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 1 of 6 2 averments that he was employed by the defendant as Technical Director at monthly remuneration of Rs.50,000/ though he has not been issued any formal appointment letter. He worked as such from February, 2006 to December, 2007. The salary was paid through cheques and has been paid till December, 2006 only. The salary for subsequent months was not paid despite repeated demands and as such he was constrained to leave his job in December 2007. He is entitled to his salary for these 11 months which come to Rs.5,50,000/. He claims interest @24% p.a. He had also sent a notice dated 28.02.2008 through registered post as well as through UPC but it was neither complied with nor replied by the defendant.
2. The notice of suit was sent to the defendant and the defendant was ultimately served by way of publication in the newspaper 'Vir Arjun' dated 30.10.2009. The defendant did not appear despite publication of process. Vide minutes of proceedings dated 09.12.2009 the defendant was proceeded as exparte. It did not join the proceedings thereafter and continued to remain exparte.
3. The plaintiff examined himself as PW1 in PE. His oral evidence is contained in his affidavit Ex.PW1/A. He has also examined one Sh. Chander Kant as PW2 and one Sh. Sameer Mathur, C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 2 of 6 3 Associate Vice President HSBC as PW3. He has tendered various documents in his evidence.
4. I have heard Ms. Usha, ld. counsel for plaintiff. Ld. counsel for plaintiff submits that the witnesses PW2 and PW3 has corroborated the testimony of PW1. The evidence of all the witnesses has remained unchallenged and unrebutted. The plaintiff has successfully proved his case and his suit be decreed.
5. I have considered the submissions and the material on record.
6. The plaintiff has examined himself as PW1 his oral evidence is in same terms as per his pleadings. He has tendered on record various e. mails between the parties which are mark A (collectively). However, the e. mails being electronic evidence have not been proved in accordance with law and therefore, cannot be relied upon.
7. PW1 has tendered the notice of demand dated 28.02.2008 as Ex.PW1/D. Ex.PW1/3 is the postal receipt of dispatch of notice and Ex.PW1/4 is UPC. Ex.PW1/5 is the AD Card. The service of notice has been duly proved and even otherwise the presumption under Section 27 of the General Clauses Act is available as regards due service. The non reply to the notice can be treated as admission on its contents in the facts and circumstances of the present case for the reason that any prudent person against whom a claim is made of such C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 3 of 6 4 an amount cannot afford to remain silent. Thus, an adverse inference operates against the defendant for non traverse of the averments of notice.
8. The witness PW2 Sh. Chanderkant S/o Sh. Bhagwan Dass Special Assistant of Vijay Bank, Gopinath Bazar, Delhi Cantonement has brought the summoned record i.e certified copy of statement of account no.600601011000423 in the name of plaintiff, which is Ex.PW2/1. In the statement of account entries at point A of cheque no. 4180 dated 28.09.2006 for Rs.50,000/, at point B of cheque no. 4198 dated 07.11.2006 for Rs.50,000/, at point C of cheque no. 4137 dated 21.12.2006 for Rs.50,000/, at point D of cheque no. 4150 dated 17.02.2007 for Rs.50,000/ and at point E of cheque no.2926 dated 24.05.2007 for Rs.50,000/. The witness stated that he has also brought the account opening form of the plaintiff i.e marked as Mark A. This witness establishes the credit of various cheques in the bank account of plaintiff which the plaintiff has propounded as his cheques towards salary received for various months from the defendant by way of employer and employee relationship.
9. PW 3 is Sh. Sameer Mathur, Associate Vice President , HSBC, Bara Khama Road New Delhi who has brought the summoned record i.e. 5 original cheques, out of which one cheque no. 002926 dated C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 4 of 6 5 19.05.2007 from account no. 130045107001 of DEGO International signed by director Vishal Singh for Rs.50,000/, cheque no.004180 dated 25.09.2006, cheque no.004198 dated 04.11.2006, cheque no. 004137 dated 13.12.2006, cheque no.004150 dated 12.02.2007 for Rs.50,000/ each from account no.130038102006 and signed by Sh. Vishal Singh and issued from his Non Resident Savings (NRE) from branch office of HSBC 12 Basant Lok New Delhi57. He also deposed that all these cheques were cleared by the bank on presentation. This witness proves the factum of certain cheques having been cleared from the bank account of defendant to plaintiff.
10. From the collective assessment of the testimony of witnesses, which have remained unchallenged, the plaintiff has successfully proved by preponderance of probabilities, his claim as made in the suit.
11. However, no case has been made out for considering the interest @24% p.a. in the present socioeconomic milieu. The pre suit interest is therefore, considered @12% p.a. and accordingly, the suit is decreed for Rs.5,80,000/. The plaintiff shall also be entitled to pendentelite and future interest @10% p.a. from the date of institution of suit till final realization.
12. As the institution of suit has been necessitated on account of C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 5 of 6 6 default of the defendant the plaintiff shall also be entitled to the costs of the suit.
13. Decree sheet be drawn accordingly.
14. File be consigned to Record Room.
Announced in the Open Court On this 21st day of February 2013 (MAN MOHAN SHARMA) ADJ (Central)01, Delhi C.S. No. 27/2011 Col. (Retd.) Satish Nangia Vs. M/s Dego International Page 6 of 6