Delhi District Court
Shri Baljeet Singh vs Wings Biotech on 14 February, 2017
IN THE COURT OF MS.NISHA SAXENA: ADJ03 (EAST)
KARKARDOOMA COURTS, DELHI.
CS No.352/16
Shri Baljeet Singh
S/o Shri Narender Singh
R/o B61, Parwana Apartment,
Mayur Vihar, PhaseI (Extn.), Delhi110091
.... Plaintiff
Versus
1. Wings Biotech
J13, Udyog Nagar Industrial Area,
Near Peera Garhi Metro Station, Delhi110041
2. Anil Arora, Partner
3. Mr. R.P. Arora, Partner
4. Mr. R.K. Arora, Partner
5. Mr. K.K. Arora,Managing Partner
All at: Wings Biotech
J13, Udyog Nagar Industrial Area,
Near Peera Garhi Metro Station, Delhi110041
..... Defendants
Date of Institution : 05.06.2015
Date of reserving judgment : 13.02.2017
Date of pronouncement : 14.02.2017
JUDGMENT:
1. The present suit has been filed by the plaintiff for recovery of Rs.6,98,166.70 with interest @ 18% per annum against the defendants.
CS No.352/16 1/17PLAINTIFF'S CASE:
2. The brief facts of the case are that plaintiff was working with defendant no.1 as National Sales Manager. The defendant no.1 was dealing with Pharmaceuticals, Cosmetics and Ayurvedic products and were manufacturers and exporters and doing their business under the name and style of M/s Wings Biotech. The defendant no.5 was the Managing partner and defendant no.2 to 4 were partners of the defendant no.1.
2.1 The defendants appointed the plaintiff as National Sales Manager vide appointment letter dated 04.04.2011 duly signed by the plaintiff and defendant no.2, wherein the basic salary was Rs.75,000/ per month excluding other service benefits which pertinently included the valued Annual Performance Incentive and Retention Incentive and was payable to the plaintiff after the completion of one year of service.
2.2 The plaintiff was working very hard to fulfill all the designated targets and other job related contingencies related to his job profile effectively and efficiently, which was reflected in the performance appraisal form filled by the plaintiff showing his key achievements / target job responsibilities in the year 20112012, which was intentionally not accepted by the defendants.
2.3 Due to oblique motives, the defendant no.2 was not accepting the performance appraisal form for the year 20112012 and was not providing benefits related to the job. The plaintiff resigned vide resignation letter CS No.352/16 2/17 dated 08.06.2012 submitted to Hanuman Resource Department of the defendants, which was duly received and accepted by the concerned department of defendant no.1. However, the defendants did not settle the full and final due amount payable to the plaintiff.
2.4 The plaintiff sent reminders and e.mails on 03.10.2012, 24.12.2012 and 01.03.2013, calling upon them to follow up his payment from the HRD Department of defendant no.1, but the defendants paid no heed to reply to the calls and reminders of the plaintiff.
2.5 It is alleged that on 30.05.2015, a sum of Rs.6,98,166.70 is due against the defendants, which they failed to pay to the plaintiff. Therefore, the plaintiff served a legal notice dated 15.05.2015, but despite service, the defendants failed to pay the due amount to the plaintiff within 15 days of receipt of the legal notice.
2.6 The plaintiff has, therefore, prayed for a decree for a sum of Rs.6,98,166.70 together with pendentelite and future interest @ 18% per annum.
DEFENDANTS CASE
3. The defendants have controverted the averments made in the plaint and raised preliminary objections that the plaintiff is not liable to any annual performance incentive and retention bonus from the defendants; that the plaintiff has no cause of action to file the present suit and same is liable CS No.352/16 3/17 to be dismissed under Order VII Rule 11 CPC; that the plaintiff has not come to the court with clean hands and has suppressed the true and material facts from the court; that the plaintiff has not affixed the proper court fee on the plaint and same has not been properly signed and verified as per High Court Rules and hence the same is liable to be dismissed.
3.1 On merits, all the averments made in the plaint have been denied. However, it is submitted that as per the appointment letter, the performance of the plaintiff was not upto the mark and hence the question of payment of annual performance incentive and the rentention incentive to the plaintiff, did not arise and therefore, the plaintiff is not entitled to the same. It is submitted that during his service tenure, the plaintiff did not file any performance appraisal form showing his key achievement / target job with the defendants. However, the defendants have paid all the legal dues to the plaintiff and in lieu of the same the plaintiff handed over all the articles / properties of the defendants, which were given to him for proper and effective performance of his job and now there is no balance pending on the defendant.
3.2 It is submitted that the defendants are not liable to pay even a single penny to the plaintiff towards the due amount as the defendants already paid all the dues to the plaintiff as per the job criteria. It is also submitted that the Performance Incentive and Retention Bonus were to be given to the plaintiff on the basis of his annual performance, but he did not complete the target as agreed between the plaintiff and the defendants and CS No.352/16 4/17 even otherwise Rs.2 lac are the maximum Performance Incentive and Retention Bonus which can be given for highest performance but the plaintiff could not achieve the target, so he is not entitled towards Performance Incentive and Retention Bonus. The plaintiff is also not entitled for Rs.2 lac as claimed by him as there was no contract between the plaintiff and the defendant. It is submitted that since all the dues were paid to the plaintiff, he is not entitled for any interest on the same. Hence, the present suit deserves dismissal.
ISSUES:
4. On the pleadings of the parties, following issues were framed: (1) Whether the suit filed by the plaintiff is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC as alleged by the defendant? OPD.
(2) Whether the suit is under valued as alleged by the defendant? OPD. (3) Whether the plaintiff is entitled to the recovery for a sum of Rs.6,98,166.70 as claimed by the plaintiff? OPP. (4) Whether the plaintiff is entitled for interest, if any, if so, at what rate and for which period? OPP.
(5) Relief.
PLAINTIFF'S WITNESS
PW1 Sh. Baljeet Singh, the plaintiff.
5. PW1 Shri Baljeet Singh, the plaintiff has proved his affidavit CS No.352/16 5/17 Ex.PW1/A. DOCUMENTS RELIED UPON BY THE PLAINTIFF: Ex.PW1/1 (colly, Appointment letter dated 04.04.2011 4 sheets) Ex.PW1/2 Company Property Handover dated 10.11.2012 Ex.PW1/3 Letter of resignation dated 08.06.2012 Ex.PW1/4 Visiting Card Ex.PW1/5 (colly Postal receipts 5 receipts) Ex.PW1/6 (colly Courier receipts 5 receipts) Ex.PW1/7 Return packets of the courier and speed post, sent to the defendants Mark A Copy of salary slip Mark B Copy of performance appraisal form Mark C (colly 8 Copy of form 16 for the assessment year 2012 sheets) 2013 and 20132014 Mark D (colly 8 Photocopy of bank account statement for the sheets) period 01.01.2012 to 31.12.2012 Mark E (colly 4 Office copy of legal notice dated 15.05.2015 sheets) Mark F (colly 5 Tracking results sheets) DEFENDANT'S WITNESS
6. The defendant did not lead any evidence in his support despite having been granted opportunities. Accordingly, DE was closed.
7. I have heard Ld. Counsel for the plaintiff Shri Karan Kumar Gogna CS No.352/16 6/17 and meticulously and scrupulously gone through the entire record including testimonies and documents proved on record.
FINDINGS: ISSUE NO.1: Whether the suit filed by the plaintiff is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC, as alleged by the defendant? OPD.
8. In their written statements the defendants have taken the preliminary objection that the suit is not maintainable and the plaintiff has no cause of action to file the present suit and hence the same deserves rejection under Order 7 Rule 11 CPC. However, no evidence has been led to the effect as to how the suit of the plaintiff is not maintainable and is liable to be dismissed under Order 7 Rule 11 CPC.
8.1 As per Order 7 Rule 11 CPC, the plaint can be rejected in the following eventualities: "Rejection of plaint. The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
where the relief claimed is properly valued but the plaint is written upon paper insufficiently CS No.352/16 7/17 stamped, and the plaintiff, on being required by the Court to supply the requisite stamppaper within a time to be fixed by the Court, fails to do so;
where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;}
(f) where the plaintiff fails to comply with the provisions of rule 9:} 8.2 A case under Order 7 Rule 11 CPC can be said to be not maintainable only if it does not disclose a cause of action or it is an abuse of process of court. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated. So long as the plaint discloses some cause of action which required determination by the court, mere fact that the plaintiff may not succeed would not be a ground for holding that the case is not maintainable.
8.3 'Cause of action' in a suit is the most vital ingredient for its maintainability both in facts and in law. In Black's Law Dictionary the phrase 'cause of action' is defined as - the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more basis of suing; a factual situation that entitles one person to obtain a remedy in court from another person. In CS No.352/16 8/17 Halsbury Laws of England (4th Edition) it has been stated as follows :'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against the other person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse.
8.4 In the case of South East Asia Shipping Co. Ltd. vs. Nav Bharat Enterprises Pvt. Ltd. & Ors., (1996) 3 SCR 405, the Hon'ble Apex Court said that: "it is settled law that 'cause of action' consists of bundle of facts, which give cause to enforce the legal enquiry for redress in a court of law. In other words, it is a bundle of facts which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action would possibly accrue or would arise."
8.5 In the case of Rajasthan High Court Advocates' Association Vs. Union of India & Ors., 2001 (2) SCC 294, it has been held by the Hon'ble Apex Court that "the expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction CS No.352/16 9/17 of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove, each fact comprises 'cause of action'."
8.6 In the plaint it is pleaded by the plaintiff that the cause of action to file the present suit firstly arose on completion of one year of service on 04.04.2012 and thereafter it arose on various dates i.e. 05.05.2012 and 06.06.2012, when the defendants agreed to pay the due amount to the plaintiff but the due amount was not paid to the plaintiff. Further it arose on 08.06.2012 when the plaintiff gave his resignation letter dated 08.06.2012 to the defendants. It further arose on 03.10.2012 and 24.12.2012 when the reminder, emails were sent to the defendants. Further it arose on various dates in 2013, when the due amount was not paid to the plaintiff as the plaintiff worked till the month of September 2012 (served his three months notice) and lastly it arose on 15.05.2015, when the legal notice was served upon the defendants and same is still in subsistence and continuance.
8.7 No arguments have been advanced on the point, therefore, the defendants have failed to discharge the burden placed upon them. Otherwise also, the plaintiff has a cause of action against the defendants and there is nothing to suggest that the suit is not maintainable.
CS No.352/16 10/17Accordingly, the issue No.1 is decided in favour of the plaintiff and against the defendants.
ISSUE NO.2: Whether the suit is under valued as alleged by the defendant? OPP.
9. In his written statement, the defendant has taken the plea that the suit of the plaintiff is undervalued. The plaintiff has filed the present suit for a decree to the tune of Rs.6,98,166.70. Initially he paid a court fee of Rs.7250/ and later on with the permission of the court he filed court of Rs.1910/. Therefore, I hold that the suit is not undervalued. Issue No.2 is, accordingly, disposed of.
ISSUE NO.3 : Whether the plaintiff is entitled for recovery for a sum of Rs.6,98,166.70/ as claimed by the plaintiff? OPP.
10. It an admitted case of the parties that the plaintiff was working with defendant No.1 as National Sales Manager w.e.f. 04.04.2011 vide appointment letter dated 04.04.2011 Ex.PW1/1 duly issued by the defendants and his basic salary was fixed at Rs.75000/ per month excluding other benefits, which included annual performance incentive and retention incentive and same was payable to him after the completion of one year of service. The copy of the salary slip is proved as Mark A. 10.1 PW1 Baljeet Singh deposed that he was working very hard to CS No.352/16 11/17 fulfill all the designated targets and other job related contingencies effectively and efficiently, which was reflected in the performance appraisal form duly filled by him for the year 20112012 Mark B. The same was not intentionally accepted by the defendants. He further deposed that he was in perception that the defendants would acknowledge his work and would definitely take into consideration his capabilities and in return would provide him the extra service benefits as mentioned in the appointment letter, but the defendants kept on lingering the issue and consciously ignored the repeated reminders by him.
10.2 PW1 Baljeet Singh further deposed that the defendant no.2 was fulfilling his own motive by not promoting / not providing other benefits related to the job and was not accepting the performance appraisal form for the year 20112012 filed by the plaintiff indicating his key performance. After getting familiar with the defendants, the plaintiff resigned from the job vide resignation letter dated 08.06.2012 Ex.PW1/3, submitted to the Human Resource Department of defendant no.1, which was duly received and accepted by the concerned department of the defendant no.1.
10.3 PW1 Baljeet Singh further deposed that he constantly sent the reminders by emails dated 03.10.2012, 24.12.2012 and 01.032013, regarding his payment from the HRD Department of the defendant no.1, but the same were not replied by the defendants. He further deposed that the defendants failed to pay Rs.6,98,166.70 which was due from 30.05.2015 till date to him, the details of which are as follows: CS No.352/16 12/17 Srl. Particulars Annual Due amount Details No.
1. Retention Bonus for 2,00,000 2,00,000 As per letter of the year (20112012) appointment
2. Performance Linked 2,00,000 2,00,000 As per letter of Incentive (20112012) appointment
3. Retention Bonus for 16666.67 83333.33 Worked till August 12 the year (20122013) hence calculated for 5 month i.e. 200000/12 = 16666.67 x 5 month = 83333.33
4. Performance Linked 16666.67 83333.33 Worked till August 12 Incentive (20122013) hence calculated for 5 month i.e. 200000/12 = 16666.67 x 5 month = 83333.33
5. LTA (20112012) 24000 24000 As per letter of appointment
6. Medical 10000 10000 As per letter of reimbursement (2011 appointment 2012)
7. LTA (20122013) 2000 10000 Worked till August 12 hence calculated for 5 month i.e. 24000/12 = 2000 x 5 month = 10000
8. Medical 833.3333 4166.667 Worked till August 12 reimbursement hence calculated for 5 (20122013) month i.e. 10000/12 = 833.33 x 5 month = 4166.66
9. Increment 200000 83333.33 Increment for 1112 i.e. Rs.200000/PA/12 = 1666.67 x 5 month 8 Total 698166.70 CS No.352/16 13/17 10.4 PW1 Baljeet Singh deposed that he sent a legal notice dated 15.05.2015 Mark E demanding an amount of Rs.6,00,666/ to the defendants, despite which the defendants failed to make the payment of due amount to him.
10.5 Neither there is any crossexamination of PW1 on behalf of the defendants nor any evidence was led by the defendants to controvert the averments made by the plaintiff in his testimony as well as plaint. The testimony of PW1, the plaintiff remains unrebutted, uncontroverted and unchallenged. There is no reason for me to disbelieve the version of the plaintiff which remains unrebutted and also finds support from the documentary evidence on record. There is no reason as to why the statement made in the affidavit of the witness be not accepted as correct. Our own Hon'ble High Court in a case titled as Shobha Gupta v/s Rajesh Gupta Mat. App. No. 63/2004 passed by Hon'ble Mr. Justice S. Muralidhar has held in para 15 that : "15. There is absolutely no reason why the above statements made in the affidavit of the appellant should not be accepted as being correct. The affidavit has gone unrebutted."
10.6 Therefore, plaintiff has proved through the unimpeached and unassailed evidence brought on record that the defendants were served with CS No.352/16 14/17 notice calling upon them to pay the amount as claimed, to the plaintiff within 15 days of the receiving of the said legal notice.
10.7 In the legal notice dated 15.05.2015, the plaintiff has claimed an amount of Rs.6,00,666/. Therefore, the court is inclined to grant Rs.6,00,666/ only. The plaintiff has also proved through unrebutted and unchallenged evidence that the defendants defaulted in payment of the outstanding amount. Accordingly, the plaintiff is entitled for a decree for recovery of Rs.6,00,666/ from the defendants. Issue No.3 is, therefore, decided in favour of the plaintiff and against the defendants.
ISSUE NO.4: Whether the plaintiff is entitled for interest, if any, if so, at what rate and for which period? OPP.
11. The plaintiff has claimed interest @ 18% p.a. from the date of institution of the suit till realization of the decretal amount. The grant of interest is a discretionary relief which must be exercised in accordance with law and judiciously. The discretion must be exercised fairly as the discretion excercised must answer the test of reasonableness.
11.1 In Kruger Vs. Commonwealth of Australia (1997)146 Aus, LR 126 it is stated: "Moreover, when a discretionary power is CS No.352/16 15/17 statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention..."
11.2 The discretionary jurisdiction has to be exercised keeping in view the purpose for which it is conferred, the object sought to be achieved and the reasons for granting such wide discretion.
11.3 Considering the fact and circumstances, I am of the opinion that the interest of justice would be sub served if the rate of interest is directed to be paid @ 8% p.a. from the date of institution of the present suit upto its realization.
11.4 Accordingly, I hold that the plaintiff is entitled for a decree for recovery of Rs.6,00,666/ together with interest @ 8% p.a from the date of filing of the petition till its realization. Issue No.4 is, accordingly, decided in favour of the plaintiff and against the defendants .
ISSUE No.5 RELIEF:
12. In view of the foregoing discussion, the plaintiff is entitled for a decree for recovery of Rs.6,00,666/ together with interest @ 8% p.a from the date of filing of the petition till its realization. No order as to cost.
CS No.352/16 16/17Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court
Dated:14.02.2017 (NISHA SAXENA)
Additional District Judge03
East District, Karkardooma Courts
Delhi.
CS No.352/16 17/17