Delhi District Court
Sh. Jitender Singh vs Sh. Deepak Sharma on 6 April, 2019
IN THE COURT OF MS. RICHA SHARMA, CIVIL JUDGE01
( WEST), TIS HAZARI COURTS, DELHI
SCJ NO. 610397/16
Date of Institution : 16.05.2015
Date of reservation of judgment : 11.02.2019
Date of pronouncement of Judgment : 06.04.2019
Sh. Jitender Singh
Sole proprietor of
M/s Guided Control Systems
At B1/628, 3rd Floor, Janakpuri
New Delhi58.
.........Plaintiff
Vs.
1. Sh. Deepak Sharma
S/o Sh. Udai Ram
2. Sh. Udai Ram
S/o Not known
Both R/o 657/1 HI, Ground Floor
Street No.1, New Basti Road
Devli Village, Khanpur
New Delhi62.
........Defendant
SUIT FOR RECOVERY OF RS. 2,50,000/
JUDGMENT
1. Brief facts of the present case as per plaint are that, plaintiff is a qualified engineer and is running his business in the name of 'Guided Control CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 1/17 Systems' since 1992 and is also providing training to the fresh graduate engineers on different types of projects apart from improving their confidence for handling and for completion of projects.
2. It is stated by plaintiff that defendant no.1 was selected as engineer cum trainer and it was mutually agreed between plaintiff and defendant no.1 that defendant no.1 would not leave plaintiff's company for a minimum of two years from the date of joining under any circumstances because defendant no.1 was fresher and would be trained for the organization as well as the organization would improve his efficiency in handling the projects and training assignments as and when the need arises. It is further stated that plaintiff invested huge amount of money in giving job training to defendant no.1 as well as in improving his confidence in handling the projects independently which are assigned to him and in this process plaintiff has also incurred a huge amount of expenses in getting defendant no.1 qualified to meet out the minimum requirements for working on various projects of the plaintiff's company.
3. It is further stated that plaintiff assigned the projects to defendant no.1 which were required to be completed as per the specifications and directions, by defendant no.1 in time. It is further stated that defendants agreed to work with plaintiff for a minimum period of six months on different assignments from the date of their employment as engineer and further agreed to work satisfactorily with plaintiff's company for a further period of 18 months (minimum), unless the termination of services and hence an CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 2/17 agreement dated 08.09.2014 was signed by both defendants at the office of plaintiff.
4. It is further stated that defendant no.1 had agreed to stay with plaintiff till September, 2016 in the first instance, at the discretion and supervision of concerned office of plaintiff. It is further stated by plaintiff that as agreed between plaintiff and defendant no.1, latter shall maintain the confidential secrets and shall help them intact and shall not disclose or send the same on their personal email and also shall not store or take copy of official secrets on his personal computer, laptop and shall not steal any secrets, confidential information, date, documents, statements etc. of the plaintiff's company. It is further stated that the training period was for six months and after satisfactory completion of training assessment/ period of six months from the date of employment/absorption as training engineer work to the satisfaction of plaintiff in the said position for a further period of 18 months at minimum, unless his services are terminated, by the plaintiff.
5. It is further stated by plaintiff that as agreed between plaintiff and defendants, in the event of giving up the assignment by defendant no.1 of his own accord or in the event of dismissal from the service for misconduct or termination from the service due to certain insufficiency, during the period of association from the date of commencement of his assignment as engineer, defendant no.1 shall be liable to pay Rs. 1,00,000/ to plaintiff in addition to charges/expenses incurred on his training/foreign training etc. which the plaintiff has assessed at Rs.1.5 lakhs and defendant no.2 stood guarantor for CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 3/17 liabilities and responsibilities of defendant no.1 qua agreement dated 08.09.2014.
6. It is further submitted that defendant no.1 got himself absented from the duties of plaintiff since 01.02.2015, without any oral or written intimation to plaintiff. Thereafter in second week of February, 2015, plaintiff made a conversation with defendant no.1 on telephone and had requested him to join his duty but he did not give any satisfactory reply to plaintiff and had sent his resignation on email address of plaintiff. It is further stated that plaintiff had invested huge amount in getting defendant no.1 trained and defendant no.1 after getting himself trained, was not interested in continuing the service of plaintiff intentionally and mischievously which shows that defendant no.1 had intentionally got himself absented from the services of plaintiff as defendant no.1 might have got a better service in the office of some of the competitors of plaintiff. It is further averred that after receiving the resignation of defendant no.1, plaintiff got some doubts and later on he found that defendant no.1 got transferred some important data, confidential information etc. of plaintiff's company during his service period with plaintiff.
7. It is further stated that defendant no.1 was so careless that he had never bothered to hand over the working projects, details to plaintiff which he used to keep in his pen drive, however plaintiff requested defendant no.1 to hand over the details of projects but defendant no.1 replied that plaintiff can do whatever he can, which caused a bad impact on the other employees and CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 4/17 has also damages the reputation of plaintiff in the market. It is further stated that defendant no.1 had failed to discharge the obligation on his part as per mutual agreement dated 08.09.2014 and hence both defendants are liable to pay Rs. 1,00,000/ alongwith Rs.1,50,000/ to plaintiff towards training expenses and foreign trip of defendant no.1. It is further stated that plaintiff got issued a legal notice to defendants on 25.02.2015 but of no effect. Hence, present suit has been filed by plaintiff.
8. By virtue of present suit plaintiff has prayed for following reliefs :
i. Decree of Rs. 2,50,000/ in favour of plaintiff and against defendants.
ii. Interest @ 12 % p.a pendente lite and future. iii.Costs of the suit.
9. Written statement has been filed on behalf of defendant wherein it is stated that the suit of the plaintiff is not maintainable as plaintiff is trying to take benefit of his own wrong. It is submitted that a service bond is only executed only executed if there is an order of employment, containing terms and conditions of service, specification of job and all necessary service benefits but plaintiff has neither placed on record any appointment letter nor disclosed the specifications of service but o nly based his claim on the basis of an illegal, void and unenforceable agreement which at the face of it is an attempt to unjust enrichment. It is further stated that the suit is an abuse of process of law as plaintiff has misrepresented the facts. Plaintiff by misrepresentation obtained signatures of defendants on the pretext of CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 5/17 imparting on job training. It is further submitted that neither any assignment as per qualifications of defendant no.1 was given nor any training was given. It is further stated that defendant no.1 was being treated as a bonded labour and was deployed for shifting of goods from basement and ground floor to third floor and vice versa, that too without any salary or service benefits. It is further stated that plaintiff has taken Rs. 55,000/ as fee for training but no training was given to defendant, except to ferry the goods which is not for the future of an engineer and plaintiff also did not provide placement to defendant no.1.
10. It is further stated that suit is bad for misjoinder of parties as defendant no.2 has been impleaded as surety but agreement is between plaintiff and defendant no.1 only and signature of defendant no.2 have been taken by misrepresentation and hence name of defendant no.2 is liable to be deleted from the array of parties.
11. It is further stated that the suit is without cause of action and has been filed with an intention to extract money by misusing the process of law. It is submitted that bond/agreement as alleged by plaintiff, was got signed by misrepresentation and fraud. It is further stated that plaintiff represented its organization as a company incorporated under the Companies Act and represented that defendant no.1 shall be provided employment and training but neither any training was provided nor any employment was provided to defendant no.1. It is further stated that defendant no.1 was given assignment of handling and shifting of cartons in the name of training and since there was CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 6/17 neither any training nor plaintiff spent any money in any training, alleged agreement cannot be enforced. It is further stated that in fact, plaintiff is liable to pay Rs. 55,000/ alongwith interest and wages for seven months at the rate of Rs. 30,000/ p.m, which is minimum salary for a graduate engineer.
12. It is further stated that the alleged agreement is void and unenforceable in law and plaintiff has no authority in law to file the suit. It is further submitted that plaintiff at the time of obtaining signature of defendants, was in an influential position and got signatures on the unilateral agreement which cannot be enforced being void agreement. It is further stated that the conditions are unilateral on the face of it as plaintiff has stated in para 3 of the plaint that defendant no.1 cannot leave the company for a minimum period of two years under any circumstances.
13. In reply on merits it is submitted that plaintiff has represented that it is a company, reputed placement agency and provider of the job training but neither any training nor any employment was provided and plaintiff represented that M/s Guided Control System and TICO Training institute are registered companies but same is a false representation. It is submitted that by way of its website and advertisements, it has been represented by plaintiff that M/s Guided Control System and M/s TICO Training Institute are being run from the same premises and are providing training and placement to fresh graduate engineers. It is further stated that defendant no.1 is an electronic engineer but there was neither any instructor of the subjects nor plaintiff CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 7/17 knew anything about electronical engineering and confidence of defendant no.1 being an engineer cannot be improved by being employed as a labourer.
14. It is further stated that after completing B.Tec in electronics and communication engineering, defendant no.1 was looking for a job and plaintiff represented that job training shall be imparted to defendant no.1 and for this, he took Rs.55,000/ from defendant no.1 in the name of providing training but no training, at all, was provided. It is submitted that as per agreement defendant no.1 was to work as an engineer but no assignment of engineer was given and no qualification was provided by plaintiff nor was there any project on which defendant no.1 was asked to work. It is further submitted that the agreement nowhere shows that defendant no.2 is surety and shall be bound to pay Rs.2,50,000/ to plaintiff. It is further stated that plaintiff himself has violated the agreement and defendant cannot be taken for granted in contradiction to the provisions of the Contract Act.
15. It is further submitted that as no project was in the hands of defendant no.1, hence there was no question of leaking any confidential secret and no personal email was sent regarding any project as there was no project. It is further submitted that defendant no.1 was being used as unskilled labourer for shifting the goods of plaintiff from basement/ground floor to third floor and vice versa and defendant no.1 tendered his written resignation vide email dated 13.02.2015, which is selfexplanatory. It is specifically denied that defendant no.1 absented from his duties.
16. It is further stated that defendant no.1 has never taken any CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 8/17 information from plaintiff nor there was anything within the access of defendant no.1. Further states that plaintiff failed to disclose the period of service, payment of salary, name of project, name of principal employer but only harps on a cooked story for extracting money illegally. In rest of the W.S the averments made in plaint are denied and prayer is made for dismissal of suit.
17. Replication was filed by the plaintiff wherein the contentions raised in W.S are denied and averments made in the plaint are reiterated.
18. Vide Order dated 25.05.2016, following issues were framed by the Ld. predecessor of this court :
1. Whether the plaintiff spent money towards job training of defendant no.1 towards improving his efficiency or not ?
OPP.
2. Whether the plaintiff is entitled to the decree of sum of Rs. 2,50,000/ as prayed for ? OPP.
3. Whether the plaintiff is entitled to interest @ 12 % p.a till the date of realization as prayed for ? OPP.
4. Relief.
19. In order to prove his case, plaintiff examined himself as PW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/A, reiterating the contents of the plaint. In his testimony,following documents were exhibited :
CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 9/17 Sr. Nature of documents Exhibited as No. 1 Copy of ledger account of defendant Ex. PW 1/1 Agreement dated 08.09.2014 2 Legal notice Ex. PW 1/ 2 3 Postal receipts Ex PW 1/3 ( colly) Thereafter. plaintiff was crossexamined and subsequently, PE was closed on 16.10.2017, vide separate statement of the plaintiff.
20. On the other hand, defendant in his defence examined himself as DW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.DW1/A. Defendant was crossexamined and thereafter DE was closedvide separate statement of Ld. counsel for both defendants recorded on 13.03.2018.
21. I have heard the arguments advanced by Ld. counsels for parties and have perused the evidence on record carefully. My issuewise findings are as under :
ISSUE No. 1,2 AND 31. Whether the plaintiff spent money towards job training of defendant no.1 towards improving his efficiency or not ?
2. Whether the plaintiff is entitled to the decree of sum of Rs.
2,50,000/ as prayed for ?
CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 10/17
3. Whether the plaintiff is entitled to interest @ 12 % p.a till the date of realization as prayed for ? OPP.
All three issues are taken up together as the findings on these issues are based on common questions of facts and law and all the issues have a bearing on each other.
The onus to prove both these issues is upon the plaintiff.
22. In order to substantiate the claim it was incumbent upon the plaintiff to prove that the defendant was under his employment and was imparted training by the plaintiff at latter expenses. As per the plaintiff, plaintiff's firm is providing training to software engineers. However, it is admitted by the PW1 in his crossexamination that he does not hold any license for providing any type of training to the engineers. Further, it is also admitted that the defendant no.1 is not a software engineer. It is the case of the plaintiff that the defendant no.1 was employed by him and also an appointment letter was issued to him. However, the plaintiff failed to bring on record any employment letter issued by him in favour of defendant no.1 despite stating in his examination that the said letter was in his possession and that he could produce the same. It is pertinent here to mention that the claim of the plaintiff is that he imparted training to defendant no.1, however no description as to the training program was disclosed by plaintiff in his plaint or during his examination in chief. Further the plaintiff had admitted that his firm provides training to software engineers and the fact that the defendant no.1 is not a software engineer, this further gives rise to a logical corollary CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 11/17 that, if defendant no.1 is not a software engineer and plaintiff deals as alleged in providing training to software engineers only, then what was the nature of training imparted to defendant no.1 by the plaintiff. this remains unaddressed by the plaintiff. The plaintiff further could not explain as to what training was imparted to defendant no.1. It is stated by the PW1 in his testimony that for the purpose of training he himself had loaded software in the laptop of the defendant no.1. However, he failed in explaining as to what software was installed and whether he has purchased the said software and if at all he had, then from where and at what expenses the software was purchased and installed. Plaintiff could neither tell the name of software nor could he tell from where he bought the same and what expenses and this further leads to an inference that plaintiff is making bald averments without any concrete basis.
23. It had been stated by PW1 in his testimony that his firm is providing various training programs having fees ranging from Rs 6,000/ to Rs. 55,000/. PW1 however could not state or bring on record any document whatsoever depicting the curriculum of the said courses. Further, PW1 in his testimony had stated that his firm keeps a record of its employees, however despite opportunity being given he could not produce the employment letter issued to defendant no.1. It is further interesting to note that the plaintiff has based his claim on account of expenses incurred in imparting training and also on account of imparting training in a foreign country to the defendant no.1. However admittedly no training was imparted to defendant no.1 in a CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 12/17 foreign country. PW1 had further stated that he had not specified any amount incurred by him in imparting training to defendant no.1 and therefore, he further failed to satisfy the might of the court as to how he arrived at an imaginary figure claimed in recovery in the present case.
24. In addition to this, plaintiff in his testimony failed to state that as to how many persons were imparted training from his institution. Therefore, to sum it all up it can be stated that firstly plaintiff miserably failed to explain the details of the expenditure incurred by him on defendant no.1. Secondly, he could not place on record any details of the curriculum of training and the course of training and the details of the experts/people hired by him to provide training to defendant no.1. Thirdly, it is admitted case of plaintiff that he provides training to software engineers and it is evident from the record that defendant no.1 was not a software engineer and same was also admitted by defendant no.1 in his crossexamination, so being the case what training was imparted to defendant no.1 remains unexplained, unsubstantiated and unproved.
25. Considering the abovesaid, it becomes evident that the plaintiff has failed in proving on the scale of balance of probabilities that any training was ever imparted to defendant no.1.
26. As regards the employment of defendant no.1 is concerned, it has been admitted by the PW1 that the defendant no.1 was not being paid any salary. PW1 had further stated in his testimony that he had agreed to pay Rs. 8,000/ as stipend to defendant no.1 for a period of six months. However, he CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 13/17 has not denied not paying a single penny to defendant no.1.PW1 on the one hand had stated that he had maintained record of payment and he could produce the same but on being given opportunity,could not bring on record the same. It is further admitted by PW1 that the ITR of the relevant year does not reflect any payment of salary to defendant no.1.DW1 has stated in his testimony that he worked without salary in plaintiff's firm and no project was ever assigned to him. In the absence of any appointment letter and any fixed terms and conditions of service, it can be stated that the agreement between the parties was without consideration and in this scenario the question of defendant no.1 being a permanent employee of plaintiff does not arise.
27. It is the claim of the plaintiff that the defendant had executed an indemnity bond Ex. PW 1/1 after issuance of appointment letter. However the plaintiff could not bring on record the appointment letter issued to defendant no.1 and in the absence of said appointment letter, the indemnity bond loses its relevance. Further the plaintiff had not specified as to under what "head", he had suffered losses on account of defendant leaving his job.
28. It is a settled preposition of law that the plaintiff has to approach the court with clean hands but in the present case, the conduct of the plaintiff per se comes under scanner as admittedly he has failed to place any appointment letter on record. Secondly, plaintiff despite opportunity failed to place on record his statement of account showing the disbursement of salary to DW1, if any. This can lead to an inference U/s 114 (g)of Indian Evidence Act as under :
CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 14/17 " The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The court may presume
(g) " That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
29. Further plaintiff has admitted in his crossexamination that even in his ITR return he has not shown the disbursement of salary to DW1, implying thereby that conduct of plaintiff is in total contradiction to the averments made by him in the plaint.
30. It is a well known legal maxim and settled proposition of law that one must approach the court with clean hands. This legal maxim had its origin in equity courts and it tests the quality of litigants each time they pray for a particular relief in common law courts. The notion that one must approach the court with clean hands has been so indoctrinated in the common law system that all courts right from the trial court up to the Supreme Court, are endowed with the responsibility to follow this principle so as to avoid the vexatious claim before it. This principle has been time and again reaffirmed by Hon'ble Apex Court and it is a settled law that a person who approaches the court for grants of relief equitable or otherwise is under a solemn obligation to candidly disclose all the material/important facts which have bearing on the adjudication of issues raised in the case. If he is found guilty of concealment of material facts or making an attempt to pollute the pure CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 15/17 stream of justice, the court not only has the right but a duty to deny relief to such person. It has been time and again reiterated that a person who does not disclose all material facts has no right to be heard on merits of his grievance (State of Haryana V/s Karnal Distillery Co. Ltd., 1977 2SCC 431, Vijay Kumar Kathuria V/s State of Haryana, 1983 3SCC 333; K.D. Sharma V/s SAIL & Others, 2008 12SCC 481; Dalip Singh V/s State of UP & Others, CA No.5239/2002 decided on 03/12/09). It was held in Dalip V/s State of UP & Others decided on 03/12/09, by Hon'ble Apex Court that for many centuries, Indian Society challenged two basic values of life i.e. "Satya" (Truth) and "Ahinsa" (nonviolence) and truth constituted an integral part of justice delivery system. The materialism has over shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of false hood, misrepresentation and suppression of facts in the court proceedings. It was further observed in the said case that it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief. It was further observed in the later decision of the Hon'ble Supreme Court in Ramjas Foundation Vs. Union of India, that the principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and in any case, such person is not entitled to any relief, and the principle is applicable not only to the writ petitions filed but also to the cases instituted in other courts and judicial forums.
CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 16/17
31. In light of the abovesaid and the factum that the plaintiff had admittedly obtained a sum of Rs.55,000/ from defendant no.1 for imparting training, and further basing his claim of recovery on the basis of some foreign training as well which admittedly never happened, it can be safely stated that the plaintiff had not approached this court with clean hands.
On the basis of above observations and findings, the issue no.1 , 2 and 3 are decided against the plaintiff.
32. Relief.
As a sequel to the above discussions, the suit of the plaintiff is hereby dismissed. No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2019.04.06
16:23:12 +0530
Pronounced in the open court (Richa Sharma)
today on 06.4.2019 Civil Judge (West)/Delhi
CS SCJ No. 610397/16 Jitender Singh vs Deepak Sharma 17/17