Indian Kanoon - Search engine for Indian Law

(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.

(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.

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/-.

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.