Delhi District Court
Sh. Deepak Kumar vs M/S Spc Engineers Pvt. Ltd on 15 July, 2017
IN THE COURT OF SH. RAJNISH BHATNAGAR,
DISTRICT & SESSIONS JUDGE (NORTHWEST),
ROHINI COURTS, DELHI
CS No. 575504/16
Sh. Deepak Kumar
s/o Sh. Anandi Pd. Gupta
r/o KU147, Ist Floor
North Pitampura
Delhi110088 ......Plaintiff
Versus
M/s SPC Engineers Pvt. Ltd.
Through its Managing Director
Mr. Arun K. Pal
Office at 79, Samrat Enclave
Road No. 43, Opp. Modern Bakeries
Delhi 110034 .......Defendant
Date of institution : 28.01.2011
Date of hearing arguments : 31.05.2017
Date of decision : 15.07.2017
JUDGMENT
1. The plaintiff has filed the present suit against the defendant thereby seeking recovery of Rs. 5,94,976/ along with pendente lite and future interest @ 24% per annum alleging interalia that the defendant is a company incorporated under the Indian Companies Act, 1956, and the plaintiff had joined it at the post of Dy. G.M. (Electrical) on 01.06.2007 in pursuance to appointment CS No. 575504/16 Page 1 of 12 letter dated 16.04.2007 issued to him by the defendant company; that as per the said appointment letter, the salary of the plaintiff was at Rs. 45,000/ (including allowances) and in addition to the said salary, the plaintiff was also entitled for 0.50% of the annual turnover of the defendant company; that apart from the above, the plaintiff was also entitled for other benefits as per the rules of the defendant company; that though the defendant company was continuously paying the salary/emoluments to the plaintiff by way of cheque/cash, but never paid benefit of 0.50% of the annual turnover of the defendant company despite repeated requests made by the plaintiff; that when the plaintiff persistently demanded the benefit of 0.50% of the annual turnover, the defendant company started harassing the plaintiff by making the situation unworkable for him and even stopped the payment of salary/emoluments to the plaintiff for the months of May and June 2010.
Thereafter the plaintiff sent a letter dated 09.07.2010 to the defendant company thereby demanding the outstanding salary and emoluments along with benefit of 0.50% of the annual turnover and accordingly, the defendant company vide email dated 15.07.2010 directed the plaintiff to forward the account statement mentioning the details of pending payments and assured the plaintiff to settle the dues as per the terms & conditions of the appointment letter dated 16.04.2007; that accordingly, the plaintiff, vide email dated 31.07.2010, sent a statement of account/dues to the defendant company thereby demanding CS No. 575504/16 Page 2 of 12 outstanding amount of Rs. 5,94,976/ in the following manner :
Salary / Emoluments May & June 2010 (2 months) Rs. 59,976/ + Cash amount/emoluments Rs. 35,000/ Bonus/benefit @ 200708 3.0 Cr Rs. 1,50,000/ 0.50% of turnover of the company every 200809 3.5 Cr Rs. 1,75,000/ year 200910 3.5 Cr Rs. 1,75,000/ TOTAL Rs. 5,94,976/ Thereafter vide letter/email dated 02.08.2010, the defendant company denied the plaintiff to pay the benefit of 0.50% of the annual turnover and asked him to collect only salary for the months of May and June 2010 and that too on a reduced amount of Rs. 29,021/ for May 2010 and Rs. 28,488.25 for June 2010,which the plaintiff refused to accept; that the defendant company was legally bound to pay an amount of Rs. 5,94,976/ to the plaintiff as per the terms of the appointment letter dated 16.04.2007, however, despite several efforts made by the plaintiff, the defendant company failed to pay the said amount to him.
Hence, finding no other alternative, the plaintiff issued a legal notice dated 17.08.2010 to the defendant company thereby demanding outstanding amount of Rs. 5,94,976/, but despite receipt of the said legal notice, the defendant company did not pay the said amount to the plaintiff and ultimately since the working CS No. 575504/16 Page 3 of 12 condition of the plaintiff was made unworkable by the defendant company, the plaintiff had to leave the job of the defendant company.
On these allegations, the plaintiff filed the present suit against the defendant company.
2. The defendant company contested the suit and filed its written statement stating therein that the suit of the plaintiff is liable to be dismissed as the same is barred by limitation and has not been filed within stipulated time as the cause of action firstly arose on
16.04.2007 i.e. the date of appointment letter issued to him and whereas the present suit was filed on 25.01.2011; that even otherwise the plaintiff has not come to this Court with clean hands as he has given wrong statement of facts regarding the alleged appointment letter dated 16.04.2007 which was further handed over to him, but thereafter because of cutting and addition, a new letter of the same date was also issued to the plaintiff stating the salary of the plaintiff as Rs. 35,000/.
It is further stated in the written statement that the salary of the plaintiff was revised by the defendant company vide letter dated 22.10.2007 in which the clause of payment of 0.5% of annual turnover was removed and his salary was fixed at Rs. 37,000/ w.e.f. 01.10.2007 and later on vide letter dated 26.03.2008, due to recession, his salary was again revised/reduced to Rs. 31,500/ per month w.e.f. 01.04.2008; that, however, on 03.11.2008, the salary of the plaintiff was reviewed and increased CS No. 575504/16 Page 4 of 12 to Rs. 35,280/ w.e.f. 01.10.2008.
It is further stated in the written statement that since the defendant was not doing his duties upto the satisfaction of the defendant company, the defendant company had sent a letter bearing reference no. SPC/HRD/150/09 dated 19.02.2009 to him thereby directing him to take interest in the projects, but he on one pretext or the other tried to avoid himself from the work entrusted to him and thereafter on 03.07.2010, the defendant company finally asked him to submit his resignation as he was not working upto the satisfaction of the defendant company. Rest of the contentions as raised in the suit, have also been denied in the written statement. It is accordingly prayed by the defendant company that since there is no cause of action, therefore, the present suit is liable to be dismissed under Order VII Rule 11 CPC.
3. The plaintiff filed the replication and denied the contents of the written statement and reaffirmed those as stated in the plaint.
4. From the pleadings of the parties and documents on the record, following issues were framed in the present case on 20.09.2012 :
(i) Whether the plaintiff is entitled to the recovery of suit amount, as prayed? OPP.
(ii) Whether the plaintiff is entitled to interest, if so, then at what rate and for which period? OPP.
(iii) Relief, if any.
CS No. 575504/16 Page 5 of 125. In order to prove his case, the plaintiff examined himself as PW1 and tendered his affidavit i.e. Ex. PW1/1 in evidence. The plaintiff also proved various documents on the record, the details of which are hereas under :
"Document Ex. PW1/1 is the copy of the appointment letter dated 16.04.2007; Ex. PW1/2 is the copy of email dated 09.07.2010 sent by the plaintiff to the defendant company; Ex. PW1/4 is the e mail dated 31.07.2010 sent by the defendant company to the plaintiff; Ex. PW1/5 is the statement of dues sent through email by the plaintiff to the defendant company; Ex. PW1/6 is the email dated 31.07.2010 sent by the plaintiff to the defendant company; Ex. PW1/7 is the copy of legal notice dated 17.08.2010 (containing 4 pages); Ex. PW1/8 is the postal receipt".
PW1 was duly cross examined by the learned Counsel for the defendant.
6. On the other hand, the defendant company examined its authorized representative Sh. Mukesh Kumar Chauhan who appeared in the witness box as DW1 and tendered his affidavit as Ex. DW1/A in evidence.
DW1 proved various documents the details of which are here as under :
"Document Ex. DW1/B is the Resolution dated 08.06.2011 passed by the Board of Directors of the defendant company; Ex. DW1/C is the copy of appointment letter dated 16.04.2007 showing the total salary of the plaintiff as Rs. 35,000/ (including allowances);CS No. 575504/16 Page 6 of 12
Ex. DW1/D is the copy of letter dated 19.02.2009 sent by the defendant company to the plaintiff; Ex. DW1/E is the copy of e mail dated 03.07.2010 sent by the defendant company to the plaintiff thereby asking him to submit his resignation and Ex. DW1/H is the account statement".
DW1 was duly cross examined by the learned Counsel for the plaintiff.
7. I have heard learned Counsel for the plaintiff and have gone through the entire record carefully. None appeared on behalf of the defendant company and as such, vide proceedings dated 10.01.2017, the defendant company was proceeded ex parte.
Considering the pleadings, the issues framed, the evidence led and the arguments addressed, my issuewise finding is as under : ISSUE NO. (i):
Whether the plaintiff is entitled to the recovery of suit amount, as prayed? OPP.
The onus to prove this issue was upon the plaintiff and he appeared in the witness box as PW1 and proved his affidavit in evidence as Ex. PW1/A and also proved various documents in support of his case as discussed herein above. On the other hand, Sh. Mukesh Kumar Chauhan appeared in the witness box as DW1 on behalf of the defendant company and proved his affidavit as Ex. DW1/A. DW1 also proved various documents, as discussed herein above.
By virtue of the present suit, the plaintiff has claimed Rs.CS No. 575504/16 Page 7 of 12
5,94,976/ along with interest on the ground that the defendant company has not paid him salary for the months of May and June 2010 and that benefit of 0.50% of the annual turnover of the company has also not been paid to him for the period of 200708, 200809 and 200910. However, the defendant has alleged that the present suit is time barred and further that the on the same day i.e. on 16.04.2007 when the first appointment letter was issued, another appointment letter was also issued to the plaintiff which is exhibited as Ex. DW1/C wherein the clause regarding profit sharing was removed and the plaintiff had accepted the said appointment letter.
A perusal of the record shows that during the pendency of the present suit, the defendant company had made the payment of salary for the months of May and June 2010 to the plaintiff on 09.05.2016, so now the only question which is to be seen, is whether the plaintiff is entitled to claim 0.50% of the annual turnover of the defendant company or not.
In his cross examination, PW1 (plaintiff) deposed that he never raised any objection regarding the increase or decrease in his salary. He further deposed that his salary was decreased or increased a number of times during the tenure of his employment with the defendant company. He admitted that his signatures are not present anywhere on appointment letter Ex. PW1/1 but he has not denied the issuance of appointment letter. He further admitted that email dated 31.07.2010 was sent by him from his personal email ID and that in response to the said mail, a mail regarding his full and final settlement was issued on 02.08.2010. He further deposed that he does not remember as to whether CS No. 575504/16 Page 8 of 12 he responded to email dated 02.08.2010 or not. He further stated that he does not have any proof with regard to the amount claimed as 0.5% towards annual turnover which comes to Rs. 1,50,000/ for the year 200708, Rs. 1,75,000/ for the year 200809 and Rs. 1,75,000/ for the year 200910.
On the other hand, DW1 Sh. Mukesh Kumar Chauhan during his cross examination admitted that there are no signatures of the plaintiff on the second appointment letter Ex. DW1/C. He denied the suggestion that Ex. DW1/C is a fabricated document. He further denied that the demand raised by the plaintiff is a legal demand.
First of all it is to be seen as to whether the claims so raised by the plaintiff are within the period of limitation or not. As already discussed herein above, the pending salary of the plaintiff has already been paid to him by the defendant company during the pendency of the case and now the only question which remains, is regarding the payment of 0.50% of annual turnover of the defendant company starting from the year 200708. The present suit was filed on 28.01.2011 in which the plaintiff has claimed 0.50% of the annual turnover of the defendant company starting from 200708. The amount of claim, if any, for the year 200708 can only be raised in the year 2009 so if we take 01.01.2009 as the starting point of the claim of 0.50% of the annual turnover for the year 200708, then in my opinion, the claim is within the period of limitation as the present suit was filed on 28.01.2011 i.e. within almost 3 years of the arising of the cause of action.
Next, the plaintiff was employed in the defendant company CS No. 575504/16 Page 9 of 12 and at the time of his employment, an appointment letter Ex. PW1/1 dated 16.04.2017 was issued to him which contains the following condition :
"In addition to above you will also be entitled to other benefit as agreed as per rule of company along with 0.50% of the turnover of the company every year".
This appointment letter Ex. PW1/1 is signed by Sh. Arun K. Pal, Managing Director, of the defendant company. The defendant has also relied upon one other appointment letter dated 16.04.2007 which is exhibited as Ex. DW1/C and this appointment letter also speaks about the condition of payment of 0.50% of the turnover of the company every year to be given to the plaintiff. Ex. DW1/C also exactly reads as under :
"In addition to above you will also be entitled to other benefit as agreed as per rule of company along with 0.50% of the turnover of the company every year".
So both the parties are relying upon the same appointment letter dated 16.04.2007 containing the same condition of benefit of 0.50% of the annual turnover of the defendant company to be given to the plaintiff. No other appointment letter has been placed/proved on record by the defendant company, therefore it can safely be held that there was a condition of payment of 0.50% of annual turnover of the defendant company to the plaintiff. This fact also gets fortified from Ex. D2 which is an admitted document wherein it is stated on behalf of the defendant as follows :
"So far as bonus, which was to be paid @ 0.5% of turnover for period 01.06.2007 to 30.09.2007, is concerned the same was CS No. 575504/16 Page 10 of 12 calculated at Rs. 35,000/ and the same was already paid to you in cash vide voucher dated 13.11.2009 duly signed and accepted by you".
Therefore, in these circumstances and also keeping in view of the fact that vide Ex. D2, the defendant company itself admitted that 0.50% of turnover was paid to the plaintiff for the period mentioned herein above, it is proved that this clause was very much there in the appointment letter dated 16.04.2007 of the plaintiff which was never removed.
The onus to prove the entitlement of the bonus as demanded by the plaintiff was on him, but he has only mentioned the annual turnover of the defendant company on the basis of his estimation and on the basis of that estimation, he has claimed 0.50% of the bonus amount. In my opinion, the plaintiff is not entitled to claim the bonus in such a manner. The onus was on the plaintiff to prove that the turnover of the defendant company is such and such and he is entitled to a specific sum which comes to 0.50% of the annual turnover of the defendant company for the demanded period, but he has failed to do so. The plaintiff has even not summoned any witness from the defendant company in order to prove annual turnover of the company on which he is demanding 0.50% amount. Therefore, in my opinion, the plaintiff is not entitled to bonus amount as claimed and so far as the salary for the months of May and June 2010 is concerned, the same has already been paid to him as reflected from the ordersheet dated 09.05.2016. This issue is accordingly decided against the plaintiff and in favour of the defendant.
CS No. 575504/16 Page 11 of 12ISSUE No. (ii) :
Whether the plaintiff is entitled to interest, if so, then at what rate and for which period? OPP.
Onus to prove this issued was also upon the plaintiff, however, since the issue no. 1 has already been decided against the plaintiff, so there is no need to decide this issue.
RELIEF :
In the light of above discussions, the plaintiff is not entitled to any relief. Suit is accordingly dismissed. However, parties are left to bear their own costs. Decree sheet be drawn accordingly and file be consigned to Record Room. Announced in the open Court today on 15th day of July, 2017 (RAJNISH BHATNAGAR) District & Sessions Judge (N/W) Rohini Courts, Delhi CS No. 575504/16 Page 12 of 12