Nidhi Goel vs J.M.R Info Tech India Pvt Ltd & Ors
2016 Latest Caselaw 2847 Del

$~13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2921/2012
NIDHI GOEL                                         ..... Plaintiff
                          Through:     Mr. Vidit Gupta, Advocate.

                          versus

J.M.R INFO TECH INDIA PVT LTD & ORS             ..... Defendants
                    Through: Mr. Deepjyot Singh, Advocate for
                              defendant Nos.1 and 5.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
             ORDER

% 19.04.2016

O.A. No.129/2015 (against order dated 26.3.2015)

1. By this O.A., the appellants/defendant nos.1 and 5 challenge

the order passed by the Joint Registrar on 26.3.2015 whereby the Joint

Registrar has declined to condone the delay of 225 days in filing of the

written statement by the appellants/defendant nos.1 and 5.

2. The subject suit is a suit filed by the plaintiff as an ex-employee

of the defendant no.1-company claiming Rs.21 lacs with interest on the

ground of misrepresentations of the defendants with respect to the job

offered to the plaintiff and also of the plaintiff being harassed on account of

non-release of the passport and consequent litigation before the court in

Kerala.

3. Paras 21 and 22 of the plaint encapsulate the cause of action

pleaded by the plaintiff and which paras 21 and 22 of the plaint read as

under:-

"21. That it is crystal clear from the events narrated hereinabove and also from the documents, that the Plaintiff has suffered/is suffering huge financial losses, social stigma and mental torture and agony because of the illegal acts of the Defendants acted in connivance and conspiracy with each other. The Plaintiff has suffered/is suffering monetary as well as non-pecuniary loss in terms of loss of time, inconvenience, mental agony, trauma, humiliation and harassment.

22. That the Plaintiff is thus filing the present suit against the Defendants to recover damages to a tune of Rs.21,00,000/- along with interest pendent-lite and future and costs; which is broadly estimated as under:-

A. Loss of Principal amount/last drawn Rs.39,045.00 salary from the previous employer on account of not giving 2 months notice;

on assurances given by the Defdt no.1-

8.

     B.    Salary for April, 2011                    Rs.57,000.00
     C.    Amounts spent on account of Air           Rs.15,000.00
           Ticketing to travel from Delhi to
           Bangalore & back
     D.    Amounts spent on account of visiting      Rs.88,955.00
           District Courts & High Courts at
           Kerala
     E.    Compensation for mental agony &           Rs.17,00,000.00
           torture
     F.    Cost of litigation                        Rs.2,00,000.00
           Total                                     Rs.21,00,000.00

4. As per the record, defendant nos.1 and 5 for the first time

appeared through counsel on 8.11.2013. For 8.11.2013, summons were

issued to the defendant nos.1 to 5 vide order dated 30.5.2013. On the

defendant nos.1 to 5 appearing on 8.11.2013, no specific time was granted

for filing of the written statement but the subsequent order dated 18.3.2014

notes that the written statement is not filed by defendant nos.1 and 5 in spite

of opportunities granted. The orders dated 30.5.2013, 8.11.2013 and

18.3.2014 read as under:-

"Order dated 30.5.2013 Summons sent to defendant Nos.1 to 5 have not returned while summons sent to defendant No.6 have returned unserved.

Fresh summons, through all modes including e-mail, be issued to all the defendants, returnable on 8th November, 2013.

Order dated 8.11.2013 Defendant Nos.1 to 5 were duly served with the summons on 09.07.2013 but have not filed the written statement till date. Even learned counsel appearing today specifically submits that he represents only defendant Nos.1 and 5.

Summons sent to defendant no.6 have returned un-served. Fresh summons be issued against defendant no.6, returnable on 18.03.2014.

Order dated 18.3.2014 Written statement not filed on behalf of defendants no.1 and 5 despite opportunities given.

None on behalf of defendants no.2,3 and 4. Their right to file written statement stands closed.

Summons issued to defendant no.6 received back unserved with the report „not found‟.

Summons be issued to defendant no.6 on fresh PF through all means of communication allowed as per CPC, returnable on 12.08.2014."

5.(i) The defendant nos.1 and 5 filed the written statement on

16.4.2014 and condonation of delay of about 225 days is sought on the

ground that documents supplied by the plaintiff were not complete and the

documents were received by the defendant nos.1 and 5 through the counsel

for the plaintiff ultimately only on 27.3.2014. Illness and surgery of

defendant no.5, who is the Manager of defendant no.1, is also pleaded as one

of the grounds for condonation of delay.

(ii) Condonation of delay is vehemently opposed on behalf of the

plaintiff by arguing that actually defendant nos.1 and 5 were served firstly

for 30.5.2013 through court process server though not so recorded in the

order dated 30.5.2013. It is also argued that defendant nos.1 and 5 were also

served through e-mail dated 27.4.2013 for 30.5.2013. It is argued that there

is no valid explanation given for condonation of delay and therefore the

delay of around 225 days beyond 90 days prescribed for filing of the written

statement should not be condoned. It is also argued by the plaintiff that

defendant nos.1 and 5 have filed no proof that they received documents from

the plaintiff‟s counsel only on 27.3.2014 and which is a false stand because

the orders dated 8.11.2013 and 18.3.2014 do not record any statement of

defendant nos.1 and 5 that they need documents from the plaintiff.

6. In my opinion, though there can be said to be some amount of

negligence on behalf of defendant nos.1 and 5 in filing of the written

statement, however, considering the facts of the present case and the cause

of action as pleaded by the plaintiff, interest of justice requires that the

written statement of defendant nos.1 and 5 be taken on record. It is also

noted that all the defendants in the suit including defendant nos.1 and 5, are

situated not at Delhi but at Calicut in Kerala. As per Order IX Rule 6(1)(c)

of the Code of Civil Procedure, 1908 (CPC), summons are validly served

only if there is sufficient time to enable the defendants to appear on the date

fixed. Service therefore of defendant nos.1 and 5 on 21.5.2013 for

appearance on 30.5.2013, with the defendant nos.1 and 5 being situated in

Calicut, Kerala, cannot be said to be due service because of lack of sufficient

time for engaging an Advocate and appearing through an Advocate at Delhi.

In any case, two views can be taken of the matter and therefore a liberal

view has to be taken in favour of the defendants because the question is of

closing of a substantive right to file the written statement.

7. So far as the e-mail dated 27.4.2013 of the plaintiff to the

defendant nos.1 and 5 is concerned, the said service is no service in the eyes

of law for various reasons. Firstly, there was no specific order passed on

7.3.2013 for service by e-mail as was done by the subsequent order dated

30.5.2013. Secondly, the fact that plaintiff did not file any affidavit of

service of defendant nos. 1 and 5 that defendant nos. 1 and 5 have been

served by e-mail dated 27.4.2013 for 30.5.2013 is a clear indication that

plaintiff was not ordered to serve the defendant nos. 1 and 5 by e-mail for

30.5.2013. Thirdly, even assuming that there was an order for service of

defendant nos. 1 and 5 by e-mail for 30.5.2013, the plaintiff itself did not

plead on 30.5.2013 that defendant nos. 1 and 5 have been served for

30.5.2013 by e-mail on 27.4.2013 as such claim of service of defendant nos.

1 and 5 by e-mail dated 27.4.2013 for 30.5.2013 is not recorded in the order

dated 30.5.2013. Fourthly, simply filing a photocopy of dispatch by e-mail

cannot be taken as a conclusive proof of service by e-mail because there is

no certificate of service provider of the e-mail being sent and received by

defendant nos. 1 and 5.

8. Therefore, service on the defendant nos.1 and 5 is really for the

first time only on 8.11.2013. No time was given by the Joint Registrar on

8.11.2013 for filing of the written statement and there was no extension of

time granted for filing of written statement. In spite of this being the factual

position, the Joint Registrar by the order dated 18.3.2014 records that „in

spite of opportunities given‟ defendant nos.1 and 5 have not filed the written

statement.

9. Also, I find some amount of strength in the case of defendant

nos.1 and 5 that they did not receive the documents from the plaintiff till

27.3.2014 inasmuch as certain procedural aspects are done between counsels

without taking proof of service on minor issues such as of receipt of the

documents. It is noted in this regard that even when defendants were served

for 30.5.2013, summons record that the defendant no.1 was only served with

the summons and the plaint copy i.e not with the documents filed along with

the suit.

10. Taking therefore a holistic view of the matter, and CPC being

handmaid of justice, and with the fact that delay in filing of the written

statement is of about 7 ½ months and delay does not run into over a year,

this O.A. is allowed by taking the written statement of the defendant nos.1

and 5 on record by setting aside the order of the Joint Registrar dated

26.3.2015, but subject to payment of costs of Rs.15,000/- to the plaintiff.

O.A. is allowed and disposed of accordingly.

+ CS(OS) No.2921/2012

11. An Office Order dated 24.11.2015 has been issued by Hon‟ble

the Chief Justice in exercise of powers conferred by Section 4 of the Delhi

High Court (Amendment) Act, 2015, whereby ordinary suits which are not

commercial matters having pecuniary jurisdiction up to the value of rupees

two crores cannot be tried by this Court and commercial matters up to the

value of rupees one crore cannot be tried by this Court. Accordingly, this

suit is transferred for decision to the jurisdictional Court under the District &

Sessions Judge (East), Karkardooma Courts, Delhi.

12. Let parties appear before the District & Sessions Judge (East),

Karkardooma Courts, Delhi on 24rd May, 2016. Suit file be made available

to the District & Sessions Judge (East), Karkardooma Courts, Delhi on the

date fixed.

VALMIKI J. MEHTA, J APRIL 19, 2016 Ne