Delhi High Court
Shree Chand vs Paradise Construction on 4 May, 2016
Author: Ashutosh Kumar
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 122/2016
Date of Decision: 04.05.2016
SHREE CHAND ..... Appellant
Through: Mr.Narendra Singh, Advocate.
versus
PARADISE CONSTRUCTION ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
CM Appln.16442/2016 & CM Appln.16441/2016
1. For the reasons stated in the applications, the delay of 2 days in
filing and 78 days in refiling the appeal are condoned.
2. The applications are disposed of accordingly.
RSA 122/2016
1. Shree Chand, the appellant has put up a challenge to the
judgment dated 24.01.2013 passed by the Trial Court namely
Additional Senior Civil Judge, Saket Courts, New Delhi in Civil Suit
No.185/2011 filed for recovery of Rs.1,00,000/- along with interest,
whereby the suit was dismissed as also against the judgment and order
dated 24.09.2014 passed in RCA No.17/2013 by ADJ-01, South East,
Saket Courts, New Delhi whereby the judgment of the Trial Court,
referred to above, was affirmed and upheld.
2. The appellant/plaintiff claims to have been employed by the
respondent/defendant in the capacity of Supervisor-cum-Foreman
from December, 2010 on a monthly salary of Rs.15,000/- apart from
the conveyance allowance. The case of the appellant/plaintiff before
the Trial Court was that for no fault, his services were terminated on
01.05.2011 and he was not paid his salary for the last five months i.e.
from December, 2010 to April, 2011. He was also not paid the out of
pocket expenses incurred by him which were estimated at Rs.25,000/-
and the conveyance allowance which was roughly Rs.200/- per month.
The respondent/defendant never acceded to the request for payment of
the salary and, therefore, the appellant/plaintiff was constrained to file
the suit for recovery of Rs.1,00,000/- along with interest at the rate of
18% per annum.
3. The aforesaid suit was contested by the respondent/defendant
for disclosing no cause of action as the appellant/plaintiff was never in
the employment of the respondent/defendant and, therefore, the
question of payment of salary was completely unfounded.
4. The Trial Court, on the basis of the pleadings of the parties
framed the following issues on 14.11.2011:-
1) Whether plaintiff is entitled to recover a sum
of Rs.1,00,000/- from the defendant, as
prayed for in the suit? OPP
2) Whether plaintiff is entitled for interest, if
so, at what rate and for which period? OPP
3) Relief.
5. The appellant/plaintiff, apart from examining himself as PW-1,
offered another witness, Sh.Balwant Singh as PW-2. Both the
aforestated persons filed their evidence by way of affidavit.
6. One witness namely Vinod Yadav, proprietor of the respondent
firm, was examined on behalf of the defendant as DW-1.
7. During trial, the appellant/plaintiff reiterated the averments
made in the plaint but in cross examination, candidly admitted that no
appointment letter was issued by the respondent/defendant. Though
the appellant/plaintiff stated about his marking attendance of all the
employees of the Firm but revealed that no authorised person had
signed the attendance slip (Mark A).
8. In the absence of any appointment letter having been placed on
record and not proving the attendance slip (Mark A), no case, in the
opinion of the Trial Court, was made out by the appellant/plaintiff.
That apart, the attendance slip (Mark A) has also not been admitted by
Vinod Yadav (DW-1) who is the proprietor of the respondent
company. Vinod Yadav (DW-1) has categorically stated that the
attendance slip (Mark A) does not even belong to the
appellant/plaintiff.
9. The other document which was relied upon by the
appellant/plaintiff in order to bolster up his case is a bill dated
25.01.2011 (Mark B), indicating that the appellant/plaintiff had
purchased goods mentioned in the aforesaid bill on behalf of the
respondent/defendant and the payment against the said bill was made
by the respondent/defendant. The aforesaid bill (Mark B) also could
not be proved as the appellant/plaintiff, in his cross examination,
disclosed that the bill (Mark B) related to another firm namely Patli
Warehouse. The purchases, for which the bill (Mark B) was drawn up
were made on oral/verbal orders but the payments were made through
cheque.
10. The Trial Court in the absence of any positive evidence as to
who had placed the orders for purchase of goods or as to how the bill
related to the respondent/defendant, discarded the same.
11. The evidence of Balwant Singh (PW-2) also was not relied
upon by the Trial Court in view of PW-2 not furnishing any written
document to demonstrate that he worked, at the instance of the
appellant/plaintiff, for the respondent/defendant. The Trial Court took
note of the fact that because of the long association of PW-2 with the
appellant/plaintiff, such statement in support of the plaint was made
by him.
12. The contention of the appellant/plaintiff that he used to make
out of pocket expenses in giving advance money to the subordinate
employees of the respondent/defendant was not at all acceptable to the
Trial Court.
13. Thus all the issues were decided against the appellant/plaintiff.
14. The aforesaid judgment of the Trial Court was endorsed, upheld
and affirmed by the First Appellate Court.
15. The First Appellate Court took note of the fact that the
appellant/plaintiff had moved an application under Order 41 Rule 27
of the Code of Civil Procedure for placing additional evidence on
record for proving ownership of a bike which related to the
respondent/defendant and for seeking summoning of records of the
accounts of the respondent/defendant to prove that the payments were
made by the respondent/defendant against the purchases made by the
appellant/plaintiff, and which application was dismissed by a detailed
order by the Trial Court.
16. There is no ground much less any cogent ground for interfering
with the concurrent judgments of the Courts below.
17. The same is dismissed but without costs.
ASHUTOSH KUMAR, J
MAY 04, 2016
k
