Delhi High Court
Romila Mayank Sharma vs Zee Media Corporation Ltd. ... on 4 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.F.A. No.733/2017
% 4th September, 2017
ROMILA MAYANK SHARMA ..... Appellant
Through: Ms. Rekha Rani Dey, Advocate.
versus
ZEE MEDIA CORPORATION LTD. (EARLIER KNOWN AS
ZEE NEWS LIMITED) ..... Respondent
Through: Mr. Bhagabati Prasad Padhy, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
Caveat No.742/2017
Since there is appearance on behalf of the caveator, caveat
stands discharged.
C.M. Nos.29677-29679/2017 (for exemption)
Exemption allowed subject to just exceptions.
CMs stand disposed of.
C.M. No.29676/2017 (for delay)
For the reasons stated in the application, delay of 49 days in
filing the appeal is condoned.
RFA No.733/2017 Pag e 1 of 7
CM stands disposed of.
RFA No.733/2017 & C.M. No.29675/2017 (for stay)
1. This Regular First Appeal under Section 96 of the Code Civil
Procedure, 1908 (CPC) is filed by the defendant in the suit impugning
the judgment of the Trial Court dated 7.3.2017 by which trial court has
decreed the suit filed by the respondent/plaintiff for two sums of
Rs.6,45,722/- and Rs.10 lacs along with interest @ 8 per cent per
annum. Suit was filed by respondent/plaintiff for recovery of
Rs.18,59,309/- by pleading that a sum of Rs.10 lacs was taken by the
appellant/defendant/employee as a loan which was not repaid and also
that another sum was due from the appellant/defendant as balance
payable on the car loan.
2. The facts of the case are that appellant/defendant, during the
course of her employment with the respondent/plaintiff, was given a
loan of Rs.10 lacs on 29.7.2008. Further and additionally the
Appellant/defendant along with the respondent/plaintiff also jointly
purchased a new Maruti SX4 car bearing registration No.UP-16V-
0894 whose cost was Rs.7,70,312/-. Out of the amount of
Rs.7,70,312/-, Rs.69,587/- was paid as down payment and the
RFA No.733/2017 Pag e 2 of 7
remaining sum was financed from M/s. Kotak Mahindra Prime
Limited vide loan agreement dated 12.9.2008 repayable in 47 equal
monthly installments of Rs.18,191/-. Appellant/defendant's services
were terminated by the respondent/plaintiff with effect from
15.4.2009. Since appellant/defendant did not repay the loan or return
the vehicle, the subject suit came to be filed.
3. Appellant/defendant contested the suit and pleaded that
termination of her services were not justified. Appellant/defendant
also pleaded that amount advanced to her be adjusted against
incentives to be received by the appellant/defendant in March, 2009
for her services during the year 2008-09. As regards the car loan,
appellant/defendant pleaded that as per the company policy, the car
was to be replaced after every four years and transferred in the name
of the employee.
4. After pleadings were complete, trial court framed the following
issues :-
"1. Whether the plaintiff is entitled to recover
Rs.8,59,309/- from the defendant for unauthorised
possession and usage of plaintiff's car viz Maruti
MA - SX ZXI, Registration No.UP 16V 0894?
.............OPP
RFA No.733/2017 Pag e 3 of 7
2. Whether the plaintiff is entitled to recover
Rs.10,00,000/- from the defendant which is alleged
to have been advanced by the plaintiff to the
defendant? ..............OPP
3. Relief."
5. As regards issue No.1 of entitlement of respondent/plaintiff for
the amount of car loan, trial court has referred to the fact that M/s.
Kotak Mahindra Prime Limited had filed arbitration proceedings for
recovery of the amount due, and in which proceedings
respondent/plaintiff paid amount to the said M/s. Kotak Mahindra
Prime Limited of Rs.3,09,247/-. After giving adjustment for amount
already paid by appellant/defendant, trial court passed a decree for a
sum of Rs.6,45,722/-. Trial court has also held that
appellant/defendant never sent any communication to the
respondent/plaintiff/company alleging that her services were illegally
terminated. Trial court has also rightly held that entitlement of an
employee to take the car is after four years whereas
appellant/defendant's services were terminated only after six months
of purchase of the car, and therefore, there is no entitlement in the
appellant/defendant to have the car transferred to her name.
RFA No.733/2017 Pag e 4 of 7
6. In my opinion, no fault or illegality can be found in the
aforesaid reasoning and conclusions of the trial court inasmuch as car
loan was taken, respondent/plaintiff was forced to pay the amount to
M/s. Kotak Mahindra Prime Limited as respondent/plaintiff had
undertaken itself to be liable, jointly and severely with the
appellant/defendant, and since the appellant/defendant had retained the
vehicle, hence, appellant/defendant was liable to repay the amount of
loan paid by the respondent/plaintiff to M/s. Kotak Mahindra Prime
Limited.
7. On the issue of entitlement of appellant/defendant to have the
amount adjusted, incentive for the year 2008-09, towards loan amount,
trial court has observed in para 17 of the impugned judgment that
appellant/defendant has not filed any document as to her being entitled
to any incentive for the year 2008-09. Trial court has held that
appellant/defendant also admitted in her cross-examination that she
was never intimated by the respondent/plaintiff that she would be
getting any incentive for the year 2008-09. In any case, as rightly held
by the trial court, grant of incentives is subject to appraisal of every
employee done by the company on the basis of performance and only
RFA No.733/2017 Pag e 5 of 7
where after incentive is given and that appellant was never promised
for any incentives for the year 2008-09. This para 17 of the judgment
of the trial court reads as under :-
"17. The onus of proving this issue was also upon the plaintiff.
Admittedly, the defendant had obtained an advance/loan from the
plaintiff in the sum of Rs.10 lacs vide letter dated 29.07.2008 and has not
returned the said amount to the plaintiff after termination of her services.
Her defence is that this amount was to be adjusted towards the incentive
which she was to receive in April, 2009 for the year 2008-09. However,
she has not proved any such document on record to show that this
advance amount of Rs.10 lacs was to be adjusted towards the incentive to
be received by her for the year 2008-09 or that she in fact was entitled
to receive any such incentive for the said year. Photocopies of certain
letters have been filed by her which are not admissible in evidence in the
absence of their original and, therefore, cannot be considered. It has no
where been explained by her as to why the originals of these letters have
not been filed. Even no notice under the relevant provisions of law has
been served upon the plaintiff for production of originals of those letters.
Mere fact that the defendant may have received incentives for the
years preceding to the year 2008-09 cannot be taken to mean that she
would have received incentive for the said year also. Even in this
regard also, no document has been proved on record by the defendant.
She has admitted in her cross-examination that she was never intimated
by the plaintiff that she would be getting incentives for the year 2008-09.
She has also admitted that the appraisal of every sales employee is
done by the company annually and on the basis of the performance
of the employee, incentive is given to him/her. She has deposed that
after receiving the letter of termination, she did not enquire about any
incentive payable to her for the year 2008-09." (emphasis is mine)
RFA No.733/2017 Pag e 6 of 7
8. In my opinion, no fault can be found with the aforesaid
reasoning and conclusion contained in the impugned judgment.
Dismissed.
SEPTEMBER 04, 2017 VALMIKI J. MEHTA, J.
'AA'
RFA No.733/2017 Pag e 7 of 7
