Delhi High Court
Sh. N. C. Jain vs M/S S. N. G. Developers Ltd. on 19 September, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 12th September, 2017
Pronounced on: 19th September, 2017
+ CO.PET. 741/2014, and CA No. 2747/2014, 2724/2016
SH. N. C. JAIN ..... Petitioner
Through : Mr.Preetjeet Singh and Mr.Anis
Ur Rehman, Advocates.
versus
M/S S. N. G. DEVELOPERS LTD. ..... Respondent
Through : Mr.S.K.Tiwary, Advocate
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. The respondent company is primarily engaged in the
business of developers, colonizers, real estate developers and
construction. It has its projects in Greater Noida, Dharuhera and
Firozabad, Uttar Pradesh.
2. The petitioner was appointed as Deputy General Manager
(Finance) by the respondent company vide appointment letter
dated 01.09.2006 with a salary of `40,000/- per month. Since the
overall performance of the petitioner was good as he worked with
devotion, sincerity and patience, he was given increment in his
salary with effect from 01.09.2007 and it was increased to
`50,000/- per month. Additionally, he was granted car driver/petrol
reimbursement upto `10,000/- per month.
3. Since the petitioner continued to work sincerely he was
granted further increase of 10% increment over the previous salary
with effect from 01.01.2010 and his monthly salary was increased
to `60,500/- per month. However, despite the services rendered by
the plaintiff, he was not paid the monthly salary regularly and it
resulted in accumulation of large over dues on account of arrears
of salary payable to the petitioner. The respondent has never been
a good pay master to its employees. The respondent gave a
proposal to adjust the outstanding salary of `2,83,380/- payable
then to the petitioner to be adjusted as part of the sale consideration
for company flat being 23-201, Second Floor, Utsah Niwas,
Anandlok Dabrai, District Firozabad, Uttar Pradesh. In fact the
allotment was made in the name of three officers including the
petitioner whose salaries were outstanding and adjusted.
4. Still the respondent was unable to pay regularly and
punctually which led to accumulation of huge arrears of salary
after September, 2011. Hence, it was not possible for the petitioner
to carry on with the respondent company and he resigned on
20.05.2013. On the said date a sum of `8,42,327/- was payable to
the petitioner as accumulated /outstanding arrears of salary
(including gratuity). The petitioner is also entitle to receive the
TDS certificates amount of `1,96,587/- i.e. `1,26,257/- for the
financial year 2011-12 and `70,330/- for the financial year
2012-13. The petitioner also did not issue the requisite form No.16
for the respective financial years for the purpose of filing of the
Income Tax Returns despite various reminders and emails sent -
annexed as annexure P-10 collectively. It led to the harassment
and tension to the petitioner as he could not submit his ITRs for the
financial years 2011-12 and 2012-13. Even the letters written to
the respondent were also of no avail and ultimately, the petitioner
filed his ITRs belatedly on actual receipt basis for the said
financial years.
5. Hence, the petitioner claims an amount of `8,42,387/-
payable as on 20.05.2013 besides TDS of `1,96,587/- along with
interest @ 12% per annum to which the respondent company is
indebted to the petitioner. A statutory notice dated 06.06.2014 was
sent and the respondent company paid an amount of `40,000/-
vide cheque dated 07.07.2014 No.138777 as a part payment,
without sending reply. The said cheque was adjusted towards the
accrued interest amount by the petitioner and he informed the
respondent. However, the respondent failed/neglected to pay the
balance arrears of salary and other dues, being in financial crisis
and hence it is just expedient to appoint a provisional liquidator for
the respondent company.
6. Even the affidavit filed on behalf of its managing director,
respondent company do speak about its financial crisis. In para
No.2 of the affidavit dated 06.01.2015, the managing director has
stated that the company is facing severe financial problem due to
tremendous slow down in the real estate sector. It is also stated in
the affidavit that the respondent company has no company
secretary and hence the details as were required by the Court to be
given in the affidavit are not given. Even the balance sheet for the
financial year 2014-15 could not be filed.
7. Finding no other alternative, the petitioner filed this petition.
The respondent was served and offered to settle the disputes before
the Delhi High Court Mediation and Conciliation Centre. The
parties approached the said Centre and arrived at a settlement
agreement dated 15.05.2017 wherein the respondent company
agreed to pay a sum of `6.20 Lac in full and final settlement of all
claims of the petitioner. Though the petitioner received `3.00 Lac
as part payment but yet again the cheque of `3.20 Lac viz. the
balance of the settled amount was again dishonoured. The learned
counsel for respondent has no explanation for the same. Thus, the
conduct of the respondent company as also its admission in the
affidavit dated 06.01.2015 through its managing director have
proved the company being in financial crisis, is unable to pay even
the salary of its employees despite getting rebate in
settlement/compromise. The respondent company had gone to the
extent of adjusting its arrears against sale consideration for sale of
its flats to its employees, which they forcefully sold to them.
8. Hence, considering the financial position of the company
and also that it had neglected to pay the salary of petitioner without
any reasonable or just cause, the petition needs to be admitted.
9. In view of the above, this petition is admitted.
10. Citation be published in the "Statesman" (English edition)
and "Jansatta" (Hindi edition) in accordance with Company
(Court) Rules, 1959.
11. However, publication of the citation and appointment of the
provisional liquidator is deferred and one opportunity is given to
the respondent company to pay the amount of `3.20 Lac payable to
the petitioner as per settlement agreement dated 15.05.2017 with
interest at the rate of 12% per annum with effect from 21.05.2013
when the statutory notice was served on the respondent company.
The amount be paid within one month failing which the petitioner
shall be entitled to publish the citation and apply for appointment
of the Provisional Liquidator.
12. Ordered accordingly.
YOGESH KHANNA, J
SEPTEMBER 19, 2017
M
