Icici Prudential Life Ins vs Pradeep Arora
2021 Latest Caselaw 9259 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 169/2018

1. ICICI Prudential Life Ins., 4B 22, Jawahar Nagar, Above Axis Bank, Sriganganagar - 335001 Through Branch Manager

2. ICICI Prudential Life Insurance Co. Ltd., Registered Office

- ICICI Prulife Towers, 1089, Appasaheb Marathe Marg, Prabhadevi, Mumbai - 400025

----Petitioners Versus Pradeep Arora S/o Shri Ved Prakash Arora, Aged About 23 Years, R/o Si-17, Riddhi Siddhi Colony, Sriganganagar.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Sanjay Nahar.
For Respondent(s)        :     Mr. Himmat Jagga.



            HON'BLE MR. JUSTICE ARUN BHANSALI

                                Judgment

27/04/2021

This revision petition is directed against the order dated

16.05.2018 passed by the District Judge, Sriganganagar, whereby

the application filed by the petitioner under Order VII, Rule 11(d)

CPC seeking rejection of the plaint as barred by law, has been

rejected.

The respondent-plaintiff filed a suit for declaration and

injunction, inter-alia, with the submissions that the plaintiff was

granted appointment as Agency Manager - Channel Development

Grade-II (Rural division) by order dated 15.05.2007; by order

dated 26.12.2007, the plaintiff was made permanent on the post

of Agency Manager; on 30.06.2008, the plaintiff was given

promotion w.e.f. 15.05.2008 as Sales Manager - Rural Channel

(2 of 9) [CR-169/2018]

Development Grade-III. It was indicated that service contract was

executed between the plaintiff and defendants, whereby it was,

inter-alia, provided that if the defendant was to terminate the

services of the plaintiff, it was required to give a two months' prior

notice or two months' salary. It was claimed that the plaintiff was

performing his duties to the best of his abilities and was fulfilling

all the targets and he was given incentive also on account of his

performance. It was alleged that due to influence of one Tarun

Singh (ARM), the plaintiff was transferred from Sriganganagar to

Suratgarh Branch; he was again transferred from Suratgarh to

Sriganganagar in June, 2010, whereafter it was alleged that the

petitioner was not taken back on duty after he went on leave

based on an oral order. It was alleged that the plaintiff was not

taken back on duty since July, 2010.

Based on the above averments, following reliefs were

sought:-

"d& ;g fd oknh ds i{k esa fo:) izfroknhx.k bl vej dh ?kks'k.kk dh tkos fd oknh izfroknhx.k ds v/khuLFk fujUrj lsYl eSustj&,stsUlh ds in ij fu;ksftr vf/kdkjh gS vkSj fnukad & 01-07-10 ls bl in ds osru lfgr lHkh ykHk ikus dk vf/kdkjh gSA [k& ;g fd oknh ds i{k esa izfroknhx.k ds fo:) bl vk"k; dk vKkid O;kns"k tkjh fd;k tkos fd oknh dks lsYl eSustj&,tsUlh ds in ij rqjUr izHkko ls M;wVh ij fy;k tkos rFkk mls osru lfgr lHkh ifjykHk fn;s tkosaA x& ;g fd oknh dks izfroknhx.k ls okn O;; fnyok;k tkosA ?k& ;g fd vU; dksbZ vuqrks'k tks ekuuh; U;k;ky; oknh ds i{k esa fo:) izfroknhx.k mfpr ,oa U;k;ksfpr le>s] oknh dks izfroknhx.k ls fnyok;k tkosA"

Written statement was filed by the defendant denying the

averments made in the plaint. It was, inter-alia, indicated that the

(3 of 9) [CR-169/2018]

services of the plaintiff were terminated by order dated

17.06.2010 and that pursuant thereto, the plaintiff had filed a

complaint before the District Consumer Forum in relation to his

amount of Provident Fund, wherein also, the fact of termination of

his services was indicated. Several counter allegations were made

in the written statement pertaining to plaintiff's conduct.

Based on the averments of the parties, the trial court framed

seven issues.

During the pendency of the suit, the petitioner filed

application under Order VII, Rule 11(d) CPC, inter-alia, claiming

that the relief claimed in the suit was barred under the provisions

of Sections 14 & 41 of the Specific Relief Act, 1963 ('the Act') and

therefore, the plaint be rejected.

The plaintiff filed reply to the application contesting the same

and claiming that the suit as filed was maintainable.

The trial court, after hearing the parties, came to the

conclusion that as to whether the performance of the plaintiff was

as per the parameters or not and whether his services were rightly

terminated or not, were the issues which required evidence and

therefore, at the stage of Order VII, Rule 11 CPC, it cannot be said

that the suit was not of the jurisdiction of the court and

consequently, rejected the application with a cost of Rs.1,000/-.

It is submitted by learned counsel for the petitioner that the

trial court fell in error in rejecting the application filed by the

petitioner under Order VII, Rule 11(d) CPC. Submissions were

made that a bare perusal of the averments made in the plaint and

(4 of 9) [CR-169/2018]

the relief claimed it is apparent that the plaintiff was seeking to

enforce a contract of service, which is specifically barred under

Section 14 r/w Section 41(e) of the Act and therefore, the order

impugned deserves to be quashed and set-aside.

Reliance was placed on judgment of the Hon'ble Supreme

Court in Pearlite Liners (P) Ltd. v. Manorama Sirsi : (2004)3 SCC

172.

Learned counsel for the respondent vehemently opposed the

submissions. It was submitted that not all suits are barred and

that the civil court has the jurisdiction to deal with the case of

present nature and as such, the trial court was justified in

rejecting the application under Order VII, Rule 11(d) CPC.

Reliance was placed on Premier Automobiles Ltd. v.

Kamlakar Shantaram Wadke & Ors.: AIR 1975 SC 2238; Axis

Bank Ltd. v. Shaiwali Paliwal : 2015(3) DNJ (Raj.) 983; and

RSRTC & Ors. v. Purshottam Lal Joshi : 2013(3) DNJ (Raj.) 1166.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

including the plaint filed by the plaintiff.

A bare perusal of the averments made in the plaint, as

extensively noticed herein-before, it is apparent that the plaintiff-

respondent filed the suit on 02.05.2013, inter-alia, complaining

that since July, 2010 he was not being taken on duty and claimed

the reliefs as quoted herein-before i.e. declaration that the plaintiff

continuous to be in service of the defendant as Sales Manager -

Agency and entitled to salary and other benefits w.e.f. 01.07.2010

(5 of 9) [CR-169/2018]

and mandatory injunction that he be taken back on duty on the

post of Sales Manager - Agency alongwith salary and other

benefits.

The nature of averments and the relief claimed in the plaint,

essentially pertains to seeking enforcement of contract of service

on part of the plaintiff.

Provisions of Sections 14(1)(b) & 41(e) of the Act prior to its

amendment in the year 2018, read as under :-

"14. Contract not specifically enforceable.- (1) The following contracts cannot be specifically enforced, namely:-

            (a)    ....     ....    ....     ....     ....    ....     ....
            (b)    a contract which runs into such minute or numerous

details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

            (c)    ....     ....    ....     ....     ....    ....     ....
            (d)    ....     ....    ....     ....     ....    ....     ...."

"41. Injunction when refused.- An injunction cannot be granted-

            (a)   ....     ....    ....    ....      ....     ....   ....
            (b)   ....     ....    ....    ....      ....     ....   ....
            (c)   ....     ....    ....    ....      ....     ....   ....
            (d)   ....     ....    ....    ....      ....     ....   ....

(e) to prevent to breach of a contract the performance of which would not be specifically enforced;

            (f)   ....     ....    ....    ....      ....     ....   ....
            (g)   ....     ....    ....    ....      ....     ....   ....
            (h)   ....     ....    ....    ....      ....     ....   ....
            (I)   ....     ....    ....    ....      ....     ....   ....
            (j)   ....     ....    ....    ....      ....     ....   ...."

Hon'ble Supreme Court in the case of Pearlite Liners (P) Ltd.

(supra), while dealing with a similar issue, inter-alia, laid down as

under :-

"5. Therefore the legal question for consideration which arises is : "Can a contract of service be specifically enforced?"

                                    (6 of 9)               [CR-169/2018]

9. ......       ......      ...... In the background of such facts, the

plaintiff has in the suit made the following prayers :

" (a) Declaring that the impugned transfer order is illegal, void and inoperative.

(b) The plaintiff continues to be in service of the defendant Company and is entitled all emoluments including salary; and

(c) Permanent injunction restraining the defendant from holding an enquiry against the plaintiff.

10. The question arises as to whether in the background of facts already stated can such reliefs be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further it is to be considered that if the plaintiff does not comply with the transfer order it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void in fact amounts to imposing the plaintiff on the defendant inspite of the fact that the plaintiff allegedly does not obey order of her superiors in the Management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief if granted would indirectly mean that he court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, to be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected."

(7 of 9) [CR-169/2018]

Again the Hon'ble Supreme Court in Maharashtra State

Cooperative Housing Finance Corporation Ltd. v. Prabhakar

Sitaram Bhadange : (2017) 5 SCC 623, inter-alia, laid down as

under :-

"9. We may also clarify one more aspect. Contract of personal services is not enforceable under the common law. Section 14, read with Section 41(e) of the Specific Relief Act, 1963, specifically bars the enforcement of such a contract. It is for this reason the principle of law which is well established is that the civil court does not have the jurisdiction to grant relief of reinstatement as giving of such relief would amount to enforcing the contract of personal services. However, as laid down in the cases referred to above, and also in Vaish degree College v. Lakshmi Narain, there are three exceptions to the aforesaid rule where the contract of personal services can be enforced:

(a) in the case of a public servant who has been dismissed from service in contravention of Article 311 of the Constitution of India;

(b) in the case of an employee who could be reinstated in an industrial adjudication by the Labour Court or an Industrial Tribunal; and

(c) in the case of a statutory body, its employee could be reinstated when it has acted in breach of the mandatory obligations imposed by the statute.

10. Even when the employees falling under any of the aforesaid three categories raise dispute qua their termination, the civil court is not empowered to grant reinstatement and the remedy would be, in the first two categories, by way of writ petition under Article 226 of the Constitution or the Administrative Tribunal Act, as the case may be, and in the third category, it would be under the Industrial Disputes Act. An employee who does not fall in any of the aforesaid exceptions cannot claim reinstatement. His only remedy is to file a suit in the civil court seeking declaration that termination was wrongful and claim damages for such wrongful termination of services. Admittedly, the appellant Corporation is not "State" under Article 12 of the Constitution. The respondent also cannot be treated as a government/public servant as he was not under the employment of any Government. He was also not "workman" under the Industrial Disputes Act as he was working as Manager with the appellant Corporation."

A perusal of both the judgments leave no manner of doubt

that the contract of personal service is not enforceable but for the

three exceptions enumerated therein.

(8 of 9) [CR-169/2018]

Admittedly, the case of the respondent-plaintiff does not fall

in any of the exception and as the relief claimed is for

enforcement of person service, the suit is apparently barred under

the provisions of Sections 14 & 41(e) of the Act.

So far as the judgments cited by learned counsel for the

respondent are concerned, the judgment in the case of Premier

Automobiles Ltd. (supra), dealt with the jurisdiction of civil court

in relation to an industrial dispute, wherein it was, inter-alia, laid

down that if the dispute is not an industrial dispute, nor it relates

to enforcement of any other right under the Industrial Disputes

Act, 1947, the remedy lies only in the civil court. However, the

judgment dealt with the cases of a workman under the Industrial

Disputes Act and same,therefore, would have no application to the

facts of the present case.

In the case of Axis bank Ltd. (supra), the Court found that in

the plaint the plaintiff nowhere pleaded that the plaintiff's

appointment was based on any contract and therefore, it was

found that the bar under Section 14 of the Act was not applicable

at the stage of consideration of application under Order VII, Rule

11 CPC. However, in the present case, the plaintiff has specifically

averred in para 3 of the plaint regarding the execution of the

contract and terms of the contract, wherein the services of the

plaintiff could be terminated by giving notice of two months or

salary in lieu thereof, as such, the above judgment also has no

application to the facts of the present case.

The case of RSRTC (supra), stands on a totally different

footing and rather falls within the exceptions noticed in the

(9 of 9) [CR-169/2018]

judgment of the Hon'ble Supreme Court as the RSRTC is a

Statutory Corporation.

In view of the above discussion, it is apparent that the trial

court was not justified in rejecting the application filed by the

petitioner under Order VII, Rule 11(d) CPC, inasmuch as, from the

bare reading of the plaint, the suit was barred under the

provisions of Sections 14 & 41(e) of the Act.

Consequently, the revision petition is allowed. The impugned

order dated 16.05.2018 passed by the District Judge,

Sriganganagar is quashed and set-aside. The application filed by

the petitioner under Order VII, Rule 11(d) CPC is allowed. The

plaint in Civil Original Suit No.104/2013 pending before the

District Judge, Sriganganagar is rejected.

No order as to costs.

(ARUN BHANSALI),J

Rmathur/-

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