Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 05.01.2018
Registered on 16.02.2018
Decided on 26.11.2018
Duration Yrs. M. Days
08 06
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO.488 OF 2018
M/s. Richfeel Health and Beauty Pvt.Ltd.
Through Mr.Suraj Ghising Lama
Age 48 years, Occ : Service.
Constituted Attorney of M/s. Richfeel Health
and Beauty Pvt.Ltd., a Company
Incorporated under provisions of Indian
Companies Act, 1956 having its registered
office at 554/D, 1st and 2nd Floor, Friends
C.H Education Charity Trust, Above Bank of
Baroda, Near Nirmal Lifestyle, LBS Marg,
Mulund (West), Mumbai400080. ...Plaintiff.
V/s.
Dr.Ms.Bismill Alishan Ahmed,
Age 25 years, Occ : Not known
Residing at No.23, 2/E, 1st floor, Thimmaiah
Road, Next to Jubliee Hall, Shivaji Nagar,
Bangalore North, H.K.P. Road, Bangalore,
Karnataka – 560 051. ...Defendant.
Appearances:
Ld. Adv Mr.Pradeep Shukla for plaintiff.
None for defendant. Hence, suit proceeded exparte against defendant.
MHCC01-000189-2018
-- 1 of 7 --
.. j/2 .. Suit No.488/2018
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 26th November,2018
J U D G M E N T
(Exparte)
This is a suit for compensation and damages of Rs.5,00,000/
2. Brief facts of the plaintiff case is that, plaintiff is a company
registered under provisions of Indian Companies Act,1956 having
registered office at the address mentioned in the title clause and
plaintiff/company authorized Mr.Suraj Ghising Lama to file the suit and
represent on behalf of plaintiff/company. Defendant is an employee of
plaintiff since 18.08.2016.
3. Plaintiff submitted that, plaintiff is having diversified, strong
presence in the field of 'TRICHOLOGY' since 1986 which deals with
providing hair care solutions, including manufacturing of hair, scalp
care, skin products and medicines under the brand of RICHFEEL and in
the business of making and selling of cosmetic products. Plaintiff
always require the service of doctors for the treatment of their patients.
Defendant approach plaintiff company and they have entered into a
Service Legal Agreement on 18.08.2016. It is clearly stated in the
agreement that defendant who is not sufficiently experienced to the
technicality/quality of the job. The company/company imparts to the
employee job training, information giving access to several departments
and spend substantial amount of money in the said training. By such
training of the employee plaintiff company in order to safeguard its
-- 2 of 7 --
.. j/3 .. Suit No.488/2018
interest executed the Service Legal Agreement to ensure that such
employees should not leave the service for a minimum period of two
years after receiving the training and to prevent such employees from
collecting strategic and confidential information about the company
and its functions, it intellectual proper and also to prevent use of the
received information, training for the employees benefit directly or
indirectly.
4. Plaintiff further submitted that, on 10.12.2016 after receiving the
training defendant in gross violation of the said agreement stopped
reporting for her duties. Therefore, General Manager (HR Department)
of plaintiff company tried to contact defendant and also sent letter
dt.16.12.2016. But defendant did not respond to plaintiff company.
Therefore, plaintiff company issued legal notice dt.04.01.2017 called
upon defendant to pay sum of Rs.5,00,000/ as compensation to
plaintiff for the damages suffered in business and due to premature
termination of the agreement. However, defendant neither replied the
notice nor made the payment, which forced plaintiff to approach this
Court and filed this suit against defendant for compensation and
damages. Hence, this suit.
5. Writ of summons came to be issued against defendant.
Accordingly plaintiff filed service affidavit at Exh.2. In spite of service
defendant did not appear to contest the suit. Hence, suit proceeded ex
parte against defendant on 12.06.2018.
6. In order to substantiate the claim, plaintiff company examined
Mr.Suraj Lama by filing his chiefinafidavit at Exh.3 and filed
compilation of documents at Exh.4 and proved the following
documents :
-- 3 of 7 --
.. j/4 .. Suit No.488/2018
Ex. Particular
5 Copy of certificate of incorporation of company dt.
31/12/2002.
6 Certified true copy of resolution passed in the meeting dt.
04/10/2017 by the Board Of directors of plaintiff company
authorising Mr. Suraj Ghising Lama to file a suit on behalf
plaintiff company against the Deft.
7 Service level Agreement dt. 18/08/2016.
8 Copy of Email dt. 15/12/2016 sent by the HR Department
of plaintiff to the defendant.
9 Original office copy of the letter dt. 16/12/2016 sent by
the HR Department to the Deft.
10 Legal notice dt. 04/01/2017 sent on behalf of plaintiff by
Regd. Post. A. D. and two acknowledgement card in
original.
7. Heard learned Advocate for plaintiff. Perused the record and
submissions.
8. On perusal of record specially agreement executed between
plaintiff and defendant dt.18.08.2018 it is manifest that, defendant was
selected and appointed as “Trichologist” and gave training as per their
policy. If we seen the clause Nos.(3) and (6) of the said agreement it
appears that company bear the expenses of training. For the ready
reference I am reproducing the clause Nos.(3) and (6) of the agreement
dt.18.08.2018 as follows,
“3. To become a Trichologist, the employee will have
to undergo a course on Trichology for a period of 16
(Sixteen) months, for which the Company will be
incurring an expense of Rs.5,00,000/ (Rupees Five Lacs
Only), …
6. In case you opt out of the course you will have to
-- 4 of 7 --
.. j/5 .. Suit No.488/2018
pay an amount of Rs.5,00,000/ immediately towards
the course fees which the Company has incurred. ...”
9. On plain reading of above clauses of the agreement it is clear
that, company will bear the expenses of training, but if employee wants
to out of this agreement, he/she will have to pay the course expenses.
The period of agreement is for two years, as mentioned in clause No.(7)
of the agreement. As per contentions of plaintiff, defendant was not
reported since 10.12.2016. Even after repeated reminders, Email and
legal notice etc. defendant did not turn to report the plaintiff.
Therefore, it is clear that, defendant breached the agreement on her
part. Therefore, plaintiff is entitled for the damage and compensation,
as claimed.
10. After service of writ of summons neither defendant nor anybody
appeared on behalf of her to contest the suit. Therefore, testimony of
plaintiff's witness remains unchallenged and unrebutted and even
documents are uncontroverted. Therefore, I have no hesitation to
accept the unchallenged testimony of plaintiff so also the claim of
plaintiff.
11. Plaintiff company carrying business at Mumbai. The service
agreement between plaintiff and defendant was executed in Mumbai.
Therefore, this Court has jurisdiction to entertain and try the present
suit.
12. In spite of repeated requests by Email and issuance of demand
notice, defendant did not pay heed to pay the compensation as claimed
by plaintiff, which forced plaintiff to file this suit for recovery of
-- 5 of 7 --
.. j/6 .. Suit No.488/2018
compensation. Even defendant did not dare to appear before the Court
to contest the suit. Therefore, costs of this suit needs to be saddled
upon defendant. In such circumstances, suit deserves to be decreed
with costs and hence, I proceed to pass the following order :
O R D E R
1. Suit is decreed with costs.
2. Defendant do pay Rs.5,00,000/ to plaintiff as
compensated and damages for breach of 'Service Level
Agreement ' dt.18.08.2016.
3. Defendant do bear the costs of this suit and costs of
plaintiff.
4. Decree be drawn up accordingly.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.: 26/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 26.11.2018
Transcribed on : 26.11.2018
Signed on : 26.11.2018
kps/
-- 6 of 7 --
.. j/7 .. Suit No.488/2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
26.11.2016 5.10 p.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 26.11.2016
Judgment/order signed by P.O. on 26.11.2016
Judgment/order uploaded on 26.11.2016
-- 7 of 7 --