Smt. Gundla Radhika

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL

COURT : HYDERABAD.

PRESENT : SMT. RADHIKA GUNDLA

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD

THURSDAY, THIS THE 17 TH DAY OF FEBRUARY, 2022

O.S.NO.2157 OF 2017

Between: MVSRK Chaitanya, S/o MVR Prasad, aged major, Occ : Assistant Manager, Employee Code-9861, Plot No.420/423, Flat No.201, Lake View Colony,

Pragathi Nagar, Hyderabad – 500 090. ...Plaintiff

And

The Mylan Laboratories Limited, Rep. by its Managing Director, Office at: Plot No.564/A/22, Road No.92, Jubilee Hills, Hyderabad,

State of Telangana, India-500 034. ...Defendant

This suit coming on 02.02.2022 for final hearing before me in the presence of Sri Mohd. Shujauddin, Advocate for the plaintiff and of Sri L.

Prasad Rao, Advocate for the defendant and the matter having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

This suit is filed by the plaintiff for declaration, to declare the forcefully and fraudulently obtained letter of registration dated 13.03.2017 of the plaintiff and acceptance letter of defendant dated 13.03.2017 are not valid and not binding on the plaintiff, as null and void and to grant mandatory injunction

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directing the defendant to reinstate the plaintiff into service last served designation in continuation in service without any break with back wages with all consequential benefits forthwith or in alternate, if the Hon’ble Court comes to the conclusion that if the re-instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by the defendant, with the Bank rate of interest till the payment is made within stipulated period, as otherwise the plaintiff is entitle to have re course of execution through Court of law.

2.The averments of the plaint are in brief: The Mylan Laboratories Limited is a US based, Multinational Pharmaceutical Company having branches at various parts of India including a branch at R & D Center, Bollaram, with its

Office at Jubilee Hills, Hyderabad. The plaintiff is P.hd, (Chemistry) a initially joined on 20.02.2012 as Executive in the then later on taken over by the Matrix

Laboratories Limited and as such he is an employee working as Senior Manager on a gross pay of Rs.57,000/- and was working to his maximum potential as a devoted employee to the satisfaction of one and all as an employee as well as a co-employee in his general character and he was an asset to the defendant as an employee in all respects. To the surprise and shock on 13.03.2017 at about 3:00

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A.M. an HR employee called Plaintiff to attend a meeting at HR Office immediately. He reached HR Office as per the call and found in the conference hall Chandra Shekeran and N. Mallikarjun Rao on behalf of defendant, the HR

Official N. Mallikarjun Rao informed him that “there is an unpleasant news for you” i.e., asked him to resign from the job. He was shocked and surprised, however enquired as to the reasons for seeking such resignation and the reason for targetting him. Defendant informed him by way of reply that “the organization is in loss of business and there is no fault in your i.e., Plaintiff, professional performance” and thereby forwarded a pre-typed resignation letter

dated 13.03.2017 and forced him to sign such resignation letter under

compulsion coercively.

3.It is averred by the plaintiff that he initially refused to sign the resignation letter given to him but HR Official N. MallikarjunRao in his sweet talk in a fraudulent manner with veiled threat directed him in an authoritative manner to sign on the resignation letter. Unable to understand how to face an embarrassed situation, never faced in life, he most reluctantly signed on the resignation letter.

Such signing of resignation letter was by fraudulent means and also not voluntary but under use of form undue influence, coercion etc., within a few minutes after the resignation letter, that the letter of acceptance dated 13.03.2017 was forwarded to him accepting his resignation letter, later on had come to know that about more than 50 employees were forced to resign from the job under the

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similar manner, playing the same fraudulent practice. Out of total 57 employees among them were 8 Senior Officers, 7 women Officers and 42 Lower Officers were forced to resign their respective jobs in the similar manner and without assigning any reason except false promises later on found to be fraud etc. He was paid 90 days salary in lieu of advance notice to him by the Defendant.

Further paid salary of 11 months by the Defendant to him, for such abrupt removal under the guise of resignation, such payment is without any legal basis but paid at the whims and fancie of the Defendant. Such payment of 11 months salary was not agreeable to him, but under compulsion paid the same to him by the Defendant. He made all out efforts to convince such representative of the

Defendant from HR Office by requesting to reinstate him into employment and that he is not ready and willing to accept the advance salary paid in lieu of advance notice. But all such efforts were in vain. Having no other alternate remedy, he got issued legal notice dated 15.05.2017 seeking reinstatement into his job forthwith along with back wages and without break in service. The defendant issued reply dated 04.07.2017 with false and concocted allegations but did not comply his demand through his notice.

4.Further contended that there was no valid reason recognized by law that was involved in the entire process of seeking coercive, compulsive, forceful etc., resignation and acceptance etc., a back door method of removal of the plaintiff from the employment, which is unknown to law. It is evident from the record

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that he before reaching the age of superannuation, voluntarily seeking retirement, etc., known legal methods of quitting the job voluntarily but the defendant had indulged in a fraudulent method, by passing the known legal process of retirement obtained fraudulently in the pre-planned manner by giving readymade prepared resignation letters creating a situation, where in which an employee/plaintiff himself resigned and accepted the same immediately, that to, on a advancely prepared acceptance letter of resignation on the same day. The reason stated by defendant that the he is running in financial losses of business is not only absolutely false, baseless, concocted but also misleading. In fact he reliably learnt that after the illegal removal of the plaintiff under the guise of resignation and acceptance in a schemed and forceful manner, the defendant had engaged number of employees in the post vacated by the plaintiff and others and also reliably learnt that in order to accommodate the near and dear persons of higher ups of the Defendant and also political recommendations, he was made a victim for his no fault and fraudulently removed him illegally with false promises of reinstatement soon, most unceremoniously etc., in violation of the provisions of the Industrial Dispute Act, other related Acts, which is unknown to law. Such illegal and fraudulent removal also amounts to unfair labour practice perpetrated in the most biased manner to accommodate the near and dear. He was made victim of removal from service in a fraudulent manner by way of pick and choose method, by finding him having no influence of higher-ups as “God

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Father” and also no outside political support, connections, influence etc., due to that reason only, he was made victim as a scape goat unreasonably, without any valid reason and illegally for no fault and no violation of any of the conditions of his appointment is ready and willing to repay all the amounts paid to him by the defendant at the time of stage managed drama of resignation and its acceptance, in case reinstate is ordered by the Hon’ble Court.

5.It is the contention of the plaintiff that the back door method adopted by

Defendant in illegally removing him in a stage managed process, is not only unknown to law of the land but also not mandated by any provision of law. As such the entire process of illegal removal of Plaintiff in a schemed manner is not acceptable to him. The defendant no doubt entitle to remove of an employee by clearly mentioning the reasons recognized by law by following due legal process but unfortunately in violation of all the recognized methods available, he was removed in a pre-planned manner by using coercively, fraudulent method, undue influence, force etc. such illegal removal seeking his resignation by false promises, threat, coercively, use of force undue influence, authority, power etc., is not valid and binding on the plaintiff. If the defendant would have adopted legal procedure in removing him from the job such as “lay off” “retrenchment” “Retiring voluntarily” etc., the Defendant ought to have to pay to him salary in lieu of remaining balance of service as per law. In order to avoid such payment of salary as per law to the plaintiff, defendant had adopted this fraudulent,

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coercive, forceful, illegal etc., method of obtaining resignation from him. Such forcefully obtained resignation was purported or appeared to look like voluntarily tendered resignation. All such acts of the Defendant perpetrated against him was clearly with malafied intention to have wrongful gains. By such illegal act of the Defendant, had not only violated all the laws of land for the time being in force, under the similar situation but also had caused infringement of accrued legal rights available to him as per law as an employee.

The Defendant being a company registered under the statue Companies Act, is a statutory legal entity bound to follow, duty bound to obey, comply etc., the legal duties casts upon the Defendant Company.

6.It is the averment of the plaintiff that at the time of Plaintiff entering into service with the Defendant, a contract entered into between the Defendant as an employer and the Plaintiff as an employee. The issue of appointment letter by the Defendant to him at the time of joining of the Defendant Company, the employment contract was said to have been entered into and came into enforcement. As per the terms and conditions of such employment contract, the

Defendant shall not remove, terminate etc., the Plaintiff from the service except by legal mode for valid reasons, recognized by law. Further vice versa, whenever he as to quit the job he shall have to issue advance notice of 90 days to the Defendant. That certainly obtaining forceful resignation from him under the guise of voluntarily tendered resignation, is not recognized by any law of the

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land but clearly amounts to breach of employment contract by the Defendant.

When there was no valid reasons assigned by the Defendant in not exercising a legally available mode for his removal from service but indulged in obtaining a fraudulent and forceful resignation, which amounts to breach of employment contract. Such breach of contract by the Defendant gives rise to a cause of action to him to seek legal remedy. Such forcefully and fraudulently obtained resignation from him and its acceptance on the same day by the Defendant in the preplanned manner are not valid, binding on him but null and void.

7.It is the submission of the plaintiff that absolutely there was no such unavoidable circumstances beyond the control of the Defendant Company that was disclosed by the Defendant but malafidely obtained in voluntarily, a coercive resignation, which is illegal and void ab initio. The Defendant as per law is duty bound shall provide an alternate service on par with the existing designation or pay sufficient salary on the basis of last drawn salary payable for the remaining years of his service. In the event of providing an alternate service to the Plaintiff, such service shall be continuous and without interruption to the satisfaction and acceptance of the Plaintiff. Further in the event of not providing any such alternate employment, then as an alternate remedy pay salary to him for the remaining balance of service, taking into consideration, the age of superannuation as 60 years. He had put-up 9 years of service with the Defendant and was working as if he is working for his own company by putting all his

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sweat and effort. The way in which fraudulently he was removed, the entire his life and his family was completely thrown onto the streets and their lives were completely ruined. Further clean image, reputation, good will etc., as an hardworking Plaintiff as an employee of the Defendant and also a law abiding citizen was tarnished due to such illegally removal from the service, without any reason, that to abruptly. His financial planning, condition etc., were completely shattered involving him into a debt ridden person. He and his family are facing lot of financial crisis etc., due to ridden and illegal removal by fraudulent means by the Defendant.

8.It is the submission of the plaintiff that he had all the potential talent, right to continue in service when by forceful resignation was obtained from him by the Defendant. That due to illegal removal by fraudulent means from the

Defendant, at this age was branded with the stigma in the eye of the other

Companies, where he seeks employment and also the society at large. With this forcefully obtained resignation from the plaintiff, that he had become a stigma ridden terminated employee in his professional career, absolutely has no way in getting a good, respectable etc., employment in any other company, with this background of resignation, even though pre-planned by the Defendant the service carrier of the Plaintiff by such illegal removal has become tainted carrier. In all respects he and his family are suffering due to fraudulent removal of him from the Defendant but also had become stigma ridden employee not

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able to get employment in any other Company. In a way he is an potential employee, while in service with the Defendant suddenly had become useless and without any utility either to himself personally, family wise but also to the

Society at large. He is feeling ashamed in the Society as a castrated entity of no potential at this young age. Further he is at the young age branded as a retired employee for no fault of his but purely due to illegal manipulations by the

Defendant for wrongful gains.

9.It is averred by the plaintiff that the present suit is filed seeking the relief of declaration that the forcefully and fraudulently obtained Letter of Resignation

dated 08-03-2017 of the Plaintiff and Acceptance Letter of the Defendant, dated

08-03-2017 are not valid and not binding on him and to declare the same as null and void. Further the relief of Mandatory Injunction directing the Defendant to reinstate him into service last served designation in continuation in service without any break with back wages with all consequential benefits forthwith.

As an alternate relief, if the Hon’ble Court comes to the conclusion that if the re- instatement of Plaintiff in to service is not possible, then to direct the Defendant as otherwise to pay to him salary on par equalent to the salary he was entitle to if continued to be in service during the period of balance of the service taking into consideration 60 years as the age of superannuation of the Plaintiff with consequential benefits deducting the amount already paid to him by the

Defendant, with the Bank rate of interest till the payment is made within

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stipulated period, as otherwise the Plaintiff is entitle to have re course of execution through Court of Law. A separate Application is filed along with the

Suit under Order 39 Rule 2 of CPC for grant of Interim Mandatory Injunction directing the Defendant, his men, agents etc., to reinstate him forthwith into service. Hence this Suit for Declaration and for Mandatory Injunction.

10.Written statement filed by the defendant and the averments are in brief:

All the averments and allegations made in the Plaint filed by the Plaintiff are denied as totally false, incorrect and unsubstantiated except those that are specifically admitted hereunder and the plaintiff put to strict proof. The suit in

O.S.No.2157 of 2017 is liable to be dismissed in limini as the relief of re-

instatement or the alternative relief of payment of compensation for the remaining period of service having 60 years of age of superannuation with consequential benefits cannot be granted by the Hon’ble Court and as such the suit is liable to be dismissed. The sole defendant traverses the allegations made in the plaint as follows:- it is true that the defendant is a U.S. based multinational pharmaceutical company having manufacturing facility in different parts of India and it is also true that it has R & D centre at Bollaram and office at Jubilee Hills, Hyderabad.

11.It is averred by the defendant that the plaintiff joined the defendant company on 20.12.2012 as Research Associate in the then Matrix Laboratories

Limited which got merged into the defendant company. However it is false and

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incorrect to state that the plaintiff is an employee of the defendant or that he is working as Assistant Manager on a gross pay of Rs.57,000/- (Rupees fifty seven thousand only) as alleged or at all. The plaintiff had submitted his resignations vide his resignation letter dated 13.03.2017 citing personal reasons. Though the defendant company understands and believes it to be correct that the plaintiff is resigning seeking better prospects in some other company. As the plaintiff insisted that his resignation letter should be accepted forthwith, the defendant company has taken a decision to relieve the plaintiff immediately with effect from 13.03.2017 and accordingly his resignation was accepted and the said fact was intimated to him on the same date. Thereafter the defendant company addressed a detailed letter on 13.03.2017 informing the plaintiff that he is relieved of his responsibilities/duties as Assistant General Manager pursuant to his resignation and the plaintiff was also reminded about the confidentiality that he has to maintain even after the resignation. Subsequently the defendant company settled all the amounts including salary and gratuity. The plaintiff received a sum of Rs.6,90,514/- (Rupees six lakhs ninety thousand five hundred and fourteen only) towards salary and a further sum of Rs.73,007/- (Rupees seventy three thousand and seven only) towards gratuity and accepted the same without demur.

12.Further contended that the plaintiff worked to his maximum potential as a devoted employee to the satisfaction of one and all, the same has no relevance to

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the present case as he had already submitted his resignation which was accepted and acted upon by the defendant company and the plaintiff is to shock and surprise was called to attend a meeting by the Human Resources office of the defendant company on 13.03.2017 at about 3.00 AM, the same is denied as false and incorrect and the he is put to strict proof. On the other hand it was the plaintiff who submitted his resignation to the HR Department of the defendant company and when asked as to why he is submitting his resignation, the plaintiff stated that he got a better opportunity elsewhere. The same are denied as false, incorrect and un-substantiated and the plaintiff has come out with a fabricated and concocted story with a view to get back into the service of the defendant company. The defendant has come to know through reliable sources that the job opportunity that was dangled before the plaintiff due to which he submitted his resignation did not materialize and realizing that he is without a job, the plaintiff has come up with the present cooked up story making false allegations against the defendant company and he is seeking to be re-instituted as an employee of the defendant company. It is reiterated that the plaintiff has submitted his resignation of his resignation of his free will and volition and the same was acted upon by the defendant company. Therefore the question of the defendant company re-instating the plaintiff simply does not arise. It is further denied that the HR Department of the defendant company had forwarded a pre-typed resignation letter dated 13.03.2017 or that they forced the plaintiff to sign the

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resignation letter under compulsion and coercion. If such allegations were true then nothing prevented the plaintiff to address a letter to the HR Department of the defendant company or directly to the defendant bringing to its notice that his resignation was not voluntary but under force and compulsion. In the absence of any material it can only be stated that the plaintiff having submitted his resignation and having drawn all the benefits that accrued to him pursuant to such resignation has come up with a false story against the defendant with a view to get re-instatement.

13. It is the submission of the defendant that the said allegations are contradictory in nature and denied as such. On the one hand the plaintiff alleges that HR officials of the defendant company, viz, N. Mallikarjun Rao sweet talked the plaintiff into submitting his resignation and on the other hand the plaintiff make a contrary statement in the very next breadth claiming that he was threatened to sign the resignation letter. The allegation that the plaintiff submitted his resignation under coercion, undue influence etc., is a mere figment of plaintiff’s febrile imagination and nothing can be farther from truth and denied as such. It was the plaintiff who insisted that his resignation be accepted forthwith and understanding that the plaintiff was in a hurry in view of a job opportunity, the defendant company’s HR Department let him go by accepting the resignation letter on the same day as per the insistence of the plaintiff.

14.Further contended that some other employees of the defendant company

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were forced to resign under similar manner, the same is denied as false and incorrect. Even otherwise, the same has no relevance to the plaintiff’s case in as much as he submitted his resignation voluntarily and in fact insisted that his resignation be accepted forthwith. Left with no alternative, the defendant company had to accede the resignation and relieve the plaintiff of his responsibilities. It is denied that the plaintiff was paid only some advance salary in lieu of advance notice. What was paid by the defendant to the plaintiff is a sum of Rs.6,90,514/- (Rupees six lakhs ninety thousand five hundred and fourteen only) towards final statement of all amounts due to the plaintiff and the said amount was paid on 10.04.2017 by transfer of amounts to the plaintiff’s account maintained with ICICI Bank. Thereafter the defendant company had also settled gratuity payment in a sum of Rs.73,007/- (Rupees seventy three thousand and seven only) to the plaintiff by crediting the amount to plaintiff’s account maintained with ICICI Bank. He had received the entire amount without lodging any protest as he was eagerly waiting for a better prospect.

When the said prospect disappeared, the plaintiff approached the HR officials of the defendant company with a plan to re-instate and when the request was not considered as he already submitted his resignation and as the defendant company had relieved him by paying the entire amounts due to him. Aggrieved by the refusal by the defendant company, the plaintiff got issued a notice dated 15.05.2017 making false and fictitious allegations against the defendant

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company and its HR officials. On receipt of the notice, the defendant company got a reply issued making it abundantly clear that it was the plaintiff who had resigned and accepted the settlement of the entire amounts due towards salary etc., and also the gratuity payment made by the defendant company. It was also made very clear in the reply notice that the plaintiff is making false allegations with a view to get himself re-instated. Though the plaintiff received the said reply, he did not bother to get any rejoinder notice issued denying the specific allegations made in the reply notice dated 04.07.2017.

15.Further contended that it is absolutely false and incorrect to state and categorically denied that the plaintiff was removed from the employment by the defendant by resorting to ‘back door method’ as alleged or at all. The plaintiff who of his own free will and volition submitted his resignation and insisted that the same be accepted forthwith and when the defendant company acted upon the said resignation and relieved the plaintiff of his responsibilities and also settled all the amounts due to him, the plaintiff accepted the said payment willingly without lodging any protest and as the green pasture in the form of a new job opportunity reversed, he is now seeking to be re-instituted in the company. The company had acted upon the resignation submitted by the plaintiff and as such the question of re-instating him at his request certainly would not arise. It is further denied that the defendant company had prepared a readymade resignation letter or on a advancely prepared acceptance letter of resignation

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letter as alleged or at all. It is incorrect to state that the defendant company or its employees at any point of time, either stated or gave an impression that the company is running in losses. The said statement is false and made for the purpose of the present case can also be gazed from the fact that the defendant company is a public limited company and its finances are very much available.

A mere perusal of such finances would have satisfied the plaintiff that the defendant company is a multinational profit making company.

16.It is averred by the defendant that the plaintiff was made a victim in order to accommodate the near and dear persons of higher ups of the defendant company and also political recommendations, the same is denied as absolutely false and incorrect. The company is a professional managed multinational company with said objective and said practices for recruiting training and employing people. The plaintiff was removed with the false promise of re- instatement or that it was in violation of the Industrial Dispute Act or other related act, it is categorically denied that the said provisions of the Industrial

Dispute Act or other labour welfare legislation would apply to the plaintiff as by his own admission was of Deputy General Manager and by no stretch of imagination can be considered as a worker. It is further denied that the defendant company had indulged in illegal or fraudulent removal of plaintiff and it amounts to unfair labour practice perpetrated in the most biased manner to accommodate the near and dear or as alleged at all. The plaintiff was relieved of

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his responsibilities only at his specific request and pursuant to the resignation letter submitted by him, and having realized that the new job opportunity had reversed, he approached the defendant officials to re-instate him in the same capacity in which he resigned. When the said request was not accepted by the officials of the defendant company, the plaintiff came out with a false and concocted story seeking a direction to the company to re-instate him in the same position as he left. The defendant company is a multinational company and had proper guidelines for recruiting, training and termination of its employees. The company is known for its fair practices and the allegations of nepotism and favoritism or the bias that are being alleged by the plaintiff are only existed only in the imagination of the plaintiff and have no place in the management or the fair practice adopted by the defendant company.

17.Further it is categorically denied that the plaintiff was removed, that the defendant had resorted to illegal removal of the him in a stage manner or otherwise. The plaintiff perhaps believes that if he rebuts a lie umpteen number of times, it would acquire a patina of truth and would be believed by the Hon’ble

Court. If at all, the plaintiff was forced to resign as is being alleged, nothing prevented him to address a letter to the defendant company to that effect and further nobody forced him to accept the payment of gratuity. The very fact that he received the payments without protest would show that at that time the plaintiff had willingly submitted his resignation for his own benefit and when

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the better prospects did not materialize he sought to be re-instituted and when his request was not considered he has come up with a false case and consequently initiated the present proceedings which are not maintainable at all as the suit itself is liable to be dismissed in limini.

18.It is the submission of the defendant that the question of “lay off”, “retrenchment” etc., would not apply to the facts of the case in as much as plaintiff is not a worker as defined under the Industrial Dispute Act or any other applicable labour welfare legislation. Even otherwise, having submitted his resignation voluntarily of his own free will and volition in search of better prospects cannot turn back after the same was accepted by the defendant and after the benefits including gratuity was paid and claim to be re-instituted. It is denied that the defendant had violated any laws or caused infringement of any legal rights that allegedly accrued to the plaintiff. While it is true that the relationship between the plaintiff and the defendant company are governed by the employment contract and the terms and conditions thereof. It is categorically denied that the defendant had removed or terminated the plaintiff from his service as alleged or at all. On the contrary it was the plaintiff, who on his own submitted his resignation and insisted that his resignation be accepted forthwith and thereafter accepted the payments made by the defendant pursuant to his resignation including gratuity payment. Therefore there is not even an iota of truth in the allegations being made by the plaintiff and the same are liable to be

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dismissed. The rest of the allegations with regard to the alleged fraudulent and forceful resignations, alleged breach of contract etc., are totally denied as false, incorrect besides being un-substantiated. The plaintiff having realized that he made a foolish decision in resigning to the company has sought to be re- instituted and when the said request was not considered, he come up with a false and concocted story of forced resignation.

19.Further it is denied that the defendant company had obtained the resignation of the plaintiff in a coercive manner or that the said resignation is illegal is denied as false and the further allegation that the defendant is duty bound to provide an alternative service on par with the existing designation or pay sufficient compensation on the basis of last drawn salary for the remaining years of his service is denied. The defendant had any such obligation more so when the plaintiff himself had voluntarily submitted his resignation in search of a better prospects and the said resignation was accepted by the defendant. The company has no such obligation either under law or otherwise to provide any employment to the plaintiff. The defendant understands that the plaintiff is hale and healthy and capable of finding an employment and should not have any difficulty in finding alternative employment elsewhere, that too when the plaintiff had resigned to the job keeping in view of better prospects, no duty is cast upon the defendant either under law or of facts of the case to provide any such employment to the plaintiff. It is admitted that he had worked with the

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defendant till his resignation, but that does not in any way make him the sole responsibility of the defendant company to be looked after by the defendant to the rest of his life when the plaintiff himself resigned voluntarily, he cannot at this belated stage come up with a false belief that his family thrown out on the streets or their lives are ruined. The company reiterates that the plaintiff had submitted his resignation on his own free will and volition as he was looking for better prospects outside and when they did not materialize, he has turned around and requested the company to take him back. When the said request did not yield any result, has come up with the present suit making false and unsubstantiated allegations against the defendant company.

20.Further it is denied that the resignation submitted by the plaintiff at this age was branded with the stigma in the eye of the other companies or that the society at large. When the plaintiff himself had voluntarily resigned he cannot turn back and say that such resignation affects his reputation in any manner or affects his prospects in getting a good and respectable employment in any other company or that the defendant had resorted to illegal removal and such illegal removal tainted his career. The plaintiff has deliberately come out with a false case with a view to mulct monies from the defendant company by resorting to coercion and intimidation. The same are not within the knowledge of the defendant and denied as such for want of knowledge. Even otherwise the plaintiff having voluntarily resigned cannot now at this belated stage claim that

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he and his family are suffering in any manner. If the plaintiff has a feeling of shame or that of being castrated, he can seek necessary psychiatric advise as the termination of service by the defendant was pursuant to his resignation and nobody would brand him as a retired employee unless he has come up looking for alternative employment. It is further denied that the defendant had manipulated the plaintiff either illegally or otherwise or that the defendant made any wrongful gains by such alleged manipulation.

21.Further it is denied that the present suit is maintainable either on facts or in law. The present suit lacks in merits and is liable to be thrown out by imposing exemplary costs on the plaintiff. So far as the relief of mandatory injunction sought for by the plaintiff, the same cannot be granted and he is not entitled for any relief much less the relief of re-institution or in the alternative the relief of payment of salary for the remaining period of service till he reaches the age of superannuation as is being claimed. The plaintiff comes out with a false frivolous claim with a view to mulct monies that are not due at all. He seems to be under the impression that the defendant company is a public sector undertaking which is duty bound to take care of him and his family from cradle to grave. The present suit lacks in merits, there is not cause of action arose as alleged or at all for filing the present suit and is malafide filed with an intention to harass and defame the defendant company. The relief of re-institution or in the alternative payment of salary till the plaintiff reaches the age of

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superannuation cannot be granted. It is prayed that this Hon’ble Court may be pleased to dismiss O.S.No.2157 of 2017 as vexatious and malicious by imposing exemplary costs on the plaintiff.

22.Considering the plaint and written statement and other material on record, this Court framed following issues for trial on 21.02.2018:

1) Whether the Plaintiff is entitled to declare that the letter of

resignation dated 13-03-2017 of the plaintiff and acceptance letter of

the defendant dated 13-03-2017 are not valid and not binding on him and

both documents are null and void?

2) Whether the plaintiff is entitled to grant mandatory injunction by

directing the defendant to reinstate the plaintiff into service in last

served designation, in continuation of service without any break, with

back wages, with all consequential benefits forth with?

3) To what relief?

23.In order to prove the contention of the plaint, the plaintiff got examined

PW1 and PW2, but the evidence of PW2 was eschewed when the plaintiff counsel reported to this Court that PW2 will not come to give evidence. Exs.A1 to A6 got marked through PW1 wherein Ex.A1 is the resignation letter dated 13.03.2017, Ex.A2 is the acceptance of resignation letter dated 13.03.2017,

Ex.A3 is the service certificate dated 10.04.2017, Ex.A4 is the relieving letter

dated 10.04.2017, Ex.A5 is the legal notice dated 15.05.2017. Ex.A6 is the reply

notice dated 04.07.2017.

24.On behalf of the defendant, DW1 is examined and Exs.B1 to B4 marked.

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Ex. B1 is the HDFC bank statement dated 10.04.2017, Ex.B2 is the full and final settlement advice dated 07.04.2017, Ex.B3 is the EPFO claim statement dated 11.02.2019, Ex.B4 is the EPFO statement dated 05.02.2019.

25.The brief averments of the plaint are stated as follows: Initially the plaintiff joined in defendant company i.e., Mylan laboratories Ltd., Road No.92,

Jubilee Hills, on 20.02.2012 as Executive and worked as Assistant Manager, for gross pay of Rs.57,000/- later to the utter surprise and shock on 13.03.2017 at about 3.00 PM as HR employee called plaintiff to attend a meeting at HR

Office, immediately, the plaintiff reached HR office as per the call and found

Chandra Shekaran and N. Mallikarjun Rao on behalf of defendant company for the meeting. Further HR official N. Mallikarjun Rao informed plaintiff that he has to resign from the job, as “the organization is in loss of business” and there was no fault with plaintiff with regard to his professional performance, thereby forwarded pre-typed resignation letter dated 13.03.2017 to plaintiff for signing on the resignation letter.

26.Further, it is contended by the plaintiff that initially he refused to sign the resignation letter given to plaintiff but with the sweet talk of HR official in a fraudulent manner by veiled threat made him to sign on the resignation letter, later within a few minutes, the resignation letter was accepted by defendant company. After that he was given with 3 months salary in lieu of advance notice, further paid 11 months salary by defendant company, the crux of the

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plaint averment are that the resignation was taken by the defendant company by playing fraud with coercion, as the defendant is in dominent position over the plaintiff for which the above suit is filed for declaration, (a) to declare the forceful and fraudulently obtained letter of resignation dated 13.03.2017 of the plaintiff and acceptance letter of the defendant dated 13.03.2017 are not valid and not binding on the plaintiff, as null and void, (b) to grant mandatory injunction directing the defendant to reinstate the plaintiff into service from the last date of service, in continuation in service without any break with back wages and with all consequential benefits forthwith, otherwise alternatively if the Court comes to conclusion that if the re-instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by defendant with the Bank rate of interest till the payment is made within stipulated period or otherwise the plaintiff is entitle to have recourse of execution through court of law.

27.Per contra, the defendant filed his written statement contending that the plaintiff joined the defendant company on 20.12.2012 as Technician Associate in Matrix laboratories Ltd., which got merged into the defendant company later, he served the defendant company as Assistant Manager for the gross pay

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of Rs.57,000/-, it is submitted by defendant that the plaintiff himself has given voluntary resignation 13.03.2017 seeking for better prospects in some other company. Further insisted that his resignation be accepted immediately, as such the defendant company left with no option has taken decision to relieve the plaintiff from duties with effect from 13.03.2017 by accepting the resignation letter immediately. Subsequently all the amounts including salary and gratuity were settled and the plaintiff received a sum of Rs.6,90,514/- towards full and final settlement without demur. Further denied that on the date of resignation a meeting was held with HR official of defendant company at 3.00 PM for forcing the plaintiff to give resignation, but it is the contention of the defendant company that the plaintiff himself has resigned the company for better opportunities, further denied to all the allegations made against the defendant company, more particularly it is the contention of the defendant company that, the plaintiff has received all the amount including gratuity amount for a sum of

Rs.73,007/- and Rs.6,90,517/- towards final settlement on 10.04.2017 till then plaintiff did not protest and was eagerly waiting for a better prospect, when prospects disappeared then plaintiff came before the the HR officials of the defendant company for re-institution. When the company refused for reinstatement having paid all the settlement amount, aggrieved by the same, plaintiff got issued legal notice dated 15.05.2017 mentioning the false and fictitious allegations. As such, in crux the defendant company contends that

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plaintiff come up with a false and frivolous claim with a view to mulct monies that are not due at all, it is not a public company to undertake him and his family from cradle to grave. Hence, prayed to dismiss as the re-institution or in the alternate payment of salary till the plaintiff reaches the age of superannuation cannot be granted.

28.This Court heard the learned counsel appearing for plaintiff and heard counsel appearing for the defendant. The arguments of the plaintiff is a nut shell are that defendant company has forcefully taken resignation from plaintiff by playing fraud. Per contra, it is the argument of defendant counsel that they never took any forceful resignation, infact plaintiff himself voluntarily gave resignation for better opportunities.

29.The point for consideration in the above suit is whether the resignation letter dated 13.03.2017 addressed to the defendant company relieving from duty and the alleged acceptance of his resignation letter dated 13.03.2017 is not valid and not binding on the plaintiff as null and void, and whether the plaintiff is entitled to re-institution into service with all consequential benefits.

For Better appreciation both Issue Nos.1 & 2 are discussed together:-

30.Admittedly, the plaintiff submitted his resignation on 13.03.2017 and the plaintiff was relieved from duty with immediate effect accepting the resignation.

After about two months from the date of resignation the plaintiff gave legal notice to the defendant company for the forceful resignation taken by defendant

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company. It is the contention of plaintiff that, the defendant by playing fraud with a coercive manner with the sweet talk by the HR manager Mallikarjun Rao obtained the resignation from plaintiff. The version of the plaintiff as could be seen from the affidavit filed in support of his contention as PW1, is that all of a sudden to the utter surprise he was called to a conference room by the HR department and gave a pre-typed resignation letter to sign on it stating that the company is in loss, further, without the free will and consent of the plaintiff, with false promises of re-institution of plaintiff, in violation of industrial dispute

Act and other related Acts obtained signature on resignation letter, further accepted the resignation letter and relieved the plaintiff from services.

31.In support of the contention of the plaintiff the following citations are filed:

1. H.V. Rajeshwari Vs., Deputy Inspector General of Police (Manager CRPF

School) Hyderabad 2006 (3) ALD 99 held in paras 14 and 17 that

14. Whenever an employee submits resignation, the superior authority is expected to examine the matter dispassionately and ensure as to whether the resignation was submitted voluntarily. A gracious person with human approach would, in fact, ensure that resignation submitted out of frustration or based on emotional and instant reaction, is not acted upon, and the employee be given an opportunity to cool down. Here is a case, where the Additional D.G.P. has put all his efforts to drive away the petitioner from the institution and has pressurized her to sign on a typed letter of resignation The falsity of the allegation of the Additional D.I.G. is evident from the fact that the appointing authority regularized the services of the petitioner just few months earlier to this episode. Petitioner was found to have successfully completed her probation. His guilty consciousness is evident from the

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following paragraph, where he tried to explain the over writings on the letter of resignation.

17. For the foregoing reasons, the writ, petition is allowed, and it is held that the proceedings, dated 4.8.1999 and 21.9.1999, are illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India. The respondent shall reinstate the petitioner into service forthwith. Since the petitioner approached this Court at a belated stage, it is directed that she shall be entitled to 50% of back wages. It shall be paid to her within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs.

2. Habeeb Khan and others Vs. Valasula Devi and others AIR 1997 Andhra

Pradesh 53 it was held in paras 30, 31, 32 and 41 that

Evidence Act (1 of 1872) S.101, S.104, S.114 – Best evidence – Party in

possession withholding it – Relying upon doctrine of onus of proof – Not sound

practice. It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court, the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. The effect of withholding the best evidence available to a party is that adverse inference should be drawn against that party for withholding the same. (Paras 30, 31) Adverse inference can be drawn against a party which withholds important and material witness. (Para 32) Contract Act (9 of 1872), S.16 – Undue influence – Proof – Person exercising undue influence was in position to dominate and tie used that position to obtain unfair advantage must be proved. in order to establish undue influence in a case of nature of inter vivos transactions as is embodied in Section 16 of the Indian Contract Act, 1872, two important things must be proved; one, that the relation between the parties was such that the

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vendee or the donee was in a position to dominate the Will of the vendor or the donor and he has used that position to obtain an unfair advantage over the vendor or the donor and it is insufficient for a person seeking the relief to show that the relations of the parties have been such that one naturally relied upon for the advice and the other was in a position to dominate the Will of the first in giving it. (Para 41)

3. Cable Corporation of India Limited, rep. by its CFO & Company Secretary, Mr. Surendra Khemka Vs. A.P. Micro and Small Enterprises Facilitation Council, Government of Andhra Pradesh, Commissionerate of Industries, A.P., Hyderabad and another 2013 (4) ALT 24 (DB) wherein it was held “In the light of the decisions rendered by this Court, it is made clear that Rule 32 is not mandatory.”

32.We have now to examine the present case in the context of the principles laid down by the Hon’ble Supreme Court in the judgments, the version of the plaintiff as could be seen from the affidavit is that the resignation was obtained by playing fraud and coercive methods by the defendant company and failed to produce the HR Mallikarjun Rao who took forceful resignations. As such adverse inference can be drawn under Section 114 of Indian Evidence Act.

33.On an overall material available on record. Apart from the above suit, all together there are 13 cases filed by the different plaintiff against the defendant company with same allegations and common trial was conducted, wherein plaintiffs are working in Mylan company and the HR manager given pre-typed resignation letter and forced to sign on it stating that the financial position of the company is critical, but it is the argument of the plaintiff that there is no such financial crisis to the company, but, utter to surprise the contention of plaintiff is that the defendant company has appointed freshers and gave promise that when

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the conditions become well then they will re-instate plaintiff’s into the company, for the above said allegations, it is the argument of defence counsel that apart from mere allegations, no documentary evidence is adduced, to show that after taking resignation from plaintiff’s, the company has again recruited new employees, they are all cooked up stories created for the purpose of filing above suit, hence the above allegations does not stand.

34.It is the another argument and contention of the plaintiff that there is a procedure and method for the removal of employee from the company that, if the conduct of the employee is not good and if they are any irregularities then company has to give show cause notice and a preliminary enquiry has to be conducted but no such prior notice was given, all of a sudden HR manager called them and gave typed resignation letter and the same was accepted on the same day, all the resignation letter shows that same wording i.e., “due to

personal reasons I am resigning from the services of the company with

immediate effect” it is an another argument of the plaintiff counsel that, if the resignation is voluntary by the employee there is a mode for resignation and to accept the resignation it will take minimum of 1 to 90 days. Usually first the resignation letter will be forwarded to his immediate higher authorities and from there to highest authorities i.e., Board of Directors i.e., from Assistant HR to

HR, from HR to Director of the company, but no such process was forwarded or followed by defendant company which clearly shows that the defendant

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company has obtained resignation from plaintiff by using forceful methods and by using undue influence etc., for which defendant company argued that though the defendant company understands about the procedure and prospects, believes it to be correct, thought for a while about better prospects of the plaintiff seeking in some other company. Thus, accepted the resignation letter soon after they were taken. Further more, the plaintiff himself insisted that his resignation letter should be accepted forthwith with immediate effect. Accordingly, the plaintiff resignation was accepted soon after it was taken and also issued detailed letter informing about the confidentiality to maintain even after resignation. It is another argument of defendant that even if the termination is illegal then the plaintiff was entitled to seek relief by filing suit for damages but not specific performance for breach of contract or declaration for resignation as null and void or for re-instate into service.

35.It is another contention of the plaintiff that there exists employee and employer relationship and has to abide by the Industrial Dispute Act, but again counsel himself argued that as per Section 2(c) of Industrial Disputes Act, the salary of the employee should not be more than Rs.40,000/- per annum to file suit under the above Act. As the plaintiff does not come under workman but comes under officer category and was getting amount more than Rs.40,000/- per annum, as such labour act does not apply. As such in alternate, this Court is having jurisdiction to try the suit.

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36.At the same time the plaintiff counsel filed citation, along with additional arguments, wherein it was categorically urged about the maintainability of suit in civil court (and relief of re-instate can be sought for against the defendant company). Infact, at no point of time the defendant disputed about the maintainability. But, this Court opines that, it is pertinent to discuss about maintainability and whether court is having jurisdiction to entertain the suit or not. Firstly, let us discuss who comes under Industrial Act and who is workman under Industrial Act. As rightly argued by plaintiff counsel workman – in

Industrial dispute/workman comes under the definition of Section 2 (S) of

Industrial Dispute:

6.Industrial Dispute/Workman comes under the definition of Sec.2(S) of the Industrial Dispute-remedy in the Industrial Tribunal. In case if the workman whose rights have been infringed wanted to seek remedy and the workman whose salaries less than Rs.10,000/- falls in the definition of workman U/Sec.2 (s) Act, 1947, can approach by initiating its application before the Industrial Tribunal or Labour Court seeking the relief. The Industrial Tribunal of the Labour Court is the appropriate Forum to entertain the application of the aggrieved petitioner i.e., workman.

7.Workman working in a Public Limited Company or Government undertaking etc., remedy for the workman is under Article 226 of Constitution of India a Writ Petition is maintainable before the Hon’ble High Court. In case if the workman is working in a Public Limited Company or any Government Department under taking etc., if the rights of the workman are violated and the workman aggrieved by such infringement of his rights can seek remedy by filing Writ Petition under Article 226 of Constitution of India. In the Writ Petition any remedy can be claimed and the Hon’ble Court has ample powers to grant any relief in the Writ Petition.

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8.Workman working in a Private Limited Company and the salary of the workman is more than s.10,000/- and the workman does not come under the definition of Sec.2 (S) of the Industrial Dispute Act 1947-Remedy of the workman is under General Laws invoking Sec.9 of CPC In case if the workman is working in a Private Limited Company, if the rights of the workman are violated and the workman aggrieved by such infringement of his rights can seek remedy by filing Civil Suit invoking Sec.9 of CPC before the competent civil court. In the civil suit the Hon’ble Civil Court has ample powers to grant any relief in the suit including reinstatement with back wages etc.

10.The decision reported in 2012 (3) ALT Page 487 Justice R. Kanta Rao

clearly held that a civil suit is maintainable a workman can raise Industrial

Dispute are equally can seek Redressal of Grievance by asking declaratory

relief. Employee can raise Industrial Dispute or equally can seek Redressal or

Grievance by asking the declaratory relief by invoking the Jurisdiction of Civil Court.

37.In support of his argument, the plaintiff filed following citations:

I) 2009 (5) SCJ 757 Full Bench Rajasthan State Road Transport Corporation and another Vs., Bal Mukhund Barwa

II) 2008 (4) SCJ 483, III 2012 (3) ALT 487

38.As per above arguments and citations filed by the plaintiff counsel this court is inclined to look into Section (9) of CPC wherein civil court lacks jurisdiction to entertain a suit structured on provisions of Industrial Disputes

Act, but the plaintiff counsel himself argued that the plaintiff does not come under workman but they come under officers capacity, on the other hand learned counsel for the plaintiff argues that on the basis of language of Section 9 of the

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Code of Civil Procedure, if the remedy is not available under Industrial Dispute

Act, then in alternate he can also file civil suit for declaration.

39.From the citations filed by counsel for plaintiff and for the above reasons discussed, this Court opines that this Court is having jurisdiction to entertain the suit under Section 9 of the Code of Civil Procedure which is read as : Courts to try all civil suits unless barred i.e., courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

40.Further, it is another argument of the plaintiff counsel that DW1 admitted in the cross examination as follows “it is true that in the agreement entered

into by the plaintiff and the defendant, there is a condition that the

employee or the employer has to remove the employee or quit the employee

has to issue 3 months notice in advance as otherwise in the event of not

issuing notice, 3 months salary will be deposited by the employee or

employer”. Admittedly the defendant company has deposited 3 months salary in lieu of advance notice, which was mandatory before sudden termination from service. It is another argument of plaintiff counsel that there was absolutely no need for the defendant company to deposit three months salary in lieu of three months advance notice after obtaining signature on resignation letter and also 11 months salary one year salary to each of the plaintiff, as such payment into the accounts of each of the plaintiff itself clearly establishes the fact that the

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defendant company obtained resignations by use of force and as a eye wash deposited about 13 to 14 months salary into the each of the accounts of plaintiff.

41.Per contra, the defendant company urged that even if the termination is illegal then plaintiff at the time of taking 3 months salary and 11 months salary did not protest, and there was no refusal and no word from plaintiff but utter to surprise after 2 months in the month of May issued legal notice to defendant company and the remedy for the plaintiff is only by way of damages but not under SR Act.

42.It is another contention of the plaintiff’s that there are about 57 employer i.e., more than 50 employees of Mylan company were forced to resign from the job under similar manner, playing some forceful tactics, by fraudulent means, for which the defendant counsel argued that apart from mere allegations not a single document was filed by plaintiff, nor failed to mention the names of the employer who were forced to resign, more over as per the cross of DW1 it is contended that when all the employees tried to enter into the defendant company they were not allowed and prohibited to enter which was denied by the DW1, apart from that it is contended that at the time of entering into service with defendant company, they entered into a contract and as per the terms and conditions of such employment contract the defendant shall not remove, terminate etc., from service except by legal mode for valid reasons recognized by law.

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43.At this juncture, in order to answer the above allegations and argument of both counsels, when this Court perused all the material available on record, neither the plaintiff nor the defendant had filed any document relating to the employment contract entered by both parties i.e., contract letter, appointment letter or confidentiality agreement to know about the terms and conditions between the parties that outlines the rights, responsibilities and obligations of an employer and employee, it is a settled law that one who pleads the court to believe on the fact, it becomes the duty of the party to plead and prove under

Evidence Act. Infact the crucial document of contract or agreement entered between the defendant company with plaintiff is not filed before this Court.

44.It is also the argument of defendant company that if the company has really obtained the resignation from 57 employers all together, then why only 13 plaintiff employees have filed the suit, and what made them not to mention the details of other employees in the plaint, which made this Court to think for a while, leaving it, the plaintiff counsel argued that the resignation letter were pre typed one, with similar wordings to answer the same, when DW1 cross examination is perused he was also utter to surprise dis believed and failed to answer. More over, it is the argument of defence counsel that even if it is illegal termination for a while, then why the plaintiff failed to raise voice (or) why plaintiff accepted amount and did not protest, when the company has paid 3 months salary in advance, and 11 months salary in consequence to the

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resignation, it is only because when the plaintiff failed with better opportunities they came with the above suit. More over, even if the termination was bad the plaintiff can file for damages, but not for re-instate and back wages.

45.The vehement argument of the defendant company adverting to the citation filed in their support is that only upon three conditions the suit is liable to be decreed that too for damages not for mandatory or permanent injunction they are,

1. where a public servant is sought to be removed from service in contravention of the provisions Article 311 of Constitution of India

2. where a worker is sought to be reinstated as being dismissed under the Industrial Law.

3. where a statutory body acts in breach of violation of the mandatory provisions of the statute

46.The below are the citations filed by defendant company in support of their arguments:

1. Executive Committee U.P. Warehousing Corporation Vs., Chandra Kiran

Tyagi 1969 (2) SCC 838

2. Bank of Baroda Ltd., Vs., Jeewan Lal Mehrotha 1970 (2) SCC 677

3. Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs., Badri Nath

Dixit and others (1991) 3 SCC 54

4. Integrated Rural Development Agency Vs., Ram Pyare Pandey 1995 Supp (2)

SCC 495

5. Pearlite Liners (P) Ltd., Vs., Manorama Sirsi (2004) 3 SCC 172

6. Ms. Ismath Ahmedizade Mahmoodi Abidi Vs., Mrs. Kurshidunnisa Begum

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2002 (3) APLJ 206 (HC) wherein it is a well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give declaration that the contract subsists and employer cannot be forced to take an employee with whom relations have reached a point to complete loss of faith between the two, except in above three cases.

47.From the above citations filed by defence counsel, and from the argument of defendant company, let us know the relation between employee and employer in a private contract for personal services between the parties which can be specifically enforceable or not, further there lies any injunctions except damages. For the better appreciation this Court inclined to look into the relationship of private employee with the employer company, The relationship between the employer and employee depends mainly on payment of wages, power of dismissal and employer’s power to control the employee and as the means and methods by which the work is accomplished in general.

49.The Supreme Court of India in Percept D Mart Pvt. Ltd., Vs., Zaheer

Khan and another (AIR 2006 S(3426) and the Delhi High Court in infinity

optional solutions Pvt. Ltd., vs Vijender Singh (CS(OS) 1807/2009) observed that contracts for personal service are dependent on mutual trust and confidence and specific performance of such contracts were held to be bared under Sec. 14 (1) of Specific Relief Act 1963. Even it is the argument of defence counsel that the contract for personal services can not be specifically enforceable under 21 of

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specific relief Act. As per the version of plaintiff, he is an ex-employee of defendant company, his resignation was accepted and he is terminated from services on 13.03.2017, presumed to be illegal termination of services, the plaintiff filed the present Suit to declare such resignation taken by using fraud and coercion as null and void in alternative, if the Hon’ble Court comes to the conclusion that if the re-instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by the defendant, with the Bank rate of interest till the payment is made within stipulated period, as otherwise the plaintiff is entitle to have re course of execution through Court of law.

50.Here, Court opines to discuss about cases, where the employee is forced to resign, and what are those circumstances that are forced for the company to take forceful resignation. As an employer, the company may come to a decision that it’s the time for employee to part ways, then the decision may be purely financial one, as a means of reducing payroll, or it may be based on variety of other factors, such as poor performance or a working style that doesn't fit well with employee adhere. In those circumstances employee can be fired or asked to resign is lieu of termination, the key difference between resignation and termination of as employee is a matter of who formerly initiates the action, if the

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company ends employment it may be sometimes because the financial reasons, as argued by plaintiff company in case of lay off then only there is a possibility of relieving from the company. A Firm may also ask employee to voluntarily resign rather than to forcible termination. A resignation may be the best interest of both parties.

51.As per plaintiff, DW1/defendant witness himself admitted that it was true in the agreement entered into by the plaintiff and defendant there is a conditions that the employee or the employer has to remove the employee or quit the employee has to issue 3 months notice in advance, in alternate three months salary will be deposited by employee or employer. As such as per the terms of agreement even though defendant company failed to issue notice and has obtained forceful resignation, in alternate deposited 3 months salary in terms of

Advance notice, further also deposited 11 months salary into Plaintiff Account.

As such defendant counsel argued that if the termination is bad then plaintiff is only having remedy to file for damages, but not for reinstatement into service.

52.Further it is another argument of plaintiff counsel that defendant cannot unilaterally has a right to over look the devoted service of the Plaintiff who even did not think about other job while working with the defendant company having listed in multi national listed company and good prospects. The plaintiff has never ever imagined that he would have to face a day with such type of insult and malicious/unkind treatment by the Defendant company, and further

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submitted that as aforesaid having worked for more than 5 five the plaintiff never gave any king of complaint to the defendant his involuntary forceful resignations is absolutely illegal. Due to the nefarious act has brought serious mental pass to the plaintiff when is there was no due procedure.

When the defendant did not gave any satisfactory reply for his sudden forceful resignation, he got served a legal notice dated 15.05.2017, thereby calling upon the defendant to recall and reinstate him in his old service. Further it is the contention of the plaintiff that he did not apply any where for his job, infact, he is constrained to remain jobless thus the case of action arose.

54.In order to answer the same, this Court inclined to look into the Exs.A2 and A3 wherein it was clearly mentioned that they have initiated plaintiffs full and final settlement process and will be subject to final settlement of dues.

Ex.A4 to maintain confidentiality under clause 8, clause 11, clause 12 of confidentiality agreement signed by plaintiff.

55.From the above discussion, it is crystal clear that there is an agreement between the parties, which discloses certain clauses between the parties and they are of more confidentiality, even by the written arguments filed by plaintiff counsel there was a clause of including 3 months notice by either of the parties

before parting with each other.

56.But to be precise, no such confidentiality agreement or any other terms of agreement between the parties were filed by the parties before the court which

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becomes the crucial and important document to answer the above issues.

57.Per contra, it is rightly urged by defendant counsel that the management has paid 3 months salary in lieu of notice period, further paid 11 months salary towards full and final settlement, it is also admitted fact that an amount was also deposited into plaintiff Account. As such, even if the termination is illegal the only relief for the plaintiff is to file a suit for damages.

58.The Hon’ble Supreme Court in M/s Pearlite Liners pvt. Ltd., Vs

Manorama sirsi, 2004 (3) SCC 172, wherein legal question for consideration which arose was “can a contract of service be specifically enforced” to submit that where the contract falls within the domain of a contract of Personal Services upon personal qualifications which is specifically barred under the provisions of

Specific Relief Act. The relationship between the parties is based on a contract between the two private parties, admittedly, there was a written contract, it would have contained terms and conditions governing the relationship between the parties, inspite of the same, plaintiff challenged the forceful resignation as null and void. The prayer of the plaintiffs as made through the plaint seeking declaration that the defendant company taken forceful resignation dated 13.03.2022 was illegal and invalid was not binding upon defendant company, granting mandatory injunction directing defendant company to reinstate the plaintiff back in his later services with all consequential relief was specifically barred in terms of the provisions of SR Act 1963,

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59.Admittedly the relationship between the parties is based on a contract, but no such document filed by the parties, even for a while if we think that there is no such agreement in written, then there would have been some terms of oral agreement between them. When defendant denied all allegations of plaintiff, then it becomes the duty of plaintiff to bring before this court the factum of forceful resignation, but apart from the self resignation letter, nothing has come

before this court to believe fraudulent action of defendant company.

60.Moreover the prayer seeking reinstate of the plaintiff as an employee into the defendant company, really amounts to seeking specific performance of personal service which purely dependent as personal qualification of the plaintiff, which is specifically barred under the provisions of SR Act, it is a settled law that personal services cannot be specifically enforced. It is rightly argued that there are 3 exceptions for the above:

1. where a public servant is sought to be removed from service in contravention of the provisions Article 311 of Constitution of India

2. where a worker is sought to be reinstated as being dismissed under the Industrial Law.

3. where a statutory body acts in breach of violation of the mandatory provisions of the statute

As such, the present case does not fall in any of the three exceptions and is filed by private employee wherein normally they would be governed by the terms and conditions.

62.It is another argument of plaintiff that DW1 is not authorised to give evidence and should have taken permission from the court by filing Rule 32 and

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Rule 33 petitions, atleast by filing affidavit. More over, Mallikarjun Rao who was along with HR did not give evidence and entered witness box, as such non examination of HR manager of the defendant company, itself shows that he does not want to get the truth come out, and an adverse inference can be drawn under

Section 114 (g) of the Evidence Act, it is the argument of plaintiff company that if the HR manager would have faced examination all the truth would have come out during cross examination. As per the argument of the plaintiff counsel that

DW1 does not have any authorization to give his evidence, for which it is the argument of the defence counsel that as per the Indian Evidence Act when the person knows about the facts of the case he can come before the Court to depose about the facts, for which no authorization is required. Infact if it is ratified then the evidence given by him can be considered and it can be admissible, further the contention of defendant is that a person can speak before the Court when he has personal knowledge about the facts of the case on behalf of any party in the personal capacity. Further argued that on the date of giving evidence DW1 was no other than the Senior General Manager HR of defendant company, more over the defendant company also filed resolution copy dated 07.01.2021 along with memo wherein defendant/DW1 is given power to authorize on behalf of defendant company. Accordingly, the above argument is answered against the plaintiff, the argument of the defendant counsel is tenable and convincing as per

IEA a person can give evidence about the known facts, hence the point is

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answered accordingly against the plaintiff.

63.The counsel for the defendant strongly argued that as per Section 14 of the

Specific Relief Act, 1943 (3) a contract cannot be enforceable which involves a continuous supervision and which runs into minute details which also involves depend on the personal qualifications of the parties. Even as per Section 41 of the Specific Relief Act sub-section (e) an injunction cannot be granted to prevent the breach of a contract in which the party would not be specifically enforced and all the 13 suits are non maintainable cases wherein it involves contract of personal services. More over a contract which involves personal qualification and a continuous supervision on the work cannot be enforced under section 41 of Specific Relief Act, but there are three exceptions when a contract can be enforceable i.e., would be possible when the employee is of a State

Government or Central Government or when it relates to institution labour and when the work done under statutory body in the above three services a suit is maintainable for specific performance. In the light of above argument the defence counsel has filed a citation State Bank of India and others Vs., S.N.

Goyal (2008) 8 Supreme Court Cases 92 as per Paras 17 and 18 held that :

17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of

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employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:

(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);

(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and

(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.

There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi AIR 1958 SC 1050; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi 1970 (2) SCR 250; Sirsi Municipality vs. Cecelia Kom Francies Tellis 1973 (3) SCR 348; Executive Committee of Vaish Degree College vs. Lakshmi Narain 1976 (2) SCR 1006; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction AIR 1987 SC 1422).

18. In this case the appellant is a statutory body established under the State Bank of India Act, 1955 and the contract of employment was governed by the State Bank of India Officers Service Rules, which are statutory rules framed under section 43(1) of the said Act. The respondent approached the civil court alleging that his removal from service was in violation of the said statutory rules. When an employee of a statutory body whose service is terminated, pleads that such termination is in violation of statutory rules governing his employment, an action for declaration that the termination is invalid and that he is deemed to continue in service is maintainable and will not be barred by section 14 of the Specific Relief Act.

64.It is also another argument of the defence counsel that if the suit does not

O.S.NO.2157 OF 2017 Page No.48

fall under above three categories then the remedy for the plaintiffs are to claim for damages for the bad termination or illegal termination of the employment, but the civil court does not have jurisdiction to decree for reinstatement of the services of the employees, in favour of the above argument, the learned defence counsel has filed a citation Nand Keshwar Prasad Vs., Indian Farmers

Fertilizers Cooperative Ltd., and others (1998) 5 Supreme Court Cases 461

wherein it is held by Hon’ble Supreme Court that when resignation submitted by appellant on 28.09.1983 was accepted on 30.09.1983. Subsequently, the appellant protested against the acceptance of resignation on the ground that he was made to resign under coercion and therefore its acceptance was not valid.

As per para 12 of the above judgment that when the appellant on the contrary, took the stand that there was no voluntary resignation on his part but a letter purporting to be voluntary resignation was obtained from him under threat and coercion and such purported resignation letter could not be given effect to. It may also be indicated here that the appellant even did not return the salary received by him from the employer for the entire period, namely, from the date of submission of letter of retirement up to the period from which the resignation was to be effective.

65.Even the learned counsel also relied upon the following judgments i.e., (1) (2013) 12 SCC 573, (2) (2006) 3 ALD 99 (2006 SCC Online AP90), (3) 2014 (5) Mh. L.J.11, (4) (1996) 6 SCC 660, (5) 2012 SCC Online Del 1508.

O.S.NO.2157 OF 2017 Page No.49

66.It is one more argument of the defendant counsel that when DW1 was cross examined at length with regard to the resignation letters then he was also got surprised to know, that all the resignation letters was similar. Further more, it is one of the argument of the plaintiff counsel that there are in total 57 employees who were sacked/slashfired in the similar manner as that of the plaintiffs in the above 13 suits, but the plaintiff counsel failed to mention the other employee names who were resigned in the similar lines atleast they were not summoned to give the evidence on behalf of the plaintiff employees.

67.Further from the cross examination of PW1 and from the material placed

before this Court PW2 whose chief examination was filed did not come forward

for facing cross examination as such her evidence was eschewed, but it is the argument of the plaintiff counsel that PW2 was coerced, threatened by the defendant company as such she failed to appear before this Court, who is also one of the employee, who gave resignation in the similar manner. It is rightly argued by the defence counsel that even as per cross examination of DW1 cross,

Sri Lakshmi/PW2 is no way connected and threatened by the defendant company. PW2 was called absent for 7 times as per docket orders and her evidence was eschewed when plaintiff himself reported to this Court she wont come to Court. Infact, even it is presumed that she was threatened by the defendant company then, what made the plaintiff not to file any memo or complaint before the concerned authorities, when the docket orders of the court perused, it is true after giving ample time when PW2 did not appear this Court

O.S.NO.2157 OF 2017 Page No.50

eschewed the evidence. As such, it is rightly argued by defence counsel that no material is placed before this Court to show that PW2 was threatened for giving evidence. Accordingly, the above argument is answered in favour of the defendant. Further more, the plaintiff failed to establish the fraud or coercion methods used by the defendant company and no material is placed before this

Court to show that defendant company has used fraudulent methods for obtaining resignation. More over as per State Bank of India and others Vs.,

S.N. Goyal (2008) 8 Supreme Court Cases 92, it is categorically held that contract of personal service is not specifically enforceable, having regard to bar contained in Section 14 of the Specific Relief Act, 1963. Even if termination breach, the remedy of an employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement.

70.Further the plaintiff counsel relied upon 2006 (3) ALD 99, when the above judgment is perused it is filed before the High Court of Judicature AP at

Hyderabad, related to the fact of facilities provided for establishment and running the school, provided by central government, from which it can safely be concluded that there is a deep pervasive control of school by government as such this case comes under service matters, as it comes under government organization.

O.S.NO.2157 OF 2017 Page No.51

71.Hence from the above all discussion made supra, it is apparent that the contract entered between the plaintiff and defendant company is under personal qualification and in a cursory glance, in the instance case plaintiff prayed under mandatory injunction to re-instatement into service which cannot be specifically enforced in terms of Section 41 (e) of Specific Relief Act, the relief that sought by plaintiff cannot be granted more so, none of the plaintiff’s comes under exceptions, that the plaintiff is not a public servant sought to be removed from service is contraction of Art.311 of constitution of India as much as the plaintiff herein is not a workman i.e., a workman in terms of Section 2 (s) of Industrial

Disputes Act, 1947 who would seek to be reinstate as being taken forceful resignation. As much is not a statutory body which falls within ambit of Art.12 as an instrumentality for the act in breach of violation of the mandatory provisions of structure.

72.This Court wants to rely upon judgment between Chandra Shekar

Malhotra Vs. Nirlon Limited and others 2000 (1) Bom CR 638 on 19 August, 1999, wherein at para No.11 it is clear that law does not permit and the Specific

Relief Act does not contemplate, the enforcement of a contract of a personal qualification can by a decree for specific performance and the facts of the instance case do not fall within the exceptions.

73.On an overall analysis of both oral and documentary evidence adduced by the both parties. Firstly, it is necessary for the plaintiff to prove that he is victim

O.S.NO.2157 OF 2017 Page No.52

of forceful resignation and copy of the resignation letter dated 13.03.2017 was pre prepared and signature was taken on typed resignation letter under pressure and fraud played by the defendant company. The burden is on the plaintiff under Section 101 of IEA to prove the fact that the resignation was taken under coercion, more over apart from the resignation letter, releaving letter, legal notice given to defendant, no other ocular evidence is produced on behalf of the plaintiff that a meeting was held on so and so time and at so and so place.

74.It is also pertinent to mention here that if the resignation was given by plaintiff is involuntarily against due process then, the burden lies on plaintiff to prove that employer’s reason for forcing to resign was illegal. Infact, the plaintiff himself has deposed in his plaint itself that HR department has stated that the “company is in loss”. Further more, it is the argument of plaintiff counsel that the company was not in loss, but recruited many other employees.

Hence, this Court wants to emphasis that if really the company recruited other employees and not in loss and the reason shown by defendant company is false and frivolous, then it is for the plaintiff to prove with all the oral and documentary evidence, but to the surprise apart from resignation letter, acceptance letter service letter and legal notice, no other document is filed by plaintiff. Further more, apart from PW1 no other oral evidence is adduced to believe the version of plaintiff. As per Indian Labour Laws there is no standard process to terminate an employee in India. An employee may be terminated

O.S.NO.2157 OF 2017 Page No.53

according to terms laid out in the individual contract signed between employer and employee. As such to know whether the plaintiff is a permanent employee of a company or there is any due process laid down between both parties, it is very much difficult to say without any document when both the parties failed to adduce evidence and the burden therefore, squarely lies on the plaintiff to establish his case independently to the satisfaction of this court to grant declaration that to declare the resignation letter obtained by defendant company is null and void, for grant of said relief the Hon’ble Supreme Court in catena of judgments reported and has categorically held on whom the burden lies more so in a declaration suit for declaration of title or right the burden always lies on the plaintiff to make out and establish clear case for granting such a declaration and the weakness, if any of the case set up by the defendant would not be a ground to grant relief to the plaintiff and could succeed only on the strength of its own case which could be only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. More over, as per Indian Eviction Act whoever desires any Court to give judgment as to any legal right or liabilities dependent on the existence of facts which he asserts, must prove that those facts exist and burden lies on that person who would fail if no evidence at all were given. On perusal of resignation letter in all 13 cases it is true all are similar, except the dates on the letters, but it is also true that they were signed by the plaintiff which is not in dispute, but it is

O.S.NO.2157 OF 2017 Page No.54

only the contention that they were taken forcefully. It is also another contention that giving 3 months salary and 11 months salary consequently itself shows that resignation was forceful and which means to say that the employer has illegally terminated the employment without following due process of law. It is rightly argued by the defendant counsel that in catena of judgments filed by him for illegal termination the only remedy is to claim for damages, Hon’ble Supreme

Court in Malhotra Vs., Nirlon Ltd., and others held that performance of contract of personal work or services is not enforceable, either at the suit of the employee or the employer.

75.A contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contracts subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer, this rule, however, is subject to 3 exceptions, discussed above and the grant of specific performance is purely discreationary and must be refused when not warranted by ends of justice. Courts does not ordinarily force an employer to recruit on retain as re- instate in service an employee not resigned by the employer.

77.Accordingly, suit stand issues are answered in favour of the defendant.

78.In the result, the suit is dismissed. However, without costs.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court, on this the 17 th day of February, 2022.

SD/-

O.S.NO.2157 OF 2017 Page No.55

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:FOR DEFENDANT: PW1: MVSRK ChaitanyaDW1: MM Chandrasekaran PW2: Eschewed

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1 is the resignation letter dated 13.03.2017.

Ex.A2 is the acceptance of resignation letter dated 13.03.2017.

Ex.A3 is the service certificate dated 10.04.2017.

Ex.A4 is the relieving letter dated 10.04.2017.

Ex.A5 is the legal notice dated 15.05.2017.

Ex.A6 is the reply notice dated 04.07.2017.

FOR DEFENDANT:

Ex. B1 is the HDFC bank statement dated 10.04.2017.

Ex.B2 is the full and final settlement advice dated 07.04.2017.

Ex.B3 is the EPFO claim statement dated 11.02.2019.

Ex.B4 is the EPFO statement dated 05.02.2019.

SD/-

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL

COURT : HYDERABAD

PRESENT : SMT. RADHIKA GUNDLA

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD

THURSDAY, THIS THE 17 TH DAY OF FEBRUARY, 2022

O.S.NO.2158 OF 2017

Between: S.Radha Krishna, S/o S.Prabhu, aged 40 years, Occ : Senior Manager, Employee Code- 4723, H.No.15-29-149/3, Balajinagar,

Kukatpally, Hyderabad – 500 072. ...Plaintiff

And

The Mylan Laboratories Limited, Rep. by its Managing Director, Office at Plot No.564/A/22, Road No.92, Jubilee Hills, Hyderabad, State of Telangana,

India – 500 034. ...Defendant

This suit coming on 02.02.2022 for final hearing before me in the presence of Sri Mohd. Shujauddin, Advocate for the plaintiff and of Sri L.

Prasad Rao, Advocate for the defendant and the matter having stood over till this day for consideration, this Court delivered the following:

JUDGMENT

This suit is filed by the plaintiff under Order VII Rule 1 and 2 read with

Section 26 of the Code of Civil Procedure to declare the forcefully and fraudulently obtained letter of resignation dated 08.03.2017 of the plaintiff and acceptance letter of the defendant dated 08.03.2017 are not valid and not binding on the plaintiff as null and void and to grant mandatory injunction directing the defendant to reinstate the plaintiff into service last served designation in continuation in service without any break with back wages with

O.S.NO.2158 OF 2017Page No.2

all consequential benefits forthwith and in alternate if the Hon’ble Court comes to the conclusion that if the re-instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by the defendant, with the Bank rate of interest till the payment is made within stipulated period, as otherwise the plaintiff is entitle to have re course of execution through Court of law and for costs.

2.The averments of the plaint are in brief: The Mylan Laboratories

Limited is a US based, Multinational Pharmaceutical Company having branches at various parts of India including a branch at R & D Center,

Bollaram, with its Office at Jubilee Hills, Hyderabad. The plaintiff is P.hd, (Chemistry) a initially joined on 09-07-2008 as Research Associate in the then

Matrix Laboratories Limited, later on taken over by the defendant and as such he is an employee working as Senior Manager on a gross pay of Rs.90,000/- and was working to his maximum potential as a devoted employee to the satisfaction of one and all as an employee as well as a co-employee in his general character and he was an asset to the defendant as an employee in all respects. To the surprise and shock on 08-03-2017 at about 11:00 A.M. an HR employee called Plaintiff to attend a meeting at HR Office immediately. He reached HR Office as per the call and found in the conference hall

ChandraShekeran and N. Mallikarjun Rao on behalf of defendant, the HR

Official N. Mallikarjun Rao informed him that “there is an unpleasant news for you” i.e. asked him to resign from the job. He was shocked and surprised,

O.S.NO.2158 OF 2017Page No.3

however enquired as to the reasons for seeking such resignation and the reason for targetting him. Defendant informed him by way of reply that “the organization is in loss of business and there is no fault in your i.e., Plaintiff, professional performance” and thereby forwarded a pre-typed resignation letter dated 08-03-2017 and forced him to sign such resignation letter under compulsion coercively.

3.It is averred by the plaintiff that he initially refused to sign the resignation letter given to him but HR Official N. MallikarjunRao in his sweet talk in a fraudulent manner with veiled threat directed him in an authoritative manner to sign on the resignation letter. Unable to understand how to face an embarrassed situation, never faced in life, he most reluctantly signed on the resignation letter. Such signing of resignation letter was by fraudulent means and also not voluntary but under use of form undue influence, coercion etc., within a few minutes after the resignation letter, that the letter of acceptance

dated 08-03-2017 was forwarded to him accepting his resignation letter, later

on had come to know that about more than 50 employees were forced to resign from the job under the similar manner, playing the same fraudulent practice. Out of total 57 employees among them were 8 Senior Officers, 7 women Officers and 42 Lower Officers were forced to resign their respective jobs in the similar manner and without assigning any reason except false promises later on found to be fraud etc. He was paid 90 days salary in lieu of advance notice to him by the Defendant. Further paid salary of 11 months by the Defendant to him, for such abrupt removal under the guise of resignation, such payment is without any legal basis but paid at the whims and fancie of the Defendant. Such payment of 11 months salary was not agreeable to him,

O.S.NO.2158 OF 2017Page No.4

but under compulsion paid the same to him by the Defendant. He made all out efforts to convince such representative of the Defendant from HR Office by requesting to reinstate him into employment and that he is not ready and willing to accept the advance salary paid in lieu of advance notice. But all such efforts were in vain. Having no other alternate remedy, he got issued legal notice dated 15-05-2017 seeking reinstatement into his job forthwith along with back wages and without break in service. The defendant issued reply dated 04-07-2017 with false and concocted allegations but did not comply his demand through his notice.

4.Further contended that there was no valid reason recognized by law that was involved in the entire process of seeking coercive, compulsive, forceful etc., resignation and acceptance etc., a back door method of removal of the plaintiff from the employment, which is unknown to law. It is evident from the record that he before reaching the age of superannuation, voluntarily seeking retirement, etc., known legal methods of quitting the job voluntarily but the defendant had indulged in a fraudulent method, by passing the known legal process of retirement obtained fraudulently in the pre-planned manner by giving readymade prepared resignation letters creating a situation, where in which an employee/plaintiff himself resigned and accepted the same immediately, that to, on a advancely prepared acceptance letter of resignation on the same day. The reason stated by defendant that the he is running in financial losses of business is not only absolutely false, baseless, concocted but also misleading. In fact he reliably learnt that after the illegal removal of the plaintiff under the guise of resignation and acceptance in a schemed and forceful manner, the defendant had engaged number of employees in the post

O.S.NO.2158 OF 2017Page No.5

vacated by the plaintiff and others and also reliably learnt that in order to accommodate the near and dear persons of higher ups of the Defendant and also political recommendations, he was made a victim for his no fault and fraudulently removed him illegally with false promises of reinstatement soon, most unceremoniously etc., in violation of the provisions of the Industrial

Dispute Act, other related Acts, which is unknown to law. Such illegal and fraudulent removal also amounts to unfair labour practice perpetrated in the most biased manner to accommodate the near and dear. He was made victim of removal from service in a fraudulent manner by way of pick and choose method, by finding him having no influence of higher-ups as “God Father” and also no outside political support, connections, influence etc., due to that reason only, he was made victim as a scape goat unreasonably, without any valid reason and illegally for no fault and no violation of any of the conditions of his appointment is ready and willing to repay all the amounts paid to him by the defendant at the time of stage managed drama of resignation and its acceptance, in case reinstate is ordered by the Hon’ble Court.

5.It is the contention of the plaintiff that the back door method adopted by

Defendant in illegally removing him in a stage managed process, is not only unknown to law of the land but also not mandated by any provision of law. As such the entire process of illegal removal of Plaintiff in a schemed manner is not acceptable to him. The defendant no doubt entitle to remove of an employee by clearly mentioning the reasons recognized by law by following due legal process but unfortunately in violation of all the recognized methods available, he was removed in a pre-planned manner by using coercively, fraudulent method, undue influence, force etc. such illegal removal seeking

O.S.NO.2158 OF 2017Page No.6

his resignation by false promises, threat, coercively, use of force undue influence, authority, power etc., is not valid and binding on the plaintiff. If the defendant would have adopted legal procedure in removing him from the job such as “lay off” “retrenchment” “Retiring voluntarily” etc., the Defendant ought to have to pay to him salary in lieu of remaining balance of service as per law. In order to avoid such payment of salary as per law to the plaintiff, defendant had adopted this fraudulent, coercive, forceful, illegal etc., method of obtaining resignation from him. Such forcefully obtained resignation was purported or appeared to look like voluntarily tendered resignation. All such acts of the Defendant perpetrated against him was clearly with malafied intention to have wrongful gains. By such illegal act of the Defendant, had not only violated all the laws of land for the time being in force, under the similar situation but also had caused infringement of accrued legal rights available to him as per law as an employee. The Defendant being a company registered under the statue Companies Act, is a statutory legal entity bound to follow, duty bound to obey, comply etc., the legal duties casts upon the

Defendant Company.

6.It is the averment of the plaintiff that at the time of Plaintiff entering into service with the Defendant, a contract entered into between the Defendant as an employer and the Plaintiff as an employee. The issue of appointment letter by the Defendant to him at the time of joining of the Defendant

Company, the employment contract was said to have been entered into and came into enforcement. As per the terms and conditions of such employment contract, the Defendant shall not remove, terminate etc., the Plaintiff from the service except by legal mode for valid reasons, recognized by law. Further

O.S.NO.2158 OF 2017Page No.7

vice versa, whenever he as to quit the job he shall have to issue advance notice of 90 days to the Defendant. That certainly obtaining forceful resignation from him under the guise of voluntarily tendered resignation, is not recognized by any law of the land but clearly amounts to breach of employment contract by the Defendant. When there was no valid reasons assigned by the

Defendant in not exercising a legally available mode for his removal from service but indulged in obtaining a fraudulent and forceful resignation, which amounts to breach of employment contract. Such breach of contract by the

Defendant gives rise to a cause of action to him to seek legal remedy. Such forcefully and fraudulently obtained resignation from him and its acceptance on the same day by the Defendant in the preplanned manner are not valid, binding on him but null and void.

7.It is the submission of the plaintiff that absolutely there was no such unavoidable circumstances beyond the control of the Defendant Company that was disclosed by the Defendant but malafidely obtained in voluntarily, a coercive resignation, which is illegal and void ab initio. The Defendant as per law is duty bound shall provide an alternate service on par with the existing designation or pay sufficient salary on the basis of last drawn salary payable for the remaining years of his service. In the event of providing an alternate service to the Plaintiff, such service shall be continous and without interruption to the satisfaction and acceptance of the Plaintiff. Further in the event of not providing any such alternate employment, then as an alternate remedy pay salary to him for the remaining balance of service, taking into consideration, the age of superannuation as 60 years. He had put-up 9 years of service with the Defendant and was working as if he is working for his own

O.S.NO.2158 OF 2017Page No.8

company by putting all his sweat and effort. The way in which fraudulently he was removed, the entire his life and his family was completely thrown onto the streets and their lives were completely ruined. Further clean image, reputation, good will etc., as an hardworking Plaintiff as an employee of the

Defendant and also a law abiding citizen was tarnished due to such illegally removal from the service, without any reason, that to abruptly. His financial planning, condition etc., were completely shattered involving him into a debt ridden person. He and his family are facing lot of financial crisis etc., due to ridden and illegal removal by fraudulent means by the Defendant.

8.Further contended that he had all the potential talent, right to continue in service when by forceful resignation was obtained from him by the Defendant.

That due to illegal removal by fraudulent means from the Defendant, at this age was branded with the stigma in the eye of the other Companies, where he seeks employment and also the society at large. With this forcefully obtained resignation from the plaintiff, that he had become a stigma ridden terminated employee in his professional career, absolutely has no way in getting a good, respectable etc., employment in any other company, with this background of resignation, even though pre-planned by the Defendant the service carrier of the Plaintiff by such illegal removal has become tainted carrier. In all respects he and his family are suffering due to fraudulent removal of him from the

Defendant but also had become stigma ridden employee not able to get employment in any other Company. In a way he is an potential employee, while in service with the Defendant suddenly had become useless and without any utility either to himself personally, family wise but also to the Society at large. He is feeling ashamed in the Society as a castrated entity of no potential

O.S.NO.2158 OF 2017Page No.9

at this young age. Further he is at the young age branded as a retired employee for no fault of his but purely due to illegal manipulations by the

Defendant for wrongful gains.

9.It is the averment of the plaintiff that the present suit is filed seeking the relief of declaration that the forcefully and fraudulently obtained Letter of

Resignation dated 08-03-2017 of the Plaintiff and Acceptance Letter of the

Defendant, dated 08-03-2017 are not valid and not binding on him and to declare the same as null and void. Further the relief of Mandatory Injunction directing the Defendant to reinstate him into service last served designation in continuation in service without any break with back wages with all consequential benefits forthwith. As an alternate relief, if the Hon’ble Court comes to the conclusion that if the re-instatement of Plaintiff in to service is not possible, then to direct the Defendant as otherwise to pay to him salary on par equallent to the salary he was entitle to if continued to be in service during the period of balance of the service taking into consideration 60 years as the age of superannuation of the Plaintiff with consequential benefits deducting the amount already paid to him by the Defendant, with the Bank rate of interest till the payment is made within stipulated period, as otherwise the

Plaintiff is entitle to have re course of execution through Court of Law. A separate Application is filed along with the Suit under Order 39 Rule 2 of CPC for grant of Interim Mandatory Injunction directing the Defendant, his men, agents etc., to reinstate him forthwith into service. Hence this Suit for

Declaration and for Mandatory Injunction.

10.Written statement filed by the defendant and the averments are in brief:

All the averments and allegations made in the Plaint filed by the Plaintiff are

O.S.NO.2158 OF 2017Page No.10

denied as totally false, incorrect and unsubstantiated except those that are specifically admitted hereunder and the plaintiff put to strict proof. The suit in

O.S.No.2158 of 2017 is liable to be dismissed in limini as the relief of re-

instatement or the alternative relief of payment of compensation for the remaining period of service having 60 years of age of superannuation with consequential benefits cannot be granted by the Hon’ble Court and as such the suit is liable to be dismissed. The sole defendant traverses the allegations made in the plaint as follows:- it is true that the defendant is a U.S. based multinational pharmaceutical company having manufacturing facility in different parts of India and it is also true that it has R & D centre at Bollaram and office at Jubilee Hills, Hyderabad.

11.It is the submission of the defendant that the plaintiff joined the defendant company in the month of July, 2008 as Research Associate in the then Matrix Laboratories Limited which got merged into the defendant company. However it is false and incorrect to state that the plaintiff is an employee of the defendant or that he is working as Senior Manager on a gross pay of Rs.1,20,000/- (Rupees one lakh and twenty thousand only) as alleged or at all. The plaintiff had submitted his resignations vide his resignation letter

dated 08-03-2017 citing personal reasons. Though the defendant company

understands and believes it to be correct that the plaintiff is resigning seeking better prospects in some other company. As the plaintiff insisted that his resignation letter should be accepted forthwith, the defendant company has taken a decision to relieve the plaintiff immediately with effect from 08-03- 2017 and accordingly his resignation was accepted and the said fact was intimated to him on the same date. Thereafter the defendant company

O.S.NO.2158 OF 2017Page No.11

addressed a detailed letter on 08-03-2017 informing the plaintiff that he is relieved of his responsibilities/duties as Senior Manager pursuant to his resignation and the plaintiff was also reminded about the confidentiality that he has to maintain even after the resignation. Subsequently the defendant company settled all the amounts including salary and gratuity. The plaintiff received a sum of Rs.11,74,705/-(Rupees eleven lakhs seventy four thousand seven hundred and five only) towards salary and a further sum of

Rs.2,47,112/- (Rupees two lakhs forty seven thousand one hundred and twelve only) towards gratuity and accepted the same without demur.

12.Further contended that the plaintiff worked to his maximum potential as a devoted employee to the satisfaction of one and all, the same has no relevance to the present case as he had already submitted his resignation which was accepted and acted upon by the defendant company and the plaintiff is to shock and surprise was called to attend a meeting by the Human

Resources office of the defendant company on 08-03-2017 at about 11.00

A.M., the same is denied as false and incorrect and the he is put to strict proof.

On the other hand it was the plaintiff who submitted his resignation to the HR

Department of the defendant company and when asked as to why he is submitting his resignation, the plaintiff stated that he got a better opportunity elsewhere. The same are denied as false, incorrect and un-substantiated and the plaintiff has come out with a fabricated and concoted story with a view to get back into the service of the defendant company. The defendant has come to know through reliable sources that the job opportunity that was dangled

before the plaintiff due to which he submitted his resignation did not

materialize and realizing that he is without a job, the plaintiff has come up

O.S.NO.2158 OF 2017Page No.12

with the present cooked up story making false allegations against the defendant company and he is seeking to be re-instituted as an employee of the defendant company. It is reiterated that the plaintiff has submitted his resignation of his resignation of his free will and volition and the same was acted upon by the defendant company. Therefore the question of the defendant company re-instating the plaintiff simply does not arise. It is further denied that the HR Department of the defendant company had forwarded a pre-typed resignation letter dated 08-03-2017 or that they forced the plaintiff to sign the resignation letter under compulsion and coercion. If such allegations were true then nothing prevented the plaintiff to address a letter to the HR Department of the defendant company or directly to the defendant bringing to its notice that his resignation was not voluntary but under force and compulsion. In the absence of any material it can only be stated that the plaintiff having submitted his resignation and having drawn all the benefits that accrued to him pursuant to such resignation has come up with a false story against the defendant with a view to get re-instatement.

13. It is averred by the defendant that the said allegations are contradictory in nature and denied as such. On the one hand the plaintiff alleges that HR officials of the defendant company, viz, N. Mallikarjun Rao sweet talked the plaintiff into submitting his resignation and on the other hand the plaintiff make a contrary statement in the very next breadth claiming that he was threatened to sign the resignation letter. The allegation that the plaintiff submitted his resignation under coercion, undue influence etc., is a mere figment of plaintiff’s febrile imagination and nothing can be farther from truth and denied as such. It was the plaintiff who insisted that his resignation be

O.S.NO.2158 OF 2017Page No.13

accepted forthwith and understanding that the plaintiff was in a hurry in view of a job opportunity, the defendant company’s HR Department let him go by accepting the resignation letter on the same day as per the insistence of the plaintiff.

14.It is the submission of the defendant that some other employees of the defendant company were forced to resign under similar manner, the same is denied as false and incorrect. Even otherwise, the same has no relevance to the plaintiff’s case in as much as he submitted his resignation voluntarily and in fact insisted that his resignation be accepted forthwith. Left with no alternative, the defendant company had to accede the resignation and relieve the plaintiff of his responsibilities. It is denied that the plaintiff was paid only some advance salary in lieu of advance notice. What was paid by the defendant to the plaintiff is a sum of Rs.11,74,705/-(Rupees eleven lakhs seventy four thousand seven hundred and five only) towards final statement of all amounts due to the plaintiff and the said amount was paid on 10-04-2017 by transfer of amounts to the plaintiff’s account maintained with ICICI Bank.

Thereafter the defendant company had also settled gratuity payment in a sum of Rs.2,47,112/- (Rupees two lakhs forty seven thousand one hundred and twelve only) to the plaintiff by crediting the amount to plaintiff’s account maintained with ICICI Bank. He had received the entire amount without lodging any protest as he was eagerly waiting for a better prospect. When the said prospect disappeared, the plaintiff approached the HR officials of the defendant company with a plan to re-instate and when the request was not considered as he already submitted his resignation and as the defendant company had relieved him by paying the entire amounts due to him.

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Aggrieved by the refusal by the defendant company, the plaintiff got issued a notice dated 15-05-2017 making false and fictitious allegations against the defendant company and its HR officials. On receipt of the notice, the defendant company got a reply issued making it abundantly clear that it was the plaintiff who had resigned and accepted the settlement of the entire amounts due towards salary etc., and also the gratuity payment made by the defendant company. It was also made very clear in the reply notice that the plaintiff is making false allegations with a view to get himself re-instated.

Though the plaintiff received the said reply, he did not bother to get any rejoinder notice issued denying the specific allegations made in the reply notice dated 04-07-2017.

15.Further it is absolutely false and incorrect to state and categorically denied that the plaintiff was removed from the employment by the defendant by resorting to ‘back door method’ as alleged or at all. The plaintiff who of his own free will and volition submitted his resignation and insisted that the same be accepted forthwith and when the defendant company acted upon the said resignation and relieved the plaintiff of his responsibilities and also settled all the amounts due to him, the plaintiff accepted the said payment willingly without lodging any protest and as the green pasture in the form of a new job opportunity reversed, he is now seeking to be re-instituted in the company.

The company had acted upon the resignation submitted by the plaintiff and as such the question of re-instating him at his request certainly would not arise. It is further denied that the defendant company had prepared a readymade resignation letter or on a advancely prepared acceptance letter of resignation letter as alleged or at all. It is incorrect to state that the defendant company or

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its employees at any point of time, either stated or gave an impression that the company is running in losses. The said statement is false and made for the purpose of the present case can also be gazed from the fact that the defendant company is a public limited company and its finances are very much available. A mere perusal of such finances would have satisfied the plaintiff that the defendant company is a multinational profit making company.

16.It is the contention of the defendant that the plaintiff was made a victim in order to accommodate the near and dear persons of higher ups of the defendant company and also political recommendations, the same is denied as absolutely false and incorrect. The company is a professional managed multinational company with said objective and said practices for recruiting training and employing people. The plaintiff was removed with the false promise of re-instatement or that it was in violation of the Industrial Dispute

Act or other related act, it is categorically denied that the said provisions of the Industrial Dispute Act or other labour welfare legislation would apply to the plaintiff as by his own admission was of Deputy General Manager and by no stretch of imagination can be considered as a worker. It is further denied that the defendant company had indulged in illegal or fraudulent removal of plaintiff and it amounts to unfair labour practice perpetrated in the most biased manner to accommodate the near and dear or as alleged at all. The plaintiff was relieved of his responsibilities only at his specific request and pursuant to the resignation letter submitted by him, and having realized that the new job opportunity had reversed, he approached the defendant officials to re-instate him in the same capacity in which he resigned. When the said request was not accepted by the officials of the defendant company, the plaintiff came out with

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a false and concocted story seeking a direction to the company to re-instate him in the same position as he left. The defendant company is a multinational company and had proper guidelines for recruiting, training and termination of its employees. The company is known for its fair practices and the allegations of nepotism and favoritism or the bias that are being alleged by the plaintiff are only existed only in the imagination of the plaintiff and have no place in the management or the fair practice adopted by the defendant company.

17.Further it is categorically denied that the plaintiff was removed, that the defendant had resorted to illegal removal of the him in a stage manner or otherwise. The plaintiff perhaps believes that if he rebuts a lie umpteen number of times, it would acquire a patina of truth and would be believed by the Hon’ble Court. If at all, the plaintiff was forced to resign as is being alleged, nothing prevented him to address a letter to the defendant company to that effect and further nobody forced him to accept the payment of gratuity.

The very fact that he received the payments without protest would show that at that time the plaintiff had willingly submitted his resignation for his own benefit and when the better prospects did not materialize he sought to be re- instituted and when his request was not considered he has come up with a false case and consequently initiated the present proceedings which are not maintainable at all as the suit itself is liable to be dismissed in limini.

18.It is the submission of the defendant that the question of “lay off”, “retrenchment” etc., would not apply to the facts of the case in as much as plaintiff is not a worker as defined under the Industrial Dispute Act or any other applicable labour welfare legislation. Even otherwise, having submitted his resignation voluntarily of his own free will and volition in search of better

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prospects cannot turn back after the same was accepted by the defendant and after the benefits including gratuity was paid and claim to be re-instituted. It is denied that the defendant had violated any laws or caused infringement of any legal rights that allegedly accrued to the plaintiff. While it is true that the relationship between the plaintiff and the defendant company are governed by the employment contract and the terms and conditions thereof. It is categorically denied that the defendant had removed or terminated the plaintiff from his service as alleged or at all. On the contrary it was the plaintiff, who on his own submitted his resignation and insisted that his resignation be accepted forthwith and thereafter accepted the payments made by the defendant pursuant to his resignation including gratuity payment. Therefore there is not even an iota of truth in the allegations being made by the plaintiff and the same are liable to be dismissed. The rest of the allegations with regard to the alleged fraudulent and forceful resignations, alleged breach of contract etc., are totally denied as false, incorrect besides being un-substantiated. The plaintiff having realized that he made a foolish decision in resigning to the company has sought to be re-instituted and when the said request was not considered, he come up with a false and concocted story of forced resignation.

19.Further it is denied that the defendant company had obtained the resignation of the plaintiff in a coercive manner or that the said resignation is illegal is denied as false and the further allegation that the defendant is duty bound to provide an alternative service on par with the existing designation or pay sufficient compensation on the basis of last drawn salary for the remaining years of his service is denied. The defendant had any such obligation more so when the plaintiff himself had voluntarily submitted his resignation in search

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of a better prospects and the said resignation was accepted by the defendant.

The company has no such obligation either under law or otherwise to provide any employment to the plaintiff. The defendant understands that the plaintiff is hale and healthy and capable of finding an employment and should not have any difficulty in finding alternative employment elsewhere, that too when the plaintiff had resigned to the job keeping in view of better prospects, no duty is cast upon the defendant either under law or of facts of the case to provide any such employment to the plaintiff. It is admitted that he had worked with the defendant till his resignation, but that does not in any way make him the sole responsibility of the defendant company to be looked after by the defendant to the rest of his life when the plaintiff himself resigned voluntarily, he cannot at this belated stage come up with a false belief that his family thrown out on the streets or their lives are ruined. The company reiterates that the plaintiff had submitted his resignation on his own free will and volition as he was looking for better prospects outside and when they did not materialize, he has turned around and requested the company to take him back. When the said request did not yield any result, has come up with the present suit making false and unsubstantiated allegations against the defendant company.

20.Further it is denied that the resignation submitted by the plaintiff at this age was branded with the stigma in the eye of the other companies or that the society at large. When the plaintiff himself had voluntarily resigned he cannot turn back and say that such resignation affects his reputation in any manner or affects his prospects in getting a good and respectable employment in any other company or that the defendant had resorted to illegal removal and such illegal removal tainted his career. The plaintiff has deliberately come out with

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a false case with a view to mulct monies from the defendant company by resorting to coercion and intimidation. The same are not within the knowledge of the defendant and denied as such for want of knowledge. Even otherwise the plaintiff having voluntarily resigned cannot now at this belated stage claim that he and his family are suffering in any manner. If the plaintiff has a feeling of shame or that of being castrated, he can seek necessary psychiatric advise as the termination of service by the defendant was pursuant to his resignation and nobody would brand him as a retired employee unless he has come up looking for alternative employment. It is further denied that the defendant had manipulated the plaintiff either illegally or otherwise or that the defendant made any wrongful gains by such alleged manipulation.

21.Further it is denied that the present suit is maintainable either on facts or in law. The present suit lacks in merits and is liable to be thrown out by imposing exemplary costs on the plaintiff. So far as the relief of mandatory injunction sought for by the plaintiff, the same cannot be granted and he is not entitled for any relief much less the relief of re-institution or in the alternative the relief of payment of salary for the remaining period of service till he reaches the age of superannuation as is being claimed. The plaintiff comes out with a false frivolous claim with a view to mulct monies that are not due at all.

He seems to be under the impression that the defendant company is a public sector undertaking which is duty bound to take care of him and his family from cradle to grave. The present suit lacks in merits, there is not cause of action arose as alleged or at all for filing the present suit and is malafide filed with an intention to harass and defame the defendant company. The relief of re-institution or in the alternative payment of salary till the plaintiff reaches

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the age of superannuation cannot be granted. It is prayed that this Hon’ble

Court may be pleased to dismiss O.S.No.2158 of 2017 as vexatious and malicious by imposing exemplary costs on the plaintiff.

22.Considering the plaint and written statement and other material on record, this Court framed following issues for trial on 21.02.2018:

1) Whether the Plaintiff is entitled to declare that the letter of

resignation dated 08-03-2017 of the plaintiff and acceptance letter of

the defendant dated 08-03-2017 are not valid and not binding on him and

both documents are null and void?

2) Whether the plaintiff is entitled to grant mandatory injunction by

directing the defendant to reinstate the plaintiff into service in last

served designation, in continuation of service without any break, with

back wages, with all consequential benefits forth with?

3) To what relief?

23.In order to prove the contention of the plaint, the plaintiff got examined

PW1 and PW2, but the evidence of PW2 was eschewed when the plaintiff counsel reported to this Court that PW2 will not come to give evidence.

Exs.A1 to A7 got marked through PW1 wherein Ex.A1 is the resignation letter. Ex.A2 is the resignation acceptance letter. Ex.A3 is the relieving letter.

Ex.A4 is the service certificate. Ex.A5 is the legal notice. Ex.A6 is the reply notice. Ex.A7 is the settlement of accounts.

24.On behalf of the defendant, DW1 is examined and Exs.B1 and B2 marked. Ex.B1 is the HDFC Bank statement dated 10-04-2017. Ex.B2 is full and final settlement advice dated 07-04-2017.

25.The brief averments of the plaint are stated as follows: Initially the plaintiff joined in defendant company i.e., Mylan laboratories Ltd., Road

No.92, Jubilee Hills, on 09.07.2008 as Research Associate and worked as

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Senior Manager, for gross pay of Rs.90,000/- later to the utter surprise and shock on 08.03.2017 at about 11.00 AM as HR employee called plaintiff to attend a meeting at HR Office, immediately, the plaintiff reached HR office as per the call and found Chandra Shekaran and N. Mallikarjun Rao on behalf of defendant company for the meeting. Further HR official N. Mallikarjun Rao informed plaintiff that he has to resign from the job, as “the organization is in loss of business” and there was no fault with plaintiff with regard to his professional performance, thereby forwarded pre-typed resignation letter dated 08.03.2017 to plaintiff for signing on the resignation letter.

26.Further, it is contended by the plaintiff that initially he refused to sign the resignation letter given to plaintiff but with the sweet talk of HR official in a fraudulent manner by veiled threat made him to sign on the resignation letter, later within a few minutes, the resignation letter was accepted by defendant company. After that he was given with 90 days salary in lieu of advance notice, further paid 11 months salary by defendant company, the crux of the plaint averment are that the resignation was taken by the defendant company by playing fraud with coercion, as the defendant is in dominent position over the plaintiff for which the above suit is filed for declaration, (a) to declare the forceful and fraudulently obtained letter of resignation dated 08.03.2017 of the plaintiff and acceptance letter of the defendant dated 08.03.2017 are not valid and not binding on the plaintiff, as null and void, (b) to grant mandatory injunction directing the defendant to reinstate the plaintiff into service from the last date of service, in continuation in service without any break with back wages and with all consequential benefits forthwith, otherwise alternatively if the Court comes to conclusion that if the re-

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instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by defendant with the Bank rate of interest till the payment is made within stipulated period or otherwise the plaintiff is entitle to have recourse of execution through court of law.

27.Per contra, the defendant filed his written statement contending that the plaintiff joined the defendant company on 09.07.2008 as Research Associate in Matrix laboratories Ltd., which got merged into the defendant company later, he served the defendant company as Senior Manager for the gross pay of Rs.1,20,000/-, it is submitted by defendant that the plaintiff himself has given voluntary resignation 08.03.2017 seeking for better prospects in some other company. Further insisted that his resignation be accepted immediately, as such the defendant company left with no option has taken decision to relieve the plaintiff from duties with effect from 08.03.2017 by accepting the resignation letter immediately. Subsequently all the amounts including salary and gratuity were settled and the plaintiff received a sum of Rs.11,74,705/- towards full and final settlement without demur. Further denied that on the date of resignation a meeting was held with HR official of defendant company at 11.00 AM for forcing the plaintiff to give resignation, but it is the contention of the defendant company that the plaintiff himself has resigned the company for better opportunities, further denied to all the allegations made against the defendant company, more particularly it is the contention of the defendant company that, the plaintiff has received all the amount in total

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Rs.11,74,705/- towards final settlement on 07.04.2017 till then plaintiff did not protest and was eagerly waiting for a better prospect, when prospects disappeared then plaintiff came before the the HR officials of the defendant company for re-institution. When the company refused for reinstatement having paid all the settlement amount, aggrieved by the same, plaintiff got issued legal notice dated 15.05.2017 mentioning the false and fictitious allegations. As such, in crux the defendant company contends that plaintiff come up with a false and frivolous claim with a view to mulct monies that are not due at all, it is not a public company to undertake him and his family from cradle to grave. Hence, prayed to dismiss as the re-institution or in the alternate payment of salary till the plaintiff reaches the age of superannuation cannot be granted.

28.This Court heard the learned counsel appearing for plaintiff and heard counsel appearing for the defendant. The arguments of the plaintiff is a nut shell are that defendant company has forcefully taken resignation from plaintiff by playing fraud. Per contra, it is the argument of defendant counsel that they never took any forceful resignation, infact plaintiff himself voluntarily gave resignation for better opportunities.

29.The point for consideration in the above suit is whether the resignation letter dated 08.03.2017 addressed to the defendant company relieving from duty and the alleged acceptance of his resignation letter dated 08.03.2017 is not valid and not binding on the plaintiff as null and void, and whether the plaintiff is entitled to re-institution into service with all consequential benefits.

For Better appreciation both Issue Nos.1 & 2 are discussed together:-

30.Admittedly, the plaintiff submitted his resignation on 08.03.2017 and

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the plaintiff was relieved from duty with immediate effect accepting the resignation. After about two months from the date of resignation the plaintiff gave legal notice to the defendant company for the forceful resignation taken by defendant company. It is the contention of plaintiff that, the defendant by playing fraud with a coercive manner with the sweet talk by the HR manager

Mallikarjun Rao obtained the resignation from plaintiff. The version of the plaintiff as could be seen from the affidavit filed in support of his contention as PW1, is that all of a sudden to the utter surprise he was called to a conference room by the HR department and gave a pre-typed resignation letter to sign on it stating that the company is in loss, further, without the free will and consent of the plaintiff, with false promises of re-institution of plaintiff, in violation of industrial dispute Act and other related Acts obtained signature on resignation letter, further accepted the resignation letter and relieved the plaintiff from services.

31.In support of the contention of the plaintiff the following citations are filed:

1. H.V. Rajeshwari Vs., Deputy Inspector General of Police (Manager CRPF

School) Hyderabad 2006 (3) ALD 99 held in paras 14 and 17 that

14. Whenever an employee submits resignation, the superior authority is expected to examine the matter dispassionately and ensure as to whether the resignation was submitted voluntarily. A gracious person with human approach would, in fact, ensure that resignation submitted out of frustration or based on emotional and instant reaction, is not acted upon, and the employee be given an opportunity to cool down. Here is a case, where the Additional D.G.P. has put all his efforts to drive away the petitioner from the institution and has pressurized her to sign on a typed letter of resignation The falsity of the allegation of the

Additional D.I.G. is evident from the fact that the appointing authority

regularized the services of the petitioner just few months earlier to this episode.

Petitioner was found to have successfully completed her probation. His guilty

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consciousness is evident from the following paragraph, where he tried to explain the over writings on the letter of resignation.

17. For the foregoing reasons, the writ, petition is allowed, and it is held that the proceedings, dated 4.8.1999 and 21.9.1999, are illegal, arbitrary and violative of

Articles 14 and 21 of the Constitution of India. The respondent shall reinstate the petitioner into service forthwith. Since the petitioner approached this Court at a belated stage, it is directed that she shall be entitled to 50% of back wages. It shall be paid to her within a period of three (3) months from the date of receipt of a copy of this order. There shall be no order as to costs.

2. Habeeb Khan and others Vs. Valasula Devi and others AIR 1997 Andhra

Pradesh 53 it was held in paras 30, 31, 32 and 41 that

Evidence Act (1 of 1872) S.101, S.104, S.114 – Best evidence – Party in

possession withholding it – Relying upon doctrine of onus of proof – Not

sound practice.

It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court, the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. The effect of withholding the best evidence available to a party is that adverse inference should be drawn against that party for withholding the same.

(Paras 30, 31)

Adverse inference can be drawn against a party which withholds important and material witness.

(Para 32)

Contract Act (9 of 1872), S.16 – Undue influence – Proof – Person exercising undue influence was in position to dominate and tie used that position to obtain unfair advantage must be proved.

in order to establish undue influence in a case of nature of inter vivos transactions as is embodied in Section 16 of the Indian Contract Act, 1872, two important things must be proved; one, that the relation between the parties was such that the vendee or the donee was in a position to dominate the Will of the vendor or the donor and he has used that position to obtain an unfair advantage over the vendor or the donor and it is insufficient for a person seeking the relief to show that the relations of the parties have been such that one naturally relied upon for the advice and the other was in a position to dominate the Will of the first in giving it.

(Para 41)

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3. Cable Corporation of India Limited, rep. by its CFO & Company Secretary,

Mr. Surendra Khemka Vs. A.P. Micro and Small Enterprises Facilitation

Council, Government of Andhra Pradesh, Commissionerate of Industries, A.P.,

Hyderabad and another 2013 (4) ALT 24 (DB) wherein it was held “In the light of the decisions rendered by this Court, it is made clear that Rule 32 is not mandatory.”

32.We have now to examine the present case in the context of the principles laid down by the Hon’ble Supreme Court in the judgments, the version of the plaintiff as could be seen from the affidavit is that the resignation was obtained by playing fraud and coercive methods by the defendant company and failed to produce the HR Mallikarjun Rao who took forceful resignations. As such adverse inference can be drawn under Section 114 of Indian Evidence Act.

33.On an overall material available on record. Apart from the above suit, all together there are 13 cases filed by the different plaintiff against the defendant company with same allegations and common trial was conducted, wherein plaintiffs are working in Mylan company and the HR manager given pre-typed resignation letter and forced to sign on it stating that the financial position of the company is critical, but it is the argument of the plaintiff that there is no such financial crisis to the company, but, utter to surprise the contention of plaintiff is that the defendant company has appointed freshers and gave promise that when the conditions become well then they will re- instate plaintiff’s into the company, for the above said allegations, it is the argument of defence counsel that apart from mere allegations, no documentary evidence is adduced, to show that after taking resignation from plaintiff’s, the company has again recruited new employees, they are all cooked up stories created for the purpose of filing above suit, hence the above allegations does

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not stand.

34.It is the another argument and contention of the plaintiff that there is a procedure and method for the removal of employee from the company that, if the conduct of the employee is not good and if they are any irregularities then company has to give show cause notice and a preliminary enquiry has to be conducted but no such prior notice was given, all of a sudden HR manager called them and gave typed resignation letter and the same was accepted on the same day, all the resignation letter shows that same wording i.e., “due to

personal reasons I am resigning from the services of the company with

immediate effect” it is an another argument of the plaintiff counsel that, if the resignation is voluntary by the employee there is a mode for resignation and to accept the resignation it will take minimum of 1 to 90 days. Usually first the resignation letter will be forwarded to his immediate higher authorities and from there to highest authorities i.e., Board of Directors i.e., from Assistant

HR to HR, from HR to Director of the company, but no such process was forwarded or followed by defendant company which clearly shows that the defendant company has obtained resignation from plaintiff by using forceful methods and by using undue influence etc., for which defendant company argued that though the defendant company understands about the procedure and prospects, believes it to be correct, thought for a while about better prospects of the plaintiff seeking in some other company. Thus, accepted the resignation letter soon after they were taken. Further more, the plaintiff himself insisted that his resignation letter should be accepted forthwith with immediate effect. Accordingly, the plaintiff resignation was accepted soon after it was taken and also issued detailed letter informing about the

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confidentiality to maintain even after resignation. It is another argument of defendant that even if the termination is illegal then the plaintiff was entitled to seek relief by filing suit for damages but not specific performance for breach of contract or declaration for resignation as null and void or for re- instate into service.

35.It is another contention of the plaintiff that there exists employee and employer relationship and has to abide by the Industrial Dispute Act, but again counsel himself argued that as per Section 2(c) of Industrial Disputes Act, the salary of the employee should not be more than Rs.40,000/- per annum to file suit under the above Act. As the plaintiff does not come under workman but comes under officer category and was getting amount more than Rs.40,000/- per annum, as such labour act does not apply. As such in alternate, this Court is having jurisdiction to try the suit.

36.At the same time the plaintiff counsel filed citation, along with

additional arguments, wherein it was categorically urged about the

maintainability of suit in civil court (and relief of re-instate can be sought for against the defendant company). Infact, at no point of time the defendant disputed about the maintainability. But, this Court opines that, it is pertinent to discuss about maintainability and whether court is having jurisdiction to entertain the suit or not. Firstly, let us discuss who comes under Industrial Act and who is workman under Industrial Act. As rightly argued by plaintiff counsel workman – in Industrial dispute/workman comes under the definition of Section 2 (S) of Industrial Dispute:

6. Industrial Dispute/Workman comes under the definition of Sec.2(S) of the

Industrial Dispute-remedy in the Industrial Tribunal.

In case if the workman whose rights have been infringed wanted to seek

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remedy and the workman whose salaries less than Rs.10,000/- falls in the definition of workman U/Sec.2 (s) Act, 1947, can approach by initiating its application before the Industrial Tribunal or Labour Court seeking the relief. The

Industrial Tribunal of the Labour Court is the appropriate Forum to entertain the application of the aggrieved petitioner i.e., workman.

7. Workman working in a Public Limited Company or Government undertaking etc., remedy for the workman is under Article 226 of Constitution of India a Writ

Petition is maintainable before the Hon’ble High Court.

In case if the workman is working in a Public Limited Company or any

Government Department under taking etc., if the rights of the workman are violated and the workman aggrieved by such infringement of his rights can seek remedy by filing Writ Petition under Article 226 of Constitution of India. In the

Writ Petition any remedy can be claimed and the Hon’ble Court has ample powers to grant any relief in the Writ Petition.

8. Workman working in a Private Limited Company and the salary of the workman is more than s.10,000/- and the workman does not come under the definition of Sec.2 (S) of the Industrial Dispute Act 1947-Remedy of the workman is under General Laws invoking Sec.9 of CPC

In case if the workman is working in a Private Limited Company, if the rights of the workman are violated and the workman aggrieved by such infringement of his rights can seek remedy by filing Civil Suit invoking Sec.9 of CPC before the competent civil court. In the civil suit the Hon’ble Civil Court has ample powers to grant any relief in the suit including reinstatement with back wages etc.

10.The decision reported in 2012 (3) ALT Page 487 Justice R. Kanta

Rao clearly held that a civil suit is maintainable a workman can raise

Industrial Dispute are equally can seek Redressal of Grievance by asking

declaratory relief. Employee can raise Industrial Dispute or equally can seek

Redressal or Grievance by asking the declaratory relief by invoking the

Jurisdiction of Civil Court.

37.In support of his argument, the plaintiff filed following citations:

I) 2009 (5) SCJ 757 Full Bench Rajasthan State Road Transport Corporation and another Vs., Bal Mukhund Barwa

II) 2008 (4) SCJ 483, III 2012 (3) ALT 487

38.As per above arguments and citations filed by the plaintiff counsel this court is inclined to look into Section (9) of CPC wherein civil court lacks

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jurisdiction to entertain a suit structured on provisions of Industrial Disputes

Act, but the plaintiff counsel himself argued that the plaintiff does not come under workman but they come under officers capacity, on the other hand learned counsel for the plaintiff argues that on the basis of language of Section 9 of the Code of Civil Procedure, if the remedy is not available under

Industrial Dispute Act, then in alternate he can also file civil suit for declaration.

39.From the citations filed by counsel for plaintiff and for the above reasons discussed, this Court opines that this Court is having jurisdiction to entertain the suit under Section 9 of the Code of Civil Procedure which is read as : Courts to try all civil suits unless barred i.e., courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

40.Further, it is another argument of the plaintiff counsel that DW1 admitted in the cross examination as follows “it is true that in the agreement

entered into by the plaintiff and the defendant, there is a condition that

the employee or the employer has to remove the employee or quit the

employee has to issue 3 months notice in advance as otherwise in the

event of not issuing notice, 3 months salary will be deposited by the

employee or employer”. Admittedly the defendant company has deposited 3 months salary in lieu of advance notice, which was mandatory before sudden termination from service. It is another argument of plaintiff counsel that there was absolutely no need for the defendant company to deposit three months salary in lieu of three months advance notice after obtaining signature on resignation letter and also 11 months salary one year salary to each of the

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plaintiff, as such payment into the accounts of each of the plaintiff itself clearly establishes the fact that the defendant company obtained resignations by use of force and as a eye wash deposited about 13 to 14 months salary into the each of the accounts of plaintiff.

41.Per contra, the defendant company urged that even if the termination is illegal then plaintiff at the time of taking 90 days salary and 11 months salary did not protest, and there was no refusal and no word from plaintiff but utter to surprise after 2 months in the month of May issued legal notice to defendant company and the remedy for the plaintiff is only by way of damages but not under SR Act.

42.It is another contention of the plaintiff’s that there are about 57 employer i.e., more than 50 employees of Mylan company were forced to resign from the job under similar manner, playing some forceful tactics, by fraudulent means, for which the defendant counsel argued that apart from mere allegations not a single document was filed by plaintiff, nor failed to mention the names of the employer who were forced to resign, more over as per the cross of DW1 it is contended that when all the employees tried to enter into the defendant company they were not allowed and prohibited to enter which was denied by the DW1, apart from that it is contended that at the time of entering into service with defendant company, they entered into a contract and as per the terms and conditions of such employment contract the defendant shall not remove, terminate etc., from service except by legal mode for valid reasons recognized by law.

43.At this juncture, in order to answer the above allegations and argument of both counsels, when this Court perused all the material available on record,

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neither the plaintiff nor the defendant had filed any document relating to the employment contract entered by both parties i.e., contract letter, appointment letter or confidentiality agreement to know about the terms and conditions between the parties that outlines the rights, responsibilities and obligations of an employer and employee, it is a settled law that one who pleads the court to believe on the fact, it becomes the duty of the party to plead and prove under

Evidence Act. Infact the crucial document of contract or agreement entered between the defendant company with plaintiff is not filed before this Court.

44.It is also the argument of defendant company that if the company has really obtained the resignation from 57 employers all together, then why only 13 plaintiff employees have filed the suit, and what made them not to mention the details of other employees in the plaint, which made this Court to think for a while, leaving it, the plaintiff counsel argued that the resignation letter were pre typed one, with similar wordings to answer the same, when DW1 cross examination is perused he was also utter to surprise dis believed and failed to answer. More over, it is the argument of defence counsel that even if it is illegal termination for a while, then why the plaintiff failed to raise voice (or) why plaintiff accepted amount and did not protest, when the company has paid 3 months salary in advance, and 11 months salary in consequence to the resignation, it is only because when the plaintiff failed with better opportunities they came with the above suit. More over, even if the termination was bad the plaintiff can file for damages, but not for re-instate and back wages.

45.The vehement argument of the defendant company adverting to the citation filed in their support is that only upon three conditions the suit is

O.S.NO.2158 OF 2017Page No.33

liable to be decreed that too for damages not for mandatory or permanent injunction they are,

1. where a public servant is sought to be removed from service in contravention of the provisions Article 311 of Constitution of India

2. where a worker is sought to be reinstated as being dismissed under the Industrial Law.

3. where a statutory body acts in breach of violation of the mandatory provisions of the statute

46.The below are the citations filed by defendant company in support of their arguments:

1. Executive Committee U.P. Warehousing Corporation Vs., Chandra Kiran

Tyagi 1969 (2) SCC 838

2. Bank of Baroda Ltd., Vs., Jeewan Lal Mehrotha 1970 (2) SCC 677

3. Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs., Badri Nath

Dixit and others (1991) 3 SCC 54

4. Integrated Rural Development Agency Vs., Ram Pyare Pandey 1995 Supp (2) SCC 495

5. Pearlite Liners (P) Ltd., Vs., Manorama Sirsi (2004) 3 SCC 172

6. Ms. Ismath Ahmedizade Mahmoodi Abidi Vs., Mrs. Kurshidunnisa Begum 2002 (3) APLJ 206 (HC) wherein it is a well settled principle of law that a contract of personal service cannot be specifically enforced and a court will not give declaration that the contract subsists and employer cannot be forced to take an employee with whom relations have reached a point to complete loss of faith between the two, except in above three cases.

47.From the above citations filed by defence counsel, and from the argument of defendant company, let us know the relation between employee and employer in a private contract for personal services between the parties which can be specifically enforceable or not, further there lies any injunctions

O.S.NO.2158 OF 2017Page No.34

except damages. For the better appreciation this Court inclined to look into the relationship of private employee with the employer company, The relationship between the employer and employee depends mainly on payment of wages, power of dismissal and employer’s power to control the employee and as the means and methods by which the work is accomplished in general.

49.The Supreme Court of India in Percept D Mart Pvt. Ltd., Vs., Zaheer

Khan and another (AIR 2006 S(3426) and the Delhi High Court in infinity

optional solutions Pvt. Ltd., vs Vijender Singh (CS(OS) 1807/2009)

observed that contracts for personal service are dependent on mutual trust and confidence and specific performance of such contracts were held to be bared under Sec. 14 (1) of Specific Relief Act 1963. Even it is the argument of defence counsel that the contract for personal services can not be specifically enforceable under 21 of specific relief Act. As per the version of plaintiff, he is an ex-employee of defendant company, his resignation was accepted and he is terminated from services on 08.03.2017, presumed to be illegal termination of services, the plaintiff filed the present Suit to declare such resignation taken by using fraud and coercion as null and void in alternative, if the Hon’ble

Court comes to the conclusion that if the re-instatement of plaintiff into service is not possible, then to direct the defendant as otherwise to pay to the plaintiff salary on par with the salary during the remaining period of the service, taking into consideration 60 years as the age of superannuation of the plaintiff with consequential benefits deducting the amount already paid to plaintiff by the defendant, with the Bank rate of interest till the payment is made within stipulated period, as otherwise the plaintiff is entitle to have re course of execution through Court of law.

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50.Here, Court opines to discuss about cases, where the employee is forced to resign, and what are those circumstances that are forced for the company to take forceful resignation. As an employer, the company may come to a decision that it’s the time for employee to part ways, then the decision may be purely financial one, as a means of reducing payroll, or it may be based on variety of other factors, such as poor performance or a working style that doesn't fit well with employee adhere. In those circumstances employee can be fired or asked to resign is lieu of termination, the key difference between resignation and termination of as employee is a matter of who formerly initiates the action, if the company ends employment it may be sometimes because the financial reasons, as argued by plaintiff company in case of lay off then only there is a possibility of relieving from the company. A Firm may also ask employee to voluntarily resign rather than to forcible termination. A resignation may be the best interest of both parties.

51.As per plaintiff, DW1/defendant witness himself admitted that it was true in the agreement entered into by the plaintiff and defendant there is a conditions that the employee or the employer has to remove the employee or quit the employee has to issue 3 months notice in advance, in alternate three months salary will be deposited by employee or employer. As such as per the terms of agreement even though defendant company failed to issue notice and has obtained forceful resignation, in alternate deposited 90 days salary in terms of Advance notice, further also deposited 11 months salary into Plaintiff

Account. As such defendant counsel argued that if the termination is bad then plaintiff is only having remedy to file for damages, but not for reinstatement into service.

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52.Further it is another argument of plaintiff counsel that defendant cannot unilaterally has a right to over look the devoted service of the Plaintiff who even did not think about other job while working with the defendant company having listed in multi national listed company and good prospects. The plaintiff has never ever imagined that he would have to face a day with such type of insult and malicious/unkind treatment by the Defendant company, and further submitted that as aforesaid having worked for more than 5 five the plaintiff never gave any king of complaint to the defendant his involuntary forceful resignations is absolutely illegal. Due to the nefarious act has brought serious mental pass to the plaintiff when is there was no due procedure.

When the defendant did not gave any satisfactory reply for his sudden forceful resignation, he got served a legal notice dated 15.05.2017, thereby calling upon the defendant to recall and reinstate him in his old service.

Further it is the contention of the plaintiff that he did not apply any where for his job, infact, he is constrained to remain jobless thus the case of action arose.

54.In order to answer the same, this Court inclined to look into the Exs.A2 and A4 wherein it was clearly mentioned that they have initiated plaintiffs full and final settlement process and will be subject to final settlement of dues.

Ex.A3 to maintain confidentiality under clause 8, clause 11, clause 12 of confidentiality agreement signed by plaintiff.

55.From the above discussion it is crystal clear that there is an agreement between the parties, which discloses certain clauses between the parties and they are of more confidentiality, even by the written arguments filed by plaintiff counsel there was a clause of including 3 months notice by either of the parties before parting with each other.

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56.But to be precise, no such confidentiality agreement or any other terms of agreement between the parties were filed by the parties before the court which becomes the crucial and important document to answer the above issues.

57.Per contra, it is rightly urged by defendant counsel that the management has paid 3 months salary in lieu of notice period, further paid 11 months salary towards full and final settlement, it is also admitted fact that an amount was also deposited into plaintiff Account. As such, even if the termination is illegal the only relief for the plaintiff is to file a suit for damages.

58.The Hon’ble Supreme Court in M/s Pearlite Liners pvt. Ltd., Vs

Manorama sirsi, 2004 (3) SCC 172, wherein legal question for consideration which arose was “can a contract of service be specifically enforced” to submit that where the contract falls within the domain of a contract of Personal

Services upon personal qualifications which is specifically barred under the provisions of Specific Relief Act. The relationship between the parties is based on a contract between the two private parties, admittedly, there was a written contract, it would have contained terms and conditions governing the relationship between the parties, inspite of the same, plaintiff challenged the forceful resignation as null and void. The prayer of the plaintiffs as made through the plaint seeking declaration that the defendant company taken forceful resignation dated 08.03.2022 was illegal and invalid was not binding upon defendant company, granting mandatory injunction directing defendant company to reinstate the plaintiff back in his later services with all consequential relief was specifically barred in terms of the provisions of SR

Act 1963,

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59.Admittedly the relationship between the parties is based on a contract, but no such document filed by the parties, even for a while if we think that there is no such agreement in written, then there would have been some terms of oral agreement between them. When defendant denied all allegations of plaintiff, then it becomes the duty of plaintiff to bring before this court the factum of forceful resignation, but apart from the self resignation letter, nothing has come before this court to believe fraudulent action of defendant company.

60.Moreover the prayer seeking reinstate of the plaintiff as an employee into the defendant company, really amounts to seeking specific performance of personal service which purely dependent as personal qualification of the plaintiff, which is specifically barred under the provisions of SR Act, it is a settled law that personal services cannot be specifically enforced. It is rightly argued that there are 3 exceptions for the above:

1. where a public servant is sought to be removed from service in contravention of the provisions Article 311 of Constitution of India

2. where a worker is sought to be reinstated as being dismissed under the Industrial Law.

3. where a statutory body acts in breach of violation of the mandatory provisions of the statute

As such, the present case does not fall in any of the three exceptions and is filed by private employee wherein normally they would be governed by the terms and conditions.

62.It is another argument of plaintiff that DW1 is not authorised to give evidence and should have taken permission from the court by filing Rule 32 and Rule 33 petitions, atleast by filing affidavit. More over, Mallikarjun Rao who was along with HR did not give evidence and entered witness box, as such non examination of HR manager of the defendant company, itself shows

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that he does not want to get the truth come out, and an adverse inference can be drawn under Section 114 (g) of the Evidence Act, it is the argument of plaintiff company that if the HR manager would have faced examination all the truth would have come out during cross examination. As per the argument of the plaintiff counsel that DW1 does not have any authorization to give his evidence, for which it is the argument of the defence counsel that as per the

Indian Evidence Act when the person knows about the facts of the case he can come before the Court to depose about the facts, for which no authorization is required. Infact if it is ratified then the evidence given by him can be considered and it can be admissible, further the contention of defendant is that a person can speak before the Court when he has personal knowledge about the facts of the case on behalf of any party in the personal capacity. Further argued that on the date of giving evidence DW1 was no other than the Senior

General Manager HR of defendant company, more over the defendant company also filed resolution copy dated 07.01.2021 along with memo wherein defendant/DW1 is given power to authorize on behalf of defendant company. Accordingly, the above argument is answered against the plaintiff, the arguments of the defendant counsel is tenable and convincing as per IEA a person can given evidence about the known facts, hence the point is answered accordingly against the plaintiff.

63.The counsel for the defendant strongly argued that as per Section 14 of the Specific Relief Act, 1943 (3) a contract cannot be enforceable which involves a continuous supervision and which runs into minute details which also involves depend on the personal qualifications of the parties. Even as per

Section 41 of the Specific Relief Act sub-section (e) an injunction cannot be

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granted to prevent the breach of a contract in which the party would not be specifically enforced and all the 13 suits are non maintainable cases wherein it involves contract of personal services. More over a contract which involves personal qualification and a continuous supervision on the work cannot be enforced under section 41 of Specific Relief Act, but there are three exceptions when a contract can be enforceable i.e., would be possible when the employee is of a State Government or Central Government or when it relates to institution labour and when the work done under statutory body in the above three services a suit is maintainable for specific performance. In the light of above argument the defence counsel has filed a citation State Bank of

India and others Vs., S.N. Goyal (2008) 8 Supreme Court Cases 92 as per

Paras 17 and 18 held that :

17. Where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in section 14 of the Specific Relief Act, 1963. Even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement. The three well recognized exceptions to this rule are:

(i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309);

(ii) where a workman having the protection of Industrial Disputes Act, 1947 is wrongly terminated from service; and

(iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules.

There is thus a clear distinction between public employment governed by statutory rules and private employment governed purely by contract. The test for deciding the nature of relief damages or reinstatement with consequential reliefs is whether the employment is governed purely by contract or by a statute or statutory rules. Even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable. Conversely, where the employer is a non-statutory body, but the

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employment is governed by a statute or statutory rules, a declaration that the termination is null and void and that the employee should be reinstated can be granted by courts. (Vide : Dr. S. Dutt vs. University of Delhi AIR 1958 SC 1050; Executive Committee of UP State Warehousing Corporation Ltd. Vs. Chandra Kiran Tyagi 1970 (2) SCR 250; Sirsi Municipality vs. Cecelia Kom Francies Tellis 1973 (3) SCR 348; Executive Committee of Vaish Degree College vs. Lakshmi Narain 1976 (2) SCR 1006; Smt. J. Tiwari vs. Smt. Jawala Devi Vidya Mandir AIR 1981 SC 122; and Dipak Kumar Biswas vs. Director of Public Instruction AIR 1987 SC 1422).

18. In this case the appellant is a statutory body established under the State Bank of India Act, 1955 and the contract of employment was governed by the State Bank of India Officers Service Rules, which are statutory rules framed under section 43(1) of the said Act. The respondent approached the civil court alleging that his removal from service was in violation of the said statutory rules. When an employee of a statutory body whose service is terminated, pleads that such termination is in violation of statutory rules governing his employment, an action for declaration that the termination is invalid and that he is deemed to continue in service is maintainable and will not be barred by section 14 of the Specific Relief Act.

64.It is also another argument of the defence counsel that if the suit does not fall under above three categories then the remedy for the plaintiffs are to claim for damages for the bad termination or illegal termination of the employment, but the civil court does not have jurisdiction to decree for reinstatement of the services of the employees, in favour of the above argument, the learned defence counsel has filed a citationNand Keshwar

Prasad Vs., Indian Farmers Fertilizers Cooperative Ltd., and others (1998)

5 Supreme Court Cases 461 wherein it is held by Hon’ble Supreme Court that when resignation submitted by appellant on 28.09.1983 was accepted on 30.09.1983. Subsequently, the appellant protested against the acceptance of resignation on the ground that he was made to resign under coercion and therefore its acceptance was not valid. As per para 12 of the above judgment that when the appellant on the contrary, took the stand that there was no voluntary resignation on his part but a letter purporting to be voluntary resignation was obtained from him under threat and coercion and such

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purported resignation letter could not be given effect to. It may also be indicated here that the appellant even did not return the salary received by him from the employer for the entire period, namely, from the date of submission of letter of retirement up to the period from which the resignation was to be effective.

65.Even the learned counsel also relied upon the following judgments i.e., (1) (2013) 12 SCC 573, (2) (2006) 3 ALD 99 (2006 SCC Online AP90), (3) 2014 (5) Mh. L.J.11, (4) (1996) 6 SCC 660, (5) 2012 SCC Online Del 1508.

66.It is one more argument of the defendant counsel that when DW1 was cross examined at length with regard to the resignation letters then he was also got surprised to know, that all the resignation letters was similar. Further more, it is one of the argument of the plaintiff counsel that there are in total 57 employees who were sacked/slashfired in the similar manner as that of the plaintiffs in the above 13 suits, but the plaintiff counsel failed to mention the other employee names who were resigned in the similar lines atleast they were not summoned to give the evidence on behalf of the plaintiff employees.

67.Further from the cross examination of PW1 and from the material placed before this Court PW2 whose chief examination was filed did not come forward for facing cross examination as such her evidence was eschewed, but it is the argument of the plaintiff counsel that PW2 was coerced, threatened by the defendant company as such she failed to appear before this Court, who is also one of the employee, who gave resignation in the similar manner. It is rightly argued by the defence counsel that even as per cross examination of

DW1 cross, Sri Lakshmi/PW2 is no way connected and threatened by the defendant company. PW2 was called absent for 7 times as per docket orders

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and her evidence was eschewed when plaintiff himself reported to this Court she wont come to Court. Infact, even it is presumed that she was threatened by the defendant company then, what made the plaintiff not to file any memo or complaint before the concerned authorities, when the docket orders of the court perused, it is true after giving ample time when PW2 did not appear this

Court eschewed the evidence. As such, it is rightly argued by defence counsel that no material is placed before this Court to show that PW2 was threatened for giving evidence. Accordingly, the above argument is answered in favour of the defendant. Further more, the plaintiff failed to establish the fraud or coercion methods used by the defendant company and no material is placed

before this Court to show that defendant company has used fraudulent

methods for obtaining resignation. More over as per State Bank of India and others Vs., S.N. Goyal (2008) 8 Supreme Court Cases 92, it is categorically held that contract of personal service is not specifically enforceable, having regard to bar contained in Section 14 of the Specific Relief Act, 1963. Even if termination breach, the remedy of an employee is only to seek damages and not specific performance. Courts will neither declare such termination to be a nullity nor declare that the contract of employment subsists nor grant the consequential relief of reinstatement.

70.Further the plaintiff counsel relied upon 2006 (3) ALD 99, when the above judgment is perused it is filed before the High Court of Judicature AP at

Hyderabad, related to the fact of facilities provided for establishment and running the school, provided by central government, from which it can safely be concluded that there is a deep pervasive control of school by government as such this case comes under service matters, as it comes under government

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organization.

71.Hence from the above all discussion made supra, it is apparent that the contract entered between the plaintiff and defendant company is under personal qualification and in a cursory glance, in the instance case plaintiff prayed under mandatory injunction to re-instatement into service which cannot be specifically enforced in terms of Section 41 (e) of Specific Relief

Act, the relief that sought by plaintiff cannot be granted more so, none of the plaintiff’s comes under exceptions, that the plaintiff is not a public servant sought to be removed from service is contraction of Art.311 of constitution of

India as much as the plaintiff herein is not a workman i.e., a workman in terms of Section 2 (s) of Industrial Disputes Act, 1947 who would seek to be reinstate as being taken forceful resignation. As much is not a statutory body which falls within ambit of Art.12 as an instrumentality for the act in breach of violation of the mandatory provisions of structure.

72.This Court wants to rely upon judgment between Chandra Shekar

Malhotra Vs. Nirlon Limited and others 2000 (1) Bom CR 638 on 19 August, 1999, wherein at para No.11 it is clear that law does not permit and the

Specific Relief Act does not contemplate, the enforcement of a contract of a personal qualification can by a decree for specific performance and the facts of the instance case do not fall within the exceptions.

73.On an overall analysis of both oral and documentary evidence adduced by the both parties. Firstly, it is necessary for the plaintiff to prove that he is victim of forceful resignation and copy of the resignation letter dated 08.03.2017 was pre prepared and signature was taken on typed resignation letter under pressure and fraud played by the defendant company. The burden

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is on the plaintiff under Section 101 of IEA to prove the fact that the resignation was taken under coercion, more over apart from the resignation letter, releaving letter, legal notice given to defendant, no other ocular evidence is produced on behalf of the plaintiff that a meeting was held on so and so time and at so and so place.

74.It is also pertinent to mention here that if the resignation was given by plaintiff is involuntarily against due process then, the burden lies on plaintiff to prove that employer’s reason for forcing to resign was illegal. Infact, the plaintiff himself has deposed in his plaint itself that HR department has stated that the “company is in loss”. Further more, it is the argument of plaintiff counsel that the company was not in loss, but recruited many other employees.

Hence, this Court wants to emphasis that if really the company recruited other employees and not in loss and the reason shown by defendant company is false and frivolous, then it is for the plaintiff to prove with all the oral and documentary evidence, but to the surprise apart from resignation letter, acceptance letter service letter and legal notice, no other document is filed by plaintiff. Further more, apart from PW1 no other oral evidence is adduced to believe the version of plaintiff. As per Indian Labour Laws there is no standard process to terminate an employee in India. An employee may be terminated according to terms laid out in the individual contract signed between employer and employee. As such to know whether the plaintiff is a permanent employee of a company or there is any due process laid down between both parties, it is very much difficult to say without any document when both the parties failed to adduce evidence and the burden therefore, squarely lies on the plaintiff to establish his case independently to the

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satisfaction of this court to grant declaration that to declare the resignation letter obtained by defendant company is null and void, for grant of said relief the Hon’ble Supreme Court in catena of judgments reported and has categorically held on whom the burden lies more so in a declaration suit for declaration of title or right the burden always lies on the plaintiff to make out and establish clear case for granting such a declaration and the weakness, if any of the case set up by the defendant would not be a ground to grant relief to the plaintiff and could succeed only on the strength of its own case which could be only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. More over, as per Indian Eviction Act whoever desires any Court to give judgment as to any legal right or liabilities dependent on the existence of facts which he asserts, must prove that those facts exist and burden lies on that person who would fail if no evidence at all were given. On perusal of resignation letter in all 13 cases it is true all are similar, except the dates on the letters, but it is also true that they were signed by the plaintiff which is not in dispute, but it is only the contention that they were taken forcefully. It is also another contention that giving 90 days salary and 11 months salary consequently itself shows that resignation was forceful and which means to say that the employer has illegally terminated the employment without following due process of law. It is rightly argued by the defendant counsel that in catena of judgments filed by him for illegal termination the only remedy is to claim for damages, Hon’ble Supreme Court in Malhotra Vs.,

Nirlon Ltd., and others held that performance of contract of personal work or services is not enforceable, either at the suit of the employee or the employer.

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75.A contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contracts subsists and the employee even after having been removed from service can be deemed to be in service against the will and consent of the employer, this rule, however, is subject to 3 exceptions, discussed above and the grant of specific performance is purely discretionary and must be refused when not warranted by ends of justice. Courts does not ordinarily force an employer to recruit on retain as re-instate in service an employee not resigned by the employer.

77.Accordingly, suit stand issues are answered in favour of the defendant.

78.In the result, the suit is dismissed. However, without costs.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court, on this the 17 th day of February, 2022.

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:FOR DEFENDANT: PW1: S.Radha KrishnaDW1: MM Chandrasekaran PW2: Eschewed

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1:is the resignation letter. Ex.A2:is the resignation acceptance letter. Ex.A3:is the relieving letter. Ex.A4:is the service certificate. Ex.A5:is the legal notice. Ex.A6:is the reply notice. Ex.A7:is the settlement of accounts. FOR DEFENDANT:

Ex.B1:is the HDFC Bank statement dated 10-04-2017. Ex.B2:is full and final settlement advice dated 07-04-2017.

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL COURT :

HYDERABAD

PRESENT : SMT. RADHIKA GUNDLA

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

WEDNESDAY, THE 6 TH DAY OF APRIL, 2022

O.S.NO.1762 OF 2014

Between: Ayesha Begum, W/o. Syed Gulam Ghouse, Age about 65 years, Occ: Household, R/o. H.No. 8-1-293/2 & 3, Plot No. 2 & 3 In Survey No. 335, Dwarka Nagar Colony,

Shaikpet, Hyderabad. ...Plaintiff

And

Mr. Mohammed Fasi, S/o. Not Known to the plaintiff, R/o. 8-1-293/D/4 in Plot No. 1, Dwarka Nagar Colony,

Shaikpet, Hyderabad. ...Defendant

This suit is coming on 15.03.2022 for final hearing before me in the presence of

Sri M. Basith Ali Yavar, Advocate for the plaintiff and of Sri P. Achutham Reddy,

Advocate for the defendant and upon hearing the both counsels, perusing the material on record and the matter having been heard and having stood over for consideration to this day, this Court made the following:

JUDGMENT

This suit is filed by the plaintiff under Order 7 Rule 1 R/W Section 26 Code of

Civil Procedure perpetually restraining the defendant, his heirs, legal representatives, agents, attorneys, assignees, executors, or anybody claiming through the defendant from dispossessing, interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property bearing No.8-1-293/2&3, admeasuring 288 sq.yards or 240.8 sq. meters in Plot Nos.2 & 3 in survey No. 335, Dwarka Nagar Colony Shaikpet,

Hyderabad.

O.S.NO.1762 OF 2014 Page No.2

2.The averments of the plaint are in brief: The plaintiff is the absolute owner and possessor of the property bearing No. 8-1-293/2&3, admeasuring 288 Sq. Yards or 240.8 Sq. Meters in Plot No. 2 & 3 in Survey No. 335, Dwarka Nagar Colony

Shaikpet, Hyderabad. The plaintiff became the owner and possessor of the Suit

Schedule Property through Agreement of Sale dated 27th February 1979 which she purchased from its original owner and possessor V. Ravindra Reddy. The plaintiff is in possession and enjoyment of the Suit Schedule Property from the date of Agreement of Sale, till this date without any interruption what so ever.

3.It is further averred by the plaintiff that she had been enjoying all rights of ownership and possession in respect of the entire suit schedule property. After she purchase of the property had mutated the same in her name and paying the property tax. The plaintiff is filing herewith the Municipal record and she had obtained the

Electricity and water connection over the suit schedule property and paying the bills.

Further contended that basing on the documents filed along with the plaint clinchingly establishes the ownership and possession of the plaintiff. The defendant having no rights, title, whatsoever, in respect of the suit schedule property and started interfering with the peaceful possession and enjoyment of the suit schedule property.

Further inspired that the defendant without having any right and having an evil eye over the property of the plaintiff came to the suit schedule property along with unsocial elements on 28th September 2014 and tried to dispossess the plaintiff from the suit schedule property. But due to timely resistance by the plaintiff they could not succeed in their attempts. Further averred that the Defendant again came to the suit schedule property on 2nd October 2014 and tried to dispossess the Plaintiff with the aid and assistance of unsocial elements. This time also the plaintiff and his neighbors resisted the illegal interference of the defendant. The Plaintiff has also reported the

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matter to concerned Police Station. But the Police Authority declined to interfere on the ground that the matter is of a Civil nature. The illegal interference of the defendant and his associates had become the practice of the day and the plaintiff being the senior citizen and a woman and law abiding citizen is not in a position to protect her possession over the suit schedule property unless and until this Hon’ble Court extends its hands by granting perpetual injunction against the defendant. Hence the plaintiff is entitled to sue and the defendant is liable to be sued upon. Hence this suit.

4.Written statement and counter claim filed by the defendant and the averments are in brief: The contention of the plaintiff as she is the absolute owner and possessor of Property bearing No. 8-1-293/2 & 3, admeasuring 288 sq. yds in Plot No. 2 & 3,

Sy.No. 335, Dwaraka Nagar Colony having acquired the same by way of Agreement of Sale dated 27.02.1979 from its original owner V. Ravindra Reddy and her possession and enjoyment from the date of agreement is denied for want of knowledge and the plaintiff may put to strict proof with regard to mutation of her name and payment of property tax to the municipal authorities and the same is not concerned to this defendant as such warns no reply. In respect of obtaining electricity and water connection and its payment in respect of suit schedule property is unconcerned to defendant as such denied. It is admitted by defendant that he has no right, title, whatsoever in respect of suit schedule property, but denied that defendant had started interfering with the peaceful possession and enjoyment of the suit schedule property. It is the contention of the defendant that the allegation of plaintiff as the defendant without any right and having an evil eye over the property of the plaintiff came to the schedule along with unsocial elements on 28.09.2014 and 02.10.2014 and tried to dispossess her from it etc., are all false, incorrect, created and concocted for the purpose of filing the present suit, hence denied. Further contended

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that the other allegations are false and baseless. It is the submission of the defendant that he went to USA in the First Week of September, 2014 on his job purpose, since he is in USA, the question of he interfering with the peaceful possession and enjoyment of plaintiff on 28.09.2014 and 02.10.2014 does not arise. As such pleaded that on this ground alone itself the petition and as well as the suit is liable to be dismissed without going into the merits of the case. The plaintiff played fraud by misrepresenting the facts before the auspicious Court while obtaining the interim orders in the I.A.

Further averred that under the garb of the interim orders, the plaintiff is misusing by interfering with the peaceful possession and enjoyment of the defendant over the

Counter Schedule Property by way of obstructing men and material, manhandling the workers and threatening them. As the Hon’ble Court had granted orders that this defendant should not interfere with her possession of the plaintiff as alleged by her and there is no occasion to interfere by the defendant being law abiding citizen, per contra it is the contention of defendant that it is the plaintiff who is interfering with the peaceful possession and enjoyment of Counter Schedule Property by way of obstructing construction work with the help of police. The defendant purchased the existing building within the boundaries mentioned in his sale deed and apart from that there is a old compound wall belongs to this defendant which is existing between the properties of the defendant and plaintiff which is very much evident in the photographs filed by the defendant. The defendant lodged a complaint before the

Golconda P.S. on 27.10.2014 and also before the Commissioner on 01.11.2014.

Inspite of the same, the police instead of taking action against the plaintiff, in collusion with the plaintiff not permitting the defendant to enjoy his property by all means including construction for which defendant reserves his right to initiate appropriate proceedings against the Police of Golconda P.S.

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5.Further defendant alleged that it is false that he along with his associates had made the practice of the day and the plaintiffs being the senior citizen and woman and law abiding citizen is not in a position to protect her possession over the suit schedule property. Further, the dates mentioned in the cause of action are created, concocted for the purpose of filing the present suit without any iota of truth, as such prayed this

Court that the present suit shall be liable to be dismissed on this ground alone. In respect of jurisdiction and limitation, the plaintiff may put to strict proof of the same.

6.Further, counter claim was also filed by the defendant along with the written statement, the averments are in brief that the defendant is the absolute owner and possessor of the premises bearing No. 8-1-293/D/4, admeasuring 230 sq. yds or 192.30 sq. mts physically available of land admeasuring 213 sq. yds, situated at

Mettuguda, Dwarka Nagar Colony, Shaikpet, Hyderabad which is more clearly delineated in the schedule of property and termed as Counter Subject Property and it is acquired by way of purchase under a Registered Sale Deed, Dated 10.11.2011 bearing document No. 3200/2011 from its previous owner for a valuable consideration. The Vendor of defendant after purchasing the Counter Schedule

Property under an Notarised Agreement of Sale constructed the building and the same was assessed by the Municipal Authorities while assigning H.No. 8-1-293/D/4 on 22.02.1985. The vendor of defendant had obtained electricity connection and paying the consumption charges to the Department regularly. The Municipal Authorities issued a G.O.Ms. No. 243 M.A. Dated 22.05.1996 to regularize unauthorized constructions. Accordingly the vendor of defendant had made an application for regularization of his building. After due scrutiny and collecting requisite fee, the

Municipal Authorities had regularized the construction of vendor of defendant vide

Permit No.76/753G/1997 in File No.293/D/4/1/8/97 dated 15.10.1997. The vendor of

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defendant was in peaceful possession within the boundaries till he alienated the same to the defendant as stated supra. Further contended that he is in peaceful possession and enjoyment over the same without any hindrance of whatsoever in any manner.

Further, the defendant made an application to mutate his name in the relevant municipal records and electricity department and the municipal authorities, as well as in electricity department, after due enquiry had mutated his name in the concerned records. After such purchase, the defendant had started construction over the Counter

Schedule Property by obtaining permissions from the GHMC Authorities vide permit

No.35061/DC/CZ/C10/2014, in File No. 30756/CSC/TP10/2014 dated 02.07.2014 and deployed the labourers and the attorney of defendant who is none other his mother looking after the said construction as the defendant is leaving at USA for his employment.

7.It is averred by the defendant that on 27.10.2014 the plaintiff who is the neighboring owner of the defendant along with her followers (numbering 10 to 15 members) came to Counter Schedule Property, threatened by using filthy language and damaged plastic cover covered for the premises, further threatened to demolish the construction by interfering with the peaceful possession and enjoyment of the defendant. As such the attorney of defendant had lodged a complaint on 27.10.2014

before SHO, Golconda Police Station. The complaint was received and acknowledged

by the Police on 27.10.2014, but till filing of counter claim they did not take any action for the reasons best known to them. Taking advantage of the same, again the plaintiff and her followers had come to counter schedule property again on 29.10.2014 and reiterated the above said illegal acts for which the attorney of the defendant questioned for their concern. On such resistance, they have manhandled the attorney of defendant and her labours saying that if she cannot stop the construction work, then

O.S.NO.1762 OF 2014 Page No.7

warned her to leave the counter schedule property or otherwise they will see her end and forcibly taken away the construction material from her labourers. Further contended that before leaving the counter schedule property, the plaintiff and her followers further threatened the attorney of the defendant that they will come on the next day, if she continues the work. The said fact was also again informed to the police orally then the police visited the counter schedule property of this defendant, infact, instead of taking action against the plaintiff and others, the police threatened her to stop the construction and settle the matter with them, further threatened that unless until she settle’s the matter, she cannot proceed with the construction, as the injunction order is existing against the defendant. The contention of the defendant is that the action of the police, Golconda PS is highly illegal and objectionable as the matter is in civil dispute and instead of taking action against the plaintiff and their followers they are supporting them and the defendant explained that the order obtained by the plaintiff is not the property belongs to the defendant.

8.Further averred that the attorney of the defendant received the notices from this

Court on Sunday i.e., 26.10.2014, wherein it is found that, plaintiff has filed the above false suit against the defendant contending that he is interfering with her property and tried to dispossess her from it on 28.09.2014 and 02.10.2014. But fact remains as alleged by defendant that since 1st week of September, 2014 the defendant was in

USA on his employment, therefore the allegation of plaintiff that the defendant is interfering thereby to dispossess her from her property is absolutely false and incorrect. The said fact clearly reveals that the plaintiff filed the above false case against the defendant and obtained exparte interim orders in respect of her property i.e., suit schedule property. Further neither the attorney of defendant nor the defendant has any concern to her property nor interfered at any point of time. The

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plaintiff is taking advantage of the said exparte interim orders and trying to interfere with the counter schedule property as stated above. Further the police authorities of

Golconda Police Station also supported the plaintiff by interfering in civil disputes. As per the allegation of the defendant the police of Golconda openly threatened the attorney of defendant stating that unless and until the matter is settled, the mother of defendant cannot proceed with the construction in her property and further stated with her that the injunction order is not concerned to their property, even then the attorney of defendant cannot proceed with the construction. The plaintiff does not have any right or authority over counter schedule property of this defendant and also for illegal interference.

9.Written statement/Rejoinder to the counter claim is filed by the plaintiff and the averments in brief are that the plaintiff is the absolute owner and possessor of the suit schedule property and she is in possession and enjoyment of the same from the date of purchase till this date of suit and it pertains to the assignment of municipal number by the municipal authorities needs no reply and the plaintiff is the absolute owner of the property, therefore the defendant had categorically admitted that he has no right and title in respect of the suit schedule property. It is denied by plaintiff that the defendant did not interfere with the peaceful possession of the plaintiff over the suit schedule property. In view of the fact that agents of the defendant along with unsocial elements are continuously interfering with the possession of the plaintiff on 28.09.2014 and 02.10.2014 therefore this plaintiff was constrained to file the suit. Further contended through written statement that it is false and baseless that the plaintiff had been playing fraud by misrepresenting the facts. In view of the eminent danger with the possession of the plaintiff she has rightly filed the suit as well as the injunction petition. Further it is false and baseless that under the garb of the interim orders the

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plaintiff is misusing the same by interfering with the possession of the defendant and manhandling the workers. As a matter of fact the plaintiff is old age lady and suffering from various ailments, hence it cannot be believed that she interfered with the possession of the defendant. On the other hand the agents and associates of the defendant are only continuously interfering with the possession of the plaintiff. It is denied that there exists old compound wall in between the property of the plaintiff and the defendant. It is denied that this plaintiff in collusion with the police authorities is not allowing the construction of the defendant. In fact the defendants were trying to encroach over the property of the plaintiff hence she rightly filed the suit. The denial of the defendant of illegal interference is false and baseless. It is denied that the date mentioned in the cause of action are created and concocted for the purpose of the suit.

In fact due to illegal interference this plaintiff has came to this Hon’ble Court to protect her possession.

10.Written statement to the counter claim is filed by the plaintiff and the averments are in brief: The Counter claim is absolutely false and baseless that the defendant is the owner of the property bearing No. 8-1-293/D/4, admeasuring 230 sq.yards situated at Mettaguda, Dwarka Nagar Colony, Shaikpet, Hyderabad. It is false and baseless that the defendant had acquired the Counter claim Schedule Property under the Registered Sale Deed dated 10-11-2011. It is denied that the vendor of the defendant after purchase of the counter claim schedule property under notarized

Agreement of Sale constructed the building and the same was assessed by the

Municipal Authorities by assigning the Municipal No. 8-1-293/D/4 on 22-02-1985. It is denied that the Vendor of the defendant obtained the electricity connection and also applied to the municipal authorities to regularize alleged unauthorized construction. It is denied that the municipal Authorities regularized the construction on 15-10-1997. It

O.S.NO.1762 OF 2014 Page No.10

is denied that the defendant applied to the municipal authorities for construction and obtained the permission from the authorities. The entire allegations are false and baseless and the defendant is put to strict proof of the same.

11.Further it is denied that this plaintiff came to the counter claim schedule property, along with 10-15 members and threatened the defendant. As a member of fact the defendant under the guise of alleged construction is trying to encroach over the property of the plaintiff by taking undue advantage of her old age. It is denied that this plaintiff threatened to demolish the construction and that she is interfering with the possession of the defendant. The defendant lodged a false complaint against the plaintiff in Golconda P.S. It is absolutely false and baseless that the plaintiff went to the petition schedule property on 29-10-2014 and reiterated the illegal facts. It is denied that the plaintiff have manhandled the attorney of the defendant and warned him to leave the counter claim schedule property. It is absolutely false and baseless that plaintiff threatened the defendant that this plaintiff will come again tomorrow, if the defendant continues the construction work this plaintiff will demolish the same.

Further contended by the defendant that he was in USA for his employment at the time of alleged incident. It is further denied that the defendant or his GPA has never interfered in respect of the 8-1-293/2 & 3 i.e., the Suit schedule Property. Further contended that again on 05-11-2014 plaintiff went to the suit schedule property and warned the defendant that unless the defendant handover the 48 x 3 feet width of the property then only plaintiff will permit the construction. It is absolutely false and baseless that this plaintiff is taking undue advantage of the interim orders. As such prayed this court that the counter claim is without cause of action and deserves to be dismissed.

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12.It is submitted by the plaintiff that he is the absolute owner and possessor of the suit schedule property for which the defendant has no right title interest what so ever.

The defendant in the Counter affidavit in IA No. 297 of 2014 as well as in Written statement clearly admitted that the plaintiff is the absolute owner of the property. The sole intention of the defendant is to grab and occupy the property owned and possessed by the plaintiff. As the defendant deliberately did not file the link documents which clearly reveal the fact that the area mentioned in the petition property as well as in the sale deed of the defendant is totally incorrect. Further averred that the defendant has no right what so ever to seek the remedy of Injunction in the suit filed by the plaintiff. For all reasons the counter claim is to be rejected and the suit of the plaintiff is to be decreed.

13.On considering the plaint, written statement and written statement to counter claim/rejoinder, this court framed the following issues on 27.7.2015 for consideration.

1) Whether the Plaintiff is entitled for perpetual injunction relief as prayed for?

2) Whether the defendant is entitled for counter claim as prayed for?

3) To what relief?

14.During the trial of the suit the plaintiff got examined herself as PW1 and got marked Exs.A1 to A7. On behalf of the defendant, the GPA holder of the defendant is examined as DW1 and got marked Exs.B1 to B7.

15.The written arguments filed by the plaintiff, as per the plaint averments the plaintiff is the absolute owner and possessor of the property bearing No.8-1-293/2 & 3, admeasuring 288 sq. yards or 240.8 sq. meters in Plot No.2 and 3 in Survey

No.335, Dwarka Nagar Colony, Shaikpet, Hyderabad, and became the owner and possessor of the suit schedule property through agreement of sale dated 27.02.1979

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which she purchased from its original owner and possessor V. Ravindra Reddy. The plaintiff is in possession and enjoyment of the suit schedule property from the date of agreement of sale, till this date of filing of suit without any interruption whatsoever.

The defendant has also admitted the possession of the plaintiff in the suit schedule property as such admitted facts need not be proved. The present suit has been filed for grant of perpetual injunction against the defendant.

16.Per contra the learned counsel for defendant also filed written arguments, it is the contention of the defendant through counter claim along with written statement is that, it is the plaintiff who got interfered with the defendant’s construction on two occasions over the counter schedule property.

17.In order to substantiate the case of the plaintiff, the plaintiff got marked Exs.A1 to A7, Ex.A1 is the electricity Connection Bill, dated 15-09-2014. Ex.A2 is the payment receipt, dated 20-09-2014. Ex.A3 is the water connection Bill, dated 13-09- 2014. Ex.A4 is the water bill, dated 09-09-2014. Ex.A5 is the electricity Bill, dated 20-11-2013. Ex.A6 is the maintenance Receipt, dated 10-07-1994. Ex.A7 is agreement of Sale along with plan dated 27-2-1979. On the other hand the defendant examined DW1 and got marked Exs.B1 to B7, Ex.B1 is the certified copy of sale deed

dt: 10-11-2011, bearing document No.3200/2011. Ex.B2 is the Special Notice for

Property Tax dated 22-02-1985. Ex.B3 is the original regularization proceedings dated 15-10-1997. Ex.B4 is the permit for construction dated 02-07-2014. Ex.B5 is the property tax receipt for the year 2013-2014. Ex.B6 is the complaint to the

Commissioner of Police dated 01-11-2014. Ex.B7 is the General Power of Attorney

dated 23-06-2017.

18.ISSUE NO.1

The plaintiff claims that she is the true and absolute owner and possessor of suit

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schedule property, having acquired the same under agreement of sale dated 27.07.1979 from its original owner by name P. Ravinder Reddy, for the plot Nos.2 and 3 in Survey No.335 consisting of 288 sq. yards situated at Village Shaikpet,

Hyderabad Urban Taluk, Hyderabad having boundaries North: Plot No.10 and 9,

South : Road, East : Plot No.4 and West : Plot No.1 and has been enjoying the suit schedule property without any interference whatsoever from the date of agreement of sale till date without any interruption. After purchase of property it was mutated in her name since then she is paying the property tax. On perusal of the documents filed on behalf of the plaintiff Ex.A6 is the three receipts paid by plaintiff to Dwaraka Nagar

Colony Secretary, Shaikpet, Hyderabad, for plot Nos.2 and 3, Ex.A7 is the agreement of sale dated 27th day of February, 1979 executed in favour of Aisha Begum by V.

Ravindra Reddy for the suit schedule property Plot Nos.2 and 3 in Survey No.335 consisting of 288 sq. yards situated at Dwarka Nagar Colony Shaikpet, Hyderabad, as described in the plaint schedule property. Ex.A1 is the duplicate bill issued in the name of the plaintiff by Southern Power Distribution Company dated 29.09.2014,

Ex.A2 is the bill issued in the name of plaintiff and Ex.A5 is the electricity bill issued by Secretary, Dwaraka nagar colony Welfare Association in the name of plaintiff for the plot Nos.2 and 3, Dwaraka Nagar, Shaikpet, dated 25.12.2013, along with paid receipt. Ex.A4 receipt of intimation of payment given by Hyderabad Metropolitan

Water Supply and Sewerage Board house bearing No.8-1-293/2 and 3 Dwaraka

Nagar, Shaikpet, Ex.A3 discloses that receipt issued to plaintiff, from the above documents it is clear that the plaintiff is in possession of suit schedule property. From the averments of the plaint it is the allegation of plaintiff that on 28.09.2014 and 02.10.2014 the defendant came to the suit schedule property of plaintiff and tried to dispossess the plaintiff with the aid and assistance of unsocial elements.

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19.On the other hand it is the contention of defendant that he denied the ownership of the plaintiff for the want of knowledge but admitted that defendant has no right over title of plaintiff, whatsoever in respect of the suit schedule property, further, he absolutely denied that he interfered with the possession of plaintiff’s property. In fact, it is contended that defendant went to USA in the first week of September, 2014 on his job. As such on this ground itself the suit is liable to be dismissed.

20.It is settled law that when the suit is filed for perpetual injunction and when the plaintiff approached this Court seeking discretionary relief of perpetual injunction burden lies on him to prove that he is in lawful possession and enjoyment of the suit schedule property as on date of filing of the suit, it is also settled principle of law that is order to seek the discretionary relief of injunction, one must come to the Court with clean hands without suppressing the material facts that his possession is lawful along with ingredients contemplated under Section 38 of Specific Relief Act.

21.As stated supra, plaintiff himself was examined as PW1 by filing his chief affidavit which reiterates the entire contents of the plaint and got marked Exs.A1 to

A7. In order to establish the case of the plaintiff two important things which has to be proved by the plaintiff is that possession over the suit schedule property and interference of the defendant on suit schedule property. From the material available on record and from the oral evidence adduced by the plaintiff there is no dispute with regard to the possession over the suit schedule property, but this Court has to see whether defendant interfered the plaintiff as alleged in the plaint, for which this Court inclined to look into the cross examination of PW1. In the cross examination, it is elicited through her that the defendant has occupied her land by demolishing the compound wall, but it was not clear to what extent the compound was demolished and where the compound wall exist, whether it is the land of the plaintiff or is counter

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schedule property of defendant. Further deposed that she does not even know whether the defendant is residing in the counter schedule property or not, more over it was clearly elicited by the defendant through cross examination of PW1 that she had ever seen the defendant but had seen the mother of defendant and it was categorically said by plaintiff that the said defendant never came to her property. Further admitted that the defendant purchased the property in the year 2011 from his vendor Fiaz Ali in the year 1981 or 1982. Further admitted that vendor of defendant had constructed the house, that means she admits and appreciates the possession of the defendant, more over defendant is none other than the neighbour of plaintiff.

22.Further as per the written statement filed along with counter claim filed by defendant it is denied by the plaintiff that on 27.10.2014 herself and other family members had interfered with defendant and tried to manhandled the defendant’s mother, as such they also lodged a complaint on 27.10.2014, hence this Court want to appreciate the documents filed by the defendant i.e., as per Ex.B6 which is the complaint given to the Commissioner dated 01.11.2014, it clearly discloses that

Fatima Begum has given complaint against the plaintiff for illegal interference, threatening to stop construction, manhandling them and forcibly taken away the construction material. As such it is clear that there are strange relations between the plaintiff and defendant and they are also previous disputes existing between them.

Further defendant also filed Ex.B3 original regularization proceedings dated 15.10.1997 wherein the MCH has given permission for regularization of unauthorized construction in the name of Hakeem Faiyaz Ali, Ex.B4 is the permit for construction

dated 02.07.2014 and Ex.B5 is the property tax receipt for the year 2013-2014 issued

in the name of Syed Ahmed Fasiuddin for Door No.8-1-293/D/4. From the oral and documentary evidence the defendant is not disputing the ownership, but only denying

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that he never interfered with the peaceful possession of the plaintiff over the suit schedule property and from the above documentary evidence it is also elicited that he is the neighboring land owner.

23.It is the settled principle of law that in order to seek the relief of perpetual injunction, the plaintiff has to prove his possession over the suit schedule property as on the date of filing of the suit and the defendant tried to interfere with his possession.

However, as discussed supra the plaintiff able to prove his possession, infact there is no dispute with regard to ownership but it is the case of plaintiff that he demolished the compound wall and started constructing his house, from the documents adduced by plaintiff she is able to prove his possession but coming to the fact of interference by the defendant, it is alleged by the defendant that as on the date of filing of the suit, the defendant was not in India, but he went to USA on job purpose in the first week of

September, 2014. As per Indian Evidence Act, it is the plaintiff who has to come

before this Court to believe certain fact to be true, hence, burden lies on him to prove

that the said fact exists and as arrayed the onus lies on the plaintiff to prove that the defendant was in India and interfered with the peaceful possession of plaintiff as on the date of alleged incident.

24.More over, as per cross examination she clearly deposed that she never saw defendant, as such the question of interference by the defendant over the suit schedule property of plaintiff does not arise. Further, she does not even know that the defendant was in USA on the date of alleged incident, the case is filed for perpetual injunction against the defendant, wherein it is the case where plaintiff is praying this Court to restrain the defendant from interfering with peaceful possession, more over as per

Ex.B6 defendant gave complaint to Commissioner of Police in counter claim that it is the plaintiff who is interfering with construction work over the counter suit schedule

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property of defendant and the said fact of interference by the defendant is not disclosed with any documentary or ocular evidence except self serving statement of plaintiff, further denied that no such complaint or document was filed by plaintiff to prove that defendant is interfering with plaintiff. Thus from the oral evidence adduced by plaintiff coupled with the documentary evidence, it manifest that the plaintiff herein failed to establish his prima facie case. Apart from self serving evidence, as such this Court opines that there is no cogent and convincing evidence adduced by plaintiff. Thus, the plaintiff is not entitled for the discretionary relief of perpetual injunction as prayed for. As such, this issue is answered accordingly against the plaintiff in favour of the defendant.

25.ISSUE NO.2:

The counter claim of the defendant is that it is not the defendant who interfered with the possession of the suit schedule property, but it is the plaintiff who interfered the construction over counter schedule property by threatening and tearing the blue cover sheet of the defendant which is used for covering the counter schedule property on his behalf to prove preliminary possession he has filed Exs.B1 to B6, Ex,B6 is the complaint given to Commissioner of police against plaintiff, for interfering and threatening the defendant’s mother, it is contended by the defendant that on 28.09.2014 and 02.10.2014 plaintiff along with unsocial elements came to the counter schedule property. As such prayed this Court to pass a decree against the plaintiff.

26.Ex.B1 is the certified copy of sale deed dated 10-11-2011, bearing document

No.3200/2011. Ex.B2 is the Special Notice for Property Tax dated 22-02-1985. Ex.B3 is the original regularization proceedings dated 15-10-1997. Ex.B4 is the permit for construction dated 02-07-2014. Ex.B5 is the property tax receipt for the year 2013- 2014. Ex.B6 is the complaint to the Commissioner of Police dated 01-11-2014. Ex.B7

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is the General Power of Attorney dated 23-06-2017.

27.On an overall analysis of both oral and documentary evidence adduced by the parties, no doubt the plaintiff is appreciating the possession of defendant, but as per the written statement and counter claim, the defendant is encroaching into her suit schedule property and the defendant is intending to grab and occupy the property covered by plaintiff.

28.It is settled principle of law that in order to seek the relief of injunction, the defendant has to prove his possession over the suit schedule property as on the date of filing of the suit and the plaintiff tried to interfere and dispossess him. The defendant as per Exs.B1 to B4 sale deed and property tax receipt, building permit order could able to prove his possession over the counter schedule property i.e., B.No.8-1-293/D/4 issued in the name of Ahmed Fasiuddin, more Ex.B5 is the property tax paid by defendant to the counter schedule property. Further more the possession is not in dispute but it is alleged by plaintiff is that to some extent of area defendant has encroached and was making construction.

29.Heard counsel, perused the record, defendant pleads for the perpetual injunction that it is not the defendant who interfered with peaceful possession of plaintiff property, but it is the plaintiff who interfered with the defendant’s peaceful possession, the grievance of the defendant is that on 27.10.2014 and on 01.11.2014 the plaintiff who is the neighboring owner of the defendant and her followers about 10 to 15 in number came to counter schedule property threatened by using filthy language and damaged plastic cover covered for the premises. Further threatened to demolish the construction thereby interfering with the peaceful possession and enjoyment of defendant. In view of the same the attorney of defendant also complained before SHO

Golconda on 27.10.2014, but the SHO put deaf ear, thereby the attorney also filed

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complaint before Commissioner of Police i.e., Ex.B6.

30.On perusal of the cross examination of PW1, the plaintiff himself has admitted

before this Court that she know that the defendant purchased the property in the year

2011 from his vendor Fiaz Ali.

Further stated that the defendant i.e., Fiaz Ali had purchased the property after 2 years of her purchase in the year 1981 or 1982, since then he was residing in the said property till alienating it in favour of the defendant. Further she herself admitted that the vendor of the defendant constructed the house, on one hand plaintiff denies the title of the defendant through her written statement to the counter claim on the other hand, she admitted the title along with possession through cross examination by the defendant. Further she denied for all other suggestion asked by defendant counsel. At the same time showed her ignorance that the defendant was residing in USA as on the date of alleged incident and she also admitted that she never saw defendant but has seen his mother, she categorically stated that defendant never interfered with her possession, as per counter claim the defendant time and again reiterated that the plaintiff’s manhandled his mother and his attorney. But from the oral and documentary evidence adduced by the defendant i.e., DW1 who is uncle of defendant and from Ex.B1 is the certified copy of sale deed dated 10.11.2011. Ex.B2 is the

Special Notice for Property Tax dated 22-02-1985. Ex.B3 is the original regularization proceedings dated 15-10-1997. Ex.B4 is the permit for construction dated 02-07-2014.

Ex.B5 is the property tax receipt for the year 2013-2014, shows prima facie possession, over the counter schedule property, but with regard to the interference made by the plaintiff on the counter suit schedule property, no scrap of paper is filed except Ex.B6. Further more as per defendant on many occasions, plaintiff interfered and threatened his mother for illegal construction and encroachment into her property,

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but neither the mother of the defendant nor defendants Advocate was examined, the reasons best known to defendant and no documentary evidence was adduced by defendant to support his case for the strange dispute i.e., with regard to the encroaching area of land, nothing much is also elicited in the cross examination of

DW1. Except showing ignorance to most of the questions, as such nothing is elicited to appreciate on behalf of defendant. It is the contention of the plaintiff that the defendant encroached into the suit schedule property of plaintiff by making construction, but on perusal of over all material at no where both parties had submitted that to what extent the disputed property is and where defendant is trying to encroach and when and where plaintiff interfered with the peaceful possession of counter schedule property. Admittedly, defendant did not filed any documents and did not adduce any evidence though they claimed relief of perpetual injunction by way of counter claim. Inspite from the documents filed and from the admitted facts, it can only be said that both are neighboring plot owners. As the defendant pleads injunction restraining the plaintiff burden lies on him to prove. One who pleads that certain fact exist then as per Indian Evidence Act it is for the party on whom burden lies who make the court to believe that certain fact exists, the onus of proof is on the defendant to the interference of plaintiff. More over the suit was filed in 2014 for interfering with construction of defendant till date there is no evidence filed by both parties on further progress as to the construction or about the compound wall.

TO WHAT RELIEF:

In the result, the suit of the plaintiff filed for perpetual injunction is dismissed without costs.

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Counter claim filed by the defendant for injunction is also dismissed without costs.

Typed to my dictation by the Personal Assistant, corrected and pronounced by me in the open Court, on this the 6 th day of April, 2022.

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:FOR DEFENDANT: PW1: Ayesha Begum DW1: Mohammed Shareef Ahemad (GPA Holder of the defendant)

DOCUMENTS MARKED

FOR PLAINTIFF:

Ex.A1: Electricity Connection Bill, dated 15-09-2014. Ex.A2: payment receipt, dated 20-09-2014. Ex.A3: Water connection Bill, dated 13-09-2014. Ex.A4: Water bill, dated 09-09-2014. Ex.A5: Electricity Bill, dated 20-11-2013. Ex.A6: Maintenance Receipt, dated 10-07-1994. Ex.A7: Agreement of Sale along with plan dated 27-2-1979.

FOR DEFENDANT:

Ex.B1: Certified copy of sale deed dt: 10-11-2011, bearing document No.3200/2011. Ex.B2: Special Notice for Property Tax dated 22-02-1985. Ex.B3: Original regularization proceedings dated 15-10-1997. Ex.B4: permit for construction dated 02-07-2014. Ex.B5: property tax receipt for the year 2013-2014. Ex.B6: Complaint to the Commissioner of Police dated 01-11-2014. Ex.B7: General Power of Attorney dated 23-06-2017.

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD.

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL COURT :

HYDERABAD

PRESENT : SMT. RADHIKA GUNDLA

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD

DATED, THIS THE 04 th DAY OF OCTOBER, 2024

O.S.No.2406 OF 2023

Between :

Union Bank of India, (erstwhile Andhra Bank merged in UBI)

Credit Card Division, Koti, Hyderabad,

Represented by the Manager. ..Plaintiff

And

Sri Mohd Waseem, S/o. Mohd Arif,

Aged about 35 years, Occ:Business, R/o.H.No.14/59,

Dada House, Kareem Shah Gali, Sath, Buland Shahr-Up-203001.

..Defendant

This suit is coming on 30.09.2024 for final hearing before me in the presence ofSri S. Vikramaditya Babu,Advocate for the plaintiff bank and defendant remained exparte and the matter having been heard and having stood over for consideration till this day, this court delivered the following:

JUDGMENT

This suit is filed by the plaintiff Bank for recovery of an amount of

Rs.2,57,320.78 ps. (Rupees Two Lakhs Fifty Seven Thousand Three Hundred

Twenty and Seventy Eight Paise Only) together with service charges, service tax and interest there on at 2.95% per month compounded monthly from the date of suit till realization and for costs.

O.S.No.2406 OF 2023Page No.2

2. Brief averments of the plaint are that the plaintiff Bank submitted that the defendant applied to the erstwhile Andhra Bank for issuance of Credit card viz.,

Andhra Bank, Credit Card, with the undertaking that he agreed to terms and conditions contained on the reverse of the application and that he would be bound by them. He further confirmed that the information furnished by him for issuance of

Visa Credit Card is true and correct and the credit card application will be processed by the local branch of the card holder to the Andhra Bank credit card division, then

Head Office, Hyderabad. Thereupon Andhra Bank credit card division, Koti,

Hyderabad, which is the principal place of business for issuing and doing credit card business and sanctioned the credit card facility and issued Visa Credit Card No.4373 7820 9731 7006. The defendant starting utilizing the credit card from 25.11.2017 and making payments, but the payment made by the defendant never matched the outstanding amount. In pursuance of the oral and written demands made by the plaintiff officers from time to time, the defendant has made last payment of

Rs.165.76 Ps on 22.04.2020 in partial discharge of his liability to the credit of the suit account bearing No.4373 7820 9731 7006. After 22.04.2020 the defendant did not make any payment, and as such the suit debt remained unpaid and committed will default in payment the dues inspite of repeated oral and written demands made on behalf of the plaintiff Bank from time to time the defendant failed to repay the dues under the suit credit card account. In as much as, with effect from 01.04.2020 the

Andhra Bank merged with the plaintiff Bank-UBI as per amalgamation proceedings,

O.S.No.2406 OF 2023Page No.3

the plaintiff Bank-Union Bank of India is the only competent Bank to recover the credit card dues payable by the credit card defaulter to the erstwhile Andhra Bank.

The present suit is filed for recovery of Rs.2,57,320.78 ps., out standing amount due as on 01.04.2023 as per statement of account Rs.2,53,388.78 ps with interest

Rs.3932/-, totaling Rs.2,57,320.78 ps., Hence the above suit is filed for recovery of above amount.

3.Though summons are served on the defendant through substituted service by way of paper publication in “Lok Bharathi” Telugu Daily News paper, but the defendant did not choose to appear before Court. Hence, the defendant is set exparte.

4. On behalf of the plaintiff Bank, the Manager of the plaintiff Bank examined as

PW1 and Exs.A1 to A4 are marked.

5.Heard the counsel for plaintiff Bank.

6.Now the point for consideration is:

Whether the plaintiff Bank is entitled for recovery of suit amount from the

defendant as prayed for?

7. In order to prove the contention, the Manager of the plaintiff Bank has filed affidavit in lieu of chief examination of PW1 reiterating the averments of the plaint

Exs.A1 to Ex.A4 are marked. Ex.A1 is the Credit Card Application. IA filed under

Sec.65 (C) of Indian Evidence Act R/w Sec.151 of CPC and the same is allowed. In view of the orders in above IA Ex.A1 is marked. Ex.A2 is Certified extract

Statement of Account dt. 01.04.2023. Ex.A3 is Gazette Notification dt.04.03.2020.

Ex.A4 is the Authorization letter, dt.30.07.2024.

O.S.No.2406 OF 2023Page No.4

8.As per evidence of PW1, the defendant had applied to the erstwhile Andhra

Bank for issuance of visa credit card under Ex.A1 and agreed the terms and conditions contained on the reverse of the application under Ex.A1 and obtained the said credit card i.e., visa credit card No.4373 7820 9731 7006. Ex.A1 is supported with Section 65 (C ) of Indian Evidence Act application, petitioner counsel filed IA under 65 (C) of Indian Evidence Act read with Section 151 of CPC, the same is allowed. In view of the orders in the above IA Ex.A1 is marked. As per the submission of petitioner counsel that original application submitted by the defendant is lost and could not be traced due to shifting of files from one premises to another in the process of merging of E-Andhra Bank into Union Bank of India, Inspite of his best efforts it could not be traced. In application it is further alleged that secondary evidence is exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. The original application is the prime document which was submitted by the defendant with his own signature and for plaintiff record purpose, the said original application is photocopied through mechanical process and are identical. The authenticity is certified and signed by the

Manager of the credit card division based on the continuous usage of the card by the defendant and the transactions made by him and the said entries are reflected in the statement of account to establish the agreement between the plaintiff and defendant which is a supporting document and placed before this Hon’ble Court. Hence, the above application filed under 65 (C) is allowed, and considered. The defendant had

O.S.No.2406 OF 2023Page No.5

utilized the credit card facility, but the payment made by the defendant never matched the outstanding balance amount. The credit card number is supported with memo when it is posted for clarification In pursuance of the oral and written demands made by the plaintiff’s officers from time to time. The defendant utilized said card from time to time on different dates at various places for purchase of goods and services etc. The transactions and the payments made by the defendant to the plaintiff

Bank are reflecting in the statement of account under Ex.A2 maintained by the plaintiff Bank in the regular course of business from November 2017 to April 2023, butthe defendant did not paid due amounts regularly and lastly paid an amount of

Rs.165.76 Ps on 22.04.2020 in partial discharge of his liability to the credit of the said account bearing No.4373 7820 9731 7006. The defendant did not pay any amount thereafter 22.04.2020 and did not make any payment, and as such the suit debt remained unpaid and committed willful default in payment of dues inspite of repeated oral and written demands made on behalf of the plaintiff Bank from time to time, the defendant failed to repay the dues under the suit credit card amount and out standing amount due as per statement of account and along with interest of totaling amount of Rs.2,57,320.78 ps which is reflecting in the statement of account under

Ex.A2 and the defendant is liable to pay the said amount to the plaintiff Bank as claimed in the suit by the plaintiff Bank. More over the defendant for the reasons best known to him has not appeared before the Court and remained exparte. The defendant did not made any payment after filing of the suit. More over, on perusal of

O.S.No.2406 OF 2023Page No.6

the application form that is Ex.A1 which is signed by the defendant, it is evident as per column No.c that once the card holder makes a default for a period of 6 months continuously then basing on tele follow up’s demanding to pay the credit card due amount a legal action shall be initiated and the card holder will be included in the defaulters list as discussed supra, as per account statement i.e., Ex.A2 the last payment was on 22.04.2020.

9.Ex.A3 is the gazette notification dated 04.03.2020 the plaintiff Bank i.e.,

Andhra Bank was amalgamated into Union Bank of India with effect from 01.04.2020. Hence, in view of the above all documents of the plaintiff Band are considered. The plaintiff Bank, Union Bank of India is the only competent Bank to recover the credit card dues payable by the credit defaulter i.e., the defendant to the erstwhile Andhra Bank.

10.From the unchallenged evidence of PW1 coupled with the documents referred to above particularly Ex.A2 statement of account, it is clear that the defendant has utilized the credit card given by the plaintiff Bank and the defendant on 22.04.2020 lastly paid an amount of Rs.165.76 Ps to the plaintiff Bank. Hence, there would be no hesitation to hold that the plaintiff Bank is entitled to recover the suit amount from the defendant.

11.In the result, the suit is decreed, with costs, directing the defendant to pay a sum of Rs.2,57,320.78 ps. (Rupees Two Lakhs Fifty Seven Thousand Three Hundred

Twenty and Seventy Eight Paise Only) to the plaintiff Bank together with interest @

O.S.No.2406 OF 2023Page No.7

12% per annum from the date of filing of the suit to till the date of decree and thereafter interest @ 6% per annum from the date of decree to till the date of realization.

Typed to my dictation, corrected and pronounced by me in the open Court on this the 04 th day of October, 2024.

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:FOR DEFENDANT: PW1: Clara JamesEXPARTE

DOCUMENTS MARKED

FOR PLAINTIFF: Ex.A1 is the Credit Card Application.

Ex.A2 is Certified extract Statement of Account dt.01.04.2023.

Ex.A3 is Gazette Notification dt.04.03.2020.

Ex.A4 is the Authorization letter, dt.30.07.2024.

FOR DEFENDANT: NIL

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

IN THE COURT OF THE II JUNIOR CIVIL JUDGE : CITY CIVIL

COURT : HYDERABAD

PRESENT : SMT. RADHIKA GUNDLA

II JUNIOR CIVIL JUDGE,

CITY CIVIL COURT, HYDERABAD

DATED, THIS THE 30 TH DAY OF SEPTEMBER, 2024

O.S.NO.5878 OF 2023

Between :- State Bank of India, (incorporated under State Bank of India Act, 1955), having its central Office at Nariman Point Mumbai and one of its Head Offices and Zonal Offices at Hyderabad and one of its branch at Abids, Rep. by its Manager, who is competent sign the plaint as per modified notification in Gazette of India 27.03.1987 issued under Regulation 76 (1) R/w Reg 77 of SBI

General Regulations, 1955. .....Plaintiff

And

1. M/s.Sri Shiva Ganesh Electronics, Prop. Puli Rajesh, S/o.Puli Chinna Sammaiah, Aged about 38 years, Occ Business, Plot No.1 Main Road, Keesara R.R.Dist.

2. Puli Rajesh, S/o.Puli Chinna Sammaiah, Aged about 50 years, P.No.52, Near Serenity School, Keesara, Ranga Reddy – 501301.

3. Egala Hari Babu, S/o.E.Shiva Lingam, H.No.2-174, Keesara,

Ranga Reddy – 501301. ...Defendants

This suit is coming on 26.09.2024 before me for final hearing in the presence of Smt. S. Indira Devi,Advocate for the plaintiff and the defendants having been

O.S.NO.5878 OF 2023 Page No.2 / 8

remained exparte and the matter having stood over till this day for consideration, this court delivered the following:

JUDGMENT

This suit is filed by the plaintiff Bank for recovery of an amount of

Rs.4,48,930/- (Rupees Four Lakhs Fourty Eighty Thousand Nine Hundred and

Thirty Only) with subsequent interest @ 9.75 % per annum with monthly rests from the date of suit to till the date of realization from the defendants and for costs.

2.Brief averments of the plaint are, that the defendant No.1 represented through defendant No.2 & 3 made an application dated 19.02.2016 seeking loans of CC Rs.2,00,000/- for business, application was received by the plaintiff.

The said application was considered and loans of CC Rs.2,00,000/- was sanctioned to Account No.CC-62456499600 on 19.02.2016. The defendants agreed to all the terms and conditions of the ascntion. The defendants agreed to all the terms and conditions of the sanction and executed and delivered the following documents to one of the plaintiff Bank, SMECCC Division,

Hyderabad.

a) Arrangement letter (SME1) for CC executed by the defendants on 19.02.2016. The defendants agreed to repay the CC with interest @ 9.75% per annum with equated monthly installments.

b) Agreement-cum-hypothecation loan (SME2) for CC Rs.2,00,000/- on 19.02.2016 by this document the defendants agreed to all the above stated

O.S.NO.5878 OF 2023 Page No.3 / 8

terms of repayment, so also hypothecated the stock in favour of the plaintiff.

c) Guarantee Agreement (SME-3) of Rs.2 lakhs and Partnership Letter executed by defendants on 19.02.201 is filed.

d) Revival Letter (SME11) executed by defendant on 15.02.2019 is filed as document Nos.5 & 6.

3.Further submitted that, on the request and for the convenience of the defendants the account was allotted initially at plaintiff’s branch Keesara,

Hyderabad, subsequently the account is transferred to the present plaintiff Bank which handles the NPA accounts i.e., SBI, SMECC Division, Hyderabad, the loan documents and records have been transferred to plaintiff Bank SMECCC,

Gundfoundry, Abids, Hyderabad, for the purpose of recovery of loan amount due and outstanding and filing the suit purpose. The defendants fully availed the loans of CC Rs.2,00,000/-, but failed to keep up the repayment schedule, except for certain payments, after that the account turned into NPA. The plaintiff issued legal notice dated 27.09.2023 calling upon the defendant to pay the dues, the payment was not made. As per the prudent norms contemplated by RBI the interest component should not be loaded into the account. However, the said sum is included in the outstanding dues at the time of filing of the suit. The defendant is due and payable the entire outstanding sum of Rs.4,48,930/- along with accured interest as on 29.09.2023. Hence, the suit.

O.S.NO.5878 OF 2023 Page No.4 / 8

4.Summons to the defendants 1 & 2 served. Summons of defendant No.3 returned as “Refused”, hence it is deemed that summons served sufficiently on defendant No.3, but they did not choose to appear before the Court. Hence they were set exparte.

5.On behalf of the plaintiff, the Manager of plaintiff bank was examined as

PW1 and Exs.A1 to A10 are marked.

6.Heard the counsel for plaintiff.

7.Now the point for consideration is

Whether the plaintiff Bank is entitled for recovery of suit amount

from the defendant as prayed for?

8.POINT :-

In order to prove the contention, the Manager of the plaintiff Bank has filed affidavit in lieu of chief examination of PW1 reiterating the averments of the plaint. Exs.A1 to A10 are marked. Ex.A1 is the original Application for loan

dated 19.02.2016. Ex.A2 is the letter of arrangement for CC (SME-1) dated

19.02.2016. Ex.A3 is the original agreement of loan cum Hypothecation (SME-

2) dated 19.02.2016 by the defendants. Ex.A4 is the Guarantee Agreement (SME-3) dated 19.02.2016. Ex.A5 is the Revival Letter (SME-11) dt.15.02.2019. Ex.A6 is the Revival Letter (SME-11) dt.9.2.2022. Ex.A7 is the office copy of legal notice dated 27.09.2023. Ex.A8 is the postal receipts dated 27.09.2023. Ex.A9 is the extract of statement of account No.CC- 62456499600

O.S.NO.5878 OF 2023 Page No.5 / 8

with certificate dated 26.09.2023. Ex.A10 is the Authorization Letter dt.24.09.2024.

9.As per the evidence of PW1 coupled with documentary evidence produced by the plaintiff referred above, defendant No.1 is the Sri Shiva Ganesh

Electronics and defendant Nos.2 & 3 are the proprietors of defendant No.1

Enterprises, from the above documentary evidence, it is clear that the defendant

Nos.2 & 3 had approached the plaintiff bank on 19.02.2016 and submitted application vide Ex.A1 for sanction of loan and after due verification the plaintiff Bank sanctioned term loan of Rs.2,00,000/- (Rupees Two Lakhs Only) along with standard covenants framing part of terms and conditions. Ex.A2 is the letter of arrangement given to defendants. The defendants agreed the terms and conditions of the plaintiff Bank and accepted the terms and conditions laid in the arrangement letter vide Ex.A2 dated 19.02.2016. The defendants further agreed to repay the loan amount in equated monthly installments with agreed interest. The defendant No.2 & 3 on behalf of defendant No.1 hypothecated the business stock towards security and executed the agreement of Hypothecation in favour of plaintiff Bank under Ex.A3. Defendants also executed Guarantee

Agreement Agreement in which defendant No.3 stood as a guarantor to defendant No.1 Company by accepting all the terms and conditions laid in the

Agreement through Ex.A4 and also hypothecated the business stock towards security and executed the agreement of Hypothecation in favour of plaintiff

Bank. Subsequently, defendants also executed Revival Letter (SME-11)

O.S.NO.5878 OF 2023 Page No.6 / 8

dt.15.02.2019 & Revival Letter (SME 11) dated 9.2.2022 vide Exs.A5 & A6.

Later, on perusal of the Ex.A9 i.e., extract of statement of account it is evident that the defendants made last payment of Rs.3,111/- on 31.12.2020, after that defendants failed to repay the loan, after that the account turned into NPA. The plaintiff has issued legal notice to the defendants for payment of balance amount i.e., office copy of legal notice through post, postal receipts i.e., Exs.A7 & A8.

As per account closure enquiry filed by the plaintiff for the account

No.62456499600, there was a credit balance of Rs.2,52,507.34 added with accrued debit interest of Rs.1,85,562/- and accured penalty of Rs.60,252/- totaling to Rs.4,48,930/- which is suit amount and the defendants were liable to repay balance loan amount. Inspite of that, the defendants did not paid any amount. Hence, the above suit is filed against defendants for the balance amount. After filing of suit this Court issued summons to defendants through

Court and RP and the summons were served on the defendants through RPAD, and defendant No.3 refused to receive the summons. Even then the defendants did not appear to contest the suit. Subsequently plaintiff Bank got examined the

Manager as PW1 and got marked Exs.A1 to A10 on behalf of the plaintiff Bank.

Ex.A10 is the authorization letter issued by plaintiff bank to PW1 to represent on behalf of plaintiff bank.

10.The oral and documentary evidence of the plaintiff Bank is unchallenged as the defendants did not choose to appear before the Court and contested the case. Hence, there is no hesitation to hold that the plaintiff Bank is entitled to

O.S.NO.5878 OF 2023 Page No.7 / 8

recover the suit amount along with interest from the defendants. Accordingly, the point is answered.

11. In the result, the suit is decreed, with costs, directing the defendants to pay an amount of Rs.4,48,930/- (Rupees Four Lakhs Fourty Eighty Thousand Nine

Hundred and Thirty Only) jointly and severally together with interest @ 9.75% per annum from the date of filing of the suit to till the date of decree and subsequent interest of 6% per annum from the date of the decree to till the date of realization on the suit amount.

Typed to my dictation by the Stenographer, corrected and pronounced by me in the open Court, on this the 30 th day of September, 2024.

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF: FOR DEFENDANTS: PW1 : K.Gopal KrishnaEXPARTE

EXHIBITS MARKED

FOR PLAINTIFF:

Ex.A1 is the original Application for loan dated 19.02.2016.

Ex.A2 is the letter of arrangement for CC (SME-1) dated 19.02.2016.

Ex.A3 is the original agreement of loan cum hypothecation (SME-2) dated 19.02.2016 by the defendants.

Ex.A4 is the Guarantee Agreement (SME-3) dated 19.02.2016.

Ex.A5 is the Revival Letter (SME-11) dt.15.02.2019.

Ex.A6 is the Revival Letter (SME-11) dt.9.2.2022.

Ex.A7 is the office copy of legal notice dated 27.09.2023.

O.S.NO.5878 OF 2023 Page No.8 / 8

Ex.A8 is the postal receipts dated 27.09.2023.

Ex.A9 is the extract of statement of account No.CC- 62456499600 with certificate dated 26.09.2023.

Ex.A10 is the Authorization Letter dt.24.09.2024.

FOR DEFENDANTS: NIL

II JUNIOR CIVIL JUDGE

CITY CIVIL COURT, HYDERABAD