IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4672 of 2011 (O&M) Date of decision: November 29, 2011 Swaraj Mazda Ltd. .. Appellant Vs. Vishal Gupta and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.S. Bains, Advocate for the appellant. A.N. Jindal, J The trial court vide judgment dated 19.1.2011, decreed the suit of the plaintiff against the defendants- respondents (herein referred as, 'the defendant') for refund of a sum of `2,06,476.62 i.e. amount of salary and other benefits awarded to the defendant No.1 being trainee officer under the plaintiff- appellant (herein referred as, 'the plaintiff'). The appeal preferred by the defendants against the said judgment was accepted and the suit of the plaintiff was dismissed. The factual matrix of the case is that the plaintiff is a public limited company registered under the Companies Act filed a suit for recovery of `2,06,476.62 on the basis of the breach of the agreement by the defendant No.1 and the defendant No.2 was the guarantor of the defendant No.1. It has been averred that the defendant No.1 had joined the plaintiff as management trainee for 12 months w.e.f. 30.6.2007 and executed a bond on the said date in favour of the plaintiff undertaking that on completion of training of 12 months, which could be extended, the defendant would serve the company for three months, on failure to serve for the requisite period, the defendant would return the amount of stipend along with all the allowances received by the defendant No.1 during the said period of training as per Clause 5.1 and 5.2 of the appointment letter and as per Clause 7 and 9 of the contract dated 30.6.2007. Defendant No.2 stood the surety of the defendant No.1 as such he is also vicariously liable for the fault on the part of the defendant No.1. It was also averred that the defendant No.1 after completion of training was absorbed in the regular R.S.A. No. 4672 of 2011 (O&M) -2- employment of the company w.e.f. 30.6.2008. However, he left the job on 14.12.2008 and committed breach of agreement and he ceased to be the employee of the company w.e.f. 9.2.2009. During the period of his training, he had received a sum of `1,92,070.62 on account of training allowances and `14,406/- as his share of provident fund deposited in the account of the defendant No.1, but the said amount has not been returned by the defendant No.1, therefore, the defendant No.1 being the employee and defendant No.2 being surety, both are liable to return the same. Upon notice, the defendant No.1 filed reply submitting that no bond was executed between the parties on 30.6.2007. However, it was alleged that the plaintiff company had obtained his signatures on some blank papers and forged the documents over the same. Though the company claims the agreement to be dated 30.6.2007, whereas, it appears to have been attested on 21.6.2007. Even otherwise, the contract being a service contract could not be enforced and he had received the amount on account of the work done by him, therefore, the company was not liable to have refund of any amount. The defendant No.2 was proceeded against ex-parte. Replication was also filed. From the pleadings of the parties, the following issues were framed by the trial court :- 1. Whether the defendant had executed the agreement in favour of the plaintiff on 30.6.2007 and thereafter violated the provisions of the same?OPP 2. Whether the plaintiff is entitled to recover `2,06,476.62 paise along with interest?OPP 3. Whether the plaintiff is estopped by his act and conduct from filing this suit?OPD 4. Whether the suit is bad for misjoinder of necessary parties?OPD 5. Whether proper Court fee has not been affixed?OPD 6. Relief. In order to prove his case, the plaintiff examined Shiv Gopal (PW1) who on the basis of the record proved documents i.e. office letter Ex.P1, indemnity bond Ex.P2, joining report Ex.P3, letter Ex.P4, letter dated 28.8.2008 Ex.P5, letter dated 6.1.2009 Ex.P6, postal receipt Ex.P7, R.S.A. No. 4672 of 2011 (O&M) -3- UPC Ex.P8, letter dated 17.1.2009 Ex.P9, postal receipt Ex.P10, letter dated 9.2.2009 Ex.P11, postal receipt Ex.P12, legal notice dated 5.5.2009 Ex.P13, postal receipts Ex.P14 to Ex.P16, acknowledgments Ex.P17 to Ex.P19, letter dated 18.4.2009 Ex.P20, copy of resolution Ex.P21, letter dated 30.6.2007 mark-A, salary statements of defendant No.1 Ex.P22 to Ex.P33. Besides, the plaintiff also examined Des Raj (PW2). In order to rebut the evidence led by the plaintiff, the defendant No.1 himself stepped into witness box as DW1 and proved on record documents i.e. prescription slips Ex.D2 and Ex.D3. The trial court decreed the suit, whereas, the appellate court had reversed the judgment and dismissed the suit. The contract dated 30.6.2007 between the employee and employer under the promise of employment appears to be result of undue influence but that apart, the company has failed to prove its execution beyond reasonable doubt. Perusal of the bond/contract Ex.P2 shows that the same was attested by the Notary on 21.6.2007, whereas, the date of execution of the contract is stated to be as 30.6.2007. Then under these circumstances, how the document which is stated to have been executed on 30.6.2007 could have been attested on 21.6.2007. Thus, it clearly indicates that the signatures of the respondent were obtained by the plaintiff on some blank papers and on leaving of service by the respondent, the plaintiff company used those papers against him. The respondent in his written statement has specifically took the plea that his signatures were taken on blank papers and no bond was executed on 21.6.2007. The bond was later on forged by attaching some other papers with the last page. In view of the defence set up by him, it was incumbent upon the plaintiff to duly prove the execution of the bond dated 30.6.2007. Both the witnesses namely Shiv Gopal (PW1) and Des Raj (PW2), never stated that the signatures were made by the respondents in their presence or the agreement was executed in their presence, but they have only stated that they are well conversant with the facts of the case which is not sufficient to prove the execution of the bond in question. That apart, the case of the plaintiff is that according to the terms and conditions of the bond, the plaintiff was to impart training to the defendant No.1 which was specifically denied by the respondent/ defendant R.S.A. No. 4672 of 2011 (O&M) -4- and he has specifically stated that he was paid for the work done by him. No witness has been examined by the plaintiff to prove that the respondent was paid remuneration of the work done or it was stipend for training. It may also be observed that none came forward to state that as to what sort of training the respondent was undergoing with the plaintiff company. Further more, such contract of service entered, in view of provisions of Section 31 (1) of the Specific Relief Act, 1963, could be termed as void particularly for the reason that such contracts are entered into by the unemployed weaker class of persons with a strong capitalists, with the hope and under pressure that they would have employment and feed their family members. The circumstances in which the employee undergoes and with a view to feed his stomach and to serve the members dependent upon him enters into such unfair bargain. Such contract which effects the larger number of persons or group or group of persons, if they are unconscionable, unfair and unreasonable are injurious to the public interest. To say that such a contract is only voidable would be to compel each such person with whom the party with superior bargaining power had contracted to go to court to have contract adjudged voidable. This could only result into multiplicity of litigation which no court should encourage and would also not be in the public interest. Such a contract or clause in the contract, ought, therefore, to be adjudged as void. Such contracts are against the public policy as envisaged under Section 23 of the Indian Contract Act. Similar observations were made by the Apex Court in case Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another, AIR 1986 Supreme Court 1571. Thus, while taking the case from any angle, it could safely be observed that the plaintiff was not entitled to have the refund of the amount for the work which the defendant had done while under training. No question of law much less substantial question of law arises in this case for determination. Dismissed. November 29, 2011 (A.N. Jindal) deepak Judge