Axis Bank Ltd. vs Shaiwali Paliwal

Prakash Gupta, J.—This revision petition has been filed against the Order dated 25/02/2015 passed by the Additional Civil Judge (J.D.) No. 2, Jaipur Metropolitan in civil suit No. 319/2014 whereby, the said Court dismissed the application filed under Order 7 Rule 11 read with Section 151 CPC filed by the petitioner-defendant.

The brief facts of the case are that the respondent-plaintiff filed a suit for declaration and permanent injunction against the petitioner-defendant, wherein, it is stated that the plaintiff was appointed as Manager in the petitioner''s Bank in the year 2007. Subsequently, the plaintiff was promoted as Senior Manager and Assistant Vice President in the petitioner''s Bank. On 19/02/2013, an unofficial investigation was conducted in the absence of the plaintiff and without giving any opportunity of being heard, the petitioner-defendant was served upon a suspension order on 05/03/2014. In the said Order, no reason whatsoever was mentioned therefor and three penalties were inflicted on the plaintiff-respondent. Thereafter, the plaintiffs services were terminated vide letter dated 31/07/2014 without assigning any reasons. The plaintiff-respondent could not be penalized on the same ground again. In this regard, the plaintiff took a plea of Double Jeopardy. The plaintiff has also challenged Rule 3.5 of Bank Staff Rules based on which the services of the plaintiff were terminated on the ground that the said rule is only applicable to the employees who are on probation and not to the regular employees. Therefore, the said Rule is void ab initio as per Section 123 of the Contract Act since the said Rule is against the public policy. The following prayer was sought by the plaintiff in the plaint:--

The petitioner-defendant filed a written statement and denied the allegation made in the plaint.

The petitioner-defendant filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the suit filed by the plaintiff-respondent is not maintainable since the plaintiff and the defendant were having master-servant relationship and the contract of service between them is specifically barred under Section 10(b) and 14(a)(c) and 38 (3)(c) of the Specific Relief Act. It is also stated in the application that in respect of appointment, termination and back wages, the civil Court cannot pass the decree for declaration and permanent injunction. The defendant-Bank is a private Bank hence, no employee can ask for reinstatement. Only those persons, who come under the definition of ''workmen'', can take the benefit under I.D. Act. The defendant-Bank Staff Rules are not statutory rules and the same are mere contract between the Bank and its employees.

A reply to the said application was filed by the plaintiff-respondent wherein, it is stated that the relationship between the plaintiff and defendant is not that of a master and servant and is governed by the Bank Staff Rules. The defendant Bank is legal body incorporated under the Bank Rules and Regulations Act, 1949. The Reserve Bank of India is the controlling authority of all the Banks therefore, the defendant Bank is governed by the legal provisions. The plaintiff does not come under the preview of Industrial Dispute Act since the plaintiff is not a workman.

After hearing both the parties, the learned trial Court rejected the application under Order 7 Rule 11 CPC by impugned order dated 25/02/2015. Being aggrieved by the said order, the petitioner-defendant filed this revision petition.

It is submitted by the learned counsel for the petitioner-defendant, Shri Ashok Mehta that the relationship between the plaintiff and petitioner Bank is that of a master and servant. The plaintiff''s appointment was only a contractual appointment. Therefore, the plaintiff cannot challenge the termination order and claim reinstatement. The only relief, which is available in law to the plaintiff, is damages. It is also submitted by learned counsel for the petitioner-defendant that the petitioner is a private Bank and not a statutory body since the relationship between the plaintiff-defendant and petitioner-defendant is that of a master and servant and the contract of service between them is specifically barred under Section 14(1)(c) of Specific Relief Act and that the contract of personal service is not enforceable under any law since the same is determinable. In light of the above, this suit is also barred by Section 10(b) and Section 38(3)(c) of the Specific Relief Act. The learned counsel for the petitioner-defendant has relied upon Nandganj Sihori Sugar Co. Ltd., Rae Bareli and another Vs. Badri Nath Dixit and others, AIR 1991 SC 1525 : (1991) 62 FLR 828 : (1991) 2 JT 338 : (1991) 1 SCALE 794 : (1991) 3 SCC 54 : (1991) 2 SCR 468 : (1991) 2 UJ 151 Integrated Rural Development Agency Vs. Ram Pyare Pandey, (1995) 71 FLR 202 : (1995) 3 JT 119 : (1995) LabIC 1636 : (1995) 2 LLJ 293 : (1995) 2 SCALE 7 : (1995) 2 SCC 495 Supp : (1995) 2 SCR 321 : (1995) 2 SLJ 123 , Indian Airlines Corporation Vs. Sukhdeo Rai, AIR 1971 SC 1828 : (1971) 1 LLJ 496 : (1971) 2 SCC 192 : (1971) SCR 510 Supp , Kanta Sahgal Vs. State of Rajasthan and Others, (1990) 1 WLN 568 , Dr. Bool Chand Vs. The Chancellor, Kurukshetra University, AIR 1968 SC 292 : (1968) LabIC 232 : (1968) 2 LLJ 135 : (1968) 1 SCR 434 , Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, AIR 1976 SC 888 : (1976) 2 LLJ 163 : (1976) 2 SCC 58 , Sirsi Municipality by its President Sirsi Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855 : (1973) 26 FLR 150 : (1973) 1 LLJ 226 : (1973) 1 SCC 409 : (1973) 3 SCR 348 : (1973) 1 SLJ 525 .

In reply, the learned counsel for the respondent-plaintiff Shri P.K. Sharma has submitted that averments in the plaint can only be looked into while deciding the application for rejection of plaint under Order 7 Rule 11 CPC and looking to the averments made in the plaint, the suit is in no manner, barred by any law. The application filed by the petitioner-defendant is misconceived and the learned trial Court rightly rejected the same. He relied upon Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, AIR 1976 SC 888 : (1976) 2 LLJ 163 : (1976) 2 SCC 58 , Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, AIR 1976 SC 888 : (1976) 2 LLJ 163 : (1976) 2 SCC 58 , Bhau Ram Vs. Janak Singh and Others, AIR 2012 SC 3023 : (2012) 4 CTC 675 : (2012) 7 JT 216 : (2013) 169 PLR 152 : (2012) 4 RCR(Civil) 571 : (2012) 6 SCALE 530 : (2012) 8 SCC 701 : (2012) AIRSCW 4627 : (2012) 5 Supreme 17 . and the Judgment passed by the Hon''ble Supreme Court Civil Appeal No. 5254 of 2006 GPA Laxmi Narayan Reddy and Anr. v. P. Neeradha Reddy and Ors. Etc. dated 13/02/2015.

It is very well settled, while deciding the application under Order 7 Rule 11 only the averments made in the plaint and not the pleas of the defence can be looked into. In this regard Hon''ble Apex Court in Bhau Ram Vs. Janak Singh and Others, AIR 2012 SC 3023 : (2012) 4 CTC 675 : (2012) 7 JT 216 : (2013) 169 PLR 152 : (2012) 4 RCR(Civil) 571 : (2012) 6 SCALE 530 : (2012) 8 SCC 701 : (2012) AIRSCW 4627 : (2012) 5 Supreme 17 has observed as under:

"The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan Vs. Ashim Bai and Another, AIR 2008 SC 363 : (2007) 12 JT 295 : (2007) 12 SCALE 163 : (2007) 11 SCR 33 : (2007) AIRSCW 6953 : (2007) 7 Supreme 532 , Ram Prakash Gupta Vs. Rajiv Kumar Gupta and Others, (2007) 11 JT 472 : (2008) 149 PLR 326 : (2007) 11 SCALE 549 : (2007) 10 SCC 59 : (2007) 10 SCR 520 , Hardesh Ores Pvt. Ltd. Vs. Hede and Company, (2007) 7 JT 150 : (2007) 7 SCALE 348 : (2007) 5 SCC 614 : (2007) 6 SCR 608 , Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, AIR 2006 SC 1828 : (2006) 3 BC 156 : (2006) 2 JT 48 : (2006) 2 SCALE 30 : (2006) 3 SCC 100 : (2006) 1 SCR 860 : (2006) AIRSCW 863 : (2006) 1 Supreme 677 ; Mayar (H.K.) Ltd. and Others Vs. Owners and Parties, Vessel M.V. Fortune Express and Others, AIR 2006 SC 1828 : (2006) 3 BC 156 : (2006) 2 JT 48 : (2006) 2 SCALE 30 : (2006) 3 SCC 100 : (2006) 1 SCR 860 : (2006) AIRSCW 863 : (2006) 1 Supreme 677 , Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, (2004) 3 AD 162 : AIR 2004 SC 1801 : (2004) 2 SCALE 82 : (2004) 3 SCC 137 : (2004) 2 SCR 1004 : (2004) 2 UJ 817 : (2004) AIRSCW 799 : (2004) AIRSCW 4778 , Saleem Bhai and Others Vs. State of Maharashtra and Others, AIR 2003 SC 759 : (2003) 1 DMC 166 : (2002) 10 JT 558 : (2003) 1 SCC 557 : (2002) 5 SCR 491 Supp : (2003) 1 UJ 218 : (2003) AIRSCW 174 ]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman v. M/s. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149."

Similarly, in civil appeal No. 5254 of 2006 decided on 13/02/2015 the Hon''ble Apex Court has observed as under.

"In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII rule 11 the stand of the defendants in the written statement would be altogether irrelevant."

In the light of the above, now this Court has to examine whether on the allegation of the plaint, the suit is barred by any law or not? In the plaint, the plaintiff, nowhere pleaded, that the plaintiff''s appointment was based on any contract. Further, the plaintiff has not claimed any contractual right to be enforced in the present suit. Now, let us examine the provisions on the basis of which the petitioner-defendant claims that the present suit is barred by law.

Section 10(b) as under:

"Cases in which Specific Performance of Contract Enforceable. Except as otherwise provided in this chapter, the specific performance of any contract may, in the discretion of the Court be enforced:--

(b) When the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief."

Section 14(1)(c) provides as under:--

"Contracts not specifically enforceasble.--(1) The following contracts cannot be specifically enforced, namely:--

(c) a contract which is in its nature determinable."

Section 38(3)(c) provides as under:--

"Perpetual injunction when granted:-(3) When the defendant invades or threatens to invade the plaintiff''s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:

(c) Where the invasion is such that compensation in money would not afford adequate relief;" How and why, is the suit barred in light of the above provisions, the learned counsel for the petitioner could not satisfy the Court All questions raised by the petitioner about the maintainability of the suit, as discussed above, are not to be looked into at this stage of the suit but the same are to be decided at the stage of trial.

The Judgments cited, at the bar, on behalf of the petitioner-defendant are not applicable at the stage of consideration of application under Section 7 Rule 11 CPC. In all the above cases the findings were given on merits after recording evidence of the parties.

In light of the above, I find no irregularity or jurisdictional error in the impugned Order dated 23/05/2015 and this revision petition is thus liable to be dismissed and hence, is accordingly dismissed.