The contract of personal service cannot be specifically enforced under Section 41(e) of the Specific Relief Act, 1963, and the exceptions to non-enforcement must be considered in such cases.

JUDGMENT :

Anu Malhotra, J.

CM No. 1602 of 2017

CM No. 1602/2017 an application filed on behalf of the petitioner seeking condonation of delay of 24 days in filing the petition.

In the interest of justice, the application is allowed and the delay of 24 days in filing the petition is condoned.

The application is disposed.

CRP 8 of 2017 and CM No. 1603 of 2017 (Stay)

1. The petitioner vide this petition under Section 115 read with Section 151 Code of Civil Procedure, 1908, as amended seeks the setting aside of the order dated 7.9.2016 of the learned ACJ/CCJ/ARC(W), Tis Hazari Courts, Delhi in CS No. 8569/2016 vide which an application under Order 7 Rule 11 CPC filed by the petitioner herein as the defendant to the said suit seeking rejection of the plaint was declined with it having been observed to the effect:

"I have considered the contentions of both sides. Admittedly, plaintiff joined the defendant company as Manager at Level 4 on 17.11.2000 vide letter of appointment dated 17.11.2000. Subsequently, he was terminated from service by the defendant, vide termination letter dated 02.09.2013. It is the case of the plaintiff that no notice of two months as required by the agreement/letter of appointment dated 17.11.2000 was ever served on him and that his service was not contractual but it was permanent. On the other hand, as per the defendant, the very fact that the plaintiff accepted the salary cheque in lieu of two months' notice was sufficient to have terminated the service of the plaintiff. The present case appears to involve various mixed questions of law and fact, which can be determined only after the parties are allowed to lead their evidence. Prima facie cause of action in favour of the plaintiff appears to be made out from the plaint. The judgments relied on by the counsel for defendant do not help his case as they are based on a different factual matrix. Accordingly, I do not find any merit in the application of the defendant moved under Order 7 Rule 11 CPC. The same stands dismissed."

2. The petitioner and the respondent to whom notice was issued vide order dated 16.1.2017 have both been heard qua the petition. Vide order dated 16.1.2017 itself it had been directed to the effect that during the pendency of the petition no order disposing of the suit could be passed which is under operation till date.

3. Submissions were made on behalf of either side.

4. A bare perusal of the copy of the plaint submitted before the learned Trial Court indicates that it was averred therein to the effect:

"2. That on 17.11.2000, the plaintiff was appointed as a Manager through a letter ref: PI/PERS/APT/04. In the said letter, the defendant also described the other benefits, facilities to the plaintiff."

5. It was also submitted by the plaintiff i.e. the respondent herein that because of his good performance, dedicated efforts and extraordinary service and dynamic leadership, he was repeatedly promoted and was even inter alia awarded ex gratia wages by the defendant company i.e., the petitioner herein till 8.3.2013. The plaintiff therein further averred vide paragraphs 26, 27, 28, 29, 30 and 31 to the effect:

"26. That as per the letter dated 02/09/2013, vide Ref. - No. PI/A&T/04/8332, the then President illegally, unilaterally and without assigning any plausible reason whatsoever, terminated the plaintiff from his service, which is absolutely illegal and against the rule of law.

It becomes necessary to mention here that the main intention of the defendant was/is to think about their own benefit and interest, which further establishes by the Clause no. 4 of the Letter of Appointment given by the defendant, which states " The COMPANY OR YOU, THE EMPOYEE, MAY TERMINATE WITHOUT ASSIGNING ANY REASON THIS CONTRACT OF APPOINTMENT BY GIVING TWO MONTHS NOTICE IN WRITING. On the other hand, the clause no. 6 of the appointment of letter, it states " YOU SHALL NOT ENGAGE IN ANY OTHER BUSINESS OR EMPLOYMENJT DIRECTLY OR INDIRECTLY WITH ANOTHER COMPANY/ AGENCY