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TMI Blog2015 (2) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... t @ 18% per annum from the date of the claim till realisation apart from costs of arbitral proceedings amounting to Rs.11,000. 3. The Respondent is supposed to be a division of Aakash Educational Services Ltd. ("AESL") which is in the business of giving tuitions en masse to children studying in classes 11th and 12th and preparing them for appearing in the IIT-JEE and the entrance examinations for medical and engineering courses. 4. The Petitioner was offered a job on probation by the Respondent as a faculty in Physics at its Lucknow Centre. He states that he joined the Respondent"s Lucknow Centre on 20th August 2009 on a monthly salary of Rs.50,000. According to the Petitioner, he was at the relevant time residing at a tenanted accommodat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, the Petitioner had to bear the entire arbitration expenses which would not be less than Rs.10,000 per hearing before the Arbitrator. A further clause permitted the Respondent to hold back 10% of the gross salary of the Petitioner which was to be held in a "sincerity fund" which was interest free and repayable after three years. As a result although the Petitioner"s monthly salary was fixed at Rs.72,222 after deducting Rs.7,222 he was left only with Rs.65,0000 as a carry home pay. 7. The Petitioner states that in view of the extremely one sided arbitrary clauses in the contract, he rescinded the contract on 20th July 2012 and left the services of the Respondent. The Respondent failed to pay the Petitioner the amount in the "sincerit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left". The Court is satisfied that the explanation offered by the Petitioner that he learnt of the Award only on 20th March 2014 is bonafide. With the present petition having filed thereafter on 28th April 2014, the objection raised by the Respondent regarding limitation is hereby negatived. 11. Turning to the merits of the Award, the Court finds that the learned Arbitrator has simply gone by the clauses in the agreement and even without scrutinising the calculation of the amount claimed by the Respondent, has awarded it in toto. The Court finds that this is a case where the Respondent is seeking to enforce terms and conditions of an agreement dated 1st March 2012 which are on the face of it opposed to public policy and clearly hit by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31st October of any given year after completion of three years, he/she will be required to pay 4 x 2 x Y rupees as damages to Aakash Institute (Lucknow Centre) (the value of Y will be gross monthly salary). Such liability would be automatically incurred once the breach is committed by the employee & no notice in this regard would be served upon you to claim the said pre-determined & pre-estimated damages. You would be severally liable to pay the same within (seven) days of your leaving. If Aakash Institute (Lucknow Centre) does not receive the payments within 7 days of leaving towards the damages as stated above, Aakash Institute (Lucknow Centre) shall have the right to recover the same along with interest @ Z p.a. through legal process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security cheque(s) for legal or any other purposes as it is issued by you in order to discharge of your liability which may occur on account of damages as mentioned under clause 7(d) of the agreement. I, Vivek Rai undertake to keep sufficient balance in my bank account on which the above mentioned cheque are drawn to ensure the encashment of the said cheques. Cheque nos are 328569, 328570 and 328571 drawn Punjab National Bank, Aliganj, Lucknow, (UP) Signature................... In case, the above said cheque gets dishonoured on its presentation to the banker for the reason of insufficient funds, a/c closed, stop payment or any other reason, you shall be deemed to commit an offence u/s 138 of N.I. Act and the appropriate proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. Needless to say, litigation expenses are subjective. However, such expenses cannot be less than Rs.10,000/- per hearing either before the Court or before the arbitrator apart from the other expenses as elucidated above. 7(k) Whoever commits any act in violation to the provision of clause 7(j) of the agreement, with intend to cause wrongful loss to Aakash Institute (Lucknow Centre), shall be held liable to pay a fixed sum of Rs.5 lacs to Aakash Institute (Lucknow Centre) towards damages." 16. The above clauses clearly constitute an unconscionable restraint on the right of one of the parties to seek legal redress. The clauses are hit by Section 28 of the Contract Act. What is even strange is that even a copy of the said agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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