Bangalore District Court
M/S. Matrix Cellular(International) ... vs M Nagendra on 22 January, 2016
BEFORE Ist ADDL. JUDGE, COURT OF SMALL CAUSES,
BANGALORE. (SCCH-11)
DATED THIS 22nd DAY OF JANUARY, 2016
PRESENT: SRI. GANAPATI GURUSIDDA BADAMI, B.A,,LL.B (SPL).
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM
SC.1630/2013
PLAINTIFF M/s. Matrix Cellular(International) Services Pvt. Ltd.,
No.95, 17th B Main road,
Koramangala,
Bangalore - 560 095.
Represented by its
Senior Executive (Legal)
Mr.Vikas Suresh Kale
(By pleader - Bannidinni)
- V/S -
DEFENDANTS M Nagendra,
H.No.63, 11th Cross,
Domlur Layout,
Bangalore - 560 071.
(By pleader - G. Sukumaran)
JUDGMENT
Plaintiff has filed this suit against the defendant seeking the relief for recovery of money.
SCCH - 11 2 SC No.1630/2013
2) It is averred in the plaint that, Plaintiff is a company carrying on the business of international mobile connections in the name and style of Matrix Cellular (International) Services Private Ltd., having its registered office at No.7, Khullar Farms, 140, Mandi Road, Mehrauli, New Delhi incorporated under the provisions of Indian Companies Act and Branch Office in the address mentioned in the cause title of the plaint. Mr.Vikas Suresh Kale, Senior Executive (Legal) is authorized by the company to represent the company in this matter and copy of certificate of incorporation has been issued by the Registrar of companies N.C.T. Delhi and Haryana which is produced before this court. The defendant had applied for international Mobile Connection in Bangalore and procured the standard application form containing the terms and conditions regarding the usage of said connection. After being with satisfied the terms and conditions, the defendant had applied for hiring mobile connection and categorically signed a statement that, he has read and understood the terms and conditions of the agreement form and agreed to abide by them. Plaintiff provided SCCH - 11 3 SC No.1630/2013 service of international mobile service under the agreement No.M2084895 and M2057892 account code 439910 and mobile No.07942846563 and 0753415938 while defendant was in U.K. and West Europe. The defendant is liable to pay Rs.87,927/- and inspite of same, the defendant has not paid said amount. Plaintiff issued legal notice on 29.9.2012 to the defendant to his address given by him calling upon him to make the payments of said outstanding amount during the course of transaction along with interest at the rate of 18% p.a., which is duly served upon the defendant. But, the defendant has failed to reply to the legal notice and he has not complied to the demands made in the notice. Hence, the plaintiff is constrained to file this suit.
3) The defendant has filed written statement and denied the contents of the claim petition. It is contended that, the suit is frivolous, vexations and speculative in character and the plaintiff is guilty of serious suppression of real and true facts to this court which is not maintainable under law or on facts. The defendant was SCCH - 11 4 SC No.1630/2013 issued only one mobile phone bearing No.07534215938 and his usage bill for period from 30th April to 29th May 2012 and the bill amount of Rs.1788.76 was duly paid by the defendant vide credit card account and he is not liable to pay for mobile usage and accordingly, the mobile No.07942846563 is not belonged to him and it was not allotted to him and the plaintiff has wrongly filed this suit against the defendant and the suit is liable to be dismissed. It is contended that, at no point of time, the defendant had entered into any agreement as alleged at para 4 by the plaint and alleged documents are not pertaining to the defendant and same are not executed by defendant personally. There is no cause of auction as shown in para 9 of the plaint. Therefore, it is prayed for dismissal of the suit.
4) One Uday Kumar.K S/o. Kuppaswamy, authorized Signatory of plaintiff himself examined as PW.1 and got marked Ex.P.1 to 9 and closed the evidence. Though sufficient time has been granted to the defendant, SCCH - 11 5 SC No.1630/2013 he has not led his evidence. Hence, defendant side evidence is taken as not nil.
5) Heard the learned counsel for plaintiff. Though, sufficient time has been granted to the defendant, he has not addressed his arguments. Hence, defendant side arguments are taken as not addressed and suit is taken for disposal on merits.
6) The following points that arise for my consideration are:
1) Whether the plaintiff proves that, it had provided service of international mobile under agreement No.M2084895 and M2057892 account code 439910 and mobile No.07942846563 and 0753415938 while defendant was in U.K. and West Europe and he has not paid Rs.87,927/- for usage of mobile service inspite issuing legal notice on 29.9.2012?
2) Whether the plaintiff is entitled to recover Rs.87,927/-? If so, at what rate of interest?
3) What order or decree?
SCCH - 11 6 SC No.1630/2013
7) My findings on the above points are as under:
Point No.1 : In the Negative;
Point No.2 : In the Negative;
Point No.3 : As per final order,
for the following
REASONS
8) POINTS NO.1: As per the evidence of PW.1, the
defendant applied for hiring the mobile connection and categorically signed a statement that he has read and understood the terms and conditions of the agreement form and agreed to abide by them and the defendant executed agreement bearing No.M2084895 and M2057892 account code 439910 and mobile No.07942846563 and 0753415938 while defendant was in U.K. and West Europe. He has stated that, at the time of executing agreement, he was satisfied about the terms and conditions. He has also stated that, Plaintiff Company provided service of international mobile service under agreement No.M2084895 and M2057892 account code 439910 and mobile No.07942846563 and 0753415938 while defendant was in SCCH - 11 7 SC No.1630/2013 U.K. and West Europe. He has also stated that, the defendant is liable to pay Rs.87,927/- and inspite of same, the defendant has not paid said amount.
9) It is the contention of the defendant that, he was issued only one mobile bearing No.07534215938 and usage bill for period from 30.4.2012 to 29.5.2012 which was for Rs.1788/- and same is paid by him through his credit card and mobile No.07942846563 is not belonged to him. He has denied the rest of the allegations made against him. The learned counsel for plaintiff has contended in his arguments that, the defendant executed agreement after reading terms and conditions of the agreement and he used the mobile phones for which he is liable to pay amount of Rs.87,927/- and plaintiff has produced bill about usage of the mobile phone under account bearing No.439910 and same account number is also reflecting in the agreement form and bill has been prepared for the said account number and defendant is liable to pay said amount and there is signature of the defendant on the agreement form.
SCCH - 11 8 SC No.1630/2013
10) In the cross-examination of PW.1 he has
admitted that, he is not having personal knowledge about transactions between plaintiff and defendant and address of the defendant in the plaint and written statement are different. The cross-examination portion is as under " £À£ÀUÉ ¥ÀæwªÁ¢ ªÀÄvÀÄÛ ªÁ¢ PÀA¥À¤AiÀÄ §UÉÎ DzÀ ªÀåªÀºÁgÀzÀ §UÉÎ ªÉÊAiÀÄQÛPÀ YÕÁ£À E®è JAzÀgÉ ¸Àj, ªÁzÀ ¥ÀvÀæzÀ ²gÉÆãÁªÉÄAiÀÄ°ègÀĪÀ ¥ÀæwªÁ¢AiÀÄ «¼Á¸À ªÀÄvÀÄÛ ¥ÀæwªÁzÀ ¥ÀvÀæzÀ «¼Á¸À §ÉÃgÉ ¨ÉÃgÉ EzÉ JAzÀgÉ ¸Àj. He has denied that, Ex.P.2 and 3 are in complete applications, but, he has further stated that, Ex.P.2 is not completely filled. He has denied the suggestion that, Ex.P.3, 4 and 6 are incompletely filled by him and produced before this court. He has denied the suggestion that, the person shown in Ex.P.2 and 3 and persons shown in the Ex.P.6 are different. The cross- examination portion is as under " ¤¦ 2 ªÀÄvÀÄÛ ¤¦ 3 gÀ°è EgÀĪÀ ªÀåQÛ ªÀÄvÀÄÛ °ÃUÀ¯ï £ÉÆÃn¸ï£À°è vÉÆÃj¹gÀĪÀ ªÀåQÛ ¨ÉÃgÉ ¨ÉÃgÉ EgÀÄvÁÛgAÉ zÀgÉ ¸ÀjAiÀÄ®è ". He has stated in his further cross-examination that, one sim card shown in the Ex.P.2 and 3 was issued to the Nagendra which was used by Venkatesh, he has also SCCH - 11 9 SC No.1630/2013 stated that, sim card given to Nagendra which was being used by Nagendra and Venkatesh. *******ggb He has admitted in Ex.P.2 and 3, the billing address, user of sim card and name of the person to whom the sim card is given is shown as Venkatesh. The cross-examination portion is as under " £ÁUÉÃAzÀægÀªj À UÉ ¹ªÀiï ¤ÃqÀ¯ÁVzÀÄÝ CzÀ£ÀÄß £ÁUÉÃAzÀæ ªÀÄvÀÄÛ ªÉAPÀmÃÉ ±ï gÀªgÀ ÀÄ §¼ÀPÉ ªÀiÁqÀÄwÛzÀÝgÀÄ¢ ¤¦ 2 ªÀÄvÀÄÛ 3 gÀ ¥ÀæPÁgÀ ©°èAUï CqÉæ¸ï ¹ªÀiï G¥ÀAiÉÆÃV¸ÀĪÀªÀgÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ¹ªÀiï ¹ªÀiï ¤ÃqÀ¯ÁzÀ ªÀåQÛ ªÉAPÀmÃÉ ±ï JAzÀÄ EzÉ JAzÀgÉ ¸Àj". He has admitted that, he does not know the address which is shown in Ex.P.2 and 3 are not belong to the Nagendra. He had does not know whether any notice was issued by his complainant to the Venkatesh prior to filing this suit. But in the further cross- examination he has stated that, the customer who used the phone is the person by name Nagendra. But he again says that he had given phone to the Nagendra which was used by Venkatesh. But he has stated that, both Sri.Nagendra and Sri.Venkatesh taken phone connection from his company and they have taken phone connection from the company jointly. The cross-examination portion is as under
SCCH - 11 10 SC No.1630/2013 "Both Sri.Nagendra and Sri.Venkatesh taken phone connection from our company. They took phone connection from our company jointly. Our company has phone connection from our company jointly. Our company has documents to show that it has given phone connection jointly to the Sri.Venkatesh and Sri.Nagendra.
He has stated that, they have documents to show that they have allotted phone to Nagendra and Venkatesh jointly and he does not remember the phone numbers allotted to the Nagendra and Venkatesh. The cross- examination portion is as under
"we have documents to show that we have allotted phone to Nagendra and Venkatesh jointly".
He has further admitted in the cross-examination that, the telephone connections will be given only to the individual name and not in the joint name. If this evidence of PW.1 has taken into consideration that, in case there are documents to show that, phone numbers were given jointly SCCH - 11 11 SC No.1630/2013 to the Venkatesh and Nagendra, why signature of Venkatesh are not taken in the Ex.P.2 and 3?. Because there is only one signature of the defendant in Ex.P.2 and 3 and there is no signature of the Venkatesh in the said documents. But bill at Ex.P.5 has been prepared in the name of V. Venkatesh. Even the bill at Ex.P.7 is prepared in the name of Sri. V. Venkatesh who is shown as user. In case, sim numbers were issued in the name of Venkatesh and Nagendra, why signature of the Ventakesh is not taken on the Ex.P.2 and 3. Even on perusal of the Ex.P.2 and 3, most of the parts of the said documents are blank and even the photo of defendant is not pasted on the said documents. Then question arises for my consideration is, in case, no Sim card was issued to Sri.Venkatesh, why the bill has been prepared in his name? Even on perusal of Ex.P.2 and 3, there is no name of Venkatesh and in the agreement, there is only name of Sri.Nagendra. But bill for Rs.87,927.81 and Rs.537.84 are prepared in the name of Venkatesh. In case, Venkatesh had applied for mobile phone services and executed the agreement, he would have been liable to pay the said amount. But Venkatesh has not executed SCCH - 11 12 SC No.1630/2013 agreement form and even though, same account number is shown and the bill has been prepared in the name of Venkatesh, even though agreement is in the name of the defendant. There is no proper explanation from the plaintiff that, why the bills have been prepared in the name of Venkatesh and defendant. Even though, he has stated that, in the cross-examination that, there are documents to show that, sim cards were issued both in the name of Venkatesh and Nagendra, there is no pleadings to that effect and there are no documents to that effect. So, I hold that, plaintiff has failed to prove that, the defendant executed agreement and used the mobile phone and liable to pay the amount. Even PW.1 has no personal knowledge about transactions between plaintiff and defendant which is admitted by him and in the agreement form, there is name of only one person and bill is prepared in the name of another person which is not explained. There are not documents to show that, sim cards were issued in the joint name. In the absence of document to that effect, I hold that, plaintiff is failed to prove the transactions. So, I answer point No.1 in Negative.
SCCH - 11 13 SC No.1630/2013
11) POINT NO.2: In view of the my discussion in
point No.1 in detail, I hold that, plaintiff is not entitled to recover the amount as prayed. So, I answer point No.2 in the Negative.
12) POINT No.3: In view of answer to points No.1 and 2, I proceed to pass the following:
ORDER The suit of plaintiff is hereby dismissed as devoid of merits.
No order as to costs.
(Dictation given to the stenographer, transcribed by her and corrected by me, then pronounced in Open court on this 22nd day of January, 2016.) (GANAPATI GURUSIDDA BADAMI) I ADDL.SMALL CAUSES JUDGE & XXVII ACMM SCCH - 11 14 SC No.1630/2013 ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 - Sri. Udaykumar K.
LIST OF WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
- NIL -
LIST OF EXHIBITS MARKED ON BEHALF OF
PLAINTIFF:
Ex.P.1 - Authorisation letter
Ex.P.2 - Customer agreement form
Ex.P.3 - Another agreement form
Ex.P.4 - Account ledger extract
Ex.P.5-7 - 3 bills
Ex.P.8 - Office copy of legal notice
Ex.P.9 - One Postal receipt
LIST OF EXHIBITS MARKED ON BEHALF OF
DEFENDANTS:
- NIL -
I ADDL.SMALL CAUSES JUDGE & XXVII ACMM