Bangalore District Court
M/S Matrix Cellular (International) vs Vikram Devaiah on 1 September, 2021
IN THE COURT OF THE SMALL CAUSES AT
BENGALURU SCCH4
PRESENT: RAJU.M.., M.A., LL.B.,
XVIII ADDL. JUDGE,
Court of Small Causes,
Bengaluru.
Dated this the 1st day of September 2021
SC No.1889/2016
PLAINTIFF: 1.M/s Matrix Cellular (International)
Services Pvt., Ltd.,
a Company registered under the
Companies Act, 1956 and having its
Branch Office at No.95,
17th B Main road, Koramangala,
Bengaluru560 095 Represented by
its Executive Mr.Nazeer.
(Sri.VBR Adv.,)
V/s
DEFENDANT/S: Vikram Devaiah,
S/o Dasanga Chengappa Devaiah,
Aged about 34 years old,
Residing at Abboorkolly Estate,
7th Hosakote Village, Kambibane,
Suntucoppa, Kodagu571237.
(Sri.MSP., Adv.,)
Date of institution of the suit: 28.10.2016
SCCH4 2 SC NO.1889/2016
Nature of suit: Money suit
Date of commencement of
recording of evidence: 03.11.2018
Date of pronouncement of
judgment: 01.09.2021
Duration: Year/s Month/s Day/s
04 10 03
JUDGMENT
The plaintiff has filed this suit against the defendant, for recovery of a sum of Rs.99,411/ with future interest at the rate of 18% p.a. from the date of suit till the date of realization.
2. The brief facts of the plaintiff's case are as under:
the plaintiff is a company carrying of the business international mobile connections in the name and style of Cellular Services Pvt., Ltd., and having its head office at No.7, Khullar Farms 140, Mandi Road, Mehrauli, New Delhi110 030 incorporated under the provisions of SCCH4 3 SC NO.1889/2016 Indian Companies Act 1956. The plaintiff is the leading telecom solutions provider for Indian travelers going abroad and it has branch offices in about 98 cities in India and has served over 10 million satisfied customers, including both corporations and individuals. Further contended that, the plaintiff through its commercial tie ups with local telecommunication service providers abroad allows Indians traveling abroad to use a local Simcard of the country to which they are traveling, thereby saving them from payment of heavy international roaming charges that would be chargeable on Indian Simcards being used abroad. The defendant had applied for an international mobile connection (mobile simcard) in Bengaluru and procured the standard customer agreement form containing the terms and conditions regarding the usage of said connection. Being satisfied about the terms and conditions the defendant agreed to hire a mobile connection and categorically SCCH4 4 SC NO.1889/2016 signed a statement that, he has read and understood the terms and conditions of the agreement form and agreed to abide by them. The number of calls made, messages sent and mobile data consumed by the defendant during his time abroad, certain bills were periodically raised on the defendant and sent to him electronically also physically to the address stated in the agreement form. Inspite of several requests and reminders, the defendant has failed to pay a sum of Rs.99,411/. Hence the plaintiff got issued a legal notice dated 20.03.2014 to the defendant. The defendant did not reply to the notice nor compile the demands made in the notice. Hence, the plaintiff prays for judgment decree as sought for.
3. After service of summons, the defendant entered appearance through his counsel and filed written statement by denying all the averments of plaint. Further contended that, the suit filed by the plaintiff is not maintainable in law. The suit is barred by law of SCCH4 5 SC NO.1889/2016 limitation. The defendant not entered into the agreement dated: 11.02.2013 along with the tariff card and other documents filed by the plaintiff before this court. Further contended that, the defendant agreed for the using of the Sim card only in Dubai. The defendant started on 03.02.2013 and return from 01.04.2013 with that condition the defendant has signed the agreement. The plaintiff has not produced the agreement executed by the defendant . The rate of interest claimed by the plaintiff at the rate of 18% p.a., not agreed by the defendant. Further contended that, Mr.Nazeer so called executive of the plaintiff company cannot represent the plaintiff company before this court. There is no cause of action to file this suit before this court. Absolutely there is no jurisdiction to maintain the present the suit before this court. Hence the defendant prays to dismiss the suit.
SCCH4 6 SC NO.1889/2016
4. One Mohan Kumar is examined on behalf of plaintiff, as PW.1 and got marked documents as Ex.P1 to
10. The defendant is examined as DW.1 but no document is marked.
5. Inspite of giving sufficient opportunities and also service of notice, there was no representation by plaintiff. Heard the argument of defendant's counsel.
6. On the rival pleadings the points would arise for my consideration :
1. Whether the plaintiff company prove that, it has entered into agreement dated 11.12.2013 to provide inter national mobile service to defendant?
2. Whether the plaintiff proves that, under agreement dated 11.02.2013 the defendant is due a sum of Rs.99,411/ towards the service provided by the plaintiff?
3 Whether the plaintiff is entitled relief sought for?
4. What order ?
7. My findings on the above points are as under: SCCH4 7 SC NO.1889/2016 Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative Point No.4: As per final order, for the following:
REASONS
8. POINT No.1: As averred in the plaint, the plaintiff is carrying out business of inter national mobile connections in the name and style of Matrix Cellular(international) Services Pvt., Limited having its head office at New Delhi. In this regard, the plaintiff has produced self attested copy of certificate of incorporation under Ex.p2 which discloses that, plaintiff company is a registered company. This fact is not in dispute. Ex.P.3 is a true copy of authorization letter said to have been issued by chief administrative officer of plaintiff company infavour of Nazeer who has presented the plaint. Ex.P.2 is also another true copy of authorization letter said to have been issued by chief administrative officer of plaintiff company infavour of SCCH4 8 SC NO.1889/2016 Mohan Kumar who is examine as PW.1. While arguing the case the learned advocate for defendant has submitted that even though in Ex.P2 document it has recited that the board of directors of plaintiff's company passed a resolution to authorize Nazeer to conduct the case but the resolution is not in accordance with law. In the written statement, it is not contended that plaintiff company is not a registered one .The defendant has not raised any specific contention neither marking the resolution copies nor during cross examination of plaintiff. Hence, the argument of defendant's counsel is not acceptable under law and there is no impediment to hold that the documents that are marked at Ex.P1 and 3 are the true copies of the resolution passed by the board of directors of plaintiff company to present the plaint and conduct the case through the persons mentioned therein.
9. Ex.P.4 is the copy of agreement form dated 11.02.2013 said to have entered into between the SCCH4 9 SC NO.1889/2016 plaintiff and defendant, the said document is also marked subject to objection of defendant's side. As per Ex.P.4 document Sim card is delivered to defendant on 11.02.2013. Whereas, the plaintiff alleged that, it has entered into agreement with defendant to provide international mobile services to him it is the duty of plaintiff to prove the due execution of the agreement. Even though, in the written statement the defendant has stated that, he has agreed for the using of Sim card only in Dubai but the said contention can't be treated as an admission with regard to agreement dated 11.02.2013, on which the plaintiff is claiming the relief. Hence ,it is the bounden duty of the plaintiff to prove the due execution of the agreement cited by it. It is seen that Ex.P.4 document is taken out through the computer, for which neither the plaintiff nor the defendant signed. Now a question arises whether Ex.P.4 document can be tread SCCH4 10 SC NO.1889/2016 as secondary evidence or not. Hence I intend to refer section 63 of Evidence Act which reads thus :
10. Secondary evidenceSecondary evidence means and includes (1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
11. Section 65 of Indian Evidence Act reads thus;
"Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--SCCH4 11 SC NO.1889/2016
a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force SCCH4 12 SC NO.1889/2016 in 1[India] to be given in evidence2; (1[India] to be given in evidence;"
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents".
12. In support of the above provision refer a recent reported judgment in civil appeal No.188/2020, between Jagamail Singh and & another V/s Majit Singh &others, the Honble supreme court has held that SCCH4 13 SC NO.1889/2016 "perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished"
As per the provisions and citation referred above the plaintiff can't produce the secondary evidence without making ground. Hence the Ex.P 4 document cant be considered as secondary evidence. SCCH4 14 SC NO.1889/2016
13. Section 68 of Evidence Act mandates that as fallows;
Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] In view of the provision mentioned above the plaintiff ought to have examine at least one attesting SCCH4 15 SC NO.1889/2016 witness also to prove the Ex.P4 document but no attesting witness for the document. On this count also it can't be said that plaintiff proved the alleged agreement dated 11.02.2013.accordingly I answers point No.1 in the negative.
POINT No.2 :
14. According to the plaintiff the defendant is due a sum of Rs.99,411/ towards services rendered by the plaintiff company in this regard. The plaintiff has produced the computerized bill raised in the name of defendant and the same is marked at Ex.P.5,subject to objection of the defendant side. As per this document the defendant is due a sum of Rs.99,411/. Ex.P.6 is the copy of account ledger in respect of the defendant account said to have maintained by the plaintiff company, which is also marked subject to objection of defendant side. Ex.P.7 is the copy of the legal notice SCCH4 16 SC NO.1889/2016 which has got issued by the plaintiff company calling upon the defendant to pay Rs.99,411/ along with interest at 18% p.a., which is due by the defendant towards services provided by the plaintiff company. Ex.P.8 is the postal receipt for having legal notice to the defendant. Ex.P.9 is the customer agreement from with the annexed sheets, which is also marked subject to objection of the defendant side. Three computerized bills are marked under Ex.P.10 which are raised in the name of defendant. During cross examination Pw1 admitted that Ex.P9 document obtained through online. Except the legal notice and postal receipt, other documents at Ex.P.6,7,9 and 10 are also taken out through computer. As already held the plaintiff has not complied section 65 of the Evidence Act. Hence, the Ex.P.6,7,10 and 10 documents are also cannot be considered that, they are genuine documents.
SCCH4 17 SC NO.1889/2016
15. According to the plaintiff it has provided mobile sim card for inter national mobile connection in Bengaluru. But as per the conditions mentioned in Ex.P.1 alleged agreement the Sim card should not be used in India. On this circumstances the plaintiff ought to have prove that, the defendant has used Sim card provided by the plaintiff company in aboard. But there is no materials evidence to show that, the defendant has utilized the services provided by the plaintiff out of India. Considering all these facts, come to conclusion that, plaintiff has failed to prove that, it has provided inter national mobile services to defendant and the defendant is due a sum of Rs.99,411/. Accordingly, point No.2 is answered in the Negative.
16. POINT NO.3:In view of my findings on point No.1 and 2 the plaintiff is not entitle for any relief. Accordingly point No.3 is answered in the Negative. SCCH4 18 SC NO.1889/2016
17. POINT NO.4: For the reasons and discussion made above, I proceed to pass the fallowing: ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
(Dictated to the Stenographer, transcribed by her, the transcript corrected and then pronounced by me in the open court on this the 1st day of September, 2021) (RAJU.M) XVIII ADDL.JUDGE, Court of Small Causes, BENGALURU.
ANNEXURE List of witnesses examined for plaintiff PW.1 : Sri.Mohan Kumar.P List of exhibits marked on behalf of plaintiff Ex.P1 : Authorization letter Ex.P.2 : Copy of Certificate of Incorporation of Plaintiff Company (marked subject to objections) Ex.P3 : Board Resolution authorizing Mr.Nazeer Ex.P4 : Original Agreement Form dated.11.02.2013 entered into between plaintiff and defendant (marked subject to objections) SCCH4 19 SC NO.1889/2016 Ex.P5 : Copy of the Bills dated from 26.02.2013, 28.03.2013 & 29.04.2013 issued by plaintiff Company to the Defendant (marked subject to objections) Ex.P6 : Original Account Ledger in respect of the defendant's Account maintained with the plaintiff Company. (marked subject to objections) Ex.P7 : Office Copy of the legal notice dated 20.03.2014 (marked subject to objections) Ex.P8 : Postal receipt evidencing issuance of legal notice dated 25.03.2014. (marked subject to objections) Ex.P9 : Customer agreement form with the annexed sheets. (marked subject to objections) Ex.P10 : Bills (nos.03) ( marked subject to objections) List of witnesses examined on behalf of defendant:
DW. 1 : Sri.Vikram Devaiah
List of documents marked on behalf of
defendant:
NIL
(RAJU.M)
XVIII ADDL.JUDGE,
Court of Small Causes,
BENGALURU.