Bangalore District Court
M/S.Matrix Cellular (International) vs Porus Equipments (P)Ltd on 17 April, 2015
C.R.P.67} Government of
Karnataka
Form No. 9 TITLE SHEET FOR JUDGEMENTS
SUITS
(Civil)
Title Sheet for IN THE COURT OF THE SMALL CAUSES
Judgement in
AT BENGALURU.
PRESENT : Smt.K.Katyayini, B.Com.,LL.B.,
XIII Addl.Small Cause Judge
& Member MACT, Bengaluru.
Dated: This the 17th day of April, 2015
S.C.No.108/2014
Plaintiff: M/s.Matrix Cellular (International)
Service Pvt.Ltd.,
No.95, 17th B main road,
Koramangala,
Bengaluru - 560 095.
Represented by its
Senior Executive (Legal)
Mr.Vikas Suresh Kale.
(By Pleader - Sri.Bannidinni.)
-Vs-
Defendants: Porus Equipments (P)Ltd.,
No.105, Uttari Road,
Kagalipura,
Bengaluru - 560 082.
(By Pleader - Sri.B.G.Nanjundaradhya.)
Date of Institution of the Suit: 13.01.2014
Nature of the Suit (Suit on Recovery of money
pronote, Suit for Declaration and
Possession Suit for injunction etc.,)
(SCCH-15) 2 SC.108/2014
Date of the commencement of 25.10.2014
Recording of the evidence:
Date on which judgment
17.04.2015
Was pronounced:
Total Duration: Year/s Month
Day/s
01 03 04
JUDGMENT
Plaintiff has filed the present suit against the defendant for recovery of money.
2. The brief facts of the plaintiff's case are that it is carrying on the business of International mobile connections in the name and style as Matrix Cellular International Services Private Ltd., having its registered office at New Delhi incorporated under the provisions of Indian Companies Act of 1956. It is having its one of branch offices at the address stated in the cause title and represented by its Senior Executive Legal.
b) Defendant has applied for International Mobile connection in Bengaluru and produced the Standard application form containing the terms and conditions regarding the usage of said connection under the (SCCH-15) 3 SC.108/2014 agreement Nos.M1670300, M1814603, M1814604, M1814605, M1814606, M1814607 and M1828989 account code 484811 and mobile numbers 554985580, 07550060626, 07550067217, 07942845397, 07942845873, 07550048952 and 559501829.
c) Totally defendant is in due of Rs.67,409/- towards usage of mobile service. Despite of repeated requests defendant has failed to repay the said sum. Accordingly, it has got issued legal notice dated 30.04.2013 seeking repayment of the outstanding amount. But despite of due service of notice, defendant neither replied nor complied with the demands made in the notice. Therefore, prayed to decree the suit as sought for.
3. In response to the due service of summons, defendant put its appearance through his counsel and filed its written statement denying the entire plaint averments. It has also contended that since there is no mention who represents the defendant, the suit is not maintainable and prayed to dismiss the suit with costs. (SCCH-15) 4 SC.108/2014
4. To establish its case, plaintiff got examined the then Senior Executive as PW-1. Got exhibited 7 documents. But subsequently, alleging that PW-1 has left the job, it has got examined its Executive Credit Control as PW-2. Got exhibited 2 more documents. Thus, totally it got examined 2 witnesses and got exhibited 9 documents and closed its side.
b) Despite of sufficient opportunities, defendant did not choose to lead his defence evidence. Hence, defendant's evidence is taken as nil. Heard counsel for plaintiff on merits. Despite of sufficient opportunities, counsel for defendant has not submitted arguments. Hence, defendant's arguments is taken as not submitted. Perused the record.
5. Now the points that arise for the due consideration of this Court are;
1.Whether plaintiff proves
that defendant has
obtained International
Mobile connection in the
mobile numbers mentioned
in para No.4 of the plaint
under the respective
(SCCH-15) 5 SC.108/2014
agreements numbers
mentioned therein?
2. Whether plaintiff further
proves that defendant is in
due of the suit claim
amount of Rs.67,409/-
towards usage of the
alleged international mobile
service?
3. Whether plaintiff is
entitled for relief it has
sought for?
4. What order?
6. Now the findings of this Court on the above said points are answered in the;
1. Point No.1: Affirmative.
2. Point No.1: Affirmative.
3. Point No.3: Partly affirmative.
4. Point No.4: As per final order for the following reasons.
REASONS
7. POINTS Nos.1 & 2:- As these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration. As observed above, to prove its case, plaintiff got examined its then Senior Executive as PW-1 who has filed his affidavit evidence reiterating the (SCCH-15) 6 SC.108/2014 plaint averments. However, as observed above subsequently, on the ground that he has left the job, PW-1 not tendered for cross-examination. Hence, his evidence remained as no evidence in the eye of law.
8. However, later plaintiff got examined its Executive Credit Control as PW-2 who has also filed his affidavit evidence in lieu of his examination in chief reiterating the plaint averments. Even defendant has denied the entire case of the plaintiff in its written statement and also contended that since the present suit is brought without stating the person who represents defendant, the suit is not maintainable, it is suggested to PW-2 that they have obtained signature of the defendant on the printed empty form.
9. Of course, the said suggestion is admitted by PW-2. But it is important to note that if the suit documents are taken into consideration, prima facie it appears that defendant is an educated and authorized person representing the defendant company. Therefore, even for the sake of arguments it is (SCCH-15) 7 SC.108/2014 accepted that he has put his signature on empty printed form, unless otherwise it is proved, it should be presumed that after going through the contents of the documents, only after admitting the contents therein, defendant has put his signature to the documents.
10. Moreover, it is suggested that the signatures to the documents were obtained by defendant in their/plaintiff's branch out side India. PW-2 has denied the said suggestion and deposed that the defendant has put his signatures to the documents in their branch and India at the time of submission of the application/entering into the agreement.
11. In addition, it is also got elicited from PW-2 that the mobile connections provided by the plaintiff being used only out side India. PW-2 has also deposed that for the usage of mobile connection in India, defendant was required to pay roaming charges.
12. It is also suggested to PW-2 that defendant has not used the mobile connection in India which is in turn denied by PW-2 and he has voluntarily deposed that (SCCH-15) 8 SC.108/2014 defendant has used the mobile connections service provided by plaintiff in India as well for which he is required to pay roaming charges.
13. Moreover, it is important to note that it is suggested to PW-2 that defendant has not used that much of service as contended by the plaintiff in the plaint. But it has not specified how much usage he has made and what is the exact payment he has to make to the plaintiff. However, he has admitted the mobile connection provided by the plaintiff.
14. So, if the sum and substance of the cross- examination done for defendant is taken note off, it is clear that defendant has raised objections only with regard to the quantum of bill amount. But it has not at all let in any evidence to establish anything in that regard.
15. Moreover, as observed above, there is no specific pleading on behalf of defendant. His defence in his written statement is nothing but total denial of the case of plaintiff. Therefore, even initial burden is on the (SCCH-15) 9 SC.108/2014 plaintiff to prove its case, in view of the admissions put on record for defendant during the cross-examination of PW-2 by way of suggestions, the onus shifts on the defendant to establish its defence with regard to quantum of due amount and the payment he has made if any and no due.
16. To establish that defendant has not at all let in any defence evidence despite of sufficient opportunities. On the other hand, if the conduct of the defendant is taken into consideration, in the written statement he has denied the entire plaint averments, during the course of cross-examination he has admitted the suit transaction. Hence, in the circumstances of the case, preponderance of probabilities much tilts in favour of the plaintiff than the defence raised on behalf of defendant.
17. In addition, to prove its case, plaintiff with the oral evidence of PW-2 has also produced suit documents i.e., document with regard to the suit transaction at Ex.P-2, the customers agreement with (SCCH-15) 10 SC.108/2014 tariff 7 in numbers; Ex.P-3, the company undertakings two in numbers; Ex.P-4, the bills in 12 numbers; Ex.P-4, true copy of account ledger extract at Ex.P-6, the office copy of legal notice and Ex.P-6, the postal receipt in proof of sending notice at Ex.P-6.
18. The contents of those documents are in corroboration with each other and with the oral evidence of PW-2 observed above. Therefore, with the oral testimony of PW-2, the supportive suit documents at Ex.P-2 to 7; the admissions with regard to the suit documents and thereby the suit transaction by way of suggestion on behalf of defendant; plaintiff has proved these points. Hence, both the points are answered in affirmative.
19. POINT No.3:- In view of answering points Nos.1 and 2 in affirmative, plaintiff is of course entitled to recover the suit claim amount. It has sought for future interest at 18% p.a. Even, the suit transaction is commercial in nature, in the facts and circumstances of the case, the nature of suit transaction which is (SCCH-15) 11 SC.108/2014 admittedly purchase of service and considering the provisions of Section 34 of CPC, it is thought just and proper to award future interest at 10% p.a.
20. Hence, plaintiff is entitled to recover the suit claim amount together with future interest at 10% p.a. from the date of suit till the realization of the suit kclaim amount in its entirety. Accordingly, point No.3 is answered partly in affirmative.
21. POINT No. 4:- In the result, this Court proceeds to pass the following order.
ORDER The suit of the plaintiff is decreed with cost. In the result, plaintiff is entitled to recover the suit claim of Rs.67,4,09/- together with future interest at 10% p.a. from the date of suit till realization of the suit claim in its entirety from the defendant.
Draw a decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced in the Open court by me on this the 17 th day of April, 2015.) (K.KATYAYINI), XIII Addl. Small Causes Judge, (SCCH-15) 12 SC.108/2014 Bengaluru.
ANNEXURE List of witnesses examined for plaintiff PW.1 - Mallikarjun.A.U. PW.2 - Uday Kumar.K. List of exhibits marked on behalf of plaintiff Ex.P1 : Notarized copy of Resolution extract (the computerized resolution extract shown for perusal), Ex.P2 : Customers agreements with tariff (7 in nos.), (they are respectively in page nos. 10, 16, 22, 28, 34, 40 and 46 in the file), Ex.P3 : Company undertakings (2 in nos.), (page nos.42 and 48), Ex.P4 : Bills (12 in nos.) (page nos. 53, 55, 57, 61, 63, 65, 67, 70, 72, 74, 76 and 80), Ex.P5 : True copy of Account ledger extract (page No.52), Ex.P6 : Office copy of legal notice dtd.30.04.2013 (page No.82), Ex.P7 : Postal receipt (page No.83).
Ex.P8 : Board resolution extract, Ex.P9 : Notarized copy of board resolution extract.
List of witnesses examined for defendant
- None -
List of exhibits marked on behalf of defendant
-Nil -
(K.KATYAYINI), XIII Addl. Small Causes Judge, Bengaluru.
(SCCH-15) 13 SC.108/2014