Delhi District Court
M/S Matrix Cellular vs . Sanjay Bhatt on 13 November, 2013
M/s Matrix Cellular Vs. Sanjay Bhatt
IN THE COURT OF MS. SHREYA ARORA MEHTA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No.18/11
Case ID No. 02403C0227202010
M/s Matrix Cellular ( International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110 030.
...............Plaintiff
Versus
Sanjay Bhatt
S/o Sh. S. P. Bhatt
R/o E5, Amba Apartment, Plot no.5,
Sector10, Dwarka, New Delhi110 075. ..............Defendant
Date of Institution : 13.07.2012
Date of reserving the judgment : Oral
Date of pronouncement : 13.11.2013
Decision : Dismissed
SUIT FOR RECOVERY OF RS. 93,338/ (RUPEES NINETY THREE
THOUSAND THREE HUNDRED THIRTY EIGHT ONLY)
JUDGMENT (ORAL)
1. This is suit for recovery of Rs.93,338/ (Rupees Ninety Three Thousand Three Hundred Thirty Eight Only) along with interest @ 18 % per annum from date of the filing of the suit till realization.
2. The version of the Plaintiff is that the Plaintiff is a private limited company registered under the Companies Act, 1956 and dealing in mobile rental services and having its registered office at 7, Khullar Farms, 140, New Manglapuri, Mandi Road, Suit no.18/11 Page 1 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt Mehrauli, New Delhi. The suit has been filed by Mr. Chandra Shekhar, who is the General Power of Attorney Holder of the Plaintiff company. It is averred by the Plaintiff that the Defendant applied for an international mobile connection in South Delhi and procured the Standard Application Form containing the terms and conditions regarding the usage of said connection. It is further averred that the customer agreement form was duly executed between the Plaintiff company and the Defendant on 09.08.2006. Thereupon, the Plaintiff gave an international mobile connection No. 13052121461 & 13052121495 to the Defendant subject to the terms and conditions of the aforesaid Agreement No. 223419 & 223419A. It is averred that the Defendant failed to adhere to the discipline of payment of outstanding dues and hence the dues against the Plaintiff remained unpaid.
3. The Plaintiff got the Defendant served with legal notice dated 22.01.2010 which was duly served upon the Defendant. However, the Defendant despite receipt of aforesaid notice failed to make the payment of the aforesaid amount.
4. The present suit was initially filed under Order XXXVII of the Code of Civil Procedure, 1908 and summons for appearance in the format prescribed under Order XXXVII of the Code of Civil Procedure, 1908 were duly served upon the Defendant. The Defendant entered appearance pursuant to service of summons for appearance. Thereafter the Defendant waived the service of summons for judgment and filed leave to defend. When the matter was pending adjudication on leave to defend application, an application under Order VII Rule 14 Suit no.18/11 Page 2 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt of the Code of Civil Procedure, 1908 along with itemized bills was filed. And vide order dated 18.11.2011, on the statement of the Counsel for the Plaintiff, my Predecessor converted the present suit into an ordinary suit for recovery.
5. The Defendant filed his written statement thereupon. The Defendant without prejudice averred that as per statement of account filed by the Plaintiff, the claim of the Plaintiff for a sum of Rs.93,338.13/ is barred by limitation in as much as the bill in respect of the said amount is dated 20.11.2006 and the present suit has been filed on 09.07.2010. It is stated that the bill for each month/quarter gives rise to a separate cause of action. Even as per the Plaintiff, the payments were made by the Defendant towards specific bills and no amount has been paid by the Defendant towards the alleged bill dated 20.11.2006 and therefore, the payments made by the Defendant does not extend the period of limitation for filing the present suit as they are not "on account payments" as provided under Section 19 of the Indian Limitation Act, 1963. Further there is no averment or allegation or proof that the payments were made in writing by the Defendant as per requirements of Section 19 of the Act.
6. It is further averred that the Plaintiff has based his entire suit on statement of account and same is not proved under Section 34 of the Indian Evidence Act. It is stated that the statement of account has been prepared by the Plaintiff at his own whims and fancies and has not been even sent to / acknowledged by the Defendant at any stage whatsoever and same does not reflect the correct entries thereof. It is averred Suit no.18/11 Page 3 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt that no amount is due and payable to the Plaintiff company and the Defendant has paid the entire amount. Further the Plaintiff has claimed and charged call rates at its own whims and fancies without informing the Defendant. It is stated that the call rates claimed in annexure P5 have never been agreed to by the Defendant and same does not bear the signature of the Defendant. The Defendant has further averred that he did not receive the bill reflecting the amount alleged to be due and payable by the Defendant to the Plaintiff and it was only on phone that the Defendant was told by the executives of the Plaintiff that some amount was due and the Defendant made payments as demanded by them believing that the amount claimed by them were correct and they would send the call details at the subsequent stage. It is stated that even despite payment the Plaintiff kept on making illegal and exorbitant demands and in order to scrutinize and verify the same the Defendant even asked the executives of the Plaintiff to provide call details. However, till date the same has not been supplied to him. It is further stated that the Plaintiff has billed for calls not made by the Defendant, the call durations have been illegally increased and call rates are inflated and more than to what was agreed to. It is stated that the fact remains the Defendant never used the phone/SIM card to the extent claimed by the Plaintiff and the alleged bills and itemized record of the calls are false and fabricated and does not bear signature of the Defendant as an acknowledgment of its correction or of its receipt. The Defendant has denied the receipt of legal notice dated 22.01.2010.
7. The Plaintiff has filed replication and denied the averments of Suit no.18/11 Page 4 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt the written statement of the Defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
8. Vide order dated 03.04.2012, on the basis of the pleadings of the paties, following issues were framed:
1. Whether the suit is barred by limitation? OPD
2. Whether the Plaintiff is entitled to recover a sum of Rs.
93,338/( Rupees Ninety Thousand Three Hundred and Thirty Eight Only) claimed in the plaint?OPP
3. Whether the Plaintiff is entitled to interest, claimed? If so, at what rate? OPP
4. Relief
9. In order to prove its case, the Plaintiff examined Mr. Chandra Shekhar as PW1, who deposed on the lines of the plaint. In defence evidence, the Defendant has examined himself as DW1 and deposed on the lines of written statement. No other witness was examined by the parties.
10. Vide judgment and decree dated 14.12.2012, the present suit was dismissed being barred by law of limitation on adjudication of issue No.1 framed as to whether the suit is barred by limitation. The matter has been remanded back to this court by the Appellate Court of Mr. Sandeep Yadav, Additional District Judge (South), Saket Courts, New Delhi for pronouncement of judgment on all issues after hearing both the parties.
11. To make the present judgment a composite judgment, I deem it appropriate to reproduce my findings on issue No.1 as recorded in the judgment dated 14.12.2012. The same reads as under:
Suit no.18/11 Page 5 of 16M/s Matrix Cellular Vs. Sanjay Bhatt "Issue No.1
11. The question to be answered is whether is the suit is barred by limitation.
12. Counsel for the Defendant submits that there were four separate bills raised by the Plaintiff Company. And the payment on 20.12.2006 was for bill no. 1031 and 1148 dated 27.09.2006 and 23.10.2006, respectively.
Further payment on 03.12.2007 was for bill No. 1451 dated 19.12.2006. It is stated that the account maintained by the Plaintiff company is not a running account; therefore separate cause of action arises for each bill. It is stated that it is the third bill dated 20.11.2006 which is claimed by way of present suit filed on 09.07.2010. Hence, barred by limitation.
13. Per contra, counsel for the Plaintiff submits that payment of Rs. 21,000/ on 20.12.2006 as shown in the Ledger Account does not replicate or is the exact amount of the first and second bill and further payment of Rs. 18,400/ on 03.12.2007 does not concur with any bill raised. It is stated that even if it is presumed that first payment is for first two bills then why less payment of Rs. 21,000/ when it is 22,000/ and more. The payment of Rs. 18,400/ after one year on 03.12.2007 against which bill was raised will take this case within the period of limitation. It is contended that the Plaintiff company was maintaining a running account and the Defendants were not making payments as per the amount of respective bills but were rather advancing payments in part against the accumulated dues in respect of various bills.
14. The whole controversy on the issue of limitation is whether the present matter falls under Article 1 of the Limitation Act, 1963. And to ascertain the same it is to be examined whether the Plaintiff company was maintaining a running account of the Defendant.
15. Running Accounts are such as consist of reciprocity of dealings between the parties and do not embrace those having items on one side only, though made up of debits and credits. An account in which one party has merely Suit no.18/11 Page 6 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt received and paid moneys on account of the other is not a mutual account socalled. Each party must receive and pay account on the other. When there was obligation only on one side and at no time there was over payment it cannot be said that there was mutual, open and current account. The test of running account would be such that the dealings between the parties shall be sometimes in favour of one and at other times it shall be in favour of other. In the present case, the relationship between the Plaintiff and the Defendant was that of a service provider and the consumer. The Plaintiff was to raise bills for the use of cell phone by the Defendant and the Defendant was to make payment on receiving those bills. By very nature of these dealings, there could not have been reciprocal demands on each other or dealings in favour of one or other party. Question of such an account taking the character of mutual and open account does not arise at all.
16. The Account Ledger of the Defendant Mr. Sanjay Bhatt, Exhibit PW1/C is as under:
Date Voucher Narration Debit (Rs.) Credit Balance (Rs.) 25Jan2006 Opening Balance 0.00 0.00 27Sep2006 BILL 7,845.35 7,845.35 Dr Bill No.CHNHK1031/Yuan1348.
00/HKD 0.00 23Oct2006 BILL 14,448.22 22,293.57 Dr Bill No.CHNHK1148/Yuan1686.
00/HKD 824.00 20Nov2006 BILL 92,564.47 114,858.04 Dr Bill No.CHNHK1333/Yuan13825 .13/HKD 2361.00 19Dec2006 BILL 17,880.09 132,738.13 Dr Bill No.CKNKH1451/Yuan2668.
00/HKD 455.50 20Dec2006 CHQ 21,000.00 111,738.13 Dr Being Cheque No.776146 recd against Bills CHNHK1031, CHNHK1148 03Dec2007 CHQ 18,400.00 93,338.13 Dr CHQ NO.763860BILL Suit no.18/11 Page 7 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt NO.CHKNK1451 Total: 132,738.13 39,400.00 93,338.13 Dr
17. A perusal of the ledger reveals that the Plaintiff Company accepts that payments on 20.12.2006 and on 03.12.2007 was for bills dated 27.09.2006, 23.11.2006 and 19.12.2006. Ex PW/C clearly shows that a running account was not being maintained and the payment of the bills has been made bill wise. The bill dated 27.09.2006 and 23.10.2006 was paid vide cheque No. 776146 dated 20.12.2006. The bill dated 19.12.2006 was paid vide cheque No. 763860 dated 03.12.2007.
18. Thus, the material on record shows that the Plaintiff is claiming the amount against bill dated 20.11.2006. It is apparent that the account maintained by the Defendant company is not a running account and does not fall with the purview of Article 1 of the Limitation Act, 1963. The suit has been filed on 09.07.2010. The limitation period for such a suit for recovery is 3 years and therefore the same is barred by limitation.
19. I therefore hold that the present suit is barred by the law of limitation. This issue is accordingly decided in favour of the Defendant and against the Plaintiff Company."
12. I have head the counsel for the parties afresh on issue No.2 and 3 and have carefully perused the record. My findings on the said issues are as under:
ISSUE NO 2 & 3
13.The questions to be answered is as to whether the Plaintiff is entitled to recover a sum of Rs. 93,338/(Rupees Ninety Thousand Three Hundred and Thirty Eight Only) claimed in the plaint and whether the Plaintiff is entitled to interest, claimed. If so, at what rate.
Suit no.18/11 Page 8 of 16M/s Matrix Cellular Vs. Sanjay Bhatt
14. Since both these issues are connected with each other, requiring common discussion and appreciation of evidence, they shall be dealt with together.
15. PW1 Mr. Chandra Shekhar has deposed on the lines of plaint. PW1 has exhibited the certificate of incorporation, board of resolution and general power of attorney as Ex PW1/A (colly), agreement form as Ex.PW1/B, account ledger as Ex.PW1/C, postal receipt as Ex.PW1/D, copy of credit card and driving licence of the defendant as Ex.PW1/E, itemized bills as Ex.PW1/F, legal notice as MarkA and copy of tariff plan as MarkB.
16. In the present case, the plaintiff has sought recovery of an amount of Rs.93,338.30/ (Rupees Ninety Three Thousand Three Hundred Thirty Eight and Thirty Paisa Only). The statement of account Ex.PW1/C shows that there were 4 bills raised by the plaintiff company against the defendant dated 27.09.2006 for an amount of Rs.7,845.35/, 23.10.2006 for an amount of Rs.14,448.22/, 20.11.2006 for an amount of Rs. 92,564.47/ and 19.12.2006 for an amount of Rs.17,880.09/. On perusal of the statement of account, it is further seen that the plaintiff company has credited Rs.21,000/ and Rs.18,400/ on 20.12.2006 and 03.12.2007 against the first, second and fourth bill. From the same it is apparent that it is substantially the third bill which remains unpaid which is for Rs. 92,564.47/.
17. For claiming the recovery sought for by the plaintiff, the plaintiff has to firstly establish that the calls were made by the Suit no.18/11 Page 9 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt defendant for which the bills have been raised and secondly, the rates/tariff of the calls on the basis of which bills have been raised. For poving the calls the plaintiff has placed on record the itemized bills which are exhibited as Ex.PW1/F.
18. At the foremost, the counsel for the defendant has contended that Ex.PW1/F i.e. the itemized bills were not filed along with the plaint and were filed along with an application under Order VII Rule 14 of the Code of Civil Procedure, 1908 on 18.11.2011 which was not adjudicated. On perusal of the record it is seen that initially the present suit was filed under Order XXXVII of the Code of Civil Procedure, 1908 and when the plaintiff moved an application under Order VII Rule 14 of the Code of Civil Procedure, 1908 for placing on record the itemized bills, the present matter was converted by my predecessor into an ordinary suit for recovery. Thus, it is clear that the said bills were placed on record much before the issues were framed rather at the time of converting the present suit into an ordinary suit for recovery. Hence, I do not find force in the contention of the defendant and same in my view is a hypertechinical objection.
19. Further, the defendant has contended that the itemized bills Ex.PW1/F have not been proved in accordance with law since it is not signed by any authorized person. No name and designation of the person has been mentioned therein and is not in compliance of Section 65B (2) of the Indian Evidence Act, 1872.
Suit no.18/11 Page 10 of 16M/s Matrix Cellular Vs. Sanjay Bhatt
20.In this regard, reference be made to the observations made in Rakesh Kumar & Others vs. State, (2009) 163 DLT 658 as to proving of electronic records, it reads as under:
"196. Thus, computer generated electronic records is evidence, admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act.
197. Subsection (1) of Section 65B makes ad missible as a document, paper printout of electronic records stored in optical or mag netic media produced by a computer, subject to the fulfilment of the conditions specified in Subsection (2) of Section 65B. Following are the conditions specified by Subsection (2):
(a) The computer from which the record is generated was regularly used to store or pro cess information in respect of activity regular ly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;
(b) Information was fed in the computer in the ordinary course of the activities of the per son having lawful control over the computer;
(c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
(d) Information reproduced is such as is fed into computer in the ordinary course of activ ity.
198. Under Subsection (3) of Section 65B, Subsections (1) and (2) would apply where single or combination of computers, is used for storage or processing in the regular course of activities and the computers used shall be construed as a single computer.
199. Under Subsection (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a Suit no.18/11 Page 11 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt computer output is produced by it whether directly or by means of appropriate equip ment.
200. The normal rule of leading documentary evidence is the production and proof of the original document itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under Subclause "d" of Section 65, secondary evi dence of the contents of a document can be led when the original is of such a nature as not to be easily movable. Computerised operating systems and support systems in industry can not be moved to the Court. The information is stored in these computers on magnetic tapes (hard disc). Electronic record produced there from has to be taken in the form of a print out. Subsection (1) of Section 65B makes ad missible without further proof, in evidence, print out of an electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in Subsection (2). Thus compliance with Subsections (1) and (2) of Section 65B is enough to make ad missible and prove electronic records.
201. Subsection (4) of Section 65B provides for an alternative method to prove electronic record. Subsection (4) allows the proof of the conditions set out in Subsection (2) by means of a certificate issued by the person described in Subsection (4) and certifying contents in the manner set out in the subsection. The subsection makes admissible an electronic record when certified that the contents of a computer printout are generated by a com puter satisfying the conditions of Subsection (1), the certificate being signed by the person described therein.
202. Additionally, irrespective of compliance of the requirements of Section 65B, there is no bar to adducing secondary evidence under Suit no.18/11 Page 12 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt the other provisions of the Evidence Act, namely Sections 63 and 65."
21. In the present case, PW1 collectively relied on all the itemized bills filed by the plaintiff company dated 27.09.2006, 23.10.2006, 20.11.2006 and 19.12.2006 as Ex.PW1/F. As noted aforesaid, it is substantially the bill dated 20.11.2006 which is in dispute. The bill dated 20.11.2006 is a single page bill upon which following certificate has been inscribed:
"Certified that this computer output is the correct form of its original contained in the computer systems. Further, certified that conditions as laid down in Sections 63 (b) (2)
(b) of Indian Evidence Act, 1872 regarding the admissibility of computer output have complied within all aspects.
Name & Designation"
22. Along with this bill are 6 pages which contains call details as to the time and date of the call, number called, call type, duration and amount. No certificate in terms of Section 65B of the Indian Evidence Act, 1872 has been inscribed on such 6 pages. It is only the first page which has been certified. Even the certificate on the first page of the bill does not mention that page numbers so and so are attached with the bill or are part of it and are certified in accordance with Section 65B of the Indian Evidence Act, 1872.
23. It is pertinent to mention that even the certificate inscribed on the first page is not in accordance with Section 65B of the Indian Evidence Act, 1872. In the certificate the signatures are made above where it is typed "name and designation".
Howsoever, no name and designation has been mentioned Suit no.18/11 Page 13 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt therein and whether the person who is certifying is the person occupying the official position as described in Section 65B (4) of the Indian Evidence Act, 1872. It should have been specifically stated therein that so and so is the person who has signed and he has been authorized/holding the official position as described in Section 65B (4) of the Indian Evidence Act, 1872 and can certify in terms of Section 65B of the Indian Evidence Act, 1872. The said apsect has not come on record nor PW1 has deposed to this effect. The testimony of PW1 does not fulfil the conditions prescribed in Section 65B of the Indian Evidence Act, 1872.
24. Apart from the above, it is essential that the certificate must identify the electronic record containing the statement, describe the manner in which it was produced and gives such particulars of any device involved in the production of the electronic record as may be appropriate for the purposes of showing that the electronic record was produced by a computer. Further, that the computer system was working in a perfect condition, the information was fed in the computer in the ordinary course of activities and the person certifying is having lawful control over the computer. The aforesaid requirements find no mention in the certificate inscribed on Ex.PW1/F. Thus, no certificate in terms of Section 65B of the Indian Evidence has been issued. The testimony of PW1 does not fulfil the conditions prescribed under Section 65B of the Indian Evidence Act, 1872. No permission to lead secondary evidence was obtained from the court to prove these documents by way of secondary evidence. In view thereof, I hold that the plaintiff has not been able to prove the itemized Suit no.18/11 Page 14 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt bills in accordance with law. In such circumstances, this document cannot be looked into.
25. The counsel for the plaintiff has contended that no certificate under Section 65B of the Indian Evidence Act, 1872 is required since the defendant has in his cross examination admitted the usage. In the cross examination, DW1 was shown Ex.PW1/F (colly.) specifically bill dated 20.11.2006 and was shown entry 17 on the said bill made at 9.46 a.m. on 04.10.2006. DW1 deposed that "it is correct to suggest that said call was made by me at the said number." From the aforesaid it is clear that DW1 accepted one call in his cross examination. It does not mean that he accepted all the calls made and listed in the bill. In view thereof, it cannot be said that no certificate under Section 65B of the Indian Evidence Act, 1872 is required.
26. So far as the tariff is concerned, the defendant has disputed the tariff plan and has contended that same does not bear his signatures. In the cross examination, DW1 accepts that before any connection is obtained, discussion on tariff takes place. Further, as noted above that the defendant has already made the payment of three bills raised by the plaintiff company and one of them was raised subsequent to the present disputed bill. Therefore, the own conduct of the defendant shows that he accepted the tariff and made the payment also and the tariff plan placed on record MarkB was the plan which was discussed between the parties and not any other tariff plan. And even if the signatures of the defendant are not there on MarkB, in view of the aforesaid it does not make any difference. However, nothing will turn on to the same as the Suit no.18/11 Page 15 of 16 M/s Matrix Cellular Vs. Sanjay Bhatt plaintiff has failed to prove the calls made/itemized bills in accordance with law.
27. In view of my aforesaid findings, the plaintiff is not entitled to seek recovery of Rs. 93,334/ (Rupees Ninety Three Thousand Three Hundred Thirty Four Only) and interest claimed for in the plaint. These issues are accordingly decided in favour of the defendant and against the plaintiff.
RELIEF
28.In view of my findings on Issue No.1, the present suit is liable to be dismissed being barred by the law of limitation. The suit is accordingly dismissed. No orders as to costs. Decree Sheet be accordingly prepared. File be consigned to the Record Room thereafter.
Announced in the open (SHREYA ARORA MEHTA) Court on 13.11.2013 CIVIL JUDGE1 (SOUTH DISTRICT) (Judgment contains 16 pages.) SAKET COURTS, NEW DELHI Suit no.18/11 Page 16 of 16