Delhi District Court
Matrix Cellular (International) ... vs Ish Kumar Kapila on 12 December, 2018
Matrix Cellular (International) Services Pvt. Ltd. v. Ish Kumar Kapila
Suit no. 82254/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURT, NEW DELHI
In the matter of:
Suit no. 82254/16
CNR No. DLST030000312016
Matrix Cellular (International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri
Mandi Road, Mehrauli
New Delhi110030 ...............Plaintiff
Versus
Ish Kumar Kapila
S/o Sh. Subhash Chander Kapila
R/o H.No. 4277, Sector68
Mohali160066 ..............Defendant
Date of Institution : 14.07.2016
Date of Pronouncement : 12.12.2018
Decision : Partly decreed
SUIT FOR RECOVERY OF A SUM OF RS. 60,763/ (RUPEES
SIXTY THOUSAND SEVEN HUNDRED SIXTY THREE ONLY)
WITH INTEREST AND COSTS
Present: None.
EX PARTE JUDGMENT
1.This suit (initially filed as a summary suit) has been filed by the plaintiff for recovery of a sum of 60,763/ (Rupees Sixty Thousand Seven Hundred Sixty Three only) from the defendant towards the usage of international mobile phone services rendered by the plaintiff.
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2. By virtue of the plaint, it has been submitted that the plaintiff is a private limited company providing international mobile phone services. Defendant had applied to the plaintiff for international mobile connection and had signed the standard application form after reading the terms and conditions therein. He had specifically signed a statement stating that he had read and understood all the terms and conditions of the agreement dated 26.04.2013, and agreed to abide by them. On that basis, plaintiff had given international mobile connection no. 3026821970 under the agreement no. T1000260263. As per the accounts maintained by the plaintiff company, an outstanding amount of Rs.60,763/ is due and payable by the defendant towards usage of the aforesaid connection. Information for the aforesaid amount by way of monthly bills was sent to the defendant but despite repeated requests and reminders, the defendant has not paid the same. Legal notice dated 15.01.2014 was also sent to the defendant. Despite service, till date the outstanding liability has not been cleared. Hence, this suit.
3. By way of statement on 03.04.2017, suit was converted into ordinary suit. Notice of the suit was served by way of publication. However, defendant failed to appear and vide order dated 29.10.2018, defendant was proceeded against exparte.
4. In exparte evidence, plaintiff examined its authorized representative, Mr. Binod Kumar Sinha as PW1 who filed his evidence by way of affidavit Ex.PW1/1. He also relied upon the following documents:
(i) Ex. PW1/A (colly) (OSR) i.e. copy of certificate of incorporation and Board Resolution dated 03.04.2014;
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(ii) Ex. PW1/B i.e. Eagreement;
(iii) Ex. PW1/C i.e. tariff plan;
(iv) Ex. PW1/D i.e. ledger account;
(v) Ex. PW1/E (colly) i.e. copy of itemized bill;
(vi) Ex. PW1/F i.e. certificate under Section 65B of Indian Evidence Act;
(vi) Mark A (colly) i.e. legal notice and original postal slip; and
(vii) Mark B (colly) i.e. copy of passport and Visa.
5. Thereafter, vide a separate statement, plaintiff's evidence was closed.
6. I have heard exparte arguments on behalf of the plaintiff and have also perused the record carefully.
7. In order to prove its case, plaintiff has relied on Ex. PW1/B i.e. the eagreement form, Ex. PW1/C i.e. the tariff plan, Ex. PW1/D i.e. ledger account as well as Ex. PW1/E (colly) i.e. copy of itemized bill along with Ex. PW1/F i.e. certificate under Section 65B of the Indian Evidence Act. Defendant did not step into the witness box nor did he crossexamine the plaintiff in order to dispute the genuineness or authenticity of Ex. PW1/B and Ex. PW1/C. Therefore, it is proved that a contractual relationship was entered into between the plaintiff and the defendant as per the terms and conditions contained in Ex. PW1/B and Ex. PW1/C.
8. The plaintiff is seeking recovery of Rs. 60,763/ from the defendant. To prove the same, plaintiff has placed on record certified copy of statement of account as Ex. PW1/D as well as Ex. PW1/E (colly) i.e. copy of itemized bills along with Ex. PW1/F i.e. certificate under Section 65B of the Indian Evidence Act. The testimony of the PW1 has gone Page no. 3 of 6 Matrix Cellular (International) Services Pvt. Ltd. v. Ish Kumar Kapila Suit no. 82254/16 unchallenged, uncontroverted and unrebutted with regard to the liability of the defendant to pay the aforesaid amount. Since defendant was proceeded exparte, and no evidence was led by the defendant, there is nothing on record which casts any doubt on the testimony of PW1.
9. Having said that, every claim of the plaintiff has to stand the test of being within the limitation period prescribed by the Limitation Act 1963. Any debt claimed after the expiry of the period of limitation computed in accordance with the provisions of the Act, shall be dismissed, even if limitation has not been set up as a defence. While the defendant has not appeared to contest the suit and has not questioned the limitation, it is the prerogative of the court to disallow any relief which is found to be barred by limitation. In the present case, Ex. PW1/E (colly) consists of four bills, first bill for an amount of Rs. 10,391/ dated 23.05.2013 with due date for payment as 08.06.2013; second bill for an amount of Rs. 53,859/ dated 20.06.2013 with due date for payment as 05.07.2013; third bill for an amount of Rs. 7,947/ dated 08.07.2013 with due date for payment as 13.08.2013 and fourth bill for an amount of Rs. 1,257/ dated 08.05.2014 with due date for payment as 06.06.2014.
10. The first bill was paid on 08.06.2013 as reflected by statement of accounts Ex. PW1/D. The second bill against which payment is sought from the defendant by virtue of this suit is dated 20.06.2013 and the due date for payment is specified as 05.07.2013. The period of limitation in recovery cases is three years from the date of accrual of cause of action. The cause of action against this invoice accrued on the date when the invoice amount became due i.e. on 05.07.2013, and period of limitation Page no. 4 of 6 Matrix Cellular (International) Services Pvt. Ltd. v. Ish Kumar Kapila Suit no. 82254/16 started running therefrom. The mere fact that late payment charges have been reflected upto 21.07.2014 in the statement of accounts, would not have the effect of extending the limitation period against payment of this invoice. Although, an amount of Rs. 6,000/ has been credited on account of the defendant against the outstanding payment on 09.06.2014, this was adjustment of the security deposit amount. No subsequent acknowledgment or part payment after 05.07.2013 was received from the defendant which could have the effect of extending the limitation period for the second bill in terms of Section 18 and 19 of the Limitation Act, 1963. This suit was instituted only on 14.07.2016 which is after the expiry of the threeyear period commencing from 05.07.2013, and therefore claim against this second bill is barred by limitation as per the Limitation Act 1963.
11. In view of the above, plaintiff is entitled to recover payment only against the third and fourth bill in Ex. PW1/E (colly) as well as late payment charges in respect of these bills as per Ex. PW1/D. Plaintiff is not entitled to recover payment against the second bill of Rs. 53,859/ or the late payment charges thereon as charged on 08.07.2013, 14.08.2013 and 21.07.2014.
12. In light of the evidence produced by PW1 and the aforesaid analysis, an amount of Rs. 9,304/ (Rs. 7,947/ + Rs. 200/ + Rs. 1257/ + Rs. 100/ + Rs. 200/) is due to be paid by defendant under the contract. Security deposit of Rs. 6,000/ is not being deducted as the plaintiff is well within his rights to apply this amount even towards time barred debt, and can be said to be adjusted against the second bill in terms of Section 60 of Page no. 5 of 6 Matrix Cellular (International) Services Pvt. Ltd. v. Ish Kumar Kapila Suit no. 82254/16 the Indian Contract Act, 1872.
13. The said amount of Rs. 9,304/ has not been paid to the plaintiff and liability of defendant for the payment of this amount of subsists. Although an interest at the rate of 18% is claimed by the plaintiff, the same is exorbitant. In the facts and circumstances, interest at the rate of 6% is considered reasonable.
14. In view of the above discussion, the suit of the plaintiff stands partly decreed against defendant. Defendant is liable to pay a sum of Rs. 9,304/ (Rupees Nine Thousand Three Hundred and Four only) to the plaintiff along with interest at the rate of 6% per annum from the date of institution of the present suit till realization of the amount.
15. Costs of the suit are also awarded to the plaintiff.
16. Decree sheet be drawn accordingly.
17. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 12.12.2018 Announced by me in the open court today on 12.12.2018. All the six pages of this judgment have been checked and signed by me.
Digitally
signed by (NEHA PRIYA)
NEHA NEHA PRIYA
Date: Civil Judge01(South)
PRIYA Saket Courts/New Delhi
2018.12.13
16:45:00
+0530 12.12.2018
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