Delhi District Court
M/S Matrix Cellular vs . Sandeep Kumar on 1 June, 2012
M/s Matrix Cellular Vs. Sandeep Kumar
IN THE COURT OF MS. SHREYA ARORA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No. 377/11
Case ID No. 02406C0141532011
M/s Matrix Cellular ( International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110 030.
...............Plaintiff
Versus
Sandeep Kumar
B7/106A, Safdarjung Enclave Extension,
New Delhi110 029. ..............Defendant
Date of Institution : 06.06.2011
Date of reserving the Judgment : 01.06.2012
Date of pronouncement : 01.06.2012
Decision : Leave to defend
dismissed.
Suit decreed.
SUIT FOR RECOVERY OF A SUM OF RS.16,290/ (RUPEES
SIXTEEN THOUSAND TWO HUNDRED NINETY ONLY) UNDER
ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE.
JUDGMENT
1. This is suit for recovery of Rs.16,290/ ( Rupees Sixteen Thousand Two Hundred Ninety Only) along with interest @ 18 % per annum from date of the filing of the suit till realisation under the summary procedure enshrined under Order XXXVII Suit no.377/11 Page 1 of 6 M/s Matrix Cellular Vs. Sandeep Kumar of the Code of Civil Procedure, 1908.
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, 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 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 19.06.2009. Thereupon, the plaintiff was given the mobile connection No. 3026820523 to the defendant subject to the terms and conditions of the aforesaid agreement No. m807272. 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 05.04.2010 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. Summons for appearance in the proforma prescribed under Order XXXVII of the Code of Civil Procedure, 1908 were duly served upon the defendant. The defendant entered Suit no.377/11 Page 2 of 6 M/s Matrix Cellular Vs. Sandeep Kumar appearance pursuant to service of summons for appearance. Thereafter summons for judgment was served upon the defendant and the defendant filed the present application seeking leave to defend within the stipulated period.
5. The defendant has averred that as per the agreement it is no where stated that the plaintiff will be charged extra for cruise roaming and the plaintiff has already received payment through his credit card. The plaintiff filed reply to the aforesaid said submission/application and denied the contents of the said application and reaffirmed and reiterated the contents of the plaint.
6. I have heard the Ld. Counsel for the parties and have carefully perused the record.
7. The tariff plan clearly stipulates that "plan is applicable for use only in the 51 states of the US. Any usage made outside USA, will be subject to roaming rates, approximately US $ 10 per minute or as applicable by the network. Further, the customer agreement form provides the details of the credit card of the defendant on which the outstanding bill was charged and the same amount got charged back by the defendant on 25.09.2009. The documents placed by the defendant pertains to the credit card number 5176521009044407 and not with respect to the credit card number 5176521005754140 on which the amount was charged and charged back. The grievance of the defendant, if any is against the bank of which the defendant holds the credit card and not against the plaintiff to Suit no.377/11 Page 3 of 6 M/s Matrix Cellular Vs. Sandeep Kumar whom the payment is due. The defendant has not been able to satisfy this Court as to how its submission in the leave to defend application raises a triable issue or good defence to the claim of the plaintiff on its merits. Perusal of the leave to defend reveals no defence at all and only a feeble attempt has been made to somehow project some untenable, frivolous and illusory defence. Leave is declined where the court is of the opinion that the grant of leave would merely enable the defendant to prolong the litigation by raising untenable and frivolous defences. From the record, it is clear that the plaintiff company has not received its payment from the defendant and the same is due and payable.
8. In these facts and circumstances, I am of the considered opinion that the defendant has no substantial defence to the present suit and no triable issue arises. The defendant is consequently not entitled to leave to defend the suit and the Plaintiff is entitled for leave to sign judgment. Accordingly, application for leave to defend moved on behalf of the defendant is hereby dismissed.
9. Since, application for leave to defend moved by the defendant no.1 has been dismissed, the suit is liable to be decreed in favour of the plaintiff. The suit is within limitation.
10. The plaintiff has filed with the plaint the original agreement forms, account ledger of the defendant, copy of legal notice and receipt, tariff enrolment form and the itemized bills. The original documents and agreement on the basis of which suit Suit no.377/11 Page 4 of 6 M/s Matrix Cellular Vs. Sandeep Kumar has been filed and the liability of the defendant is based has been filed with the plaint and therefore, the suit is maintainable under Order XXXVII of the Code of Civil Procedure, 1908. As per the documents produced, a total amount of Rs.16,290/ ( Rupees Sixteen Thousand Two Hundred Ninety Only) is due, outstanding and payable by the defendant. The plaintiff has satisfactorily established that the plaintiff is entitled to a decree for an amount of Rs.16,290/ ( Rupees Sixteen Thousand Two Hundred Ninety Only).
11. In these facts and circumstances, the suit of the plaintiff is decreed against the defendant for an amount of Rs.16,290/ ( Rupees Sixteen Thousand Two Hundred Ninety Only) which shall form the principal/ decretal sum adjudged.
12. As per the customer agreement form, it was agreed between parties that in case of default interest shall be charged @ 24% per annum. However, in the plaint plaintiff has prayed for pendente lite and further interest @ 18% per annum. Accordingly, the ends of justice would be met in case the plaintiff is awarded pendente lite @ 18 % per annum on the principal/ decretal sum adjudged from the date of institution of the suit till the date of decree and future interest @ 6% per annum on the principal/ decretal sum adjudged from the date of decree till its realization.
13. Hence, the suit is decreed for an amount of Rs.16,290/ ( Rupees Sixteen Thousand Two Hundred Ninety Only) in favour of the plaintiff and against the defendant along with Suit no.377/11 Page 5 of 6 M/s Matrix Cellular Vs. Sandeep Kumar pendente lite interest @ 18 % per annum, on the principal / decretal sum adjudged, from the date of institution of the suit from the date of institution of the suit till the date of decree and future interest @ 6% per annum on the principal/ decretal sum adjudged from the date of decree till its realization.
14.Suit of the plaintiff is therefore, decreed in the aforesaid terms against the defendant.
15.Cost of the suit is also awarded in favour of the Plaintiff. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (SHREYA ARORA)
Court on 01.06.2012 CIVIL JUDGE1 (SOUTH DISTRICT)
(Judgment contains 6 pages.) SAKET COURTS, NEW DELHI
Suit no.377/11 Page 6 of 6