Delhi District Court
Through Authorised Representative vs M/S Vas Infocom Services Pvt. Ltd on 8 February, 2023
IN THE COURT OF SH. RAMESH KUMAR-II,
ADDITIONAL DISTRICT JUDGE-01, SHAHDARA
DISTRICT, KARKARDOOMA COURTS:
DELHI
Civil Suit No.501/2017
In the matter of:
(As per amended memo of parties)
M/s. Vodafone Idea Limited
(Previously Known as Vodafone South Limited & Vodafone
Essar South Limited & Vodafone Mobile Serviced Limited).
Circle Office at A-68, Sector 64, Noida, U.P.-201301
Through Authorised Representative:-
Mr. Abhishek Singh,
A-68, Sector-64, Noida,
U.P.-201301. .......Plaintiff
Versus
1. M/s VAS Infocom Services Pvt. Ltd.
Through its Authorised Representative
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.1
2. Mr. Anurag Gupta
Authorised Representative of:-
M/s. VAS Infocom Services Pvt. Ltd.
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.2
3. Mr. Satish Chandra Pandey
Director, M/s. VAS Infocom Services Pvt. Ltd.
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.3
4. Mr. Sanjay Kishore
Director, M/s. VAS Infocom Services Pvt. Ltd.
Digitally signed
by RAMESH
KUMAR
CS No.501/17
RAMESH Date:
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173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.4
5. Ms. Nidhi Gupta
Director, M/s. VAS Infocom Services Pvt. Ltd.
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.5
6. Mr. Amit Kumar
Director M/s. VAS Infocom Services Pvt. Ltd.
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.6
7. Mr. Devender Kumar
Director, M/s. VAS Infocom Services Pvt. Ltd.
173, First Floor, Patparganj Industrial Area,
New Delhi, East Delhi-110092, India. .......Defendant No.7
Date of Institution : 01.06.2017
Date of Judgment : 08.02.2023
Decision : Decreed.
SUIT UNDER ORDER XXXVII CPC FOR RECOVERY OF
RS.30,69,271.10/- ALONGWITH COST AND INTEREST @
18% PER ANNUM
JUDGMENT
1 Vide this judgment, I shall dispose of instant suit filed by plaintiff against defendants under Order XXXVII CPC for recovery of Rs.30,69,271.10/-. However, upon the separate statement of the counsel for plaintiff, the present suit has been treated as a 'general suit for recovery' on 03.07.2017. 2 Brief facts as set out in plaint are that M/s. Vodafone Mobile Services Limited, previously known as Vodafone South Limited and Vodafone Essar South Limited (hereinafter referred to as "the plaintiff") is a company incorporated under the Digitally signed by RAMESH CS No.501/17 RAMESH KUMAR Page 2 of 11 KUMAR Date:
2023.02.08 16:01:22 +0530 Companies Act, 1956 and engaged in the business of providing Unified Access Services to its customers under License from the Department of Telecommunications, Ministry of Communications & Information, Government of India and M/s VAS Infocom Services Private Limited is a company incorporated under the Companies Act, 1956 and engaged in the business of Information and Technology (IT) Services and Mr. Anurag Gupta is its autorized representative vide Customer Application Form bearing Unique ID: CUWD306844 and Mr. Satish Chandra Pandey; Mr. Sanjay Kishore; Ms. Nidhi Gupta; Mr. Amit Kumar and Mr. Devender Kumar are its directors (hereinafter referred to as "the defendants"). It is further averred that the defendants approached the plaintiff for installation of Primary Rate Interface Lines (for short "PRI Lines") at their office at First Floor, Duggal Complex, above Uttranchal Gramin Bank, near Kamla Palace Hotel, GMS Road, Dehradun-248001 and they placed upon the plaintiff a Purchase Order dated 14.07.2016 for installation of 16 PRI Lines at a monthly rental of Rs.25,000/- per line with a lock in period of 36 months. It is further averred that in accordance with the above, on 11.08.2016 and 12.08.2016, 16 PRI Lines were installed and activated at the abovesaid premises of the defendants and the PRI Lines were installed at a monthly rental of Rs.25,000/- per PRI Lines and a total sum of Rs.4,00,000/- was required to be paid by the defendants for the services activated on 16 PRI Lines at the rate of Rs.25,000/- per PRI Lines for which a cheque bearing no.005916, dated 20.07.2016 was issued by the defendants in favour of the plaintiff. However, the same was got dishonored on 18.10.2016. It is further averred that after the 16 PRI Lines were Digitally signed by RAMESH KUMAR CS No.501/17 RAMESH Date:Page 3 of 11
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put to use by the defendants, it was observed that the usage on the PRI Lines had been exceeded to a much higher level and thereafter, the defendants vide emails, dated 11.08.2016 to 25.08.2016, requested for activation of ISD facility, which had been restricted by the plaintiff owing to outstanding dues and it was stated by the defendants in these emails that all outstanding will be paid. It is further averred that the defendants and the plaintiff arrived at an arrangement, whereby the defendants were required to make a payment of Rs.2,00,000/- in order to get undisrupted ISD services for a lock in period and this amount was due as an interim payment against the high usage by the customer before completion of the billing period. Accordingly, Spectrum Infoweb (a sister concern of defendant no.1) issued three cheques in favour of the plaintiff totaling to Rs.20,00,000/-.
However, those three cheques were also got dishonored and the present suit does not pertain to the charges payable by defendant no.1 for 36 months lock in period. It is further averred that in view of the Tariff Plan opted by the defendants and the usage thereof, two invoices were raised on the defendants, the details of which have been summarized herein below:-
Invoice No. Period Amount (In Due Date
And Date Rupees)
174560557, 11.08.2016-31.08.2016 for 29,00,604.44/- 18.09.2016
01.09.2016 usage of STD and ISD calls,
monthly rental and taxes
180366522, 01.09.2016-30.09.2016 1,68,666.66/- 18.10.2016
01.10.2016 For monthly rental and taxes
Total Rs.30,69,271.10/-
It is further averred that despite the invoices, no payment regarding the abovesaid invoices has been made by the defendants till date and the said action of defendants and their Digitally signed CS No.501/17 by RAMESH Page 4 of 11 RAMESH KUMAR KUMAR Date:
2023.02.08 16:01:37 +0530 failure to pay a sum of Rs.30,69,271.10/- against the two above mentioned invoices constitutes willful default. Therefore, the defendants owe a sum of Rs.30,69,271.10/- to the plaintiff for the two bill payments as mentioned above alongwith interest. It is further averred that the defendants are jointly and severally liable to pay the said sum of Rs.30,69,271.10/- alongwith pendente lite interest at the rate of 18% per annum. It is further averred that the defendants are also in breach/contravention of the General Terms and Conditions enshrined in the Tariff Enrolment Form, which was agreed to be complied by the defendants and relevant extract of the same is herein-below re-produced:-
"6. Payment Terms 6.1 The company shall raise invoices on a monthly basis and the charges billed to the customer shall be payable on or before the due date. The payment instruments shall be drawn in favour of the Vodafone Essar Limited".
It is further averred that a sum of Rs.30,69,271.11/- has become due under aforesaid two invoices and therefore, the total debt amount due is Rs.30,69,271.11/- and the sum payable by the defendants, for which the cheque was issued by the defendant no.1 to the plaintiff is a legally enforceable debt. Accordingly, a prayer is made to pass a decree for recovery in favour of the plaintiff and against the defendants for a sum of Rs.30,69,271.11/- alongwith interest @ 18% per annum with effect from 18.09.2016 till the date of realization of amount alongwith cost of this suit.
3 Summons of the suit to the defendants were issued to the defendants by my Ld. Predecessor, they could not be served by ordinary process. Thereafter, ld. counsel for plaintiff moved Digitally signed by RAMESH CS No.501/17 KUMAR Page 5 of 11 RAMESH Date:
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an application under Order V Rule 20 CPC on 24.04.2018 for substituted service of defendants. The said application was allowed vide order dated 24.04.2018 and the defendants were ordered to be served by way of publication in newspapers. Accordingly, the defendants were served by way of publication in newspapers 'Rashtriya Sahara, dated 20.06.2018 and Statesman, dated 03.06.2018", but they did not put their appearance in the matter and ultimately they were proceeded ex parte by my Ld. Predecessor vide order dated 14.09.2018 and thereafter matter was listed for ex-parte plaintiff evidence for 20.02.2019, on which date ld. counsel for plaintiff moved an application under Order XXII Rule 10 read with Section 151 CPC for substitution of name of plaintiff company as the plaintiff's company had been merged with Idea Cellular. The said application was allowed by my Ld. Predecessor on 20.02.2019 itself and the plaintiff's name was substitued as 'Vodafone Idea Limited' in place of 'Vodafone Mobile Services Limited'. Ld. counsel for plaintiff also filed amended memo of parties which was taken on record. Thereafter, matter was again listed for ex parte plaintiff evidence. 4 In support of its case the plaintiff examined Sh. Abhishek Singh, Circle Legal Lead, as PW1 in its ex-parte evidence, who tendered his affidavit as Ex.P-1. Plaintiff has relied upon following documents i.e. Special Power of Attorney dated 09.01.2019 as Ex.PW1; copy of order dated 11.01.2018 as Mark A (PW-2 was de-exhibited being photocopy); copy of fresh certificate of incorporation dated 31.08.2018 as Mark B (PW-3 was de-exhibited being photocopy); copy of certificates of incorporation upon change of name dated 04.07.2007 as Mark C (PW-4 was de-exhibited being photocopy); copy of orders dated Digitally signed by RAMESH KUMAR CS No.501/17 RAMESH Date:
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01.04.2014 as Mark D (PW-5 was de-exhibited being photocopy); copy of approval letter dated 10.12.2015 as Mark E (PW-6 was de-exhibited being photocopy); certified copy of details of registered offices of the defendants as Ex.PW7; certified copy of application format Form A registration of OSP Centre of defendant no.1, PAN Card of defendant no.1, TAN allotment letter dated 29.08.2014 of defendant no.1 and service Tax registration form of defendant no. 1 as Ex.PW8; copy of PAN Card and Voter ID Card of defendant no.2 as Mark F (PW-9 was de-exhibited being photocopy); original purchase order dated 14.07.2016 as Ex.PW10; original customer application form as Ex.PW11; copy of cheque bearing no. 005916 as Mark G (PW-12 was de-exhibited being photocopy); copy of computer generated emails exchanged between the defendants and plaintiff between 11.08.2016 to 23.08.2016 as Ex.PW13; original invoice dated 01.09.2016 alongwith computer generated e-mails as Ex.PW14 and original invoice dated 01.10.2016 alongwith copy of postal receipt as Ex.PW15 (colly.).
5 PW1 was examined and discharged on 26.04.2019 and thereafter, matter was posted for remaining plaintiff evidence. However, on 09.09.2019, ld. counsel for plaintiff moved an application under Order XVII Rule 17 read with Section 151 CPC for recalling of witness i.e. PW1 Sh. Abhishek Singh on the ground that recalling of said witness was essential for exhibiting the documents which are necessary for proper adjudication of this matter. The said application was allowed on 09.09.2019 itself and PW1 Sh. Abhishek Singh was again examined and discharged. Plaintiff has relied upon following documents i.e. certified copy of Order dated 11.01.2018 which was earlier Digitally signed by RAMESH KUMAR CS No.501/17 RAMESH Date:
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marked as Mark A be now read as Ex.PW2 (colly.) (39 pages); certified copy of fresh certificate of incorporation dated 31.08.2018 which was earlier marked as Mark B be now read as Ex.PW3; certified copy of certificates of incorporation upon change of name dated 04.07.2007 as Mark C be now read as Ex.PW4 (colly.) (3 sheets); certified copy of orders dated 01.04.2014 which was earlier marked as Mark D be now read as Ex.PW5 (colly.) (15 sheets) and certified copy of approval letter dated 10.12.2015 which was earlier marked as Mark E be now read as Ex.PW6 (colly.) (12 sheets).
6 No other witness was examined on behalf of plaintiff, hence ex-parte PE was closed on 09.09.2019. Thereafter, matter was fixed for ex-parte final arguments.
7 Ld. counsel for plaintiff argued and submitted that despite raising invoices to the defendants, no payment regarding the invoices has been made by the defendants till date and the said action of defendants and their failure to pay a sum of Rs.30,69,271.10/- against the two invoices constitutes willful default. Ld. counsel for plaintiff further submitted that the defendants in its emails dated 22.08.2016 stated that all outstanding will be paid to the plaintiff. Accordingly, ld. counsel for plaintiff requested to pass a decree in favour of the plaintiff and against the defendants.
8 Plaintiff's counsel has also filed written arguments in support of plaintiff's case.
9 I have heard the arguments on behalf of the plaintiff and perused the written arguments filed on behalf of plaintiff.
10 I have also perused the material available on record.
Digitally signed by RAMESH CS No.501/17 KUMAR Page 8 of 11 RAMESH Date:
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11 Before proceeding further, it is worthwhile to mention
that this court does have jurisdiction to try the present suit and also the same has been filed well within limitation. Further, suits such as the present one, are decided on the basis of preponderance of probability.
12 The point that arises for determination before this court is "whether the plaintiff is entitled for recovery of the suit amount from the defendant?"
13 It is the case of the plaintiff that the defendants approached the plaintiff for installation of PRI Lines at their office and they placed upon the plaintiff a Purchase Order dated 14.07.2016, Ex.PW1/10, for installation of 16 PRI Lines at a monthly rental of Rs.25,000/- per line with a lock in period of 36 months; that on 11.08.2016 and 12.08.2016, 16 PRI Lines were installed and activated at the premises of the defendants and the PRI Lines were installed at a monthly rental of Rs.25,000/- per PRI Lines and a total sum of Rs.4,00,000/- was required to be paid by the defendants for the services activated on 16 PRI Lines at the rate of Rs.25,000/- per PRI Lines for which a cheque bearing no. 005916, dated 20.07.2016 was issued by the defendants in favour of the plaintiff, which was dishonored on 18.10.2016; that after the 16 PRI Lines were put to use by the defendants, it was observed that the usage on the PRI Lines had exceeded to a much higher level and thereafter, the defendants vide emails, Ex.PW1/13, dated 11.08.2016 to 25.08.2016 requested for activation of ISD facility, which had been restricted by the plaintiff owing to outstanding dues and it was stated by the defendants in these emails that all outstanding will be paid but they never paid the outstanding debt. Thus, the present suit was Digitally signed by RAMESH KUMAR CS No.501/17 RAMESH Date:
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necessitated.
14 To answer the above point for determination, the
evidence as well as record is perused. During the course of plaintiff evidence, PW-1, in his deposition by way of affidavit, has reiterated the plaint averments and further sworn that an amount of Rs.30,69,271.10/- alongwith pendente lite interest @ 18% per annum thereon remains due and the same is recoverable from the defendants. Further, perusal of emails, Ex.PW1/13, dated 22.08.2016 shows that defendants admitted that all outstanding will be paid.
15 I have perused the record. The defendants did not contest the suit and remained ex-parte. The testimony of PW-1 remained uncontroverted and the version of the plaintiff has come on record unrebutted and unchallenged. Hence, I have no reason to disbelieve the testimony of PW-1.
16 Thus, plaintiff by virtue of unrebutted and unchallenged testimony corroborated by documentary evidence has been able to prove its claim on the touchstone of preponderance of probability. Therefore, the plaintiff is entitled to recovery of Rs.30,69,271.10/- from the defendants.
17 The plaintiff has also claimed pendente lite interest @ 18% per annum. However, the plaintiff did not lead any evidence on this aspect. Hence, this court is of the opinion that interest of justice would be served if the plaintiff is granted simple interest @ 9% per annum.
RELIEF 18 In view of the above discussion, the suit of the plaintiff is accordingly decreed against the defendants for a sum of Digitally signed CS No.501/17 by RAMESH Page 10 of 11 RAMESH KUMAR KUMAR Date:
2023.02.08 16:02:21 +0530 Rs.30,69,271.10/- (Rupees Thirty Lakhs Sixty Nine Thousand Two Hundred Seventy One and Ten Paise Only) alongwith simple interest @ 9% per annum from the date of filing of suit till date of its realization. Cost of the suit is also awarded in favour of the plaintiff.
19 Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
(Typed to the dictation directly, corrected and Digitally signed pronounced in open court on 08.02.2023). by RAMESH KUMAR RAMESH Date:
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(RAMESH KUMAR-II)
ADDL. DISTRICT JUDGE-01
SHADARA DISTRICT
KARKARDOOMA COURTS
DELHI
CS No.501/17 Page 11 of 11