Delhi District Court
Matrix Cellular (International) ... vs Cybizcall International Pvt. Ltd on 30 September, 2013
In the Court of Civil Judge04 (South),
Saket Court Complex, New Delhi
Presided By : Ms. Ritu Singh
Suit No. 27A/11
Unique Case I.D. No. 02406C0068612011
In the matter of :
Matrix Cellular (International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110030. ............Plaintiff
Versus
CybizCall International Pvt. Ltd.
309310, Udyog Vihar4,
National Highway8,
Gurgaon, Haryana122001 ............Defendant
Date of Institution : 14.02.2011
Date of Reserving of Judgment : 30.09.2013
Date of Pronouncement of Judgment : 30.09.2013
J U D G M E N T:
1. The present suit has been filed by the plaintiff Matrix Cellular (International) Services Pvt. Ltd. which is a Private Limited Company Suit No. 27A/2011 1/20 pages Registered under the Companies Act, 1956 and dealing in International Mobile Rental Services having its registered office at 7, Khullar Farms, 140, New Manglapuri, Mandi Road, Mehrauli New Delhi110030. The Major General M.S. Dugal, Director of the company have further authorized Sh. Chandra Shekhar, Executive, Legal in the Board Meeting held on 27.01.2011 of the plaintiff company to sign, verify all the pleadings, Vakalatanama etc. in the present suit. Plaintiff has filed the present suit seeking recovery of Rs. 1,66,800/ (Rs. One Lakh Sixty Six Thousand Eight Hundred Only) along with interest @ 18 % per annum from the date of filing of the suit till realisation of the entire amount along with cost of the suit
2. The case of the plaintiff is that the defendant had applied for international mobile phone connection in South Delhi and procured the Standard Application Form containing the Terms and Conditions regarding the usage of the said connection and defendant categorically signed a statement that he has read and understood the terms and conditions of the Agreement Form dated 06.06.2008 and agree to abide by them. It is further averred in the plaint that on the basis of the information / statement furnished by the defendant, the plaintiff gave him an international mobile connection nos. 3027455809, 3022209778 and 3027537306 under Agreement No. m558171, m559905 and m559906 respectively.
3. It is stated by the plaintiff that defendant has defaulted in clearing the bills Suit No. 27A/2011 2/20 pages and as per the accounts of the plaintiff an amount of Rs. 1,66,800/ is due and payable by the defendant towards usage of the above stated mobile connections. It is further averred that the said demand, against invoices, has been raised upon the defendant through monthly basis sent to the defendant by the plaintiff company and inspite of repeated reminders and requests, the defendant have intentionally and deliberately failed to pay the same with ulterior motives.
4. Legal demand notice dated 14.04.2010 was also issued to the defendant through his lawyer vide registered post, which was duly received by plaintiff but defendant has failed to clear its outstanding liabilities.
5. When the suit was filed, it was filed under Order XXXVII CPC. The suit was further proceeded as an ordinary civil suit for recovery vide order dt. 05.12.2011.
6. The defendant was served and contested the present suit by way of filing WS wherein defendant had taken preliminary objection that plaintiff has no locus standi to file present suit in absence of any document that Mr. Chandra Shekar is Executive Legal of plaintiff company competent to file this suit and that plaintiff has approached the court with unclean hands and have not stated that correct facts and also that this court has no territorial jurisdiction to entertain the present suit and plaintiff has no cause of action in his favour. It is further stated in the WS that defendant had already cleared all the dues vide cheque no. 377240 dt. 28.04.2011 for Rs.29092 Suit No. 27A/2011 3/20 pages drawn on HDFC Bank, Phase V, Gurgaon, Haryana and that the statement of account filed by plaintiff is fully of false entries. It is further stated in WS that there was no written contract/agreement for the purposes of availing Internet services and defendant had availed and used the aforesaid mobile connections only for making telephone calls and for receiving calls and not for any other purposes and that plaintiff got signed the customer agreement forms for availing the mobile connection nos. 3027455809, 3022209778 and 3027537306 in blank without filling in the particulars therein and hence as defendant has never opted for any Internet services therefore liability to pay for such services cannot be levied upon the defendant. In parawise reply defendant has vehemently denied that neither the defendant had applied for international mobile connection in South Delhi nor had procured the Standard Application Form containing the terms and conditions regarding the usage of said connection. Defendant has further stated in his WS that plaintiff at the time of signing the agreements, failing and neglected to disclose the complete terms and conditions with malafide intention to defraud and cheat the defendant. It is further denied by the defendant that any demand as alleged to have been made by the plaintiff against invoices has been raised upon answering defendant through monthly bills.
7. Plaintiff has filed replication to the WS of the defendant wherein plaintiff has reiterated his stand taken in the plaint.
Suit No. 27A/2011 4/20 pages
8. On the basis of pleadings made on behalf of both the parties, following issues were framed:
1. Whether this court does not have territorial jurisdiction to entertain present suit? OPD
2. Whether plaintiff is entitled to a decree of Rs.1,66,800/ ? OPP
3. Whether plaintiff is entitled to any pendente lite and future, if so, for what period and for what rate? OPP
4. Relief.
9. Thereafter plaintiff evidence was led. Plaintiff examined Sh. Chandra Shekhar s/o Sh. Ramanand Pandey, Executive, Legal of the plaintiff having office at 7, Khullar Farms, 140, New Manglapuri, Mandi Road, Mehrauli New Delhi110030 as PW1 who tendered his affidavit Ex.PW1/X along with following documents:
1. Ex.PW1/A (colly.) copy of certificate of incorporation, board resolution dt. 27.1.11 (OSR)
2. Ex.PW1/B (colly.) original agreement forms
3. Ex.PW1/C certified copy of account ledger of defendant
4. Mark A copy of legal notice
5. Ex.PW1/D original postal receipt
6. Ex.PW1/E original tariff plan
7. Ex.PW1/F original undertaking of def. company
8. Mark B copy of passport of user Suit No. 27A/2011 5/20 pages
9. Ex.PW1/G reply dated 24.4.2010
10. Mark C copy of cheque no. 377240
11. Mark D copy of itemized bill
10. PW1 was cross examined by the Ld. Counsel for the defendant.
11. Plaintiff evidence was closed vide separate statement of AR/PW1 for the plaintiff on 28.02.2013.
12. Thereafter, defendant evidence was led. Defendant examined Sh. Sandeep Kumar s/o Sh. Joginder Pal, AR for the def. office at 309310, Udyog Vihar 4, National Highway8, Gurgaon Haryana, 122001 as DW1 who tendered his evidence by way of affidavit Ex.DW1/X along with following documents:
1. Ex.DW1/1 copy of board resolution dt. 11.9.11
13. DW1 was cross examined by Ld. Counsel for the plaintiff.
14. Defendant's evidence was closed vide separate statement of AR/DW1 for the defendant on 10.04.2013.
15. Thereafter, final arguments were heard on behalf of both the parties.
16. Issue wise findings are as under:
ISSUE No.1 Whether this court does not have territorial jurisdiction to entertain present suit? OPD
17. The onus to prove this issue was upon defendant. Defendant has raised Suit No. 27A/2011 6/20 pages preliminary objection in its WS that this court does not has territorial jurisdiction to entertain the present suit as the office of the defendants is at Gurgaon, Haryana and the agreement is alleged to have been executed at Haryana. Defendant has further averred that the correspondence, issuance of legal notice was also done at Gurgaon and therefore the entire cause of action arose in Gurgaon.
18. Def. has examined Sh. Sandeep Kumar s/o Sh. Joginder Pal, AR for the defendant as DW1. DW1 has deposed in his affidavit Ex.DW1/X that defendants have their office at Gurgaon, Haryana and the alleged agreement was executed at Haryana as well as the correspondence, issuance of legal notice was also done at Gurgaon. DW1 has further deposed on oath in his affidavit that plaintiff's representative Ms. Charu Sabharwal came to defendant's office at Gurgaon where the alleged agreements were executed.
19. Plaintiff has stated in its replication in reply to preliminary objection that the contract was entered between the parties at Mehrauli Head Office of plaintiff and not at Gurgaon address of the defendants. Plaintiff has examined Sh. Chandra Shekhar s/o Sh. Ramanand Pandey, Executive, Legal of the plaintiff as PW1 who has deposed in his affidavit Ex.PW1/X that the cause of action arose in South Delhi and entire transaction took place at Delhi.
20. Plaintiff has relied on original agreement form which is Ex.PW1/B (colly.), copy of legal notice which is Mark A, copy of cheque no. 377240 issued by Suit No. 27A/2011 7/20 pages the defendant to the plaintiff which is Mark C. Plaintiff has further relied on the postal receipt Ex.PW1/D in support of the averment that legal notice was issued to the defendant. According to the standard terms of contract printed on the backside of the customer agreement form Ex.PW1/B (colly.), Clause 22 reads as under:
"This agreement shall be subject to jurisdiction of the courts at Delhi."
21. Further, all the customer agreement forms in Ex.PW1/B (colly.) have been shown to be issued from H.O.(Head Office) of the plaintiff which is stated to be situated at Khullar Farm, Mandi Road, Mehrauli, New Delhi. Therefore, from the customer agreement form Ex.PW1/B (colly.) it appears that the SIM card of mobile nos. 3027455809, 3022209778 and 3027537306 were hired from Head Office of the plaintiff at Khullar Farm, Mandi Road, Mehrauli, New Delhi and therefore, part of cause of action has arisen within the territorial jurisdiction of this court.
22. In view of aforesaid observations, this issue is decided in favour of plaintiff and against the defendant.
ISSUE No.2 Whether plaintiff is entitled to a decree of Rs.1,66,800/ ? OPP
23. The onus to prove this issue was on plaintiff. Plaintiff has claimed for recovery of Rs. 1,66,800/ from the defendant on the basis of original agreement form Ex.PW1/B (colly.) supported with certified copy of Suit No. 27A/2011 8/20 pages account ledger Ex.PW1/C as well as original tariff plan Ex.PW1/E. Plaintiff has examined Sh. Chandra Shekhar s/o Sh. Ramanand Pandey, Executive, Legal of the plaintiff as PW1 who has stated that sum of Rs.1,66,800/ is payable by the defendant towards International Mobile Phone Services rendered by the plaintiff in respect of the international mobile connection nos. 3027455809, 3022209778 and 3027537306 against original agreement form Ex.PW1/B (colly.). PW1 has relied on account ledger of defendant Ex.PW1/C, copy of legal notice issued to the defendant Mark A and postal receipt which is Ex.PW1/D. Plaintiff has relied on original tariff plan Ex.PW1/E and the undertaking of the defendant company which is Ex.PW1/F.
24. Defendant has averred in its WS that defendant only availed the mobile connection for receiving and making voice calls in USA and not for any other purpose and the amount claimed by the plaintiff is allegedly for the services which have not been availed by the defendant company. Defendants have averred in the WS that defendant company has never sought or avail Internet services from the plaintiff and therefore, plaintiff cannot charge Internet usage charges. Defendant has examined Sh. Sandeep Kumar s/o Sh. Joginder Pal, AR for the defendant as DW1 who has deposed in his affidavit Ex.DW1/X that they are no written or any terms and condition in the customer agreement form regarding Internet usage services and activation of such services on the SIM card by the plaintiff was unilateral, Suit No. 27A/2011 9/20 pages unauthorised and illegal. DW1 has further deposed in his affidavit that at the time of availing mobile connections, defendant had categorically informed the officials of the plaintiff that they need the connections only for receiving or making telephone calls and not for any other purposes. DW1 has further deposed that the defendant had categorically informed the plaintiff in the specific query put by the plaintiff company that the defendant do not need Internet services and requested them not to include Internet services.
25. DW1 has admitted in his affidavit Ex.DW1/X that defendant used the Internet services only on some occasions and that too under the impression that the same would be provided free of cost and if at all charges would be payable, it would be nominal.
26. Thus, from the testimony of DW1, it is undisputed that employees of the defendant had used International mobile connection nos. 3027455809, 3022209778 and 3027537306 for the period of contract. However, the only dispute is regarding payment pertaining to the alleged Internet usage on the aforesaid International mobile connections number. It is plaintiff's claim that defendant has used the Internet connection GPRS on aforesaid International mobile connections during the contract period while defendant having admitted (in the affidavit of DW1) that the Internet may have been used by the defendant only on some occasions and that also under the impression that it was free of cost or at nominal charges, have Suit No. 27A/2011 10/20 pages nevertheless challenged the plea of the plaintiff that Internet services were part of the services flowing from contract or agreement entered between the parties herein, as contained in customer agreement loan Ex.PW1/B (colly.).
27. During course of leading clarifications, Ld. Counsel for the plaintiff has filed affidavit bifurcating the outstanding balance due from the defendant towards plaintiff as reflected in account ledger Ex.PW1/C, into two categories i.e. amount due towards data usage which is alleged to be Rs. 1,40,949.45/ and other (voice charge + text charge + local voice + line rental +international text+roaming voice) for an amount of Rs.25,850.55/.
28. During the course of final arguments, Ld. Counsel for the defendant had relied on judgment in Brahmputra Infrastructure Ltd. v. DDA 2010 (251) ELT 488 (Del), Sh. Mahavir Straw Board Pvt. Ltd. v. U P State Electricity Board (decided on 19.9.2008 ) by the Hon'ble High Court of Allahabad and Hansalaya Properties & Anr. v. Dalmia Cement (Bharat) Ltd. 2008 (106) DRJ 820. Ld. Counsel for the defendant had relied on above said judgments to drive home the point that any condition which is not part of the written agreement executed between the parties cannot be read into the agreement.
29. PW1 in his affidavit Ex.PW1/X has deposed that the standard application form Ex.PW1/B (colly.) through which plaintiff and defendant entered into the agreement, contains the terms and conditions regarding usage of the Suit No. 27A/2011 11/20 pages International mobile connection and outstanding amount of Rs.1,66,800/ due and payable by the defendant towards international mobile nos. 3027455809, 3022209778 and 3027537306 has occurred by defendants use of international mobile telephone services in accordance with the terms and conditions of the written contract and has relied on original customer agreement form which is Ex.PW1/B (colly.). Perusal of Ex.PW1/B (colly.) shows that there is no condition pertaining to Internet usage/data usage nor Ld. Counsel for the plaintiff has been able to show any such condition in the customer agreement form Ex.PW1/B (colly.). Plaintiff has further relied on tariff plan Ex.PW1/E which is alleged to have been agreed upon by the defendant and bears the seal/stamp of the defendant company along with the signature thereof, though, defendant had denied the tariff plan during the course of admission denial of documents.
30. Plaintiff has examined Sh. Chandra Shekhar s/o Sh. Ramanand Pandey, Executive, Legal of the plaintiff as PW1 who has admitted during his cross examination that "There is no term and condition for getting specifically to activation of Internet data services in customer agreement form Ex.PW1/B (colly.)"
31. PW1 has further admitted during the course of his cross examination that "Def. had sought SIM only for International calling and Suit No. 27A/2011 12/20 pages therefore it was granted only for International calling. I cannot say whether defendant was informed about the facility of Internet Data Services."
32. PW1 has further admitted during the course of his cross examination that "I cannot say whether def. had applied for subscription of Internet data services as I have no personal knowledge."
33. PW1 has stated during the course of his cross examination that text messages are charged as per tariff plan and charges for text messages are provided separately and not charged under the data services.
34. Thus, from the testimony of PW1, it is clearly admitted that there is no term and condition in the customer agreement form Ex.PW1/B (colly.) stipulating that Internet data services would constitute part of International Mobile Services to be provided by the plaintiff according to the explicitly agreed terms contained therein. Even, in the tariff plan Ex.PW1/E, there is no term or condition pertaining to Internet or data usage and it only provides for charges on incoming outgoing /local call rates. PW1 has also admitted that def. had entered into agreement only for International calling and the plaintiff has also granted the mobile/SIM nos. 3027455809, 3022209778 and 3027537306 to defendant for International calling only.
35. Defendant has examined Sh. Sandeep Kumar s/o Sh. Joginder Pal, AR for the defendant as DW1 who has stated during the course of his cross examination that defendant had specifically asked the plaintiff for the SIM Suit No. 27A/2011 13/20 pages without Internet services, only for incoming and outgoing calls.
36. Thus, in view of the admission made by PW1 (AR of plaintiff) and absence of documentary evidence to show that Internet data usage was a part of the services agreed between the parties vide customer agreement form Ex.PW1/B (colly.), there is no reason to believe that Internet data services were agreed upon between the parties as part of the services to be provided by the plaintiff as per the terms of customer agreement form Ex.PW1/B (colly.).
37. Section 91 of Indian Evidence Act provides that when the terms of a contract have been reduced to writing whether or not required by law to be in writing, no evidence shall be given in proof of the terms of such agreement, except the document itself. Thus, the terms of an agreement which is in writing can only be proved by the production of the document and not by any other evidence. This common law rule is based upon the general principle that if oral or other evidence is allowed it would defeat the very object of reducing the agreement to a written form.
38. Section 92 of the Indian Evidence Act provides that where the terms of any such agreement have been proved by the production of the document itself no oral evidence shall be admitted, as between the parties to the agreement or their representatives, for the purpose of contradicting, adding to or subtracting from any condition from its terms. In other words, this Section prohibits adducing of evidence between the parties or their representatives Suit No. 27A/2011 14/20 pages to the agreement but permits other to lead evidence for the purpose of varying the terms and conditions of any such agreement. There are certain exception to the rule contained in Section 92 of Indian Evidence Act and thus even the parties to an agreement or their representatives are allowed to lead evidence to contradict or vary the terms of such agreement in the circumstances enumerated in proviso (1) to (6) of the very Section.
39. In the judgment of Hon'ble High Court of Delhi in Brahmputra Infrastructure Ltd. v. DDA 2010 (251) ELT 488 (Del), it has been held that if on the basis of written agreement and documents, petitioner is not entitled to any service tax, then the party is not entitled for any amount /service tax on account of any oral evidence adduced by the party as such evidence prima facie shall not be acceptable U/s. 91 of the Indian Evidence Act.
40. In the case at hand, there is no stipulation in the agreement Ex.PW1/B (colly.) and tariff plan Ex.PW1/E regarding Internet usage or charges thereof. PW1 has also admitted that there is no stipulation regarding Internet usage in the customer agreement form Ex.PW1/B (Colly.) and that the defendant had taken the SIM only for International calling and therefore it was granted only for International calling. Thus, it can be clearly inferred from the admission of the PW1 that not only there was no standard term of contract or condition regarding Internet usage in customer agreement form Ex.PW1/B (Colly.) nor there was consensus ad idem Suit No. 27A/2011 15/20 pages between the parties regarding Internet usage as the defendant had never asked for the SIM for Internet usage and the plaintiff also had given the SIM only for International calling. Thus, if Internet/data usage was not part of the terms of the contract between the parties as contained in Ex.PW1/B (Colly.), recovery in respect of such usage also cannot be allowed.
41. Thus, plaintiff has failed to establish its claim for recovery of Rs. Rs.
1,40,949.45/ from defendant in respect of Internet data usage alleged to have been made by defendant.
42. Besides Internet usage, plaintiff has also claimed sum of Rs.25,850.55/ towards other usages including voice charge, text charge, local voice, line rental, International text and roaming voice.
43. Defendant has admitted in its WS the usage of the services provided by the plaintiff that was availed by him towards voice calls made and received by the defendant, and had paid for the same vide cheque no. 377240 dt. 28.4.2010 a sum of Rs.29,092/ towards services availed by the defendant. DW1 has admitted in its affidavit Ex.DW1/X that defendant has availed the service provided by the plaintiff via International mobile connection nos. 3027455809, 3022209778 and 3027537306 towards voice calls made and received by the defendant (its employees) and had tendered a cheque no. 377240 dt. 28.4.2010 a sum of Rs.29,092/ towards services availed by the defendant. Plaintiff has admitted that def. company issued the aforesaid cheque in favour of the plaintiff, however, PW1 during the course of his Suit No. 27A/2011 16/20 pages cross examination has stated that aforesaid cheque no. 377240 has neither been presented nor encashed by the plaintiff.
44. Therefore, from above findings and observations, this court has come to the conclusion that plaintiff failed to establish his right to claim Rs. 1,40,949.45/ towards the alleged data /Internet usage by defendant. Thus, plaintiff has been able to establish his entitlement to recover Rs.25,850.55/ from the defendant towards other services (i.e. voice charge, text charge, local voice, line rental, international text & roaming voice). However, in light of the admitted liability of Rs.29,092/ by defendant, who had tendered cheque no. 377240 dt. 28.4.2010 for sum of Rs.29,092/ regarding admitted usage of mobile connection nos. 3027455809, 3022209778 and 3027537306 for receiving and making voice calls, plaintiff is entitled to recovery sum of Rs.29,092/ from the defendant.
ISSUE No.3 Whether plaintiff is entitled to any pendente lite and future, if so, for what period and for what rate? OPP
45. Plaintiff has claimed interest @ 18% p.a from the date of filing of the suit till realization of the entire amount. Ld. Counsel for the plaintiff had filed affidavit bifurcating the total amount claimed in this suit of Rs.1,66,800/ into amount exclusively claimed towards data usage of Rs.1,40,949.45 and the remaining sum of Rs.25,850.55 towards other services i.e. voice charge, Suit No. 27A/2011 17/20 pages text charge, local voice, line rental, international text & roaming voice. Plaintiff has also admitted in its plaint that defendant company had issued cheque bearing no.377240 dt.28.04.10 for sum of Rs.29,092/ to the plaintiff. PW 1 has also deposed similarly in his affidavit Ex.PW 1/X that defendant company had issued cheque bearing no.377240 dt.28.04.10 for sum of Rs.29,092/ to the plaintiff. PW 1 has stated in his cross examination " the cheque no.377240 has neither being presented nor encashed yet"
46. This Court has already come to the finding that there was no stipulation regarding data/Internet usage in the customer agreement form Ex.PW 1/B (colly), nor did the parties had the data/Internet usage in their mind at the time of the agreement and therefore no term or condition can be read into a written / standard form of contract which otherwise was not included in agreement Ex.PW 1/B (colly.) by the parties. Accordingly, plaintiff cannot claim any charges against data/Internet usage which is alleged by the plaintiff of Rs.1,40,949.45/. However, plaintiff has successfully established his claim for sum of Rs.25,850.55 towards other services i.e. voice charge, text charge, local voice, line rental, international text & roaming voice from the defendant and also defendant has admitted his liability for usage of voice calls and other services other than Internet based data usage and had also issued cheque bearing no.377240 dt.28.04.10 for sum of Rs.29,092/ to the plaintiff towards his usages before filing of this suit. However, the Suit No. 27A/2011 18/20 pages plaintiff has neither encashed the cheque nor returned it to the defendant. In the opinion of the Court, once the defendant had made payment towards his admitted outstanding liability, it was for the plaintiff to have acted diligently so as to mitigate the damage.
47. General doctrine of avoidable consequences applies to measure of damages in an action for breach of contract. The principle of mitigation of loss does not give any right to the party who is in breach of contract but is a concept to be borne in mind by the Court while awarding damages. Statutory obligation has been cast upon the plaintiff to mitigate the damage/loss which he has sustained consequent upon defendants wrong under explanation to Section 73 of Indian Contract Act.
48. Explanation to Section 73 of Indian Contract Act reads as under:
"In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account."
49. In case at hand, defendant had tendered sum of Rs.29,092/ vide cheque bearing no.377240 dt. 28.04.10 to the plaintiff allegedly against his self assessed liability towards the plaintiff, though it was much less than the amount allegedly claimed by the plaintiff from the defendant at that time. The said cheque was tendered to the plaintiff on 28.04.10 i.e. much before the filing of the suit on 14.12.11 and plaintiff as reasonable man should have Suit No. 27A/2011 19/20 pages acted so as to mitigate damage accruing to him. However, plaintiff has neither encashed cheque no. 377240 dt. 28.04.10 nor he has stated the reason for nonencashment of said cheque. Therefore, no ground exist for grant of any interest including pendentelite interest, on the outstanding amount recoverable by the plaintiff from the defendant, ISSUE No.4 Relief
50. In view of the findings reached at issue no.2 and 3, this court is of the opinion that plaintiff is entitled to recover the admitted sum of Rs. 29,092/ from the defendant. Accordingly, suit is decreed in favour of the plaintiff and against the defendant for sum of Rs. 29,092/ along with future interest @6% per annum till realization.
51. No orders as to cost.
52. Decree sheet be drawn accordingly.
53. File be consigned to record room.
Announced in the open Court (Ritu Singh) Dated 30.09.2013 Civil Judge04/South District/New Delhi Suit No. 27A/2011 20/20 pages