Delhi District Court
M/S Educate India Society vs M/S Vodafone Mobile Services Limited on 3 April, 2013
IN THE COURT OF SH. SONU AGNIHOTRI,
ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE
COURT-CUM- GUARDIAN JUDGE,
DISTRICT: SOUTH, NEW DELHI.
CS No. 60/13
Unique ID No. 02406C0035222013
M/S EDUCATE INDIA SOCIETY,
Society Registered Under The Societies
Registration Act, 1860,
Through its Authorised Signatory,
Mr. Shiv Saran Mehra,
Having its Campus At: ITM University,
Sector-23A, HUDA,
Gurgaon-122017.
.............. Plaintiff.
Vs.
M/S VODAFONE MOBILE SERVICES LIMITED,
Through its Managing Director,
Having its office at:
C-48, Okhla Industrial Area,
Phase-II, New Delhi-110020 ..............Defendant.
DATE OF INSTITUTION : 08.02.2013
DATE OF RESERVING JUDGMENT : 16.03.2013
DATE OF PRONOUNCEMENT : 03.04.2013
CS No. 60/13 Page No. 1 of 17
O R D E R
03.04.2013 Vide this order, I shall dispose of an application filed by defendant under Order 7 Rule 11 CPC for dismissal of suit.
Relevant facts necessary for disposal of the present application are as follows:-
1. In the application, it is stated that present suit is liable to be dismissed under Order 7 Rule 11 (d) CPC as the same is barred under Section 7 B of Indian Telegraph Act, 1885.
Provisions of Section 7 B of Indian Telegraph Act, 1885 have been reproduced in the application as follows:
"7B. Arbitration of Disputes----(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this Section.CS No. 60/13 Page No. 2 of 17
(2) The award of the arbitrator appointed under Sub-Section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any Court."
2. It is stated that suit is barred by limitation imposed by Section 7 B of Indian Telegraph Act, 1885. It is stated that defendant is a licensed Cellular Service Provider having been granted license by Department of Telecommunication, Ministry of Communication, Government of India under Section 4 of Indian Telegraph Act. It is stated that defendant is governed by provisions of Indian Telegraph Act, Indian Telegraph Rule, 1951 and Telecom Regulatory Authority of India Act, 1997 and has to comply with directions issued by Department of Telecommunication, Ministry of Communication, Government of India from time to time.
3. It is stated that Hon'ble Supreme Court of India in matter of 'General Manager Telecom Vs. M. Krishnan' vide its Order dated 01.09.2009 has held that in view of Section 7 B of Indian Telegraph Act, 1885, jurisdiction of other Courts to hear and adjudicate individual consumer complaints of telecom sector is by implication barred. It is stated that in view of this Order of Hon'ble Supreme Court of India, National Commission vide its order dated 21.05.2010 in 'Prakash Verma Vs. Idea Cellular & CS No. 60/13 Page No. 3 of 17 another (Revision Petition No. 1703 of 2010)' dismissed complaint filed by consumer by holding that any dispute between a telegraph authority and subscriber can be resolved only through arbitration proceedings. It is stated that appeal of the consumer (Civil Appeal No. 24577/2010) against this Order was dismissed by Apex Court. It is stated that National Commission vide its order dated 20.04.2012 in 'Lokesh Parashar Vs. M/s Idea Cellular Ltd. & Anr. (Revision Petition No. 3780/2011)' reiterated judgment of Hon'ble Supreme Court of India in 'General Manager Telecom Vs. M. Krishnan'. It is stated that in 'Govindbhai Premjibhai Chovatia Vs. Chief General Manager, Gujrat Telecom Circle (AIR 1996 Guj.
153)', Hon'ble High Court of Gujrat held that "In fact, due to existence of Section 7B, even the jurisdiction of the Civil Courts under Section 9 of the Code of Civil Procedure, would be regarded as impliedly ousted....".
4. It has been prayed to dismiss present suit under Order 7 Rule 11 (d) CPC.
5. No reply to this application of defendant was filed by plaintiff and arguments were addressed straightway by counsel for plaintiff.
CS No. 60/13 Page No. 4 of 176. I have heard arguments addressed by respective counsels and perused the record.
7. Present suit has been filed by plaintiff for declaration in favour of plaintiff and against defendant for declaring bill no. 0171500692 dated 20.01.2013 for period from 20.12.2012 to 19.01.2013 for amount of Rs.77,520.52/- as illegal, unlawful and non-est and for passing a decree of restrictive/mandatory/prohibitory injunction by way of consequential relief in favour of plaintiff and against defendant thereby inhibiting, preventing or restraining defendant from attempting or taking any coercive step of disconnecting services of plaintiff's mobile no. 9711991125.
8. Plaintiff in the plaint has stated that plaintiff society is subscriber of telephone no. 9711991125 amongst other numbers of defendant. It is stated that plaintiff has subscribed talk plan of "Talk 2 all 499 plan" for which defendant is charging fixed monthly rental @ Rs.499/- per month from plaintiff besides other charges as applicable from time to time. It is stated that defendant company unilaterally on its own accord granted plaintiff a dynamic credit limit of Rs.25000/- which is almost 12 times the average monthly billing of plaintiff. It is stated that when defendant was approached as to why this limit has been CS No. 60/13 Page No. 5 of 17 granted without plaintiff seeking the same or without intimation to plaintiff, it was informed that it has been granted as per policy of the company and mentioned on the bill in small type setting. It is stated that as per defendant, dynamic credit limit of Rs. 25000/- to plaintiff was provided since 17.11.2011.
9. It is stated that the above mentioned mobile number is being used by one of members of governing body of plaintiff society who went abroad from 07.01.2013 to 24.01.2013. It is stated that as the member using the mobile number was travelling to Europe and prior to his departure to Europe, an advance sum of Rs.10,000/- was deposited on 07.01.2013 against the above mentioned mobile number in order to avoid inconvenience and to take care of the fact that services are not disconnected in case usage of the connection is higher than its normal average usage.
10. It is stated that on return from abroad on 24.01.2013, plaintiff was surprised that only limited services were available on the above mentioned mobile number and hence another Rs. 5000/- was deposited by plaintiff in order to cover up usage above Rs.10,000/- which was deposited prior to departure. It is stated that even then services were not restored. It is stated that there upon plaintiff called defendant and came to know that CS No. 60/13 Page No. 6 of 17 outstanding balance after adjusting Rs.15,000/- was Rs. 64,439.09/- and due date of payment of the same was 07.02.2013.
11. It is stated that outgoing calls on above mentioned mobile number were stopped by defendant on 28.01.2013 vide sms sent on the mobile number even before date of payment on which bill was to be cleared. It is stated that in these circumstances, plaintiff was constrained to send an e-mail dated 29.01.2013 to Nodal Officer of defendant agitating its grievances. It is stated that request was made by plaintiff to provide details of charges leveled by defendant. It is stated that details were provided by defendant which showed that a sum of Rs. 67,670/- has been leveled by defendant towards roaming charges out of which sum of Rs.65,505/- has been charged towards GPRS only. It is stated that so far as usage towards telephone bill is concerned, plaintiff has no objection to pay the same provided that other illegal and unlawful charges amounting to Rs.65,505/- for GPRS and Rs.165/- towards alleged messages are withdrawn by defendant.
12. It is stated that defendant ought not to have activated GPRS international Data Services of plaintiff without a request having been made by plaintiff and assuming that the same has CS No. 60/13 Page No. 7 of 17 been erroneously activated by defendant, the said service ought to have been stopped after credit of Rs.10,000/- deposited in advance by plaintiff was exhausted. It is stated that defendant unilaterally continued with the services till bill reached to magical figure of Rs.65,505/- which is far higher than credit limit of Rs. 25000/- granted by defendant. It is stated that Nodal Officer of defendant responded to e-mail dated 29.01.2013 of plaintiff by stating that GPRS Services are pre-activated services on which amount is charged at 10 p./10 KB on home network and Rs. 5.50p/10 KB on international roaming. It is stated that defendant further responded to specific query of plaintiff that download charges in international roaming are not updated in their system due to which it may sometimes overshoot the assigned dynamic credit limit i.e. Rs.25000/-. It is stated that defendant cannot extend services not asked for by a customer and thereafter load cost thereof upon customer merely by saying that it is mentioned on the bill. It is stated that such unilateral uncalled for and unsolicited services not asked for by customer cannot fasten liability upon the customer.
13. Counsel for plaintiff argued that defendant is not telegraph authority within meaning of Section 7B of Indian Telegraph Act, 1885 and so it cannot be said that present suit is barred because of provisions of Section 7B of Indian Telegraph Act, CS No. 60/13 Page No. 8 of 17 1885. Counsel for plaintiff argued that only government run telecommunication service providers like BSNL and MTNL can be considered to be telegraph authority within meaning of telegraph authority as provided under Section 7B of Indian Telegraph Act, 1885. He pointed towards definition of Telegraph Authority as laid down under Section 3(6) of Indian Telegraph Act, 1885. Section 3(6) of Indian Telegraph Act provides as under:
' "Telegraph Authority" means the Director General of Posts and Telegraphs, and includes any Officer empowered by him to perform all or any of functions of the Telegraph Autority under this Act.'
14. Counsel for defendant on the other hand cited judgment of Hon'ble Supreme Court of India in case titled as 'General Manager, Telecom Vs. M. Krishnan & Anr. (in Civil Appeal No. 7687 of 2004)' in which Hon'ble Supreme Court of India has held that "In our opinion when there is a special remedy provided in Section 7-B of Indian Telegraph Act regarding disputes in respect of telephone bills, then the remedy under the Consumer Protection Act is by implication barred." Hon'ble Supreme Court of India in this case further held that "Rule 413 of the Telegraph Rules provides that all services relating to CS No. 60/13 Page No. 9 of 17 telephone are subject to Telegraph Rules. A telephone connection can be disconnected by the Telegraph Authority for default of payment under Rule 443 of the Rules.
It is well settled that the special law overrides the general law..... "
Various other judgments and orders have been filed by defendant in which it has been held that any dispute between the subscriber and Telegraph Authority can be resolved by taking recouse to arbitration proceedings only. Defendant has filed Order of National Consumer Disputes Redressal Commission in Revision Petition No. 1703 of 2010 titled as 'Prakash Verma Vs Idea Cellular Ltd. & Anr' in which National Commission has referred to judgment of Hon'ble Supreme Court of India in case titled as 'General Manager, Telecom Vs. M. Krishnan & Anr. (2009) 8 SCC 481' and has held that judgment of Hon'ble Supreme Court of India is binding on all subordinate Courts. Judgment in case titled as 'Chief Accounts Officer, Telecom District Dhenkanar and Another Vs. Satyananda Jena, AIR 2004 Orissa 47' has been filed by defendant in which it has been held that "It thus appears from the above quoted passage that Civil Court shall exercise jurisdiction only in case where the provision of S. 7-B(1) of the Act, 1885 has no application to the dispute in question." Judgment of Hon'ble High Court of Madras in case titled as "General Manager, CS No. 60/13 Page No. 10 of 17 Telecommunications Vs. S K Natrayan 2004 Law Suit (Mad.) 381" has been filed by defendant in which Hon'ble High Court of Madras has held that "If we consider these decisions with reference to Section 7-B (1) and (2) of the Act as well as Section 9 of CPC, it leads to irresistible conclusion that for any dispute relating to telephone line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus, is, or has been provided, the dispute shall be determined by arbitration and the same cannot be agitated before the Civil Court." One order of National Consumer Disputes Redressal Commission in case titled as 'Lokesh Parashar Vs. M/s Idea Cellular Ltd. and Other (in Revision Petition No. 3780 of 2011)' has been filed by defendant in which National Commission has referred to judgment of Hon'ble Supreme Court of India in case titled as 'General Manager, Telecom Vs. M. Krishnan and Anr.' and has held that judgment of Apex Court is binding on all the Courts including Consumer Fora.
15. Counsel for plaintiff during course of arguments submitted that majority of judgments/orders filed by defendant pertain to litigation between Government Telecom Department and Private Party and defendant being a private service provider cannot be considered to be a telegraph authority within meaning of Indian CS No. 60/13 Page No. 11 of 17 Telegraph Act, 1885.
16. Counsel for defendant argued that in the present scenario when telecom sector has been opened to private players by Government of India, it cannot be said that only Government run telecom services/Government Authority can be tagged as telegraph authority within meaning of Indian Telegraph Act, 1885. He submitted that definition of telegraph authority under Section 3(6) of Indian Telegraph Act cannot be so construed so as to include only Director General of Posts and Telegraphs and Officers empowered by him but that wider meaning has to be given to definition of telegraph authority in present scenario when majority telecom services are being provided by private players and particularly in view of various judgments and orders filed by defendant. Defendant filed copy of license agreement between defendant company and President of India in which it has been mentioned that defendant company was granted a license in exercise of powers under Section 4 of Indian Telegraph Act, 1885 to operate cellular mobile telephone service in Delhi Service Area. Counsel for defendant argued that today defendant company has power to grant connections, to disconnect connections and to raise bills for usage of mobile connections by members of the public subject to conditions of license and providing of telecom services has not remained in CS No. 60/13 Page No. 12 of 17 exclusive domain of Government run Telecom Service Providers and it can be said with certainty that dispute between any private service availer and defendant company has to be filed before arbitrator appointed by Central Government.
17. In view of respective submissions and in view of law filed by defendant, I am of the opinion that definition of Telegraph Authority classifying to merely include Director General of Posts and Telegraphs and any officer empowered by him will be taking of too pedantic approach and in today's scenario when providing of telephone services has not remained in exclusive domain of Government, it will be too narrow a view. As per copy of license agreement filed by defendant, license has been granted to defendant under Section 4 of Indian Telegraph Act. Certain orders of National Commission have been filed by defendant which concern dispute between private party and private telecom service providers and in these orders, National Commission has relied upon judgment of Hon'ble Supreme Court of India in case titled as 'General Manager, Telecom Vs. M. Krishnan and Anr.' and has held that 'Consumer forums' does not have any jurisdiction over dispute between a subscriber and telegraph authority and that these disputes can be resolved by taking recourse to arbitration proceedings only. In view of these orders also, I am of the view that definition of CS No. 60/13 Page No. 13 of 17 telegraph authority cannot be restricted to Government Officials as mentioned in Section 3(6) of Indian Telegraph Act, 1885 in today's scenario. The fact that plaintiff is a subscriber has not been disputed on behalf of plaintiff. I find force in submissions made by counsel for defendant and hold that present plaint is liable to be rejected under Order 7 Rule 11 (d) CPC in view of provisions of Section 7-B of Indian Telegraph Act, 1885.
18. Further after going through the plaint, I am of the opinion that plaint is liable to be rejected under Order 7 Rule 11 (a) CPC as it does not disclose any cause of action (though this aspect of the matter was not taken up by defendant in its application but plain reading of plaint indicates towards the same and judicial note of the same has been taken). Plaintiff alongwith plaint has annexed bills issued by defendant company for varioius months and bill for period 20.10.2011 to 19.11.2011 shows that dynamic credit limit of plaintiff was increased to Rs.25000/- by defendant from earlier dynamic credit limit of Rs.7500/-. For details of dynamic credit limit, it has been written on the bill to refer back of page no. 1 in which it has been mentioned that dynamic credit limit depends upon security deposit paid by a customer, average monthly usage, payment track record and how long a customer has been with defendant company. It has not been stated by plaintiff in the plaint that what action plaintiff took CS No. 60/13 Page No. 14 of 17 when defendant unilaterally increased its dynamic credit limit from Rs.7500/- to Rs.25000/-. When it has been specifically provided in information appended with the bill that dynamic credit limit depends upon certain factors, it cannot be said that defendant unilaterally increased dynamic credit limit of plaintiff. Plaintiff used mobile number in question for about an year after its dynamic credit limit was increased by defendant company as per bills attached by plaintiff itself. Plaintiff could have written to defendant to reduce its dynamic credit limit but nothing has been brought on record by plaintiff in this regard. So conduct of plaintiff indicates that plaintiff impliedly consented to increase of dynamic credit limit by defendant. Further plaintiff has appended reply given by defendant company to e-mail sent on behalf of plaintiff. In reply to question as to why did defendant company extend services of GPRS unilaterally, it has been stated by defendant company that GPRS service is a pre activated service and that plaintiff will be charged as per usage made from mobile number at rate of 10 p./10 KB in home network and Rs. 5.5/10KB in international roaming. In reply to question as to why did defendant company did not stop service after limit of Rs. 10,000/- was exceeded, it has been stated by defendant company that usage and browsing/download charges in international roaming are not updated in system on a real time basis due to which subscriber sometimes might cross the CS No. 60/13 Page No. 15 of 17 assigned dynamic credit limit. Perusal of bills before impugned bill as filed by plaintiff with plaint shows that plaintiff has been using internet in home network and no specific letter has been placed on record by plaintiff vide which it can be seen that plaintiff instructed defendant company to stop internet services while mobile in question is being used by plaintiff in international roaming. When GPRS/internet services are active, it is trite to state that they continue whether a person is in home network or is in international roaming. Plaintiff should have got stopped GPRS services while in international roaming and it was not obligatory upon defendant company to stop the GPRS Services. Further explanation given by defendant company that download charges are not updated in international roaming in their system on real time basis is quite plausible explanation. It may be that technically, it may not be practically feasible to update exact charges of GPRS using immediately after use when a person is on some other network in some other country. Further, it has not been stated by plaintiff that the details of GPRS usage as provided to plaintiff on its asking from defendant company is not correct or that plaintiff has not used GPRS to the extent as provided in these details. It cannot be said that if defendant company asks plaintiff to pay for whatever has been used by plaintiff, the said demand becomes illegal only because it has exceeded dynamic credit limit as allowed by defendant CS No. 60/13 Page No. 16 of 17 company. It is trite to state that a person has to pay for the services which he has availed. Therefore, no cause of action has arisen in favour of plaintiff for getting declared impugned bill as illegal as GPRS usage while in international roaming has not been denied by plaintiff. When main relief is not liable to be granted, consequential relief also cannot be granted. Therefore, it can be said that plaint does not disclose any cause of action and is liable to rejected under Order 7 Rule 11 (a) CPC. Plaint is accordingly rejected under Order 7 Rule 11 (a) & (d) CPC. Application of defendant stands disposed of as allowed.
File be consigned to Record Room.
Announced in open Court on 03.04.2013 Sonu Agnihotri JSCC-cum-ASCJ-cum-GJ South District, Saket Court, New Delhi.
CS No. 60/13 Page No. 17 of 17