Bangalore District Court
M/S Matrix Cellular vs Srinivas Kuppuswamy on 23 November, 2016
IN THE COURT OF SMALL CAUSES
AT BENGALURU (SCCH-5)
DATED THIS THE 23rd DAY OF NOVEMBER 2016
PRESENT: SMT. ROOPA K.N. B.Sc, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
S.C No.1104 of 2015
PLAINTIFF : M/s Matrix Cellular
(International) Services Pvt.,
Limited, a company registered
under the companies Act, 1956
and having its branch office at
No.95, 17th B main road,
Koramangala,
Bangalore-560 095,
Represented by its Executive
Mr.K.Uday Kumar.
(By Sri.Kashyap N.Naik.- Adv., )
V/s
DEFENDANT : Srinivas Kuppuswamy
S/o Govardhan Kuppuswamy,
Residing at # 17/1, ' Vaishnavi',
5th Cross, Kempegowda Nagar,
Bangalore-560 019.
(By Sri.K.Chandramohan-Adv.)
Date of Institution : 15-09-2015
of the suit
Nature of the suit : Recovery of money
Date of :
commencement 18-01-2016
recording of the
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SCCH-5
evidence
Date on which the :
judgment was 23-11-2016
pronounced
Total Duration : Years Month/s Days
01 02 08
(ROOPA K.N.)
VIII ADDL. SCJ & XXXIII ACMM,
JUDGMENT
This suit is filed by Plaintiff company against the defendant for recovery of claim of Rs.75,721/- with interest at 18% p.a.
2. The suit of plaintiff company is as under:
It is the case of the plaintiff that, the plaintiff company is a company is carrying out the business of providing international mobile connection having its head office at New Delhi and duly incorporated under the provisions of Companies Act. According to plaintiff, the defendant had applied for international mobile connection and procured the standard Customer Agreement form containing the terms and 3 SC.No.1104/2015 SCCH-5 conditions regarding the usage of said connection and agreeing for the same defendant signed the statement and thereafter though he utilized sim card provided by the plaintiff company, he did not paid the bill amount which was due by him to the tune of Rs.75,720.74/-. Hence, the plaintiff company issued a legal notice on 04-12-2012 to which the defendant did not responded. Hence, the plaintiff has been constrained to file this suit for recovery of the above suit claim.
3. After service of due summons the defendant appeared through his counsel and also filed written statement admitted that, he obtained international sim card from the plaintiff company but inter-alia contended that, at the time of obtaining such connection a deposit of Rs.10,000/- was made by him and due of that amount the bill amount was adjusted by the plaintiff and hence he is not due of any amount to the plaintiff. Hence, he sought for dismissal of the suit.
4. In order to prove its case, Authorized Signatory of the Plaintiff Company himself examined as PW-1 and got marked documents at Ex.P.1 to Ex.P.6. The GPA holder of the 4 SC.No.1104/2015 SCCH-5 defendant is got examined as DW-1 and got marked document at Ex-D.1.
5. On hearing, case is reserved for judgment.
6. On the basis of above said pleadings, the points that arises for my consideration:
POINTS
1. Whether the plaintiff proves that, towards international mobile connection this defendant is due of suit claim amount of Rs.75,720.74/- with interest at 18% per annum?
2. What decree or order?
7. My findings on the above points are as under:
Point No.1: In the Affirmative.
Point No.2: As per final order for the following:
REASONS
8. Point No.1: In order to prove these facts, plaintiff examined himself as PW-1 and he got marked Ex.P.1 to 6. Per contra, the defendant examined as DW.1 and he got marked Ex.D.1.
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9. Heard the arguments of both learned counsels for the plaintiff and defendant.
10. If we peruse the oral and documentary evidence available on record, I would like to highlight certain aspects of the plaint. This is a suit for recovery of money and no where in the plaintiff company has mentioned as to when this defendant approached the plaintiff company for mobile connection and when such connection was provided and on what date sim card was to be returned back to the defendant and what was the traffic and also about any deposit received. The plaint is so drafted that we cannot find a single word about the cause of action to file this suit. The learned counsel for plaintiff has contended that, the cause of action arose on 08-08-2012 when an agreement was entered into between plaintiff and defendant but in the main paras of the plaint these aspects are not mentioned and even the defendant has admitted the fact that he obtained an international sim from plaintiff company and hence much importance need not be given to the fact of cause of action.
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11. Before going to the oral evidence of PW-1, I would like to discuss on documentary evidence wherein Ex.P.1 is nothing but authorization letter issued by the company authorizing PW-1 to depose on behalf of company. Ex.P.2 is the Customer Agreement form entered into between parties i.e., plaintiff and defendant. Ex.P.3 and 4 are the bills. Ex.P.5 is the legal notice. Since, defendant has admitted that, he has not obtained international Sim card from the plaintiff company, the said admitted need not be proved and only dispute between the parties his in respect of payment of bill amount due by the defendant. In this regard, if cross- examination of PW-1 is perused he categorically admitted that, he personally does not know anything about this case but he is only deposing on the basis of the company records. According to him, on 08-08-2012 the defendant requested for an international sim card and in Ex.P.2 there is no mention as to when the defendant made request. According to him, prior to 08-08-2012 the defendant obtained the sim card and paid the entire bill amount and he do not know when that sim card was taken. He admitted that, at the time of issuing the same 7 SC.No.1104/2015 SCCH-5 company will seek for deposit from the customer to the tune of Rs.10,000/-. According to him, it will not be taken in the form of security since the same will be issued on the basis of credit card they will take deposit of Rs.10,000/- According to him, the said sim issued to defendant was activated between the period 08-08-2012 to 17-08-2012 and same should have been used at UAE, Sharjah, Dubai. According to him, bill will be generated by company system net work and he do not know when the defendant returned the sim card. He admitted that, after completion of agreed tenure defendant has returned the sim card and receipt was issued to him by keeping a copy.
12. Similarly, DW.1 has reiterated the averments of written statement in his affidavit and in cross-examination the GPA holder of the defendant admitted that, he knows defendant from last 2 to 3 years defendant was not known to him in the year-2012 and only after receiving the summons in this case defendant has executed this GPA in his favour as he is working under the defendant as a HR Manager. He admitted that, the plaintiff company has filed this suit against this defendant in individual capacity and not against the 8 SC.No.1104/2015 SCCH-5 company of the defendant. According to him, since defendant is suffering from BP and sugar he cannot appear before this court. He admitted that, he was not working under defendant in the year-2012 when defendant obtained international sim card from the plaintiff company.
13. If we carefully peruse the oral evidence of PW-1 and DW.1 both deposed in capacity of representatives i.e., PW-1 depose on behalf of plaintiff company and DW.1 being the GPA holder of the defendant examined before this court.
14. If we carefully peruse the Ex.P.2 which is the Customer Agreement form it is an undisputed fact that, this agreement was signed by the defendant. Admittedly, no document is placed by the plaintiff company to prove as to when the defendant surrendered the sim and when bill was issued and whether the said bill was duly served on the defendant etc., Per contra, it is specific contention of the defendant that, at the time of issuing sim plaintiff company had sought for deposit of Rs.10,000/- towards security and even this fact was admitted by PW-1. If such being the case, what prevented the plaintiff company to issue immediate 9 SC.No.1104/2015 SCCH-5 notice to the plaintiff demanding the bill amount. According to plaintiff, defendant was issued that sim card on 08-08-2012 and it was effective till 17-08-2012 and it should have been returned on 18-08-2012. If we peruse the Ex.P.3 bill is dated 28-08-2012 and legal notice was issued on 04-12-2012. There is no proof placed by the plaintiff to show whether this legal notice was duly served on the defendant. Ex.P.3 is a bill which shows that, this defendant has utilized the said sim for making international call and also to use mobile internet date from 08-08-2012 to till 16-08-2012. According to this defendant, a Company Executive came and met him and he has handed over the sim to the Company Executive who told him that, bill amount will be adjusted out initial deposit. It is made strange to believe the version of this defendant that, how can believe the strange person who his unknown to him and he can handover the mobile sim by believing his words. Since, this is a civil suit, court has to look into the preponderance of probabilities. In the case in hand, though there are lacunas on the part of the plaintiff company, the defendant an user of 10 SC.No.1104/2015 SCCH-5 international sim card is duty bound to repay the bill amount to the company.
15. Coming to the question of interest to be awarded, plaintiff is not entitled for interest claimed in the plaint as it exceeds the claims fixed by RBI the plaintiff is entitled for suit claim with interest only at the rate of 6% p.a., from the date of suit till the date of realization.
16. Even the evidence of DW.1 goes to show that, he was not working with this defendant in the year-2012 i.e., when this defendant obtained sim card from the plaintiff company. At this stage, I would like to rely on the decision reported in Civil Appeal No.6790/2003 in between Janki Vashdeo Bhojwani and Anr. V/s. Indusind Bank Ltd., and Ors, wherein, Hon'ble Apex Court has clearly held that, 'The power of attorney holder does not have personal knowledge of the matter of the appellants and therefore, he can neither depose on his personal knowledge nor can he be cross- examined on those facts which are to the personal knowledge to the principal. Order III Rules 1 and 2 of CPC empowers the holder of the 11 SC.No.1104/2015 SCCH-5 power of attorney to "act" on behalf of principal. In our view the word "acts" employed in Order III Rules 1 and 2, confines only inrespect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered the same "acts" in pursuance to power of attorney, he may depose for the principal inrespect of such acts, but he cannot depose for the principal for the acts done by the principal inrespect of the matter which only the principal can have the personal knowledge and inrespect of which the principal is entitled to be cross-examined. In view of the above decision, as this DW.1 is not a competent person to depose on behalf of the defendant as he has no personal knowledge about the transaction between the plaintiff and defendant. Hence, I declined accept the evidence of DW.1. Accordingly, I answered Point No.1 in the Affirmative.
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17. Point No.2: On the basis of discussions made on Point No.1, I proceed to pass the following:
-: ORDER :-
Suit of the plaintiff is decreed against the defendant.
The plaintiff is entitled to recover the sum of Rs.75,721/- (Rupees Seventy Five Thousand Seven Hundred Twenty One only) from the defendant with costs and future interest at 6% p.a., from the date of suit till the date of realization.
Draw decree accordingly. (Dictated to the stenographer, transcribed thereof is corrected and then pronounced by me on this the 23rd day of November, 2016) (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF:
P.W.1 : Nazeer LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT:
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D.W.1 : Shubhash
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF:
Ex.P1 Resolution copy Ex.P2 Agreement form Ex.P3 Computerized bill copy Ex.P4 Accounts ledger copy Ex.P5 Notice copy Ex.P6 Postal receipt
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:
Ex.D1 General Power of Attorney
(ROOPA K.N.)
VIII ADDL. SCJ & XXXIII ACMM,
MEMBER, MACT,
BENGALURU.