Delhi District Court
Matrix Cellular (International) ... vs Pawan Hans Helicopters Limited on 13 May, 2014
IN THE COURT OF MS. POOJA AGGARWAL: CIVIL JUDGE03
(SOUTH DISTRICT): SAKET COURT COMPLEX: NEW DELHI
Suit no. 20/13
Unique ID No.02406C0026112013
IN THE MATTER OF:
Matrix Cellular (International) Services Pvt. Ltd.,
07, Khullar Farms,
140, New Manglapuri,
Mandi Road, Mehrauli,
New Delhi110030. ......Plaintiff
Versus
Pawan Hans Helicopters Limited.
(Through its Administrative Manager)
R/o C14, Sector1,
Dist. Gautam Budh Nagar,
Noida, Uttar Pradesh. ....Defendant
DATE OF INSTITUTION : 29.01.2013
DATE OF RESERVING THE ORDER : 02.05.2014
DATE OF DECISION : 13.05.2014
JUDGMENT
1. The present suit had originally been filed by the plaintiff Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 1 of 13 against the defendant under Order XXXVII Civil Procedure Code, 1908 for recovery of Rs.25,238/ (Rs. Twenty Five Thousand Two Hundred Thirty Eight Only) with pendente lite and future interest @18% per annum along with cost of the suit. However, on request of the plaintiff it was converted into an ordinary suit on 01.06.2013. Facts as per plaint
2. The plaintiff being a private limited company incorporated under Companies Act, 1956, is engaged in providing International Mobile Rental Services. The suit was instituted through Sh. Chandra Shekhar who is duly authorized by Major General M.S. Dugal one of the Directors of the plaintiff company to sign, verify the plaint and institute the suit.
3. It is averred that the defendant applied for international mobile connection and on the basis of the information/ statement furnished by the defendant in the standard application form, the plaintiff gave the international mobile connection no.017610267833 under the agreement no.M1829978. It is averred that a sum of Rs.25238/ was due and payable by the defendant as per accounts maintained by the plaintiff having been incurred by the defendant's usage of international mobile telephone services in accordance with the terms and conditions of the Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 2 of 13 contract. It is stated that invoices were raised upon the defendant through monthly bills by the plaintiff but despite repeated reminders and requests the defendant failed to pay the amount, due to which legal notice dated 06.12.2012 was sent to the defendant through the counsel for plaintiff. It is further averred that inspite of receipt of the legal notice, the defendant failed to clear the outstanding bills, hence, the present suit. Facts as per the written statement.
5. Preliminary objections have been raised by the defendant as to suppression of material facts and the suit not having been properly instituted. It has been contended that a bill dated 30.11.2011 for Rs. 95956.33 had been disputed by the defendant as there had been deficiencies in services due to which the bill was settled for Rs.71,967/ with the sum of Rs.23,989/ having been waived off by the plaintiff vide letter dated 10.02.2012. It is further stated that bill for Rs. 71,967/ was immediately sent for approval and cleared by competent authority of the defendant and the amount was also remitted to the plaintiff on 13.03.2012. It is averred that it was only nine months later i.e. in the next financial year that the plaintiff sent legal notice demanding payment of Rs.25,236.48 and was duly informed by the defendant that notice was not Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 3 of 13 correct and must be withdrawn.
6. It is further averred that it was only vide email dated 19.12.2012 that the plaintiff disclosed that the settlement letter/waiver dated 10.02.2012 was not valid because payment was received after seven days. It has been stated that the plaintiff never raised any objections or reservations after receiving the amount of Rs.71,967/ in March 2012 because the same was as per the settlement. It has been contended that the books of accounts had not been property and correctly maintained as the late payment charges have not been reflected in the settlement of account. Rest of the averments have been denied on merits. Facts as per replication
7. It has been asserted that the settlement dated 10.02.2012 was a conditional settlement and as the payment was not done within seven days, the defendant had failed to comply with the condition. Rest of the averments have been denied on merits.
8. During the course of admission denial of documents the defendant admitted Customer Agreement Form (Ex.P1/D1), Tariff Sheet (Ex.PW1/D2), Company Undertaking dated 08.11.2011 (Ex.PW1/D3) and letter dated 08.11.2011 from defendant to plaintiff (Ex.PW1/D4). The Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 4 of 13 plaintiff on the other hand admitted the email dated 02.10.2012 (Ex.D1/P1), original bill dated 30.11.2011 (Ex.D1/P2), Letter dated 13.03.2012 from the defendant to Punjab National Bank (Ex.D1/P3) as well as email conversation from 19.12.2012 to 31.12.2012 (Ex.D1/P4). Issues
9. From the pleadings of the parties, the following issues were framed on 05.12.2013: (1) Whether the suit has been properly instituted by the plaintiff ? OPP (2) Whether the bill dated 30.11.2011 was settled between the parties for Rs.71,967/ with the plaintiff waiving off Rs. 23,989/ vide letter dated 10.02.2012 ? OPD (3) Whether the plaintiff raised any objection after receiving amount of Rs.71,967/ ? If not, its effect? OPD (4) Whether the plaintiff has suppressed material facts?OPD (5) Whether the plaintiff is entitled to relief of recovery as prayed for?OPP (6) Relief if any.
Evidence
10. To prove its case, the plaintiff examined only one witness i.e. Sh. Tarun Yadav as PW1 who tendered his evidence by way of affidavit (Ex.PW1/A) on similar lines as the plaint and was duly cross examined Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 5 of 13 by the defendant. PW1 also relied on copy of certificate of incorporation (Ex.PW1/A1), copy of resolution passed in his favour (Ex.PW1/A2); account ledger (Ex.PW1/B); copy of itemized bill dated 30.11.2011 (Mark A); Legal notice dated 06.12.2014 (Mark B) as also the admitted documents Ex.P1/D1 to Ex. Ex.P1/D4.
11. To prove its case, the defendant also examined only one witness Sh. Sanjiv Aggarwal as DW1 who tendered his evidence Ex.DW1/A on similar lines as written statement and was duly cross examined by the plaintiff. DW1 also relied on copy of certificate of incorporation (Mark A), Power of Attorney dated 30.11.2004 (Ex.DW1/1), extracts of ledger (Ex.DW1/2) along with certificate under Section 65 B of Indian Evidence Act and the admitted documents Ex. D1/P1 to Ex.D1/P4.
12. I have carefully heard the submissions made by the Ld. Counsels during the course of final arguments and carefully perused the evidence on record. From the evidence on record my issue wise findings are as under:
Issue No.1:Whether the suit has been properly instituted by the plaintiff?Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 6 of 13
13. The onus to prove this issue was on the plaintiff. The testimony of PW1 in his evidence by way of affidavit Ex. PW1/A is conspicuously silent as to the suit having been instituted properly by the plaintiff. PW1 though relied upon extract of minutes of meeting (Ex. PW1/A2) in his favour, he did not rely on any authorization in favour of Sh. Chander Shekhar who had instituted the present suit. Perusal of Ex. PW1/A2 reveals that while reference has been made to authority given to Sh Chander Shekhar on 27.01.2011, the scope of such authority is not laid down in Ex. PW1/A2.
14. During his crossexamination however, PW1 was questioned on the extracts of minutes of meeting in favour of Sh. Chandra Shekhar dated 27.01.2011 (Mark PW1/D5) wherein PW1 admitted that the same did not bear the signatures of any other Director except Major General MS Dugal. Mark PW1/D5 being only certified copy of the extracts and in the absence of any law requirement having been pointed out by the defendant as the all Directors of a company, as opposed to only one, having to sign a copy certifying the same as true copy, the argument of the defendant that the absence of the signatures of other Directors is indication of impropriety of the meeting itself cannot be accepted as Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 7 of 13 being devoid of merits.
15. During his crossexamination, PW1 has deposed that earlier there were only two Directors ie MS Dugal and Gagan Dugal. As per the original minutes book produced during the course of clarification, the names of both the Directors find mention in the minutes of meeting dated 27.01.2011. However, the same has not been relied upon by the plaintiff in his evidence and hence cannot be relied upon. In the present case, though the plaintiff has not been able to prove Mark PW1/D5 as per law nor has been able to prove on record the authorization in favour of Sh Chander Shekhar to institute the present suit, it cannot be lost sight of that suits which are filed by the companies should not be dismissed on technical grounds with respect to filing of the same provided that the same is contested to the hilt.
16. In the present case the plaintiff have contested the present suit at every stage and have even taken steps for substitution of Sh. Tarun Yadav as Authorized Representative of the plaintiff company in place of Sh Chandra Shekhar. Accordingly, on the basis of preponderance of probabilities, the suit cannot be said to be improperly instituted. This issue is accordingly decided in favour of the plaintiff and against the Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 8 of 13 defendant.
Issue No.2: Whether the bill dated 30.11.2011 was settled between the parties for Rs.71,967/ with the plaintiff waiving off Rs.23,989/ vide letter dated 10.02.2012 ?
Issue no.3: Whether the plaintiff raised any objection after receiving amount of Rs.71,967/ ? If not, its effect? Issue no.4: Whether the plaintiff has suppressed material facts?
17. These issues are being decided together as common questions of fact arise therein. The onus to prove all these issues was on the defendant. As per the admitted document, Ex. D1/P1, a settlement has been recorded therein in respect of invoice no. 02GER440397 which invoice is the same as Ex. D1/P2 and Mark A ie the bill dated 30.11.2011. Perusal of Ex. D1/P1 also reveals that as per the settlement the plaintiff had agreed to waive off Rs. 23,989/ as goodwill gesture and had agreed to receive Rs. 71,967/ towards the invoice in question. Hence from the admitted documents on record it stands proved that the bill dated 30.11.2011 was settled between the parties for Rs.71,967/ with the plaintiff waiving off Rs.23,989/ vide letter dated 10.02.2012 ie Ex.D1/P1.
18. The plaintiff has not disputed that a payment of Rs. 71,967/ Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 9 of 13 was made by the defendant on 13.03.2012.However, the plaintiff has taken the stand in replication, that the settlement arrived at on 10.02.2012 was only a conditional settlement as payment was to be done within seven days and since the condition was not complied with, the plaintiff could "go back" on the settlement. During the course of the final arguments, reliance was placed by the plaintiff upon Section 6(3) of the Indian Contract Act to contend that the settlement letter Ex. D1/P1 was only a proposal which stood revoked by the failure of the defendant to fulfill a condition precedent to the acceptance ie to make the payment within seven days. However, the plea as raised is devoid of merits. Perusal of Ex. D1/P1 reveals that it is clearly mentioned therein that the payment had to be made within 7 days. However, it cannot be ignored that nothing more was required to be done by the plaintiff as per Ex. D1/P1 by the defendant prior to making the payment of the settlement amount. Further it can also not be lost sight of that the payment within the stipulated time would have been the performance of the agreement itself and not be performance of any condition precedent. Hence in the settlement Ex. P1/D1 there cannot be said to be in existence any "condition precedent".
Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 10 of 13
19. Admittedly the payment of the settlement amount was not made within seven days from 10.02.2012. Hence it was for the defendant to prove that plaintiff did not raise any objection after receiving amount of Rs.71,967/ as also its effect. During the crossexamination of PW1, PW1 has deposed that a letter had been sent by the plaintiff company in respect of the short amount but pointed out to the settlement letter itself Ex. D1/P1 as being that letter. Even when asked as to why the plaintiff kept quiet from March 2012 till November 2012 about the fact of waiver, the PW1 gave an evasive answer as the settlement talks taking place between the parties.
20. Nothing has been proved on record by the plaintiff to show that any communication was ever made by the plaintiff with the defendant prior to the legal notice Mark B as also the email Ex. D1/P4 in respect of the outstanding amount. DW1 on the other hand has deposed that plaintiff had never raised any objections/reservations after receiving the amount of Rs. 71,697/ in March 2012 because the same was in accordance with the waiver and settlement arrived at between the parties. The testimony of the DW1 in respect of the same has gone unrebutted. While a suggestion was put to DW1 in respect of demand letter being Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 11 of 13 sent by the plaintiff by email in August 2012 for making balance payment and which was denied by DW1, for reasons best known to the plaintiff such email was never placed on record by the plaintiff thus an adverse inference is to be drawn against the plaintiff in respect of the existence of any such email.
21. The absence of proof of any objections having been raised by the plaintiff after receiving Rs. 71,697/ implies that the plaintiff had consented to receiving the payment in terms of the settlement letter Ex. D1/P1 even beyond the stipulated period of seven days. That being so, by not raising the objections, the plaintiff acquiesced in receiving the payment beyond the stipulated period of seven days. Once the plaintiff acquiescences in the late payment by the defendant, he cannot be permitted to "go back" on the same and is bound by estoppel of conduct.
22. In respect of the concealment of facts, PW1 has also admitted that neither in the legal notice (Mark B) nor in the plaint, the plaintiff has mentioned about the waiver/settlement letter dated 10.02.2012 thereby resulting in concealment of material facts.
23. In view of the aforementioned reasons, as the defendant has been able to discharge the onus cast upon it, issue no.2, 3 and 4 are all Civil Suit No. 20/13 Matrix Cellular Vs. Pawan Hans Helicopters Page 12 of 13 decided in favour of the defendant and against the plaintiff.
Issue no. 5: Whether the plaintiff is entitled to relief of recovery as prayed for?
24. The onus to prove this issue was on the plaintiff. In view of my findings on issue no. 2,3 and 4, the plaintiff has not been able to prove its entitlement to the sum claimed. This issue is accordingly decided against the plaintiff and in favour of the defendant. Relief:
25. In view of my findings on issue no.2, 3 and 4, the suit of the plaintiff is dismissed. Parties to bear their own costs.
26. Decree sheet be prepared accordingly.
27. File be consigned to the record room after necessary compliance.
Announced in the open court
today i.e. 13.05.2014 (Pooja Aggarwal)
Civil Judge03 (South District)
New Delhi.
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