Bangalore District Court
M/S. Matrix Cellular (International) vs Mr. Deepak Kumar Hanumanthappa on 17 December, 2016
SCCH 17 1 SC.No.1891/16
BEFORE THE COURT OF THE SMALL CAUSES JUDGE;
B'LORE (SCCH-17)
DATED THIS THE 17th DAY OF DECEMBER 2016
PRESENT; Sri.A.SAMIULLA, B.Sc. LL.B,
XIX Addl SCJ & XLI ACMM.
S.C.No.1891/2016
PLAINTIFF: M/s. Matrix Cellular (International)
Services Pvt. Ltd., a company
registered under the Companies Act,
1956 and having its Branch Office at
No.95, 17th B, Main Road, Koramangala,
Bangalore-560 095, R/by it's
Executive Mr.Nazeer.
(By Sri.VBR)
V/s
DEFENDANT: Mr. Deepak Kumar Hanumanthappa
S/o. Hanumanthappa,
Ra/t No.10, 3rd main, 5th cross,
Govindarja Nagar,
Bangalore - 560 010
(Ex parte)
SCCH 17 2 SC.No.1891/16
J U D G M E N T
Suit is filed for recovery of 13,957/- rupees with interest @ 18 per cent per annum.
2. Plaintiff pleaded that, it is a company incorporated under the provisions of Indian Companies Act, 1956 involved in the filed of telecommunication and is carrying out the business of providing International mobile connection in the name and style of Matrix Cellular (International) Services Limited having head office at New Delhi at about 98 cities in India and has served over ten million satisfied customers, including both corporations and individuals. Through its commercial tie-ups with local telecommunication service providers abroad allows Indian traveling abroad to use a local SIM-card of the country to which they are traveling SCCH 17 3 SC.No.1891/16 thereby saving them from payment of heavy international roaming charges that would be chargeable on Indian SIM- Cards being used abroad. Upon the signing of a customer agreement Form by potential customers, it provides services and thereafter raises bills/invoices in respect of the services consumed by the customers.
3. The defendant had applied for an international mobile connection (mobile sim-card) in Bangalore and procured the Standard Customer Agreement Form containing the terms and conditions regarding the usage of said connection. After being satisfied about the terms and conditions, he agreed to hire a mobile connection and categorically signed a statement. Said agreement states that the agreement shall not cease to be in effect until fully satisfied by both SCCH 17 4 SC.No.1891/16 parties and till all dues are paid to Plaintiff Company by the defendant. Based on the number of calls made, messages sent and mobile data consumed by the defendant during his time abroad, certain bills were periodically raised on the defendant and sent to him electronically and also physically. However, in spite of several requests and remainders he failed to pay a sum of Rs.13,957/-. Legal notice dated 21/2/15 was issued calling upon him to make the payments but to no use. Hence, suit is filed.
4. In spite of service of suit summons defendant remained absent, consequently he was placed ex parte.
SCCH 17 5 SC.No.1891/16
5. Following points arise for consideration:
1) Whether plaintiff firm proves that, defendant is liable to pay Rs.13,957/- with interest 18 per cent per annum?
2) Whether plaintiff firm proves that it is entitled for future interest @ 18 per cent per annum?
3) Whether suit claim is in time?
4) What order or decree?
6. In support of its case, plaintiff firm examined its Authorized Signatory as Pw.1 & got marked nine documents as Ex.P1 to 9.
7. Answer to the above points is as follows;
Point-1: Affirmative.
Point-2: Partly affirmative.
Point-3: Affirmative.
Point-4: As per final order for the following;
SCCH 17 6 SC.No.1891/16
R E A S O N S
8. Point-1: Plaintiff firm asserted that, defendant
purchased international mobile connection and used it during his time abroad and he in due of Rs.13,957/- and in spite of request he failed to pay the said amount.
9. To prove its contention, plaintiff firm examined its authorised signatory, who filed evidence affidavit reiterating the plaint averments. He specifically stated that, defendant purchased international mobile connection and used it during his time abroad and he is in due of Rs.13,957/- and in spite of request he failed to pay the said amount.
10. In support of ocular version the plaintiff firm placed reliance on documents viz., Ex.P1 is certificate of SCCH 17 7 SC.No.1891/16 Incorporation, which shows that the company is registered under the Companies Act, 1956. Ex.P2 is resolution passed by the board of directors authorizing the Pw.1 to file the suit and prosecute the same. Ex.P3 is an agreement along with five annexure, wherein the terms and conditions entered between the plaintiff and defendant are indicated. Ex.P4 to 6 are copies of bill dated 7.3.2012, 13.3.2012 and 4.4.2012 respectively, wherein it is stated that the defendant is liable to pay amount of Rs.6,115.93p, Rs.4,056.12 and Rs.2,627.81p and the due dates are 22.3.2012, 30.3.2012 and 20.4.2012 respectively. Ex.P7 is account extract pertaining to the defendant, wherein it is stated that defendant is in due of Rs.13,957.36 and last LPC is March 2013. Ex.P8 is copy of legal notice issued to the defendant calling upon him to pay the outstanding amount of SCCH 17 8 SC.No.1891/16 Rs.13,957/- along with interest @ 18% per annum. Ex.P9 is postal receipt.
11. The discussion of verbal and documentary evidence supra relied by the plaintiff firm clearly demonstrate that, the defendant purchased international mobile connection and used it during his time abroad and he in due of Rs.13,957/- and in spite of request he failed to pay the said amount. The proof displayed by the plaintiff firm is left unchallenged as the defendant failed to contest the suit. It shows that the defendant has no defence to the claim put forth by the plaintiff firm. Non contest of suit results in drawing adverse inference against the defendant. Factual matrix put forth by the plaintiff firm remains intact. Thus, absolutely there is no impediment to hold that the SCCH 17 9 SC.No.1891/16 defendant purchased international mobile connection and used it during his time abroad and he is in due of Rs.13,957/- and in spite of request he failed to pay the said amount. Hence, point-1 is answered in affirmative.
12. Point-2: Plaintiff firm claims interest @ 18% per annum. In Ex.P3 the terms and conditions between plaintiff firm and defendant are clearly mentioned, wherein the condition No.13 under the head bills and payment, it is clearly mentioned that in case of non payment of dues, interest at 18 per cent will be charged from the due date. This document clearly shows that the contractual rate of interest is 18 per cent per annum. Available records disclose that the transaction is a commercial transaction. The contractual rate of interest is 18 per cent per annum. As SCCH 17 10 SC.No.1891/16 per Section 34 CPC, the Court is empowered to grant future interest from the date of decree till realization at the rate not exceeding six per cent per annum to the loan transaction, which is not arisen out of commercial transaction. Provided that where the liability in relation to the sum so adjudged had arisen out of commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest.
13. In the instant suit the transaction is a commercial transaction. Here defendant has agreed to pay the interest @ 18 per cent per annum if the bill amount is not paid within the due date. Here, defendant has not paid the bill amount within due date. Thus having regard to the facts and SCCH 17 11 SC.No.1891/16 circumstances of the case if the pendente lite interest and future interest @ 10 per cent per annum is awarded it will meet the ends of justice. Thus, plaintiff firm is entitled for pendente lite and future interest @ of 10 per cent from the date of suit till its realization. Accordingly, point-2 is answered.
14. Point-3: Let us consider whether suit claim is in time. Defendant entered into agreement dated 22/2/12 and purchased international mobile connection and used it during his time abroad and he in due of Rs.13,957/- and in spite of request he failed to pay the said amount and the last LPC is March, 2013. As per the terms and conditions of agreement the agreement commences from the date of signing and remains enforceable till the SIM card is returned to matrix SCCH 17 12 SC.No.1891/16 and all due/ outstanding payments made. Here, so far defendant has not returned SIM card and not paid the dues. Legal notice was issued on 21/2/15. Suit is filed on 28/10/16. All these facts show that the suit claim is well within time. Hence, point-3 is answered in affirmative.
15. Point-4: By virtue of above findings, Court proceeds to pass the following:
ORDER Suit is decreed in part with costs. Defendant is hereby directed to pay a sum of Rs.13,957/- with pendente lite and future interest @ 10% per annum on the principal sum from the date of suit till its realization to the plaintiff firm within 30 days from the date of this judgment.
SCCH 17 13 SC.No.1891/16 Draw decree accordingly.
(Dictated to the Stenographer, the transcript thereof is corrected and then pronounced by me in the Open court, this the 17th day December, 2016) (A.SAMIULLA) XIX ADDL.SCJ., BANGALORE.
A N N E X U R E LIST OF WITNESSES & DOCUMENTS EXAMINED & MARKED ON BEHALF OF THE PLAINTIFF & DEFENDANT:
FOR PLAINTIFF: P.W.1: Sri. Nazeer DOCUMENTS:
Ex.P.1 Copy of Certificate of Incorporation
Ex.P.2 Board Resolution
Ex.P.3 Agreement & Annexure
Ex.P.4 Copy of bill dated 07.03.2012
Ex.P.5 Copy of bill dated 13.03.2012
Ex.P.6 Copy of bill dated 04.04.2012
Ex.P.7 Account ledger extract
Ex.P.7 Copy of legal notice
Ex.P.8 Postal receipt
SCCH 17 14 SC.No.1891/16
FOR DEFENDANT:
-NIL
DOCUMENTS:
-Nil-
(A.SAMIULLA)
XIX ADDL.S.C.J.,
BANGALORE