Delhi District Court
Matrix Cellular (International) Pvt. ... vs . Rajeev Gaurav on 9 March, 2017
Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav
IN THE COURT OF CIVIL JUDGE-02 (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
In the matter of :
CS No.84088/16
Matrix Cellular Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli,
New Delhi- 110030
Through its authorized representative ....Plaintif
Versus
Rajeev Gaurav
S/o Siya Ram Verma,
R/o 638, Mahaveer Nagar, Tonk Road,
Jaipur, Rajasthan - 302018 ....Defendant
Date of Institution : 05.04.2016
Date of Reserving Judgment : 08.03.2017
Date of Decision : 09.03.2017
Final Decision : Dismissed
JUDGMENT
( Suit for recovery of a sum of Rs.65,201/-)
1. This is a suit for recovery of a sum of Rs.65,201/- alongwith interest @18% per annum against the defendant.
2. Briefly stated, case of the plaintiff is that the plaintiff is a Private Limited Company Registered under the Companies Act, 1956 and engaged in the business of providing country specific SIM Cards. That the defendant had approached the plaintiff company for CS No. 84088/16 Page 1 of 7 Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav International Mobile Connection and procured the Standard application Form containing the Terms and conditions regarding the usage of said connection. That defendant categorically signed a statement that he has read and understood the terms and conditions of the agreement form dated 10.02.2014. That on the basis of the information/statement furnished by the defendant company in the application form, the plaintiff gave him International Mobile connection No. 918085349 under the agreement no.T1000572836. That as per the accounts maintained by the plaintiff company, there is an outstanding amount of Rs.65,201/- due and payable by the defendant towards the International Mobile No. 918085349 which has occurred by defendant's usage of International Mobile Telephone Services in accordance with the terms and conditions of the written contract. That the plaintiff company raised the invoices on the defendant, as per the ledger account. That inspite of repeated reminders and requests, the defendant has intentionally and deliberately failed to pay the same with ulterior motives. That a legal notice dated 04.02.2015 was also sent by the plaintiff to the defendant company in this regard, but to no avail. Hence, the present suit is filed by the plaintiff. Hence, the present suit is filed by the plaintiff seeking following reliefs:-
(a) Decree of money in favour of plaintif and against the defendant for an amount of Rs.65,201/- and Interest @18% per annum as pendente lite and future interest till realization of the due amount.
3. Upon service of the summons, defendant appeared and filed its written statement and taken the defence that defendant has not entered into any agreement with the plaintiff nor the documents relied CS No. 84088/16 Page 2 of 7 Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav by the plaintiff bears the signatures of the defendant. That the documents relied by the plaintiff are false and fabricated. That the defendant has not taken any mobile connection from the plaintiff nor he has any liability on account of the same towards the plaintiff. Hence, it is prayed that suit of the plaintiff be dismissed on the abovesaid grounds.
4. Plaintiff filed replication to the WS of the defendant denying the preliminary objections and other averments as contained in the WS. Averments as contained in the plaint were once again reiterated by way of the replication.
5. On the basis of pleadings of the parties, following issues were framed vide order dated 31.08.2016:
1. Whether the plaintiff is entitled to decree for recovery of Rs.65,201/-? OPP
2.Whether the plaintiff is entitled to interest, if so at what rate? OPP
3.Relief.
6. In order to prove its case, the plaintiff examined its AR Sh.
Binod Kumar Sinha as PW-1 who tendered his evidence by way of an affidavit Ex.PW-1/1. He relied upon documents Ex.PW-1/A, Ex.PW- 1/D to Ex.PW-1/F, Mark A to Mark D and thereafter, plaintiff closed its evidence.
Defendant on the other hand did not wish to lead any DE. In view of the same, DE was closed vide order dated 18.02.2017.
CS No. 84088/16 Page 3 of 7Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav
7. I have heard the contentions of both the sides and also gone through the record carefully. My issue-wise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to decree for recovery of Rs.65,201/-? OPP
8. The onus to prove this issue was upon the plaintiff. Ld. Counsel for plaintiff argued that defendant availed the services of the plaintiff company by using the mobile connection and accordingly the invoice was raised against the same. It is further argued that defendant has not made the outstanding payment to the plaintiff despite service of the legal notice. Arguing further ld. Counsels submitted that the plaintiff has proved his case by leading cogent evidence on record whereas the defendant has failed to lead his evidence so the plaintiff is entitled to recover the amount as prayed for.
On the other hand, ld. Counsel for defendant raised three fold contentions refuting the claim of the plaintiff. One that defendant has never entered into an agreement with the plaintiff with respect to mobile connection as claimed herein. Secondly, the plaintiff has failed to prove the documents relied in his evidence in accordance with law so it could not prove its claim against the defendant. Thirdly, none of the documents bear the signatures of the defendants so no agreement has taken place between the parties and there have been material infirmities and contradictions in the version of plaintiff witness which demolishes the case of the plaintiff. Hence, it is prayed that plaintiff is not entitled to recover any amount from the defendant.
9. No doubt the defendant has not chosen to lead his evidence on record but the onus to prove this issue was upon the plaintiff so it CS No. 84088/16 Page 4 of 7 Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav has to be seen from the evidence led on record as to whether the plaintiff has discharged its onus or not.
Most important document on the basis of which plaintiff has filed the present suit is the agreement entered between the parties with respect to availing of mobile connection and its usage. Document Mark C i.e. agreement dated 10.02.2014 filed on record is a computer generated document that have not been proved in accordance with law despite being categorically disputed by the defendant. It is further pertinent to mention that in the plaint and in the affidavit plaintiff claimed that defendant categorically signed the agreement form whereas there is no signatures either that of plaintiff or that of defendant on the abovesaid agreement. PW-1 also admitted the same during his cross examination including the fact that it has been wrongly mentioned in the legal notice Mark A i.e. agreement has been signed by defendant whereas it is not so. The genuineness of the agreement also comes under cloud of doubt as the mobile number mentioned in the agreement Mark C is 0918085394 whereas in para no.7 of the plaint and para no.7 of the affidavit it is mentioned as 0918085349. During the arguments ld. Counsel for plaintiff referred this material infirmity as a typographical error whereas no such plea has been taken up by the plaintiff witness anywhere in his document and not even clarified during the cross examination of PW-1. Plaintiff has not filed on record the emails whereby the parties have offered and accepted the agreement and its terms. There is no acknowledgement filed on record in any form by the plaintiff. So it can be safely concluded that the plaintiff has failed to prove the execution of any agreement between plaintiff and defendant with respect to alleged availing of service of mobile connection.
CS No. 84088/16 Page 5 of 7Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav
10. The contention of the defendant that certificate u/s 65-B has been issued on 03.03.2016 with respect to the printout of statement of account dated 05.11.2015 does not comply with the requirement of law is completely misconceived as there is no requirement of taking out certificate u/s 65-B of Indian Evidence Act with every printout. The content of the certificate Ex.PW-1/F is sufficient to authenticate the computer generated documents from a system in due course functioning in a perfect proper condition. Hence, this contention of the defendant stands rejected.
11. PW-1 during his cross examination stated that he only deals with the matter after sending of legal notice for recovery to the customers. He further admitted during the cross examination that he had no dealing with the defendant or had any personal interaction with him. PW-1 could not even tell the name of the person who has signed or prepared document Ex.PW-1/D i.e. statement of account. It is a very important fact that defendant has categorically disputed entering any agreement with the plaintiff company, therefore, plaintiff was supposed to bring the person as a witness who had personally dealt with the defendant and could depose specifically qua the agreement negotiated with the defendant. No such material witness has been examined by the plaintiff to prove the liability of the defendant. No doubt the documents relied upon by the plaintiff Ex.PW-1/D to Ex.PW-1/F have not been disproved by the defendant but the basis of said documents was the agreement Mark C which could not be proved by the plaintiff so no liability against the defendant can be attributed.
12. In view of the observations given above and the evidence led on record, it can be safely concluded that plaintiff has failed to prove CS No. 84088/16 Page 6 of 7 Matrix Cellular (International) Pvt. Ltd. Vs. Rajeev Gaurav its case. Accordingly, this issue stands decided against the plaintiff and in favour of defendant.
ISSUE NO.2 Whether the plaintiff is entitled to interest, if so at what rate? OPP
13. The onus to prove this issue was upon the plaintiff. In consequence to finding given in the previous issue, no question of interest arises. Accordingly, this issue also stands decided against the plaintiff and in favour of defendant.
Relief:
14. As a consequence to my findings on the above mentioned issues, suit of the plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
15. File be consigned to the record room after due compliance.
Announced in the open Court (Vishal Pahuja)
on 09.03.2017 CJ-02 (South)/Saket Courts
New Delhi/09.03.2017
CS No. 84088/16 Page 7 of 7