Delhi District Court
M/S Matrix Cellular vs . Sanjay Bhatt on 14 December, 2012
M/s Matrix Cellular Vs. Sanjay Bhatt
IN THE COURT OF MS. SHREYA ARORA: CIVIL JUDGE1,
SOUTH DISTRICT, NEW DELHI
In the matter of
Suit No.18/11
Case ID No. 02403C0227202010
M/s Matrix Cellular ( International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110 030.
...............Plaintiff
Versus
Sanjay Bhatt
S/o Sh. S. P. Bhatt
R/o E5, Amba Apartment, Plot no.5,
Sector10, Dwarka, New Delhi110 075. ..............Defendant
Date of Institution : 13.07.2012
Date of pronouncement : 14.12.2012
Decision : Suit Dismissed
SUIT FOR RECOVERY OF RS. 93,338/
(RUPEES NINETY THREE THOUSAND THREE HUNDRED
THIRTY EIGHT ONLY)
JUDGMENT
1. This is suit for recovery of Rs.93,338/ (Rupees Ninety Three Suit no.18/11 Page 1 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt Thousand Three Hundred Thirty Eight Only) along with interest @ 18 % per annum from date of the filing of the suit till realisation.
2. The version of the Plaintiff is that the Plaintiff is a private limited company registered under the Companies Act, 1956 and dealing in mobile rental services and having its registered office at 7, Khullar Farms, 140, New Manglapuri, Mandi Road, Mehrauli, New Delhi. The suit has been filed by Mr. Chandra Shekhar, who is the General Power of Attorney Holder of the Plaintiff company. It is averred by the Plaintiff that the Defendant applied for international mobile connection in South Delhi and procured the Standard Application Form containing the terms and conditions regarding the usage of said connection. It is further averred that the customer agreement form was duly executed between the Plaintiff company and the Defendant on 09.08.2006. Thereupon, the Plaintiff gave an international mobile connection No. 13052121461 & 13052121495 to the Defendant subject to the terms and conditions of the aforesaid Agreement No. 223419 & 223419A. It is averred that the Defendant failed to adhere to the discipline of payment of outstanding dues and hence the dues against the Plaintiff remained unpaid.
3. The Plaintiff got the Defendant served with legal notice dated 22.01.2010 which was duly served upon the Defendant. However, the Defendant despite receipt of aforesaid notice failed to make the payment of the aforesaid amount.
Suit no.18/11 Page 2 of 10M/s Matrix Cellular Vs. Sanjay Bhatt
4. The present suit was initially filed under Order XXXVII of the Code of Civil Procedure, 1908 and summons for appearance in the format prescribed under Order XXXVII of the Code of Civil Procedure, 1908 were duly served upon the Defendant. The Defendant entered appearance pursuant to service of summons for appearance. Thereafter the Defendant waived the service of summons for judgment and filed leave to defend. When the matter was pending adjudication on leave to defend application, an application under Order VII Rule 14 of the Code of Civil Procedure, 1908 along with itemized bills was filed. And vide order dated 18.11.2011, on the statement of the Counsel for the Plaintiff, my Predecessor converted the present suit into an ordinary suit for recovery.
5. The Defendant filed his written statement thereupon. The Defendant without prejudice averred that as per statement of account filed by the Plaintiff, the claim of the Plaintiff for a sum of Rs.93,338.13/ is barred by limitation in as much as the bill in respect of the said amount is dated 20.11.2006 and the present suit has been filed on 09.07.2010. It is stated that the bill for each month/quarter gives rise to a separate cause of action. Even as per the Plaintiff, the payments were made by the Defendant towards specific bills and no amount has been paid by the Defendant towards the alleged bill dated 20.11.2006 and therefore, the payments made by the Defendant does not extent the period of limitation for filing the present suit as they are not "on account payments" as provided under Section 19 of the Indian Limitation Act, 1963. Further there is no averment or allegation or proof that the Suit no.18/11 Page 3 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt payments were made in writing by the Defendant as per requirements of Section 19 of the Act.
6. It is further averred that the Plaintiff has based his entire suit on statement of account and same is not proved under Section 34 of the Indian Evidence Act. It is stated that the statement of account has been prepared by the Plaintiff at his own whims and fancies and has not been even sent to / acknowledged by the Defendant at any stage whatsoever and same does not reflect the correct entries thereof. It is averred that no amount is due and payable to the Plaintiff company and the Defendant has paid the entire amount. Further the Plaintiff has claimed and charged call rates at its own whims and fancies without informing the Defendant. It is stated that the call rates claimed in annexure P5 have never been agreed to by the Defendant and same does not bear the signature of the Defendant. The Defendant has further averred that he did not receive the bill reflecting the amount alleged to be due and payable by the Defendant to the Plaintiff and it was only on phone that the Defendant was told by the executives of the Plaintiff that some amount was due and the Defendant made payments as demanded by them believing that the amount claimed by them were correct and they would send the call details at the subsequent stage. It is stated that even despite payment the Plaintiff kept on making illegal and exorbitant demands and in order to scrutinise and verify the same the Defendant even asked the executives of the Plaintiff to provide call details. However, till date the same has not been supplied to him. It is further stated that the Plaintiff has billed for calls Suit no.18/11 Page 4 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt not made by the Defendant, the call durations have been illegally increased and call rates are inflated and more than to what was agreed to. It is stated that the fact remains the Defendant never used to the phone/SIM card to the extent claimed by the Plaintiff and the alleged bills and itemized record of the calls are false and fabricated and do not bear signature of the Defendant as an acknowledgment of its correction or of its receipt. The Defendant has denied the receipt of legal notice dated 22.01.2010.
7. The Plaintiff has filed replication and denied the averments of the written statement of the Defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
8. Vide order dated 03.04.2012, on the basis of the pleadings of the paties, following issues were framed:
1. Whether the suit is barred by limitation? OPD
2. Whether the Plaintiff is entitled to recover a sum of Rs.
93,338/( Rupees Ninety Thousand Three Hundred and Thirty Eight Only) claimed in the plaint?OPP
3. Whether the Plaintiff is entitled to interest, claimed? If so, at what rate? OPP
4. Relief
9. In order to prove its case, the Plaintiff has examined Mr. Chandra Shekhar as PW1, who deposed on the lines of the plaint. No other witness was examined by the Plaintiff. Accordingly, Plaintiff's evidence was closed. In defence evidence, the Defendant has examined himself as DW1 and deposed on the lines of written statement. No other witness was examined on behalf of the Defendant. Accordingly, the defence evidence was closed and the matter was listed for Suit no.18/11 Page 5 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt final arguments.
10. I have heard the ld. Counsel for the parties and have carefully perused the record. My issuewise findings are as under:
Issue No.1
11.The question to be answered is whether is the suit is barred by limitation.
12.Counsel for the Defendant submits that there were four separate bills raised by the Plaintiff Company. And the payment on 20.12.2006 was for bill no. 1031 and 1148 dated 27.09.2006 and 23.10.2006, respectively. Further payment on 03.12.2007 was for bill No. 1451 dated 19.12.2006. It is stated that the account maintained by the Plaintiff company is not a running account; therefore separate cause of action arises for each bill. It is stated that it is the third bill dated 20.11.2006 which is claimed by way of present suit filed on 09.07.2010. Hence, barred by limitation.
13.Per contra, counsel for the Plaintiff submits that payment of Rs. 21,000/ on 20.12.2006 as shown in the Ledger Account does not replicate or is the exact amount of the first and second bill and further payment of Rs. 18,400/ on 03.12.2007 does not concur with any bill raised. It is stated that even if it is presumed that first payment is for first two bills then why less payment of Rs. 21,000/ when it is 22,000/ and more. The payment of Rs. 18,400/ after one year on 03.12.2007 against Suit no.18/11 Page 6 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt which bill was raised will take this case within the period of limitation. It is contended that the Plaintiff company was maintaining a running account and the Defendants were not making payments as per the amount of respective bills but were rather advancing payments in part against the accumulated dues in respect of various bills.
14.The whole controversy on the issue of limitation is whether the present matter falls under Article 1 of the Limitation Act, 1963. And to ascertain the same it is to be examined whether the Plaintiff company was maintaining a running account of the Defendant.
15. Running Accounts are such as consist of reciprocity of dealings between the parties and do not embrace those having items on one side only, though made up of debits and credits. An account in which one party has merely received and paid moneys on account of the other is not a mutual account socalled. Each party must receive and pay account on the other. When there was obligation only on one side and at no time there was over payment it cannot be said that there was mutual, open and current account. The test of running account would be such that the dealings between the parties shall be sometimes in favour of one and at other times it shall be in favour of other. In the present case, the relationship between the Plaintiff and the Defendant was that of a service provider and the consumer. The Plaintiff was to raise bills for the use of cell phone by the Defendant and the Defendant was to make payment on receiving those bills. By very nature of Suit no.18/11 Page 7 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt these dealings, there could not have been reciprocal demands on each other or dealings in favour of one or other party. Question of such an account taking the character of mutual and open account does not arise at all.
16.The Account Ledger of the Defendant Mr. Sanjay Bhatt, Exhibit PW1/C is as under:
Date Voucher Narration Debit (Rs.) Credit (Rs.) Balance 25-Jan-2006 Opening Balance 0.00 0.00 27-Sep-2006 BILL 7,845.35 7,845.35 Dr Bill No.CHNHK1031/Yuan1348.00/HKD 0.00 23-Oct-2006 BILL 14,448.22 22,293.57 Dr Bill No.CHNHK1148/Yuan1686.00/HKD 824.00 20-Nov-2006 BILL 92,564.47 114,858.04 Dr Bill No.CHNHK1333/Yuan13825.13/HKD 2361.00 19-Dec-2006 BILL 17,880.09 132,738.13 Dr Bill No.CKNKH1451/Yuan2668.00/HKD 455.50 20-Dec-2006 CHQ 21,000.00 111,738.13 Dr Being Cheque No.776146 recd against Bills CHNHK1031, CHNHK1148 03-Dec-2007 CHQ 18,400.00 93,338.13 Dr CHQ NO.763860BILL NO.CHKNK1451 Total: 132,738.13 39,400.00 93,338.13 Dr
17.A perusal of the ledger reveals that the Plaintiff Company accepts that payments on 20.12.2006 and on 03.12.2007 was for bills dated 27.09.2006, 23.11.2006 and 19.12.2006. Ex PW/C clearly shows that a running account was not being maintained and the payment of the bills has been made bill wise. The bill dated 27.09.2006 and 23.10.2006 was paid vide cheque No. 776146 dated 20.12.2006. The bill dated 19.12.2006 was paid vide cheque No. 763860 dated 03.12.2007.
Suit no.18/11 Page 8 of 10M/s Matrix Cellular Vs. Sanjay Bhatt
18.Thus, the material on record shows that the Plaintiff is claiming the amount against bill dated 20.11.2006. It is apparent that the account maintained by the Defendant company is not a running account and does not fall with the purview of Article 1 of the Limitation Act, 1963. The suit has been filed on 09.07.2010. The limitation period for such a suit for recovery is 3 years and therefore the same is barred by limitation.
19. I therefore hold that the present suit is barred by the law of limitation. This issue is accordingly decided in favour of the Defendant and against the Plaintiff Company.
ISSUE NO 2 & 3
20. The question to be answered is whether the Plaintiff is entitled to recover a sum of Rs. 93,338/(Rupees Ninety Thousand Three Hundred and Thirty Eight Only) claimed in the plaint and whether the Plaintiff is entitled to interest, claimed. If so, at what rate.
21.In view of my finding on Issue No. 1, since the present suit is barred by limitation these issues need not be adjudicated upon.
RELIEF
22. In view of the findings on Issue 1, the present suit is liable to be dismissed being barred by the law of limitation. The suit is accordingly dismissed. No orders as to costs. Decree Sheet be Suit no.18/11 Page 9 of 10 M/s Matrix Cellular Vs. Sanjay Bhatt accordingly prepared. File be consigned to Record Room thereafter.
Announced in the open (SHREYA ARORA)
Court on 14.12.2012 CIVIL JUDGE1 (SOUTH DISTRICT)
(Judgment contains 10 pages.) SAKET COURTS, NEW DELHI
Suit no.18/11 Page 10 of 10