Delhi District Court
Matrix Cellular (International) ... vs Parshotam Sarup Agarwal on 1 November, 2011
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI,
ADDITIONAL SENIOR CIVIL JUDGE,
SAKET COURTS, NEW DELHI.
CS No. 117/2011
I.D No. 02406C0169342011
Matrix Cellular (International) Services Pvt Ltd.,
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi 110 030.
Plaintiff
Versus
Parshotam Sarup Agarwal,
S/o Ram Sarup Agarwal,
R/o C42, Panchsheel Enclave,
New Delhi 110 017.
Defendant
DATE OF INSTITUTION : 08.07.2011
DATE OF RESERVING JUDGMENT : Not reserved.
DATE OF PRONOUNCEMENT : 01.11.2011
SUIT FOR RECOVERY OF A SUM OF Rs. 8,993/ (RUPEES
EIGHT THOUSAND NINE HUNDRED NINTY THREE ONLY)
UNDER ORDER XXXVII CPC.
JUDGMENT
1. This is a suit filed Under Order XXXVII of The Code of Civil Procedure (in short "CPC") by plaintiff for recovery of liquidated sum of Rs. 8,993/ along with interest @ 18% per annum from the date of filing of suit till realization of the entire amount and costs of the suit. CS No 117/2011 Page No. 1 of 6
2. The summons of the suit were issued to defendant in the prescribed form as defined under Order 37 (2) (Sub Rule 2) CPC. The defendant entered his appearance by way of an application on 23.07.2011. Summons for judgment in the prescribed format was served upon the defendant on 05.10.2011.
3. Defendant remained absent despite service of summons for judgment at his given address i.e C42, Panchsheel Enclave, New Delhi 110 017 mentioned in the application while putting appearance in the Court. The defendant preferred not to move an application for seeking leave to defend the suit within the period as prescribed in CPC.
4. I have heard learned counsel for plaintiff at considerable length and have perused the record.
5. The suit is instituted through Shri Chandra Shekhar, Executive, legal on behalf of plaintiff company which is dealing in International Mobile Rental Services. It is stated that defendant had applied for International Mobile Connection in South Delhi and procured the Standard Application form containing the terms & conditions regarding the usage of connection and agreed to abide by the same. On the basis of the information/statement furnished by the defendant in the Application Form, the plaintiff gave him an International Mobile CS No 117/2011 Page No. 2 of 6 connection No. 07943818010 under the Agreement No. M599324. As per the accounts maintained by plaintiff company, an outstanding amount of Rs. 8,993/ is due and payable by the defendant towards the International Mobile Connection No. 07943818010 but despite repeated reminders and requests, the defendant intentionally and deliberately failed to pay the same with ulterior motives. The suit is based on an agreement form dated 23.05.2008, which is placed on record by plaintiff hence the same is covered within the provisions of Order 37 CPC and is also tendered within limitation.
6. There is no relief claimed by plaintiff which does not fall within the ambit of the provisions of Order, 37 CPC.
7. The relevant provision governing the procedure U/O 37 CPC, which is necessary for deciding the matter in controversy between the parties is reproduced hereunder for ready reference. Rule: 3 Procedure for the appearance of defendant:
(1) XXXX XXXX XXXX (2) XXXX XXXX XXXX (3) XXXX XXXX XXXX (4) If the defendant enters an appearance, the plaintiff shall
thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time CS No 117/2011 Page No. 3 of 6 to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just;
Provided that leave to defend shall not be refused unless the court is satisfied that the facts disclosed by the defend do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.
(6) (a)At the hearing of such summons for judgment: "(a) If the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith"
(b) XXXX XXXX XXXX CS No 117/2011 Page No. 4 of 6
8. A bare reading of the aforesaid provision of law shows that the defendant may move an application for seeking leave of the Court to defend the suit within 10 days from the date of service of summons for judgment upon him/her. In the case in hand, the summons for judgment was served upon the defendant at his given address on 05.10.2011. The period prescribed for applying to defend the suit expired on 15.10.2011. The defendant chose not to move an application to defend the suit filed by the plaintiff. Thus, the plaintiff became entitled for judgment forthwith.
8. The plaintiff has placed on record the original agreement form, copy of account ledger of the defendant, the copy of legal notice dated 4.3.2011, copy of tariff plan, copy of master card of defendant and copy of passport of user given to plaintiff for reimbursement of the usage of the mobile number. From the documents placed on record by the plaintiff shows that a written contract was executed between the parties. The defendant availed the services of the plaintiff and undertook to make payment of the same. The defendant failed to make payment despite using the services of the plaintiff. The account of ledger of defendant shows that the defendant is liable to pay a sum of Rs. 8,993/ for using the services of the plaintiff. CS No 117/2011 Page No. 5 of 6
9. Hence, in the given circumstances, suit of the plaintiff is decreed with costs against defendant. Defendant is directed to pay a sum of Rs. 8,993/ to the plaintiff with interest @ 8% per annum from the date of filing of the suit till its realization. Decreesheet be prepared. File be consigned to record room.
(Announced in open Court (RAJ KUMAR TRIPATHI)
on 01.11.2011) ADDITIONAL SENIOR CIVIL JUDGE
SAKET COURTS, NEW DELHI.
CS No 117/2011 Page No. 6 of 6