Delhi District Court
Matrix Cellular (International) ... vs Cybizcall International Pvt. Ltd on 17 August, 2011
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Vijeta Singh
Suit No. 27A/11
Case ID no. 02406C0068612011
In the matter of:
Matrix Cellular (International) Services Pvt. Ltd.,
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110030. ...... Plaintiff
VERSUS
CybizCall International Pvt. Ltd.
309310, Udog Vihar4,
National Highway8, Gurgaon, Haryana122001.
Date of Institution :16.05.2011
Date of Reserving of Order :26.07.2011
Date of Pronouncement of Order :17.08.2011
O R D E R
1. Vide this order this Court shall decide on the application under Order Suit No. 27A/11 1/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd. XXXVII Rule 3 (5) read with Section 151, Civil Procedure Code, seeking leave to defend the present suit.
2. It is stated by the defendant company that it is entitled to leave to defend primarily on the following grounds :
Firstly, that the suit of the plaintiff company is based upon exaggerated and inflated bills as the defendant company had only obtained mobile connection for voice calls and not for internet services for which it has been charged.
Secondly, the ledger entries relied upon by the plaintiff company has been disputed and it is stated that no document has been placed on record to support the ledger entries. Merely on this basis, it has been averred that the defendant company is entitled to leave to defend.
Thirdly,the customer agreement form was signed by the defendant company in blank and in good faith. It has been denied that the terms and conditions were disclosed to the defendant company at the time of executing the agreement and is therefore, stated to be mala fide and fraud on part of the plaintiff company.
Fourthly, the plaintiff company in order to make illegal gains has provided services which were neither required nor requested by the defendant Suit No. 27A/11 2/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd. company . In specific it has been stated that the internet service was not requested for and the same was provided without authority and consent of the defendant company only on some occasions the same was availed under the impression that it was free of cost and charges if any, would only be nominal.
Fifthly,it has been denied that this Court has territorial jurisdiction as the entire cause of action is stated to have arisen in Gurgaon, Haryana including that the execution of the agreement was also done at Gurgaon.
3. Hence, as per the defendant company only a sum of Rs. 29092/ was to be paid which has already been paid vide cheque and therefore it is under no obligation to pay the amount sought to be recovered from it.
4. The leave to defend application has been contested by way of a reply wherein it has been stated that the defendant company has not disputed the signature on the agreement and on the tariff sheet. It is also stated that since the defendant company has admitted to Rs. 29092/, the defendant company is not entitled to any leave to defend. It is stated that GPRS is a value added service which can be activated and de activated from the instrument itself and since the defendant company admits to have used it, it is required to pay legitimate charges. It is stated that the defendant company has tried to raise irrelevant issues to show its entitlement for leave to defend. It is stated that the Suit No. 27A/11 3/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd. leave to defend application and affidavit have not been signed by the authorized signatory. It has categorically been denied that the signatures were obtained on blank form and defence is stated to be false and frivolous. It is stated that this Court has the territorial jurisdiction as the agreement was entered into at the head office of the plaintiff company at Mehrauli.
5. This Court has heard the Learned counsel for the parties and perused the material on record.
6. Even assuming that the defendant company has availed internet services, in the absence of the itemized bills it is impossible to ascertain the entitlement qua the usage. Since, there is no itemized bill filed by the plaintiff company on the basis of which the statement of account has been prepared and the billing has been assailed to be inflated and beyond the terms of agreement of the parties, triable issue has arisen. Even otherwise, interest has been prayed for @ 18 % per annum for which there is no supporting document to show that it was an agreed rate of interest between the parties. The law with regards to leave to defend is no longer res integra . It has been held in "Mechalec Engineers and Manufacture Vs. Basic Equipment Corporation" AIR 1977 SC 577, as under : "(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign Suit No. 27A/11 4/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd.
judgment and the defendant is entitled to unconditional leave to defend.
(b). If the defendant is raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
(c). If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d). If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(e). If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to defend on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."
7. In the considered opinion of this Court since, defendant company has Suit No. 27A/11 5/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd. raised certain triable issues and has plausible defences to offer the application for leave to defend is allowed.
8. Defendant company is directed to file written statement within stipulated period and furnish copies to the plaintiff company to facilitate filing of replication on 12.10.2011.
Announced in the open Court (Vijeta Singh) on 17.08.2011 Civil Judge04 / South District Suit No. 27A/11 6/7 pages
Matrix Cellular Vs. CybizCall International Pvt. Ltd.
Suit No. 27A/11 7/7 pages Matrix Cellular Vs. CybizCall International Pvt. Ltd.