Delhi District Court
Matrix Cellular (International) ... vs Sentinels Security Pvt. Ltd on 15 April, 2013
IN THE COURT OF Ms. POOJA GUPTA: CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Civil Suit no.590/10
Unique ID no.02406C0476752010
IN THE MATTER OF:
Matrix Cellular (International) Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri
Mandi Road, Mehrauli, New Delhi110030. ......Plaintiff
Versus
Sentinels Security Pvt. Ltd.
Through its Managing Director,
40/93, 40/92, Chittaranjan Park,
New Delhi110019. .....Defendant
DATE OF INSTITUTION : 25.11.2010
DATE OF RESERVING THE ORDER : 05.04.2013
DATE OF DECISION : 15.04.2013
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant for recovery of Rs.59,198/ (Rs. Fifty Nine Thousand One Hundred and Ninety Eight Only) along with interest and cost of the suit. Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 1 of 16 Facts as per plaint.
2. The defendant company applied for international mobile connection and on the basis of the information/statement furnished by the defendant company in the standard application form, the plaintiff gave the international mobile connection (UK) no.07534281954 under the agreement no.M558188 and maintained the accounts as per which an amount of Rs.59,198/ (Fifty Nine Thousand One Hundred and Ninety Eight Only) was due and payable by the defendant having been incurred by the defendant company's usage of international mobile telephone services in accordance with the terms and conditions of the contract.
3. Monthly bills were sent in respect of the said demand and despite repeated reminders and requests the defendant failed to pay the amount due to which legal notice dated 20.02.2010 was sent to the defendant company. Inspite of receipt of the legal notice the defendant failed to clear outstanding bills, hence, the present suit for recovery of Rs. 59,198/ (Fifty Nine Thousand One Hundred and Ninety Eight Only) alongwith interest @ 18% per annum. Hence the present suit.
4. Initially the suit was filed under Order XXXVII of the Code of Civil Procedure, 1908, however, after unconditional leave to defend Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 2 of 16 was granted, written statement was filed by the defendant. Facts as per the written statement.
5. Preliminary objections were raised in respect of the suit being filed by incompetent person; being without any cause of action; being malafide and in respect of nondisclosure of earlier correspondence between the parties. On merits, the defendant admitted that the defendant had signed the form for issuance of the mobile connection and admitted signing of the statement that the defendant had read and understood the terms and conditions of the earlier form and agreed to abide by it. The receipt of mobile connection was also admitted but it was stated that all the claims of plaintiff company had been paid by the defendant except the payment of Rs.60,250.33 raised by the plaintiff vide bill no.TMT 370252/819199 dated 02.07.2009 out of which the defendant made payment of Rs.1,050/ as being genuine and acceptable and the balance of Rs.59,200/ was left in respect of air time charges for services never availed by the defendant but charged by the plaintiff either due to mis understanding or manipulation. Rest of the contents of the plaint were denied on merits. The defendant admitted to the receipt of the notice and stated that said notice was duly replied to. The claim of the plaintiff was Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 3 of 16 stated to be fraudulent and erroneous.
Facts as per the Replication
6. The plaintiff reiterated that Sh Chander Sekhar was authorised person to sign, verify, file, institute, prosecute and do all things necessary for the proper prosecution of the present suit. The plaintiff also reiterated that suit was not without cause of action. Rest of the averments of the written statement were denied and the contents of the plaint were reaffirmed as correct.
Issues
7. From the pleading of the parties and the documents on record the following issues were framed:
(1) Whether the suit of the plaintiff is not maintainable having been signed by person incompetent to file the same?OPD (2) Whether the plaintiff is entitled to a decree of Rs.59,198/ with interest as prayed for in prayer (a)?OPP (3) Whether the suit of the plaintiff is without any cause of action as no internet services were availed by the defendant?OPD (4) Whether the plaintiff is entitled to cost of the suit as prayed for in prayer (b)?OPP Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 4 of 16 (5) Relief, if any.
Issue no. 4 having been wrongly framed is deleted.
8. In order to prove its case, the plaintiff examined Sh Chander Shekhar as PW1 who tendered his evidence by way of affidavit (Ex.PW1/A) reiterating the contents of its plaint and was duly cross examined by the defendant. PW1 also relied upon the following documents: ● Copy of Certificate of Incorporation, Board Resolution and General Power of Attorney (Ex. PW1/A) (Colly.);
● Original Agreement Form (Ex.PW1/B)
● Account ledger of defendant company maintained by plaintiff
company (Ex.PW1/C) (Colly.),
● Copy of legal notice dated 20.02.2010 (Mark A)
● Original postal slip (Ex.PW1/D)
● Copy of tariff plan (Mark B)
● Copy of company undertaking (Mark C).
● Itemized bill (Mark D).
9. The defendant examined two witnesses in its defence. Sh. R.S. Aggarwal, Vice President (Finance and Personnel) was examined as Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 5 of 16 DW1 who tendered his evidence by way of affidavit (Ex.DW1/A) reiterating the contents of the written statement and relied on the documents i.e., Notice dated 25.06.2009 (Ex.DW1/1) (Colly.); Postal receipt and AD Card (Ex.DW1/2 and Ex.DW1/3); Legal notice dated 15.03.2010 (Ex.DW1/4(Colly.); and Postal receipt (Ex.DW1/5). Sh. Amitabh Bose, Managing Director was examined as DW2 who tendered his evidence by way of affidavit (Ex.DW2/A). Both the witnesses were duly cross examined on behalf of the plaintiff.
10. Final arguments were advanced by the Ld Counsels for the parties.
11. I have heard the Ld. Counsels and carefully perused the evidence on record. From the evidence on record my issue wise findings are as under:
Issue No.1: Whether the suit of the plaintiff is not maintainable having been signed by person incompetent to file the same?
12. The onus to prove this issue was on the defendant as a preliminary objection has been raised in the written statement that the suit had been filed by an incompetent person. PW1 in his evidence by way of affidavit deposed that Major General M.S. Dugal and Sh. Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 6 of 16 Gagandeep Singh Dugal were Directors of the plaintiff company and had further authorized Captain Rakesh Walia, Vice President, Logistics, HR and Administration in the Board Meeting held on 05.01.08. PW1 further deposed that Captain Rakesh Walia further authorized PW1 through General Power of Attorney dated 14.07.09 (Ex. PW1/A (colly.)). PW1 further deposed that he was duly constituted attorney of plaintiff and was fully competent to institute the present complaint and to sign, verify all pleadings, vakalatnama etc. During his crossexamination, PW1 denied the suggestion that he was an unauthorized person or that he had no authority to file the present suit.
13. From the crossexamination and the arguments of the defendant, it emerges that the objections raised by the defendant in respect of the validity of authorization in favour of PW1 are on the grounds that it does not bear the Rs. 5 Notary Stamp required as per law; that the Stamp Paper of Rs. 50/ is not a valid document as it was beyond the period of validity of six months; that the signatures of PW1 do not tally with the signatures on Ex. PW1/A (Colly.) and that PW1 has not been specifically authorised the institute the suit and to give evidence.
14. During his crossexamination, PW1 has admitted that the Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 7 of 16 GPA did not bear the Rs. 5/ Notary Stamp required as per law. However, no objection in respect of the insufficient stamp duty was raised during the tendering of the documents in evidence and the General Power of Attorney in favour of PW1 alongwith extracts of Board Resolution was exhibited as Ex. PW1/A (Colly). The objection was raised by the defendant during the crossexamination, ie, after the document had already been exhibited as an exhibit. While it is no doubt true that the mere marking of a document as an exhibit does not dispense with the proof of the same by the party relying upon it, however, it is also a settled proposition of law that objection as regards admissibility of a document are specifically required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially. The objection in respect of insufficient stamp duty has been raised for the first time during crossexamination and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties, hence Section 36 of the Stamp Act comes into operation and the other party is precluded from calling in question the admissibility of the same even if the document has been improperly admitted in evidence. If a party to the lis intends that an instrument Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 8 of 16 produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril. Reliance for the interpretation is placed on the case of "Javer Chand and Ors. v. Pukhraj Surana", cited as [1962] 2 SCR 333.
15. PW1 during his crossexamination also denied the suggestion that the Stamp Paper of Rs. 50/ was not a valid document as it was beyond the period of validity of six months. However the Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 9 of 16 months prior to the proposed date of execution, being used for a document. Strength for this interpretation is placed on the decision of the Hon'ble Supreme Court of India in "Thiruvengada Pillai Vs. Navaneethammal and Anr.", cited as AIR 2008 SC 1541.
16. In respect of third ground of objection, during his cross examination PW1 showed his signatures at page no. 4 of the plaint as being the signatures tallying with the signatures on the GPA. PW 1 explained that there was minor variation which was normally there in signatures. No evidence has been brought on record by the defendant to prove that the variations in the signature were those beyond which are normally there in the signatures over a period of time.
17. In respect of fourth ground of objection, the General Power of Attorney (Ex.PW1/A) (Colly) authorizes PW1 "to appear in the courts of law to represent the company". The defendant has sought to interpret the same as implying that the GPA does not specifically authorize Sh. Chandra Shekhar to institute the suit or to give evidence on behalf of the plaintiff company and the plaintiff company had not instituted the present suit through a competent person. However, the interpretation does not hold good for the reason that in addition and de Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 10 of 16 hors Order 29 Rule 1 of the CPC, as a company is a juristic entity, it can duly authorise any person to sign the plaint on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the CPC. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. In the present case, the plaintiff company has contested the present suit to the hilt. After considering the totality of facts and circumstances of the case as no specific powers have been conferred upon Sh. Chandra Shekher to do only limited specific and particulars Act hence it follows that the plaintiff company had authorised Sh. Chandra Shekher to "appear on behalf of the company" which included the power to file and institute the present suit. Hence, having regard to the conduct of the trial the court is of the view that the plaintiff company had impliedly ratified the act of signing of the pleading by its officer though it may not have specifically Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 11 of 16 mentioned in the GPA in respect of the institution of the present suit or giving evidence on behalf of the plaintiff company.
18. Thus in the totality of the evidence on record the defendant has been not able to discharge the onus cast upon it that the suit has not been instituted by competent person and accordingly this issue is decided against the defendant and in favour of the plaintiff. Issue No.3 Whether the suit of the plaintiff is without any cause of action as no internet services were availed by the defendant?
19. This issue is being decided prior to the issue no.2 for the sake of convenience. The onus to prove this issue was on the defendant as a preliminary objection has been raised in the written statement that there was no cause of action against the defendant as no internet services for Rs. 59,198/ or any other sum as claimed by the plaintiff was availed by the defendant.
20. To discharge the onus DW1 deposed in his evidence by way of affidavit (Ex. DW1/A) that no internet services for Rs. 59,198/ or any other sum as claimed by the plaintiff was availed by the defendant. DW1 further deposed that suit had been filed malafidely by the plaintiff as the defendant had been seeking the details of the day, time and the Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 12 of 16 destination for which the services were claimed to have been availed but the same were never provided by the plaintiff.
21. DW2 in his evidence by way of affidavit (Ex. DW2/A) also deposed that he had never availed the air time (internet services claimed by the plaintiff). DW2 further deposed that the defendants had not availed any internet services for the period and the amount under dispute. During the crossexamination of DW1 no question or suggestion was put to the witness in respect of availing of the air time (internet services). The only question put during cross examination to the witness were with respect of the activation of the internet connection on every international SIM. Further the witness was crossexamined as to whether the internet connection was the feature of the handset only. Similar suggestions were put to the defendant witness DW2.
22. Thus in view of the unrebutted oral testimony of DW1 and DW2, the defendants were able to discharge the onus that no internet services were availed by the defendant.
23. On the other hand, during his crossexamination DW 2 admitted that during the period that is 12.06.08 till 26.06.08 he was in possession of the SIM Card. DW1 also admitted during his cross Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 13 of 16 examination that during the period that DW2 was travelling the SIM Card was in his possession. However, it is not the case of the plaintiff either in the plaint or in the replication that the liability in respect of the outstanding amount has arisen in respect of the internet charges only by virtue of the defendant being in possession of the SIM Card. It was not sufficient for the plaintiff to merely prove that the SIM was in the possession of the defendant but the plaintiff was also required to prove that the internet services were availed by the defendant and despite availing the same, the defendant did not pay the amount due was towards the usage of the services.
24. To prove the same, the plaintiff has relied upon the itemized bill (Mark D). However, the plaintiff did not examine any witness to prove the Mark D and hence Mark D remains unproved and cannot be looked into.
25. Be that as it may, a bare perusal of the Mark D reveals that amount in dispute pertains to the alleged usage of the air time (internet services) but the itemised bill does not reflect the time or duration of the alleged access. The itemised bill (Mark D) thus lacks in details which can be construed as being adequate to be satisfied about the genuineness of Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 14 of 16 the bill.
26. Accordingly in view of unrebutted oral testimony of defence witnesses and failure of the plaintiff to prove by way of oral or documentary evidence that the airtime services (internet services) were availed by the defendant, this issue is decided in favour of the defendant and against the plaintiff.
Issue No.2: Whether the plaintiff is entitled to a decree of Rs.59,198/ with interest as prayed for in prayer (a)?
27. The onus to prove this issue was on the plaintiff. PW1 has deposed in his evidence by way of affidavit in Ex. PW1/X that as per the accounts maintained by the plaintiff company there is an outstanding amount of Rs. 59,198/ by the defendant towards the international mobile No. 07534281954 incurred due to the usage of international mobile telephone service in accordance with the terms and conditions of Ex. PW1/B. In its written statement the defendant has not disputed the non payment of Rs.59,200/ in respect of bill no. TMT 370252/819199 dated 02.07.09.
28. However, in view of my finding on issue no.3, the plaintiff Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 15 of 16 has not been able to prove that the outstanding amount had been charged by the plaintiff in respect of the services which were availed by the defendant. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
Relief:
29. In view of my findings on issue no.2 and 3, the suit of the plaintiff is dismissed. Parties to bear their own costs.
30. Decree Sheet be prepared accordingly.
31. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court (Pooja Gupta)
On 15.04.2013 Civil Judge 03(South)
New Delhi
Civil Suit No.590/10 Matrix Cellular (International) Services Pvt. Ltd. Vs. Sentinels Security Pvt. Ltd. Page 16 of 16