Delhi District Court
Mahanagar Telephone Nigam Ltd vs Shri Om Prakash Chawla on 1 September, 2012
IN THE COURT OF SH. ANIL KUMAR SISODIA : ADJ06
WEST DISTRICT, TIS HAZARI COURTS : DELHI.
CIVIL SUIT NO. 161 OF 2012
MAHANAGAR TELEPHONE NIGAM LTD.
A Government of India Undertaking,
having its office at Khurshid Lal Bhavan,
Janpath, New Delhi110050. ............ PLAINTIFF
Versus
1. SHRI OM PRAKASH CHAWLA
R/o 9214, Gali Zamirwali,
Azad Market, Delhi.
AND /OR
Shop No.541,
Old Lajpat Rai Market,
Delhi.
2. SHRI AMRIK SINGH SABHARWAL
R/o 8A/49, Geeta Colony,
Delhi.
AND /OR
Shop No.872B,
Old Lajpat Rai Market,
Delhi. ........... DEFENDANTS
Date of institution : 07.07.1995
Order reserved on : 30.08.2012
Suit No.161/12 Page : 1/21
Date of Decision : 01.09.2012
SUIT FOR RECOVERY
J U D G M E N T :
1. The plaintiff has filed the present suit for recovery of Rs.8,06,343/ alongwith costs and interest against the defendants.
2. The facts of the case are that the plaintiff is a Government of India Undertaking and registered under the Indian Companies Act, 1956 and is a licencee of the Central Government appointed in exercise of the powers under the Indian Telegraph Act. By virtue of the said licence of 27.3.1986, the plaintiff is authorized and/or responsible to establish, maintain and for supervision of telephone services in the metropolitan city of Delhi/ New Delhi and Bombay w.e.f. 01.04.1986.
3. It has been submitted that defendant no.1 was the subscriber of telephone no. 236415 which was provided by the plaintiff at shop no. 872B, Old Lajpat Rai Market, Delhi with STD facility on 21.09.1989 and defendant no.2 was also using the telephone in question during the material time but the defendants Suit No.161/12 Page : 2/21 defaulted in making the payment of arrears of telephone dues and did not make payment despite notices and reminders. It has been submitted that it is the obligation of every subscriber of telephone to pay the telephone bills by due dates. The plaintiff issued two bills dated 01.07.1992 and 01.09.1992 amounting to Rs.87,473/ and Rs. 1,66,873/ respectively for the actual use of the telephone as recorded in the associated meter but the defendants failed to make the payment of the same. Consequently, the telephone no.236415 was disconnected on 19.10.1992 for nonpayment of outstanding bills. Thereafter, the plaintiff also issued bill dated 01.11.1992 for the period 16.08.1992 to 15.101992 for Rs.2,91,554/ for the actual use of telephone, bill dated 01.01.1993 for Rs18,618/ for the trunk calls made during the period 04.07.1992 to 13.07.1992 and bill dated 01.03.1993 for Rs. 5530/. The defendants are also liable to pay Rs.1,000/ towards instrument damages and directory charges under bill dated 19.03.1994. The plaintiff has also given adjustment towards the advance rents in the bills. When the defendants did not pay the abovesaid bills, the plaintiff deputed the Telephone Suit No.161/12 Page : 3/21 Revenue Inspector to realize the outstanding dues from the defendants. During the investigations, it was found that the telephone number in question was installed in the name of defendant no.1 but was also being used by defendant no.2 and hence, both the defendants are jointly and severally liable to clear the outstanding dues. The plaintiff issued notices/ reminders to the defendant no.1 on 09.03.1993 and 05.07.1993 and on 01.10.1993 to defendant no.2 and requested them to clear the outstanding dues but all in vain. Finding no other alternative, the plaintiff has filed the present suit.
4. Summons of the suit were served on the defendants. Both the defendants have contested the suit by filing their Written Statement.
5. Defendant no.1 in his WS has raised the preliminary objections that the suit filed by the plaintiff is not maintainable under Section 7B of the Indian Telegraph Act, 1885;suit is liable to be dismissed u/O 7 Rule 11 CPC. It has been stated that the plaint has not been signed, verified and instituted by a proper, competent and authorized person.
On merits, the contents of the plaint have been denied and it Suit No.161/12 Page : 4/21 has been submitted that the defendant no.1 has no connection with the defendant no.2 in respect of the present proceedings against him. It has been submitted that under the provisions of Rule 443 of Indian Telegraph Rules, the plaintiff is empowered to disconnect the telephone connection in case of nonpayment. In the present case, there were three bills of heavy amount but the telephone was not disconnected for the alleged default of the first bill for an amount of Rs.87,473/ and the accumulation of plaintiff's dues is the consequence of their negligence and for this, the defendant no.1 cannot be burdened with any liabilities whatsoever. It has further been submitted that no documents have been placed on record in respect of the investigation carried out by the plaintiff. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
6. Defendant no.2 in his WS has raised the preliminary objections that the present suit is not maintainable in its present form as there is no privity of contract between the plaintiff and defendant no.2; the defendant no.2 is neither the subscriber nor beneficiary of telephone no. 236415; no cause of action has Suit No.161/12 Page : 5/21 arisen in favour of the plaintiff and against the defendant no.2 and he is not a necessary or proper party. It has been submitted that the present suit is not maintainable because there is an arbitration clause between the subscriber & MTNL and MTNL has to exhaust the remedy under Section 7B of the Indian Telegraph Act.
On merits, the contents of the plaint have been denied. However, it has not been denied that the defendant no.1 was the subscriber of telephone no. 236415 with STD facility. It has been submitted that whenever any STD facility with the consent, permission and knowledge of defendant no.1 was used, the defendant no.2 duly disbursed the said amount to defendant no.1 and if he is not depositing the same with MTNL and MTNL cannot enforce their rights on the person who has used the telephone because their their contract, if any, is with the subscriber to whom they have given telephone and the facilities. It has been submitted that how it could be said that which are the calls which have been made by the defendant no. 1 or defendant no.2 and only defendant no.1 is liable for the same. A prayer has been made for dismissal of the suit with Suit No.161/12 Page : 6/21 costs.
7. The plaintiff filed replications to the WS of defendants denying the contents of the same in so far as they were contrary to the plaint. The contents of plaint were reiterated and reaffirmed.
8. On 20.11.2001, the following issues were framed on the basis of pleadings of the parties:
1) Whether the suit is barred by provision of Section 7B of the Indian Telegraph Act 1885? OPD
2) Whether the suit does not disclose any cause of action against the defendant no.1?
3) Whether defendant no.1 was subscriber of Telephone bearing No. 236415 and hence liable to pay the bills? OPP
4) Whether defendant no.2 had used the facility of the said telephone and if so its effect? OPD
5)Whether defendants 1 and 2 are jointly and severally liable to pay the outstanding bill of the plaintiff? OPP
6)Whether the defendants 1 and 2 are liable to pay interest on the outstanding amount. If so, at what rate?
7) Relief.
9. Thereafter, the parties were directed to lead their evidence. In Suit No.161/12 Page : 7/21 support of its case, the plaintiff has examined Shri Ashok Kumar Sharma, Accounts Officer as PW1 who filed his examination in chief by way of affidavit. PW1 has also proved on record the application dated 22.07.1986 as PW1/1; bills dated 01.07.1992, 01.09.1992, 01.11.1992, 01.01.1993, 01.03.1993 and 19.03.1994 as Exs.PW1/2 to PW1/6; demand notice dated 09.03.1993, 05.07.1993 & 01.10.1993 as Exs.PW1/8 to PW1/10 and letter dated 19.10.1993 as Ex.PW1/11. The plaintiff also examined Shri O.P. Chhabra, Sr. Accounts Officer as PW2 who has filed his examination in chief by way of affidavit. Both the witnesses were duly crossexamined and the evidence of the plaintiff was closed.
10.Thereafter, the plaintiff filed an application u/S. 151 CPC for summoning an official from CFSL, New Delhi which was allowed by the Ld. Predecessor of this Court vide orders dated 11.07.2011 and Shri Jiju P.V., Senior Scientific Officer (Documents), FSLCumEx Officio, Chemical Examiner to the Govt.of NCT of Delhi was examined as PWX who filed his report as Ex.PWX/A.
11.Defendant no.1, on the other hand, has examined himself as Suit No.161/12 Page : 8/21 DW1 and filed his examination in chief by way of affidavit and he was duly crossexamined. Defendant no.2 has examined himself as DW2 and filed his examination in chief by way of affidavit and he was duly crossexamined and evidence of the defendants was closed vide orders dated 24.04.2006.
12.I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendants and have perused the record carefully. My findings on the issues are as under : ISSUE NO.1 :
(1) Whether the suit is barred by provision of Section 7B of the Indian Telegraph Act 1885? OPD
13.This issue was treated as preliminary issue by Hon'ble Mr. Justice J.D. Kapoor (as his lordship was then) vide order dated 20.10.2001 and this issue was decided vide order dated 14.11.2002 by Hon'ble Mr. Justice S.K. Aggarwal (as his lordship was then) and the suit was held to be maintainable in the Civil Court. This finding has not been challenged by either of the parties and thus, has it has attained finality. Hence, this issue does not need fresh adjudication as it has already been disposed off.
Suit No.161/12 Page : 9/21
ISSUES NO.2 & 3 :
(2) Whether the suit does not disclose any cause of action against the defendant no.1?
(3) Whether defendant no.1 was subscriber of Telephone bearing No. 236415 and hence liable to pay the bills? OPP
14.These two issues are takenup together as they require common discussion. The defendant no.1 in his WS has taken a preliminary objection that the suit is without any cause of action against defendant no.l as defendant no.1 was not provided any telephone connection by the plaintiff and defendant no.1 is not the subscriber and hence, he is not liable to pay any arrears of the telephone bills. The case of the defendant no.1 is that the telephone was installed by the plaintiff at the shop of defendant no.2 i.e. at 872B, Old Lajpat Rai Market, Delhi whereas, the defendant no.1 had applied for the telephone connection at the address of his residence which was never provided to him.
15.The plaintiff, on the other hand, has claimed that the telephone no. 236415 was provided to defendant no.1 at shop no. 872B, Old Lajpat Rai Market, Delhi and defendant no.2 was also Suit No.161/12 Page : 10/21 using the telephone in question and hence, both of them are liable to pay the outstanding amount against the said telephone number.
16.Ld. Counsel for defendant no.1 has argued that defendant no.1 does not fall within the definition of "subscriber", as stated in Indian Telegraph Rules. According to him, Section 2 (pp) of the Indian Telegraph Rules, 1951 defines "subscriber" to be a person to whom a telephone service has been provided by means of installation under these rules or under an agreement. It has been argued that although, the defendant no.1 had applied for the telephone connection vide application Ex.PW1/1 but the same was not provided to him on the address mentioned in the application at any point of time. It has been argued that PW1 Sh. Ashok Kumar Sharma in his crossexamination has admitted that defendant no.1 had applied for installation of telephone connection at 9214, Gali Zamirwali, Azad Market, Delhi110006 and he also admitted that the telephone was not installed at the address mentioned in Ex.PW1/1 and the telephone connection was installed at 872B, Old Lajpat Rai Market, Delhi. It has also been argued that no bills of the Suit No.161/12 Page : 11/21 telephone were ever sent to his address and the defendant no.1 never utilized the services of the plaintiff company and is not the subscriber and therefore, not liable to pay any outstanding dues against the said bill and hence, the present suit is without any cause of action qua defendant no.1 and liability, if any, is of defendant no.2 who had used the telephone installed in his shop.
17.Ld. Counsel for the plaintiff, on the other hand, has argued that defendant no.1 is the subscriber of the telephone no. 236415 and he applied for the same vide application Ex.PW1/1. It has also been argued by the Ld. Counsel for the plaintiff that the defendant no.1 had applied for shifting of the aforesaid telephone vide application MarkX which shows that defendant no.1 had accepted himself as subscriber of the telephone. It has been argued that although, defendant no.1 denied his signatures on application MarkX as well as another application Ex.PW1/11 vide which defendant no.1 had admitted himself to be the subscriber of the telephone and had expressed his inability to pay the amount but when the signatures on these documents were sent to the FSL for examination, they were Suit No.161/12 Page : 12/21 found to be the signatures of the defendant no.1, as per the Report of Handwriting Expert Ex.PWX/A. Ld. Counsel for the defendant no.1 has rebutted the arguments of Ld. Counsel for the plaintiff and has argued that the telephone was not even shifted to the address by the plaintiff, as mentioned in application MarkX i.e. 541, Old Lajpat Rai Market, Delhi and hence, even this application has not been complied with by the plaintiff.
18.A perusal of the record would show that the defendant no.1 although, in his WS has stated that he was not provided with any telephone connection bearing no. 236415 by the plaintiff and he had no connection with defendant no.2 in whose shop this telephone connection was installed but perusal of the letter Ex.PW1/11 would show that defendant no.1 admitted that telephone no. 236415 was working with his friend Shri Amrik Singh Sabharwal at 872B, Lajpat Rai Market and the trunk calls were made by him. He also submitted for restoration of his telephone no. 236633 which was disconnected against telephone no. 236415. This letter shows that plaintiff was well aware that a telephone connection in his name was working at Suit No.161/12 Page : 13/21 the shop no. 872B belonging to defendant no.2. It is surprising that despite having knowledge of this fact defendant no.1 never approached the plaintiff either to get the aforesaid telephone connection transferred to his shop or residence or for change of name of subscriber. It is also pertinent to mention here that defendant no.2 in his crossexamination has also testified that telephone number 236415 was installed in the name of defendant no.1 at his shop. He further testified that he knew defendant no.1 as he worked in the same market and was also his tenant at shop no. 872B, Old Lajpat Rai Market, Delhi. He has also admitted that in the year 1992, there were two connections in this shop, one was in his name and another was in the name of defendant no.1. He also admitted that defendant no.1 is also having another shop in the same market and further submitted that he used to pay the user charges to the defendant no.1 whenever he used the telephone connection in his name. He also testified that he never gave no objection to defendant no.1 or to MTNL for telephone connection in the name of defendant no.1 at his shop. Perusal of entire crossexamination of DW2 would show that there is no suggestion given to him Suit No.161/12 Page : 14/21 that defendant no.1 was not a tenant in his shop or that he was not sitting in the shop of defendant no.2. There is also no suggestion given to defendant no.2 that he was a sole user of telephone no. 236415 rather there is a suggestion that he used to pay the charges for the use of telephone connection no. 236415 jointly with defendant no.1 as well as severally. This suggestion, coupled with the crossexamination of defendant no.2 that the defendant no.1 was using the shop of defendant no.2, establishes the fact that the defendant no.1 was very much aware about the installation of telephone no. 236415 in his name in the shop of defendant no.2 and he was jointly using the same with defendant no.2. This is further corroborated by the application Ex.PW1/11 given by the defendant no.1 to the plaintiff. Hence, it cannot be said that defendant no.1 does not fall within the definition of "Subscriber", as stated in Section2 (pp) of Indian Telegraph Rules, 1951. Once it is established that defendant no.1 is a subscriber of telephone connection no. 236415, he is under an obligation to pay the outstanding bills to the plaintiff and it cannot be said that the suit against defendant no.1 is without any cause of action. Thus, in view of the Suit No.161/12 Page : 15/21 aforesaid discussion, the issues are decided in favour of the plaintiff and against the defendant no.1.
ISSUES NO.4&5 :
(4) Whether defendant no.2 had used the facility of the said telephone and if so its effect? OPD (5)Whether defendants 1 and 2 are jointly and severally liable to pay the outstanding bill of the plaintiff? OPP
19.These two issues are takenup together as they require common discussion. The onus of proving issue no. 4 was on the defendant and the onus of proving issue no. 5 was on the plaintiff. The defendant no.1 has taken a stand that the telephone connection no. 236415 was installed in the shop of defendant no.2 and the same was being used by him. It is undisputed fact that telephone number 236415 was installed in the shop of defendant no.2. The case of the defendant no.1 is that telephone was used by defendant no.2 exclusively but the case of the defendant no.2 is that the telephone was being used by defendant no.1 as well as defendant no.2 and defendant no.2 used to pay charges to defendant no.1 for use of the telephone connection. However, defendant no.2 has not placed on record Suit No.161/12 Page : 16/21 any evidence except his bald statement to prove that he used to make the payment to defendant no.1 for the use of telephone installed in his name at the shop of defendant no.2. Hence, the undisputed fact remains that defendant no.2 was using the telephone no. 236415 installed in his shop. This being the factual position, defendant no.2 is also liable for payment of the telephone bill. No doubt, the telephone was installed by the plaintiff in the name of defendant no.1 but the same was installed in the shop of defendant no.2. It is difficult to believe that a person would have allowed the plaintiff to install the telephone in the name of other person in his shop unless there was some agreement or connivance between both the defendants. Even though, defendant no.2 was not a subscriber of the telephone connection but he had enjoyed the benefit of nongratuitous act of the plaintiff by allowing the installation of telephone connection in his shop, as provided in Section 70 of Indian Contract Act. This Section casts a duty on the person enjoying the benefit of nongratuitous act of other person to compensate the said person in respect of, or to restore the things so done or delivered. Therefore, defendants no.1 and 2 Suit No.161/12 Page : 17/21 are both jointly as well as severally liable to pay the outstanding bills of the plaintiff, defendant no.1 being the subscriber of the telephone and defendant no.2 being the beneficiary of nongratuitous act of the plaintiff.
Ld. Counsel for the defendant no.1 has argued that defendant no.1 is also not liable to pay any outstanding amount against the telephone connection to the plaintiff because such huge amount has accumulated due to lapse on the part of plaintiff and its officials. It has been argued that Section 443 of Indian Telegraph Rules, 1951 provides that if the subscribers do not pay the rent or other charges on or before the due date, his services shall be disconnected without any notice. It was argued that the plaintiff was under an obligation to disconnect the telephone connection when the defendants defaulted in making the payment of the first bill itself. However, I do not find any merits in this argument. Merely because the plaintiff failed to disconnect the telephone connection due to the default in payment of the first bill, it does not mean that the plaintiff forfeited its right to recover the outstanding amount against the defendants. The plaintiff has a legal right to recover the Suit No.161/12 Page : 18/21 outstanding amount, if any, within the statutory period of limitation and only if it fails to initiate proceedings for recovery within the time prescribed under Limitation Act, it is barred from taking any action in the Court of law.
20.Ld. Counsel for the defendant no.1 has further argued that the telephone connection applied by defendant no.1 was with STD facility whereas the telephone connection provided to him was without STD facility. Reliance has been placed on the letter issued by the Department Ex.D1/PA in this regard. Ld. Counsel for the plaintiff has countered the argument of the defendant no.1 and has submitted that the bills prepared by plaintiff does not include any STD calls but they are in relation to the trunk calls booked and made by the defendants. Perusal of the bills Exs.PW1/2 to PW1/6 would show that all the bills are related to the trunk calls made during the relevant period besides local calls and rental charges. The defendants have not disputed the bill amount but have simply denied them. The defendants have not challenged the correctness or genuineness of the bills during the crossexamination of the witnesses produced by the plaintiff. Hence, in my considered Suit No.161/12 Page : 19/21 opinion, the question whether the telephone connection was with STD facility or without STD facility is of no relevance as the plaintiff has not charged any STD calls in the outstanding bills. Thus, in view of the aforesaid discussion, both the issues are decided in favour of the plaintiff and against the defendants. Therefore, defendants no.1 and 2 are both jointly as well as severally liable to pay the outstanding bills of the plaintiff, defendant no.1 being the subscriber of the telephone and defendant no.2 being the beneficiary of nongratuitous act of the plaintiff.
ISSUE NO.6 :
(6)Whether the defendants 1 and 2 are liable to pay interest on the outstanding amount. If so, at what rate?
21.The onus of proving this issue was on the plaintiff. The plaintiff has claimed interest @ 17.5% p.a. on the outstanding bills. It is undisputed fact that the plaintiff is engaged in the commercial activity and the telephone connections are provided to the subscribers as a part of their business. The defendants have failed to clear the outstanding bills against the telephone connection no. 236415. Hence, they are liable to pay interest on the outstanding dues. However, I am of the considered Suit No.161/12 Page : 20/21 opinion that the ends of justice would be met if the plaintiff is awarded simple interest @ 12% p.a. on the suit amount from the date of institution of the suit till its realization. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE NO.7 (RELIEF) :
22.Thus, in view of my findings on the aforesaid issues, I am of the considered opinion that the suit of the plaintiff is entitled to be decreed. Accordingly, the suit is decreed for a sum of Rs. 8,06,343/ alongwith simple interest @ 12% p.a. from the date of institution of the suit till its realization. The plaintiff shall also be entitled to the cost of the suit. Defendants shall be jointly as well as severally liable for payment of the decreetal amount. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 1st September, 2012 (ANIL KUMAR SISODIA) ADDITIONAL DISTRICT JUDGE06, WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Suit No.161/12 Page : 21/21
Suit No.161/12
01.09.2012
Present : None for the plaintiff.
Defendant no.1 in person.
None for defendant no.2.
Vide separate judgment announced in open court today, the suit of the plaintiff is decreed with interest and cost. Decree sheet be drawn accordingly.
File be consigned to record room.
(ANIL KUMAR SISODIA) ADJ06, WEST DISTRICT, TIS HAZARI COURTS, DELHI.
01.09.2012 04.45 P.M. At this stage, it has been brought to my notice that an application u/S. 340 Cr.P.C. is also pending adjudication and arguments were advanced by the parties at the time of final arguments.
Vide separate orders announced in the open court today, the application u/S. 340 Cr.P.C. is dismissed.
Suit No.161/12 Page : 22/21
File be consigned to record room.
(ANIL KUMAR SISODIA)
ADJ06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI.
01.09.2012
Suit No.161/12 Page : 23/21