Delhi District Court
Matrix Cellular (International) ... vs Chetan Singh on 9 October, 2012
IN THE COURT OF MS. ARCHANA BENIWAL
CIVIL JUDGE05 (SOUTH), SAKET COURTS, NEW DELHI
CS No. 227/10
Unique Case ID No. 02406C0446692010
Matrix Cellular (International) Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110030. ...PLAINTIFF
Versus
Chetan Singh
C/o Pioneer Sports Company,
F21, Connaught Place,
New Delhi110001. ...DEFENDANT
Date of institution of suit : 28.05.2010
Date of filing of application : 20.07.2011
Date of reserving order : 03.09.2012
Date of pronouncement : 09.10.2012
ORDER
1. By way of this order I shall dispose off the applicant's/defendant's application for unconditional leave to defend.
Suit No. 227/10 Page 1 of 12 Applicant's/defendant's case in brief:
2. It is submitted on behalf of the applicant/defendant that the present case is not maintainable under the provisions of Order 37 of CPC. It is contended that this Court has no territorial jurisdiction to try the present suit as the address of the defendant lies within the territorial jurisdiction of Patiala House Courts. The alleged legal notice has also been sent at the said address of the defendant. Further, the present suit is not covered under any of the clauses of Order 37 Rule 2 of CPC and the suit is basically a suit for recovery for money based on accounts and cannot be tried as a summary suit. It is further contended that the present suit is neither signed nor verified nor instituted by a proper and duly authorized person and the person who has signed and verified the plaint has no power and authority from the board of directors of the plaintiff to do any of the said acts. The alleged resolution dated 05.01.2008 is forged, fabricated and manipulated. The alleged power of attorney also does not bear the seal of the plaintiff. The same is not properly witnessed, nor legally and properly attested. Further, the alleged two agreements both dated 21.04.2007 are not stamped and hence cannot be relied upon. Also, Suit No. 227/10 Page 2 of 12 the present suit is barred by limitation as the alleged agreements are dated 21.04.2007 whereas the plaint had been filed on 25.05.2010. The plaintiff has also not filed any bills/details of the calls alleged to have been made nor any document showing the detailed/itemized bill has been filed. The copies of alleged tariff plans are not admitted as correct as it is not clear from the said plan as to how many calls have been made, which of the calls have been charged as per UK currency calculation and how many calls have been charged as per US currency calculation. Further, as per the alleged tariff plans the conversion rate is of 30.01.2007 whereas the agreements are claimed to be dated 21.04.2007.
Plaintiff's case in brief:
3. It is submitted on behalf of the plaintiff that the applicant/defendant does not deny using the said mobile connections. Neither the signatures on the agreement form nor on the tariff sheet mentioning the charges are disputed by the applicant/defendant nor the usage is denied. It is submitted that the present suit is based upon a written contract (customer agreement form) and tariff plan duly signed by the applicant/defendant at the time of taking the said connection. The Suit No. 227/10 Page 3 of 12 written contract was executed at the head office of the plaintiff company situated within the territorial jurisdiction of this Court, which is also mentioned on the customer agreement form. It is stated that the plaintiff company has authorized Sh. Chandra Shekhar through power of attorney executed in his favour by Capt. Rakesh Walia, who was authorized by board of resolution to execute power of attorney in favour of Sh. Chandra Shekhar. The contract period was from 25.04.2007 to 18.05.2007 for CAF No. 254176 (USA) and 22.04.2007 to 05.06.2007 for CAF No. 254166 (UK). It is submitted that the Bill NO. ATTG41603 for Rs.17,769/ was generated on 26.06.2007 by the plaintiff company only after receiving of itemized Bills from its Parent Network i.e. Cingular Network. Further the Bill No. TM49474 for Rs.12,152/ was generated on 21.06.2007 only after receiving of itemized bills from its Parent Network i.e. TMobile Network. Further the defendant himself charged back the amount debited by the plaintiff company from his credit card in the month of September 2007. Therefore, filing of the present suit is within the period of limitation as the cause of action subsisted till September 2007. It is further submitted that the defendant was duly served with complete itemized bills as per his usage and only after receipt he Suit No. 227/10 Page 4 of 12 instructed his banker to charge back the amount debited by the plaintiff company from his credit card. Further the defendant was duly explained in the illustration given in the tariff sheet about the savings by opting for matrix plan in which currency rate was taken as on 30.01.2007 as Rs.86.59/ for one Pound and Rs.44.06/ for one Dollar. The defendant was charged Rs.84.43/ for one Pound and Rs.42.23/ for one Dollar, much below the rates specified in the illustration, as per the rate prevailing on the date of generating of itemized bills.
4. The foremost defence raised by the applicant/defendant is that this Court has no territorial jurisdiction to try the present suit. As per the provisions of CPC, a suit can be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises. As regards this defence the plaintiff has filed the Original Agreement Form which clearly reflects that the said written contract had been entered in Delhi. The signing of a written contract constitutes a cause of action in terms of provisions of Section 20 of the CPC. Also at the back of the Customer Agreement Form, in the terms and conditions listed therein and duly signed by the applicant/defendant, term No.22 clearly Suit No. 227/10 Page 5 of 12 states that "This agreement shall be subject to jurisdiction of Courts at Delhi only.". Thus, this Court has jurisdiction to entertain the present suit and this defence of the applicant/defendant is liable to fail.
5. Another defence raised by the applicant/defendant is that the present suit is not covered under the provisions of Order 37 Rule 2 of CPC and the suit is basically a suit for recovery of money based on accounts and cannot be tried as a summary suit. In view of this Court, this defence raised by the applicant/defendant is without merit as the basis of the present suit are the customer agreement forms duly signed by the applicant/defendant and the same is not based on accounts. Order 37 Rule 1 (2)(b)(i) of the CPC provides that the provision of the said Order apply to suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a written contract. In the present suit, the plaintiff's claim is based on the customer agreement form dated 21.04.2007 and the tariff plan schedule duly signed by the applicant/defendant, which constitute written contract for the purpose of the aforesaid provision. Accordingly, the suit is maintainable under the provisions of Order 37 of Suit No. 227/10 Page 6 of 12 the CPC.
6. Another defence raised by the applicant/defendant is that the present suit is barred by limitation as the alleged documents are dated 21.04.2007 whereas the plaint has been filed on 25.05.2010. The plaintiff has submitted that the contract period was from 25.04.2007 to 18.05.2007 for CAF No. 254176 (USA) and 22.04.2007 to 05.06.2007 for CAF No. 254166 (UK) and the Bill No. ATTG41603 for Rs.17,769/ was generated on 26.06.2007 by the plaintiff company only after receiving of itemized Bills from its Parent Network i.e. Cingular Network. Further the Bill No. TM49474 for Rs.12,152/ was generated on 21.06.2007 only after receiving of itemized bills from its Parent Network i.e. TMobile Network. Further the defendant himself charged back the amount debited by the plaintiff company from his credit card in the month of September 2007. Therefore, filing of the present suit is within the period of limitation as the cause of action subsisted till September 2007. In view of this Court, this defence raised by the applicant/defendant is also liable to fail as the cause of action had arisen not on the date of entering into the written agreement but on the date the bill was generated in June, 2007 Suit No. 227/10 Page 7 of 12 and when the defendant failed to pay the same and not on the date of signing the customer agreement form as alleged by the applicant/defendant.
7. Another defence raised by the applicant/defendant is that the plaintiff has not filed any itemized bill/details of the calls alleged to have been made and also it is not clear from the tariff plan as to how many calls have been made, which of the calls have been charged as per UK currency calculation and how many calls have been charged as per US currency calculation. Further, as per the alleged tariff plans the conversion rate is of 30.01.2007 whereas the agreements are claimed to be dated 21.04.2007. The said defence also lacks in merit as the itemized bills present on record clearly shows the number of calls made by the applicant/defendant, their duration and the fact that the calls made from US have been charged at the rate of Rs.42.23/ and the calls made from UK have been charged at the rate of Rs.84.43/, which is below the amount mentioned on the tariff plan. Hence, the calls have been charged as per the prevailing rates during the relevant period and not as per rates on 30.01.2007 as given in the tariff plan. The applicant/defendant has Suit No. 227/10 Page 8 of 12 failed to show that the currency exchange rate during the relevant period was lesser/different than that as shown by the plaintiff. Further, the tariff plan only mentions the tariff charged while in UK an USA. The same is not supposed to show the number of calls to be made by the party entering into the agreement/contract.
8. The defence raised by the defendant is that the present suit is not instituted by a duly authorized person and the alleged resolution is forged, fabricated and manipulated. Further, the two alleged agreements are also not stamped and hence cannot be relied upon. The Court finds no merit in this defence raised by the defendant as the board resolution dated 05.01.2008 and the general power of attorney filed on behalf of the plaintiff clearly show that Sh. Chandra Shekhar has been duly authorized by the plaintiff company through power of attorney executed in his favour by Capt. Rakesh Walia, who was authorized by a board of resolution to execute power of attorney in his favour. Further, the customer agreement forms are simple agreements/contracts entered into by the parties and the same are not required to be stamped under the settled principles of law. Any contract entered into by a party is not required to be compulsorily Suit No. 227/10 Page 9 of 12 stamped. Even an oral contract is a valid contract under the Indian Law.
9. Against the cogent evidence produced by the plaintiff, there is only an oral denial, which is not supported by any corroborative evidence, from the side of the applicant/defendant. The aforesaid defences are, therefore, sham and illusory for want of documentary evidence.
10. In view of the facts and circumstances of the case and the aforesaid detailed discussion, this Court is of the considered opinion that the defences raised by the applicant/defendant are illusory and sham. The same do not raise any triable issue.
11. In Mechalec Engineers v. Basic Equipment Corporation, AIR 1977 SC 577, the Hon'ble Supreme Court of India, in paragraph 8 of the judgment, cited with approval the following principles applicable to cases covered by Order XXXVII of the C.P.C. as stated in S. Kiranmoyee Dassi v. Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p. 253:
"(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 judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he Suit No. 227/10 Page 10 of 12 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, shews 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 the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence."
12. Placing reliance on the aforesaid principles laid down by the Suit No. 227/10 Page 11 of 12 Hon'ble Apex Court, this Court is of the considered opinion that the applicant/defendant is not entitled to leave to defend in the present suit.
13. The application stands dismissed.
14. Therefore, in accordance with the provisions of Order XXXVII Rule 6(a) of the C.P.C., the suit is decreed in favour of the plaintiff and against the applicant/defendant for a sum of Rs.29,922/ (Rupees Twenty Nine Thousand Nine Hundred and Twenty Two only) along with pendentelite interest at the rate of 09% per annum and future interest at the rate of 06% per annum.
15. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court on 09.10.2012.
(Archana Beniwal) Civil Judge05 (South) 09.10.2012 Suit No. 227/10 Page 12 of 12