Delhi District Court
Matrix Cellular (International) ... vs Manish Goel on 9 April, 2018
IN THE COURT OF MS. NAMRITA AGGARWAL, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 57950/2016
Matrix Cellular (International) Services Pvt Ltd
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi-110030 .... Plaintiff
Versus
Manish Goel
S/o Sushil Kumar Goel
R/o 10 Under Hill Lane
House No-4, Ist Floor
Civil Lines Delhi-110054
Also at:
2179/61 Gurudwara Road
Ist Floor Karol Bagh
New Delhi-110005 .... Defendant
Date of institution : 13.01.2016
Date of final arguments : 11.01.2018
Date of judgment : 09.04.2018
JUDGMENT
Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 1 /13
1. A civil suit for recovery of Rs 1,92,464/-/- has been filed by plaintiff - Matrix Cellular (International) Services Pvt Ltd against the defendant Manish Goel. Brief facts of the case as alleged by the plaintiff in the plaint are that plaintiff is a Limited Company Registered under the Companies Act, 1956 and dealing in International Mobile Rental Services having its registered office at 07, Khullar Farms, 140, New Manglapuri, Mandi Road, Mehrauli, New Delhi-110030. That Sh Binod Sinha was nominated as Authorized Representative of the Plaintiff Company as per the Resolution passed in Board of Directors Meeting held on 03/04/2014. That the defendant had applied for International Mobile Connection and procured the Standard Application Form containing the Terms and Conditions regarding the usage of said connection. After being satisfied about the said the Terms and Conditions, the defendant applied for hiring the said mobile connection and signed the Agreement Forms dated 12/06/2011, 19/05/2013, 19/05/2013, 12/06/2011 and 19/05/2013 and agreed to abide by them. The plaintiff accordingly gave International Mobile Connection nos 3026829432 3028834063 3026828914 551057092 and 554957162 under the Agreement Nos T1000295518 T1000295519 T1000295520 M1483381 and M1483380. It is averred by the plaintiff that there is an outstanding amount of Rs 1,92,464/- due and payable by the defendant towards the International Mobile numbers referred above. That the plaintiff raised invoices on the defendant as Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 2 /13 per ledger account maintained by it and raised demand upon defendant through bills issued by the plaintiff company. Inspite of repeated reminders and requests, defendant have intentionally and deliberately failed to make the payment of bills due to which the plaintiff was constrained to send the legal demand notice dated 15/01/2014 to the defendant by registered post. Inspite of receiving the said legal demand notice, the defendant failed to clear its outstanding liabilities. Hence, the present suit.
2. Written statement has been filed by defendant denying the contentions made by the plaintiff and stated that there is no liability of the defendant against the plaintiff, either admitted or otherwise. Further it is averred by the defendant that present suit has not been instituted, signed and verified by a duly authorized representative of the plaintiff company. That the alleged bills raised by the original service provider in Dubai or USA have not been placed on record by the plaintiff and thus plaintiff has failed to prove the basis of its claim against the defendant. It is averred by the defendant that ledger accounts as well as statement of account have been prepared by plaintiff at their own whims and fancies and were not even sent to the defendant at any time. Even the call rates were charged by plaintiff at its own whims and fancies without informing the defendant. In fact these call rates were never agreed to by defendant. The defendant never used the SIM Cards to the extent claimed by the plaintiff and that alleged bills and itemized record of the calls are highly inflated, Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 3 /13 false and fabricated. It is averred by the defendant that after returning from vacation, the defendant requested the plaintiff several times to collect back their SIM but the plaintiff failed to do it assuring that services of the defendant with respect to those SIM have already been cancelled. It is also averred by the defendant that he was not provided with Customer Agreement Form by the plaintiff company despite requests on the ground that sale of SIMS to the plaintiff was a Tab sale. Even the Customer Agreement Form do not contain the signatures or the photographs of the defendant. The defendant has also denied the computer generated copies of the bills which according to defendant, are forged and fabricated.
3. Replication to the WS filed by plaintiff denying the contentions made by defendant and stating that the liability of the defendant to pay the entire claim amount is evident from the documents filed. That the present suit has been filed on the basis of Customer Agreement Form which was categorically signed by defendant after having understood the services being availed. The plaintiff has also placed on record the account ledger maintained by the plaintiff on the defendant account.
4. From the pleadings of the parties, following issues were framed on 07/09/2016:
1 Whether the present suit has been instituted, signed and verified by a duly authorized representative of the plaintiff company as per the Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 4 /13 statutory requirement ? OPD 2 Whether the statement of account has been prepared by the plaintiff at its own whims and fancies ? OPD 3 Whether there is any cause of action to present and maintain the present suit ? OPD 4 Whether the suit of the plaintiff is hopelessly barred by limitation ? OPD 5 Whether the plaintiff is entitled to decree for a sum of Rs 1,92,464/- against the defendant ? OPP 6 Whether the plaintiff is entitled to any interest? If yes, at what rate ? OPP
5. During evidence, Sh Binod Kumar Sinha, Authorized Representative of the plaintiff company entered into the witness box as PW-1 and deposed on the lines of his plaint. Further he has relied upon the following documents:
(a) Copy of certificate of Incorporation and Certified copy of Board of Resolution dated 03.04.2014 is Ex. PW1/A (colly).
(b) Original agreement forms is Ex. PW1/B (colly).
(c) Copy of Tariff Plans is Ex. PW1/C (colly).
(d) Account ledger of the defendant is Ex. PW1/D.
(e) Copy of itemized bills alongwith Certificate under Section 65B of Indian Evidence Act are Ex. PW1/E (colly).Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 5 /13
(f) Legal notice dated 15.01.2014 and postal slip are Ex. PW1/F (colly)
(g) Copy of credit card, passport and ticket is Mark A (colly) (which is shown as Mark PW1/G (colly)).
(h) Additional affidavit under Section 65B of Indian Evidence Act is Ex. PW1/2.
6. The defendant in his turn entered into the witness box as DW-1 and deposed with sync of his WS and he has relied upon his affidavit in evidence which is Ex DW-1/A.
7. I have heard the contentions of both the parties and gone through the records.
8. My issue wise finding is as under:-
Issue No. 1Whether the present suit has been instituted, signed and verified by a duly authorized representative of the plaintiff company as per the statutory requirement ? OPD
9. It is averred by the defendant that Mr. Binod Kumar Sinha is not a duly authorized representative of the plaintiff who has been authorized to depose and pursue the matter. Per Contra, the plaintiff Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 6 /13 has relied upon the certified copy of the Board Resolution dated 03/04/2014 Ex PW-1/A (Colly) to prove that Sh Binod Kumar Sinha is the duly authorized representative of the plaintiff company. The original of this resolution is seen and returned by court. Perusal of this resolution shows that this board resolution has been signed by Ms Nitasha Sinha, Company Secretary of the plaintiff company. However no document has been filed on record by plaintiff to prove that Ms Nitasha Sinha was duly authorized to sign the board resolution on behalf of plaintiff company authorizing Mr. Binod Kumar Sinha to pursue the present case. There is no authorization in favour of Ms Nitasha Sinha to authorize Mr. Binod Kumar Sinha to sign Board resolution authorizing Mr. Binod Kumar Sinha to pursue the present case. In Symantec Software Solutions Pvt. Ltd & Ors Vs R. Modi & Ors, CS (OS) No. 1842/2008, Decided on 17/10/2016, 2016 (9) AD (Delhi) 139, it has been held that when the defendant has challenged the valid institution of the suit and signing and verification of the plaint by a duly authorized person, only the plaintiff can lead affirmative evidence of valid institution of suit and signing and verification of the plaint by duly authorized person and the defendant can only lead evidence in negative in this regard. Thus the original onus to prove this issue should be upon the plaintiff which if proved can be shifted to the defendant. In the present case also, defendant had lead evidence in the negative form to prove that Mr. Binod Kumar Sinha was not duly authorized by way of Board Resolution Ex PW-1/A to depose on behalf of plaintiff company.
Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 7 /13Further onus to lead evidence in affirmative qua this issue was upon the plaintiff who failed to place on record any authority in favour of Ms Nitasha Sinha to sign the board resolution or to minutes of meeting to prove that meeting took place wherein such board resolution was passed. In Oberoi Hotels (India) Pvt Ltd Vs Observer Publications (P) Ltd, Suit No. 469 of 1986, it has been held that the only way to prove that a particular resolution was passed at a meeting of Board of Directors of a company is that the minutes book in which the said resolution is recorded as having being passed should be produced in court as that alone can form evidence of the fact u/s 194 of Companies Act. Further in G. Govindaraj and Another Vs Venture Graphics P. Ltd & Ors, 2007 SCC OnLine Mad 71, it has been held that the minutes of meeting are the prima facie evidence of the conduct of the meeting and resolution passed therein.
9.1 In the present case, the plaintiff had failed to file minutes of the meeting wherein the board resolution dated 03/04/2014 was passed and therefore the plaintiff has miserably failed to prove that Mr. Binod Kumar Sinha was the duly authorized representative of the plaintiff company. Thus the suit cannot be stated to be instituted, signed or verified by a duly authorized representative of the plaintiff company. This issue is decided in favour of the defendant and against the plaintiff.
Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 8 /13 Issue No. 2Whether the statement of account has been prepared by the plaintiff at its own whims and fancies ? OPD 10 It is averred by the defendant that the statement of account reflecting the alleged liability of the defendant against the plaintiff company has been prepared by the plaintiff at its own whims and fancies and are not a true statement of accounts. During the cross examination, PW-1 admitted that it is the original service provider at Dubai or USA who raises bill to the service company i.e. plaintiff who in turn raises bill upon the customer i.e. defendant. It is further admitted that plaintiff has not filed these bills as raised by the original service provider in the present case. Thus the original bill as raised by the original service provider at USA or Dubai forms the basis of the entire claim raised on defendant and statement of account maintained by the plaintiff. In the absence of the said original bill, the entire bill or these books of account of plaintiff loose their validity and evidentionary value. Further PW-1 stated in his cross examination that certificate u/s 65 B of Indian Evidence Act filed along with statement of account Ex PW-1/D is signed by Neeladri Dey, Sr. Manager Accounts of the plaintiff. It is further stated that all the documents which are mentioned under the said certificate was printed from the Accounts Department computer.
Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 9 /13Perusal of said certificate u/s 65 B of Indian Evidence Act signed by Mr. Neeladri Dey shows that said certificate does not fulfill the requirement of Section 65 B of Indian Evidence Act. Further Mr. Neeladri Dey was not brought in to the witness box to prove the certificate u/s 65 B of Indian Evidence Act filed by him or to state that the documents for which the said certificate was filed, were stored and maintained in his own computer and that a true copy of the printout from the said computer had been taken out. Thus the said certificate filed by Mr Neeladri Dey u/s 65 B of Indian Evidence Act cannot be relied upon. During the course of evidence, another affidavit was filed on behalf of Mr. Binod Kumar Sinha in compliance of Section 65-B of Indian Evidence Act. This affidavit was also not in the form as required u/s 65-B of Indian Evidence Act and further this affidavit has been filed by a person who is not even authorized by the plaintiff to file the said affidavit. The said affidavit by Mr. Binod Kumar Sinha also does not have any validity in eyes of law. Hence this issue is decided in favour of defendant and against the plaintiff.
Issue No. 3Whether there is any cause of action to present and maintain the present suit ? OPD 11 During the cross examination, PW-1 admitted that it is the original service provider at Dubai or USA who raises bill to the Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 10 /13 service company i.e. plaintiff who in turn raises bill upon the customer i.e. defendant. It is further admitted that plaintiff has not filed these bills as raised by the original service provider in the present case. Thus the original bill as raised by the original service provider at USA or Dubai forms basis of the entire claim raised on defendant and statement of account maintained by the plaintiff. Thus in the absence of the original bill as raised by the original service provider, the plaintiff does not have any cause of action against the defendant. Even otherwise, it is averred by PW-1 during his cross examination that the bills as raised by the plaintiff upon the defendant Ex PW-1/E (colly) were sent to the defendant through courier and by mail. However PW-1 admitted that no such copy of mail or courier receipt have been filed on record. Thus there is a prima facie doubt as to whether any such bill was ever raised by the plaintiff or sent to the defendant. In the absence of this proof as well, plaintiff does not have any cause of action against the defendant. Hence this issue is also decided in favour of defendant and against the plaintiff.
Issue No. 4Whether the suit of the plaintiff is hopelessly barred by limitation ? OPD 12 The onus to prove this issue was upon the defendant. Defendant has not led any evidence on this issue and therefore Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 11 /13 there can be no observation on the same.
Issue No. 5 and 6Whether the plaintiff is entitled to decree for a sum of Rs 1,92,464/- against the defendant ? OPP Whether the plaintiff is entitled to any interest? If yes, at what rate ? OPP
13. The onus to prove both these issues were upon the plaintiff. The plaintiff has relied upon the original agreement form, copy of the tariff plan, account ledger of the defendant and copy of itemized bill to prove the liability of the defendant against the plaintiff. However all these documents are computer generated copies which are not accompanied with a valid certificate u/s 65-B of Indian Evidence Act (as discussed above) and therefore these documents cannot be read in evidence. Further the original bill as raised by the original service provider at USA or Dubai forms basis of the entire claim raised on defendant and statement of account maintained by the plaintiff. Further it has not been proved that bills were sent to the defendant. The plaintiff has miserably failed to prove that plaintiff is entitled to recovery of Rs 1,92,464/- against the defendant or any interest thereupon. Thus both these issues are decided against the plaintiff and in favour of defendant.
Matrix Cellular (Internatinal) Services Pvt Ltd Vs Manish Goel Page 12 /13Relief
14. Thus the suit of the plaintiff is dismissed as rejected. No order as to costs.
15. File be consigned to Record Room.
Announced in the open ( NAMRITA AGGARWAL)
court on 09.04.2018 SCJ-CUM-RC:PHC:NEW DELHI
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