Delhi District Court
Matrix Cellular (International) ... vs Nitesh Anand on 16 July, 2018
IN THE COURT OF MS. NAMRITA AGGARWAL, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 57292/16
Matrix Cellular (International) Services Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi-110030 .... Plaintiff
Versus
Nitesh Anand
R/o. C-3/22, Rajouri Garden,
New Delhi
Gagandeep Ahluwalia
R/o. D-199, Ring Road,
Mansarovar Garden,
New Delhi-110015 .... Defendants
Date of institution : 10.07.2015
Date of final arguments : 21.05.2018
Date of judgment : 16.07.2018
JUDGMENT
1. A Suit for recovery of Rs 1,30,300/- has been filed by plaintiff Matrix Cellular (International) Services Ltd against the Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 1 of 14 defendants Nitish Anand and Gagandeep Ahluwalia.
2 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 defendants had applied for International Mobile Connection and procured the Standard Application Form containing the Terms and Conditions regarding the usage of said connection wherein the defendant no. 1 had signed the Contract and defendant no. 2 had enjoyed the immaculate services of plaintiff company. After being satisfied about the said the Terms and Conditions, the defendants applied for hiring the said mobile connection and signed the Agreement Forms dated 06.11.2013 and agreed to abide by them. The plaintiff accordingly gave International Mobile Connection No. 3022657018 under the Agreement No D2720273. It is averred by the plaintiff that there is an outstanding amount of Rs 1,30,300/- due and payable by the defendant towards the International Mobile number 3022657018 which has occurred by Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 2 of 14 defendant's usage of International Mobile telephone services. That the plaintiff raised invoices on the defendant as per ledger account maintained by it and raised demand upon defendant through bills dt. 13.11.2013 and 19.12.2013 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 20.03.2014 to the defendant by registered post. Despite receiving the said legal demand notice, the defendants failed to clear its outstanding liabilities. Hence, the present suit.
3 During trial defendant no. 1 was proceeded ex-parte vide order dt. 17.02.2017.
4 Written statement has been filed by defendant no. 2 denying the contentions made by the plaintiff and stated that defendant no. 2 is the resident of D-199, Ring Road, Mansarover Garden, New Delhi and also at C-3/22, Rajouri Garden, New Delhi. That defendant no. 1 is not resident of any of the addresses which appears in the memo of the parties filed by the plaintiff. It is averred that defendant no. 2 never purchased a SIM/ International mobile connection from the plaintiff and never entered into any kind of Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 3 of 14 contract with the plaintiff. It is denied that defendant no. 2 had any agreement with the plaintiff for / towards the usage of any international mobile phone services rendered by the plaintiff company. It is further stated that defendant no. 2 never hired any kind of connection from the plaintiff. It is further stated that no legal notice was ever received by the defendant no. 2.
5 Replication to the written statement of defendant no. 2 filed by plaintiff denying the contentions made by defendant no. 2 and stating that defendant no. 2 has malafide intentions preferred to falsify his act and has neglected the agreement alongwith the terms therein of the usage of an International Mobile Service, which he and his family have used to keep in touch with their relatives and friends. It is further stated that defendant no. 2 is now shying away from having to bear the monetary liability accruing out of such services rendered and enjoyed. The liability of the defendants to pay jointly and severally, the entirety of the claimed amount to the plaintiff company is evident in the present suit and the same cannot be disputed. However, the present suit has been filed by the plaintiff company with no other intention but to recover the amount due to them by defendants in lieu of their usage of International Mobile Connection. That defendant no. 2 on one hand shifted all the liability Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 4 of 14 upon defendant no. 1 stating himself merely as an 'User' but on the other hand has shielded the same from litigation by not providing the present address of defendant no. 1 . Moreover, defendant no. 2 has deliberately withheld the contract details, including address of defendant no. 1. That defendant no. 2 admitted the defendant no. 1 as his employee and asked defendant no. 1 to procure a Mobile connection as a customer deliberately avoiding signing the documents. That as evidence of the malafide intentions both actual and intended, the usage made of the aforesaid mobile connection was done by none other than defendant no. 2, however, defendant no. 1 provided the address of defendant no. 2 on the agreement and affixed his signatures on the Consumer Agreement Form. It is further stated that defendant no. 2 was the actual user of the International Mobile Connection bearing no. 3022657018 and the corresponding Tariff Plan bearing code No. ATTG3352700, the same can be clarified by a bare perusal of the original Consumer Agreement Form.
6 From the pleadings of the parties, following issues were
framed on 04.05.2017
1 Whether the plaintiff is guilty of suppression
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 5 of 14
of material facts? OPD
2 Whether the said suit is bad for misjoinder of
parties? OPD
3 Whether there is any privity of contract
between the plaintiff and defendant no. 2 ?
OPD
4 Whether the suit has not been properly
valued for the purposes of court fee and
jurisdiction? OPD
5 Whether this court has no territorial
jurisdiction in view of the terms mentioned in agreement form? OPD 6 Whether the plaintiff is entitled to recovery of amount alongwith interest claimed? OPD 7 Relief.
7 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:
1 Certified copy of Board of Resolution as Ex. PW 1/A (OSR).Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 6 of 14
2 Certificate of incorporation is Mark A. 3 Certificate regarding change of name of the company is Mark B 3 Consumer Agreement form as Ex. PW 1/B(colly) 4 Account Ledger of defendant maintained by plaintiff as Mark C. 4 Certificate U/s. 65-B of Indian Evidence Act, 1879 as Mark D 5 Itemized bills are Mark E (Colly) 6 Copy of legal notice dt. 20.03.2014 is Mark F. 7 Original postal slips is Ex. PW 1/C. 8 Copy of visa of defendant no. 2 is Mark G 9 Copy of PAN card of defendant no. 1 is mark H.
10. Credit card of defendant no. 1 is Mark I.
8 Sh. Dinesh Kumar, Junior Judicial Assistant from the court of Ms. Tyagita Singh, Ld. Sr. Civil Judge-cum-Rent Controller entered into the witness box as DW 1 and has proved the copy of the judicial file case titled as Matrix Cellular (International) Services Pvt. Ltd. Vs. Rishabh Baranwal decided on 06.02.2018 as Ex. DW 1/A.
9. I have heard the contentions of both the parties and gone through the records.
10 My issue wise finding is as under:-
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 7 of 14 ISSUE No. 2, 4 & 52 Whether the said suit is bad for misjoinder of parties? OPD 4 Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 5 Whether this court has no territorial jurisdiction in view of the terms mentioned in agreement form? OPD
11 The onus to prove these issues was upon the defendant. However no evidence has been led by the defendant on either of these issues and therefore, no observation is made on any of these issues. These issues are thus decided against the defendant and in favour of the plaintiff.
ISSUE NO. 1
1 Whether the plaintiff is guilty of suppression
of material facts? OPD
12 The onus to prove this issue was upon the defendant. It
is averred by the defendant that plaintiff is guilty of suppression of Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 8 of 14 material facts since the plaint has been filed by Matrix Cellular International Services Ltd. whereas the contract was entered into between defendant no. 1 and Matrix Cellular International Services Pvt. Ltd. The said company is no longer in existence. However, no certificate of change of name of the previous company has been filed on record by the plaintiff. Further, the Board Resolution Ex. PW 1/A thereby authorizing Sh. Binod Kumar Sinha to pursue the present matter, has also been passed by Matrix Cellular International Services Pvt. Ltd. No amended Board Resolution has been filed on record. Per contra, it is submitted by the plaintiff that both the companies are same. Only the word 'Pvt' has been removed from the previously incorporated company. Certificate of incorporation of previous company has placed on record which is mark A . However, no certificate of incorporation for change of name of the company has been filed by the plaintiff. Moreover, Board Resolution Ex. PW 1/A has not been filed by the Matrix Cellular International Services Ltd. or by the company who has filed the present suit. No certificate for change of name has also been filed on record therefore, it cannot be said that the said company is the same who has entered into a contract with the defendants.
13 Further, perusal of the resolution shows that the Board Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 9 of 14 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.
14 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.
15 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.
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 10 of 1416 In the present case, the plaintiff has failed to file minutes of the meeting wherein the board resolution dated 20.01.2014 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 present suit has been filed by a person who has not been authorized to file the present matter on behalf of the company which has neither entered into the contract with defendants nor has raised the invoices which forms the basis of the present suit. Thus this issue is decided in favour of the defendant and against the plaintiff.
ISSUE No. 33 Whether there is any privity of contract between the plaintiff and defendant no. 2 ? OPD 17 The onus to prove this issue was upon the defendant. This issue has already been decided by Ld. predecessor of this court while deciding the application under Order 7 Rule 11 CPC dt. 15.12.2016 wherein it has been held that defendant no. 2 cannot deny his liability to pay the suit amount ie the amount of invoice only on account of lack of contract between defendant no. 2 and the plaintiff, as per the provision under section 70 of Indian Contract Act.
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 11 of 14Therefore, this issue is decided against the defendant and in favour of plaintiff.
ISSUE No. 66 Whether the plaintiff is entitled to recovery of amount alongwith interest claimed? OPD 18 The onus to prove this issue was upon the plaintiff. By way of present suit, plaintiff has sought recovery of Rs. 1,30,300/- from the defendant. It is averred by the plaintiff that the defendant has applied for International Mobile connection and procured the standard application form containing the terms and conditions regarding the usage of the said connection wherein defendant no. 1 has signed the contract and defendant no. 2 enjoyed the services of plaintiff company. As per the said agreement, plaintiff gave an International Mobile Connection bearing No. 3022657018 to the defendant as per the agreement D-2720273. That the plaintiff company raised invoice on the defendant as per the ledger account but despite raising invoice, defendants have not paid the outstanding amount of Rs. 1,30,300/-. Even legal notice dt. 20.03.2014 was sent by the Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 12 of 14 plaintiff to defendant but to no avail. Per contra, it is averred by defendant no. 2 that no contract was signed by defendant no. 2 with the plaintiff and therefore, defendant no. 2 is not obliged to pay the claimed amount. It is not denied by defendant no. 2 that he had travelled abroad within the stipulated time period. Further, it is not denied by defendant no. 2 that he is the employee of defendant no. 1 and defendant no. 1 entered into the contract with the plaintiff on behalf of defendant no. 2. Thus, it cannot be disputed that defendant no. 2 is liable to pay the outstanding amount as per Section 70 of Indian Contract Act. However, PW 1 admitted in his cross examination that he has not filed the original tariff plan. Further, the plaintiff has filed the copy of itemized bill to prove the liability of the defendant against the plaintiff. The original bill as raised by the original service provider at USA which forms basis of the entire claim raised on defendants and statement of account maintained by the plaintiff have not been filed. Further, it has not been proved that bills were sent to the defendant. Thus the plaintiff has miserably failed to prove that plaintiff is entitled to recovery of Rs 1,30,300/- against the defendants. Thus this issue is also against the plaintiff and in favour of defendants.
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 13 of 14Relief 19 Thus the suit of the plaintiff is dismissed as rejected. No order as to costs.
File be consigned to Record Room.
Digitally signed by NAMRITA NAMRITA AGGARWAL
AGGARWAL Date: 2018.07.19
16:30:09 +0530
Announced in the open ( NAMRITA AGGARWAL)
court on 16.07.2018 SCJ-CUM-RC:PHC:NEW DELHI
Matrix Cellular (International) Services Ltd. & Nitesh Anand & Anr. Page 14 of 14