Delhi District Court
Matrix Cellular (International) ... vs Manan Suri on 7 August, 2012
IN THE COURT OF MS. ARCHANA BENIWAL
CIVIL JUDGE05 (SOUTH), SAKET COURTS, NEW DELHI
CS No. 353/11
Unique Case ID No. 0240C0133272011
Matrix Cellular (International) Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110030. ...PLAINTIFF
Versus
Manan Suri
S/o Parmod Suri
R/o B18, Gulmohar Park, New Delhi.
Also At:
D3, SectorII, Balco Nagar,
Korba, Chattishgarh. ...DEFENDANT
Date of institution of suit : 30.05.2011
Date of filing of application : 15.09.2011
Date of reserving order : 27.07.2012
Date of pronouncement : 07.08.2012
Suit No. 353/11 Page 1 of 12
ORDER
1. By way of this order I shall dispose off the applicant's/defendant's application for unconditional leave to defend.
Applicant's/defendant's case in brief:
2. It is submitted on behalf of the applicant/defendant that the defendant has no liability towards the plaintiff with respect to the money claimed in the suit. The present suit is not maintainable under Order 37 of the CPC as it does not fall within the purview of Order 37 Rule 1 (2) of the CPC. It is further submitted that at the time of approaching the plaintiff company, the sales executive of the plaintiff had informed the applicant/defendant that the incoming calls and GPRS service on his connection shall be entirely free and only the outgoing international calls shall be charged. A tariff plan schedule regarding the charges payable was handed over to the applicant/defendant. After obtaining the said mobile connection number France/0684561204 (Account Code No. 324894) on 20.09.2010, the applicant/defendant had signed a form bearing No. 115968 and also handed over some documents as asked by Suit No. 353/11 Page 2 of 12 the plaintiff.
3. It is further submitted that the said sales executive had not informed the applicant/defendant regarding the charges payable on GPRS services as well as on text SMS and the charges payable on the GPRS services are not mentioned in the tariff schedule. During the entire period, the applicant/defendant made only one international call that too for a period of 2 seconds for which plaintiff has charged a sum of Rs. 56.47/ and also two text SMS were sent by the applicant/defendant. A sum of Rs.5,000/ was also deposited as security with the plaintiff.
4. It is further submitted that the GPRS services were used by the applicant/defendant as he was under the bona fide impression that the said services for Internet browsing are free of cost. The charges payable on GPRS services were not mentioned in the tariff schedule clearly. Thereafter the plaintiff, without informing the applicant/defendant, disconnected the aforesaid connection on 29.09.2010 which resulted in mental harassment to the applicant/defendant and his family members. Upon being enquired by the father of the applicant/defendant on this aspect, he was informed that a sum of Rs.42,432.22/ was being claimed Suit No. 353/11 Page 3 of 12 as charges for the alleged services of the mobile connection and, therefore, the said services were disconnected by the plaintiff on the aforesaid mobile number.
5. It is further submitted that this Court has no territorial jurisdiction as the applicant/defendant had gone to France on 19.09.2010 and is living there since then. It is further submitted that in the alleged ledger account, the plaintiff has charged arbitrary and illegal expenses and also wrongly appropriated a sum of Rs.5,000/ deposited as security with the plaintiff. Also the plaintiff has not provided any details as well as any document regarding the alleged dues of the aforesaid mobile connection. Further, the applicant/defendant had sent a legal notice dated 18.10.2010 which was duly received and replied to by the plaintiff vide its reply dated 15.11.2010 and the same has been concealed by the plaintiff. Plaintiff's case in brief:
6. It is submitted on behalf of the plaintiff that the applicant/defendant does not deny using the said mobile connection.
Neither the signatures on the agreement form nor on the tariff sheet Suit No. 353/11 Page 4 of 12 mentioning the charges are disputed by the applicant/defendant nor the usage is denied. Further, no document showing the power of attorney in favour of Sh. Pramod Suri has been placed on record by the applicant/defendant. It is submitted that the present suit is based upon customer agreement form (CAF), tariff plan duly signed by the applicant/defendant at the time of taking the said connection. The terms and conditions of the CAF and the charges thereto along with the tariff plan sheet were understood and signed by the applicant/defendant, wherein it specifically mentions the call rates, SMS and GPRS charges. It was due to default in payment by the applicant/defendant that the said connection was disconnected. The security deposit of Rs.5,000/ has been adjusted against the outstanding amount and is shown in the account ledger filed by the plaintiff. It has denied that the services offered by the plaintiff except for incoming calls were free. Also, the charges of GPRS and SMS have been categorically and clearly mentioned in the tariff plan sheet. The tariff plan sheet clearly states that charges on the GPRS services are upto 0.04$/10KB or as applicable by the network. Further, the applicant/defendant has been served and approached on the address as provided by himself on the customer agreement form, therefore, this Suit No. 353/11 Page 5 of 12 Court has got jurisdiction over the said matter. It is further submitted that the detailed itemized bill was already sent to the applicant/defendant and the same is evident by the applicant's/defendant's own admission, wherein he has stated that "the plaintiff company has charged a sum of Rs.56.47/ for a two second call made by the defendant". Receiving of any legal notice as alleged by the applicant/defendant is denied by the plaintiff.
7. The foremost defence raised by the applicant/defendant is that at the time of approaching the plaintiff company, the sales executive of the plaintiff had informed the applicant/defendant that the incoming calls and GPRS service on his connection shall be entirely free and only the outgoing international calls shall be charged. Further, the said sales executive had not informed the applicant/defendant regarding the charges payable on GPRS services as well as on text SMS and the charges payable on the GPRS services are not mentioned in the tariff schedule. It is further submitted that the GPRS services were used by the applicant/defendant as he was under the bona fide impression that the said services for Internet browsing are free of cost. The charges payable Suit No. 353/11 Page 6 of 12 on GPRS services were not mentioned in the tariff schedule clearly. The applicant/defendant does not deny that a tariff plan schedule regarding the charges payable was handed over to him. The applicant/defendant does not deny his signatures on the tariff plan schedule. Any person signing a document is expected to have read and understood the contents thereof. Thus, the aforesaid defence is without any merit as the applicant/defendant has not denied his signatures on the tariff plan schedule wherein it is clearly mentioned in the disclaimer that GPRS services are chargeable upto 0.04 $/10 KB or as applicable by the network.
8. Another defence raised by the applicant/defendant is that in the alleged ledger account, the plaintiff has charged arbitrary and illegal expenses and also wrongly appropriated a sum of Rs.5,000/ deposited as security with the plaintiff. Also the plaintiff has not provided any details as well as any document regarding the alleged dues of the aforesaid mobile connection. As regards this issue, the applicant/defendant has not produced any documentary evidence in support of his defence. Further, a perusal of the itemized bills and the account ledger of the Suit No. 353/11 Page 7 of 12 applicant/defendant clearly reflects the services provided by the plaintiff against which the plaintiff has claimed the amount due in the present suit. Also the said account ledger of the applicant/defendant reflects that a sum of Rs.5,000/ has been adjusted against the amount due from the plaintiff. Plaintiff has never denied receiving the said sum of Rs.5,000/ as security or adjusting the same against the amount due. Also applicant/defendant has submitted that during the entire period, the applicant/defendant made only one international call that too for a period of 2 seconds for which plaintiff has charged a sum of Rs.56.47/ and also two text SMS were sent by the applicant/defendant. This Court is of the view that the plaintiff has in fact provided the details regarding the alleged dues of the aforesaid mobile connection as the applicant/defendant could not have known the charges for the call made by him unless he had received a copy of the itemized bill. Hence, in view of this Court, the aforesaid defence is also not a good defence.
9. Another defence raised by the applicant/defendant is that this Court has no territorial jurisdiction as the applicant/defendant had gone to France on 19.09.2010 and is living there since then. As regards this Suit No. 353/11 Page 8 of 12 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 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 also liable to fail.
10. Another defence raised by the applicant/defendant is that the present suit is not maintainable under Order 37 of the CPC as it does not fall within the purview of Order 37 Rule 1 (2) of the CPC. 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 20.09.2010 and the tariff plan schedule duly signed by the applicant/defendant, which constitute Suit No. 353/11 Page 9 of 12 written contract for the purpose of the aforesaid provision. Accordingly, the suit is maintainable under the provisions of Order 37 of the CPC.
11. 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.
12. 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.
13. 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 Suit No. 353/11 Page 10 of 12 unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he 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."Suit No. 353/11 Page 11 of 12
14. Placing reliance on the aforesaid principles laid down by the 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.
15. The application stands dismissed.
16. 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.42,228/ (Rupees Forty Two Thousand Two Hundred and Twenty Eight only) along with pendentelite interest at the rate of 09% per annum and future interest at the rate of 06% per annum.
17. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court on 07.08.2012.
(Archana Beniwal) Civil Judge05 (South) 07.08.2012 Suit No. 353/11 Page 12 of 12