Delhi District Court
Matrix Cellular (International) ... vs V.K. Grover on 20 December, 2011
INTHE COURT OF MS. NEHA,CIVILJUDGE03(SOUTH),
SAKET COURT COMPLEX, NEW DELHI
Civil Suit No.20/11
IN THE MATTER OF:
Matrix Cellular (International) Service Pvt. Ltd.,
07, Khullar Farm, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi110030. .......Plaintiff
Versus
V.K. Grover,
112, Kailash Building,
26, K.G. Marg, New Delhi110001 .......Defendant
DATE OF RESERVING THE ORDER : 02.12.2011
DATE OF DECISION : 20.12.2011
ORDER
(On Application for Leave to Defend) This order shall dispose off application of the defendant under Order 37 rule 3 CPC seeking leave to defend.
Defendant has filed application for leave to defend on the following grounds:
(i) The plaintiff has not come to the court with clean hands.
(ii)Suit has been instituted and filed by a competent person. 1
(iii)Plaintiff has concealed material facts as at the time when the defendant had applied for sim card for USA, he was explained that he will have 300 minutes per month to talk and any talk over and above 300 minute will be billed as per application rates. The defendant has challenged the billing and has submitted that the billing is improper and defective.
(iv) On account of defective billing, the defendant has suffered losses which can not be compensated.
The plaintiff has filed reply to application for leave to defend and has submitted that the agreement is not disputed by the defendant. Defendant has tried to mislead that her usage was not chargeable and that it was not free service.
On merits it is submitted that Sh. Chander Shekhar is authorized to sign, verify, institute, prosecute and do all things necessary for proper prosecution of the present suit. The defendant had taken 60$ tariff plan which includes 600 free minutes toward incoming and local calls while in USA but these free minutes are not available for international outgoing calls. The defendant has been billed as per the usage. The present suit has been filed on the basis of customer agreement form entered into between the plaintiff and the 2 defendant and therefore suit is maintainable under Order 37 CPC.
I have perused the material on record and carefully considered the submissions of Ld. counsel for the parties. Before deciding application for leave to defend, it is necessary to discuss the law on this point.
The defendant along with application for leave to defend has placed on record copy of few emails/communications between the plaintiff and the defendant wherein the defendant has complained against the billing done by the plaintiff. The defendant through the e mails has complained against the benefit of free 600 minutes being not given to the defendant.
The plaintiff has placed on record copy of GPA, certificate of incorporation, original customer agreement form, ledger account and copy of legal notice with tariff plan accepted by the defendant. Along with the plaint plaintiff has not itemized bill of the connection taken by the defendant. Indian Telegraph Rules imposes mandatory duty upon the service provider to provide copy of the itemized bill and only after supplying copy of itemized bill the amount become payable. Hon'ble High Court of Bombay in Vodafone Essar Ltd vs Raju Sud, decided on 22 November, 2011 in 3 SUMMARY SUIT NO. 3264 OF 2009 has observed that:
"Under the provisions of the Indian Telegraphs Rules 1951, and more particularly Rule 439 thereof, the charges for usage become payable on presentation of a bill. It is necessary for the service provider that the billing system of the licensees should generate the billing information, in adequate details, to ensure satisfaction to the customer about the genuineness of the bill. The bill represents the true extent of the service actually provided by the service provider and also the details about the service conditions, which are available to the subscribers. Some of the purposes of issuing or obtaining the telephone/mobile bills through hard copy, interalia, are to (a) understand and satisfy oneself about the genuineness of the bill; (b) facilitate making of payment; (c) verify the charges incurred by the consumer and (d) monitor usage or expenditure by consumer."
In the present suit, the plaintiff has not placed on record any 4 document to show that the copy of the itemized bill was supplied to the defendant before filing of the present suit. Further the defendant in the present suit has also challenged the billing done by the plaintiff as the dispute has been raised with respect to the free minutes.
Ld. Counsel for the defendant has argued that it was explained that free minutes will be applicable on incoming and outgoing calls whether local or international. However Ld. Counsel for the plaintiff submits that the as per the tariff plan adopted by the defendant, the free minutes was applicable only on incoming calls and only local calls and not on international outgoing calls. Perusal of the tariff plan which is annexure P/5 shows that it was mentioned in the tariff adopted by the defendant that "free minutes are applicable on incoming and local calls only while in US and not on international outgoing calls."
The contention of the defendant that 600 minutes was provided as per the plan does not derive much substance as the tariff plan which is annexure P/5 was agreed by the defendant.
However in view of the fact that the plaintiff has not placed on record the itemized bill with the plaint nor has placed on record any 5 document to show that copy of the bill was provided to the defendant before filing of the suit and as per Indian Telegraph Rules it is mandatory duty of the service provider to provide copy of the itemized bill to the consumer and only thereafter the amount of the bill becomes payable. Rule 439 of the Indian Telegraph Rules, 1951 reads as under:-
"439. Charges when payable Charges for calls in message rate or measured rate system shall become payable on presentation of a bill therefor. The periods for which bill shall be prepared and the dates by which they shall be payable shall be fixed by the Telegraph Authority."
In view of the fact that the copy of itemized bill was not supplied to the defendant which is in contravention to the Telegraph Rules, the application for leave to defend is allowed. The defendant is granted unconditional leave to defend.
Pronounced in the open court on 20.12.2011 (NEHA) Civil Judge03(South) Saket, New Delhi.
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