Bangalore District Court
M/S Matrix Cellular (International) vs Sri.Hareesh Ramakrishna on 18 February, 2021
C.R.P. 67] Government of Karnataka
Form No. 9
(Civil) TITLE SHEET FOR JUDGEMENTS IN SUITS
Title Sheet for
Judgment in IN THE COURT OF THE SMALL CAUSES AT
BENGALURU (SCCH13)
Dated this the 18th day of February, 2021
Present: Smt.Parveen A Bankapur,
B.Com.LL.B.(Spl),
XVI ADDL. JUDGE,
Holding concurrent charge of
II ADDL. JUDGE,
Court of Small Causes,
BENGALURU.
S.C.No.85 of 2017
PLAINTIFF: M/s Matrix Cellular (International)
Services Pvt.Ltd.
A company registered under the
Companies Act, 1956 & having its
Branch Office at No.95,
17th B Main Road, Koramangala,
Bengaluru560 095
Reptd.by its Executive, Mr.Nazeer.
(By Sri.Kashyap.N.Naik, Advocate)
.vs.
DEFENDANT/S : Sri.Hareesh Ramakrishna,
aged about 52 years,
S/o Ramakrishna,
R/a No.379, 42nd Cross,
8th Block, Jayanagara,
Bengaluru560 082.
(By Sri.Ashok Kumar.S., Advocate)
o0o
SCCH13 2 SC No.85/2017
Date of institution of the suit: 9.1.2017
Nature of the suit (suit on
pronote, Money suit
suit for declaration and
possession
suit for injunction, etc.,):
Date of the commencement of 24.04.2018
recording of the evidence:
Date on which the Judgment 16.02.2021
was pronounced:
Year/s Month/s Days
Total duration: 04 01 07
Additional Judge
*****
JUDGMENT
This suit is filed by the plaintiff for recovery of Rs.15,296/ with current and future interest @ 18% per annum decreeing the suit of the Plaintiff.
2. Brief averments of the plaint are as under:
The Plaintiff is a company involved in the field of telecommunications and carrying out business of providing SCCH13 3 SC No.85/2017 International Mobile Connections. The plaintiff is the leading telecom solutions provider for Indian travelers going abroad and through its commercial tieups with local telecommunication service providers abroad allows Indians travelling abroad to use a local SIM card of the country to which they are travelling thereby, saving them from having to pay international roaming charges that would be chargeable on Indian SIM cards being used abroad. Upon signing of a customer agreement form by potential customers, the plaintiff provides its services and thereafter raises bills/invoices in respect of the services consumed by the customers. It is its case, that the defendant had applied for International Mobile connection (mobile SIM card) in Bengaluru and procured the standard Customer Agreement form containing the terms and conditions regarding the usage of said connections, after being satisfied about the terms and conditions, the defendant agreed to hire a mobile connection and to abide by the terms and conditions by signing the agreement. The agreement continues to be in force until the SCCH13 4 SC No.85/2017 defendant has cleared all his dues and all amounts payable to the plaintiff for the services already rendered by the plaintiff.
Based on the number of calls made, messages sent and mobile data consumed by the defendant during his time abroad, certain bills were periodically raised on the defendant and sent to him electronically and in spite of several requests and reminders, the defendant failed to pay a sum of Rs.15,296/. Thereafter, the plaintiff got issued legal notice dated:
21.02.2015 calling upon him to pay the outstanding amount and it was duly served upon the defendant. However, the defendant has neither replied to the notice nor complied with the demands made in the notice. Hence, the plaintiff has been constrained to file this suit for recovery of money.
3. On issuance of summons, duly served on the Defendant, he appeared through counsel and filed his written statement contending that the present suit is not maintainable as barred by law of limitation. He has denied the allegations of the plaintiff that the suit filed for recovery of Rs.15,296/ being SCCH13 5 SC No.85/2017 the sum payable by the defendant for international mobile services rendered under the agreement and contended that the present bill and code mentioned by the plaintiff is created for the purpose of this case. He has denied the allegation that the defendant had applied for an International Mobile Connection in Bengaluru but contends that one person approached him to buy the simcard if an amount of security deposit of Rs.30,000/ hence, he issued cheque for Rs.30,000/ and the same will be returned at the time of returning the simcard and hand set. He has returned the hand set and simcard within time as agreed but instead of returning the cheque, the plaintiff company encashed the same. They never returned the cheque or cheque amount till today. After returning the simcard and hand set to the agent, he agreed to return the security amount but instead of several attempt made to contact the said agent, he never picked the phone and he absconded. He has contended that the bill dated: 24.11.2012 & 4.12.2012 and account ledger are created for the purpose of this suit. He has SCCH13 6 SC No.85/2017 also denied that the plaintiff issued legal notice defendant on 21.2.2015, he never received any legal notice and the plaintiff is called upon to put strict proof of the same. The defendant never received any notice and he had no any dues to the plaintiff company and prays to dismiss the suit.
4. In order to prove its case, the plaintiff has examined its Authorized Signatory as PW.1 and got marked documents at Ex.P.1 to 9, and closed its side. Defendant did not entered the witness box to lead his evidence.
5. Heard counsels at length and perused the evidence and records.
6. The points which arises for my consideration and determination in this case are ;
1. Whether the plaintiff proves that they provide the international mobile connection to the defendant ?
2. Whether the plaintiff proves that defendant has been signed on SCCH13 7 SC No.85/2017 the standard Customer Agreement form?
3. Whether the plaintiff is entitled for the relief as prayed for?
4. What order or decree?
7. My answer to the above points are as follows: Point No.1 and 2 In the affirmative Point No.3 In the partly affirmative Point No.4 As per final order for the following : REASONS
8. POINT No.1 to 3: Since these points are interlinked with each other, they are taken up together for consideration in order to avoid repetition, as here under.
In order to prove the above points for consideration, the plaintiff examined its Authorized Signatory as PW.1 and got marked Ex.P.1 is the Authorization letter, Ex.P.2 & 3 are the original agreement form along with annexures to the agreements, Ex.P.4 is the postal receipt, Ex.P.5 is the legal notice dated:21.2.2015, Ex.P.6 is the bill dated:6.11.2012;
SCCH13 8 SC No.85/2017 Ex.P.7 is the bill dated:8.11.2012 and Ex.P.8 is the bill dated:15.11.2012 and Ex.P.9 is the Account Ledger.
9. On going through the evidence of PW.1, he has reiterated in his affidavit evidence in consonance with the documents placed on record. It is deposed by the PW1 that, the plaintiff company is the leading telecom solutions provider for Indian travelers going abroad and through its commercial tieups with local telecommunication service providers abroad allows Indians travelling abroad to use a local SIM card of the country and the defendant had applied for international Mobile connection and procured standard Customer Agreement Form containing the terms and conditions as per Ex.P.2 & P.3 and the defendant also signed the same having accepted the said terms and conditions. It is further deposed that, the plaintiff, based on the number of calls made, messages sent and mobile data consumed by the defendant during his time abroad, raised certain bills periodically on the defendant as per Ex.6 to P,8 and SCCH13 9 SC No.85/2017 sent to him electronically and in spite of several requests and reminders, the defendant failed to pay a sum of Rs.15,296/.
10. It is further deposed that, plaintiff got issued legal notice on 21.02.2015 as per Ex.P.5 calling upon the defendant to pay the outstanding amount. It is further deposed that the defendant is liable to pay a sum of Rs.15,296/ with interest.
11. On issuance of summons, duly served on the Defendant, defendant appeared through counsel and filed his written statement denying all the averments made in the plaint as false, baseless and imaginary and plaintiff is put to strict proof of the same. It is contended that present suit is not maintainable as barred by law of limitation. He has denied the allegations of the plaintiff that the suit filed for recovery of Rs.15,296/ being the sum payable by the defendant for international mobile services rendered under the agreement and contended that the present bill and code mentioned by the plaintiff is created for the purpose of this case. He has denied the allegation that the defendant had applied for an SCCH13 10 SC No.85/2017 International Mobile Connection in Bengaluru but contends that one person approached him to buy the simcard for an amount of security deposit of Rs.30,000/ hence, he issued cheque for Rs.30,000/ and the same will be returned at the time of returning the simcard and hand set. He has returned the hand set and simcard within time as agreed but instead of returning the cheque, the plaintiff company encashed the same. They never returned the cheque or cheque amount till today. After returning the simcard and hand set to the agent, he agreed to return the security amount but instead of several attempt made to contact the said agent, he never picked the phone and he absconded. He has contended that the bill dated:
24.11.2012 & 4.12.2012 and account ledger are created for the purpose of this suit.
12. The counsel for defendant has cross examined the PW1. But nothing has been elicited in his crossexamination. In the written statement the defendant has taken several contention and defence, but failed to prove such contentions.
SCCH13 11 SC No.85/2017 He has taken main contention that, at the time of buying the simcard he deposited Rs.30,000/ as security amount by way of cheque and same will be returned at the time of returning the simcard and hand set, but the plaintiff has not returned the security amount after return of hand set and simcard as agreed, the plaintiff company encashed the same. They never returned the cheque or cheque amount till today.
13. Defendant except denying in his written statement he has not entered into the witness box to rebut the contentions of the plaintiff. Hence, adverse inference can be drawn against him as per the ratio laid down by the Hon'ble Supreme Court of India 1999 SAR (Civil) page 431 (Iswar Bhai C. Patel @ Bachu Bhai Patel V/s. Harihar Behera and another) and 1999 SAR 442 (Vidhydhar V/s. Mankikrao and another) wherein it is as under.
"Civil Appeal No.1417/1982; (From the judgment and other dated 8.11.1978 of the Orissa High Court in FA.No.147/1970); decided on 16.3.1999 SCCH13 12 SC No.85/2017 D. Evidence Act, 1872Sec.114, Illustration (g) Nonentering into witness box and abstaining of a party from presenting himself for crossexamination Entitles the Court to draw adverse presumption against such party on the basis of principles contained in Illustration (g) of Sec. 114 E. Evidence Act, 1872Sec.114Appellant had abstained from the witnessNo statement on oath in support of his pleading set out in the WS.An adverse presumption has to be drown against him."
In 1999 Supreme Appeals Reporter (CIVIL) 442 (Vidhyadhar V/s. Manikrao and another) it is held as under:
A. Evidence Act, 1872 Sec. 114 Illustration (g) Adverse presumptionDrawing ofA party to suit not appearing into witness box and stating his own case on oath and not offering himself to be crossexamined by the other sidePresumption that the case set up by such party is not correct would arise against him." Hence the contentions of written statement of the defendant does not hold any water. On the other hand the plaintiff has proved by his oral and documentary evidence that the defendant has taken international mobile connection by signing customer agreement and not paid bills of mobile data as he used in abroad.
SCCH13 13 SC No.85/2017
14. Accordingly, on the basis of all the materials, the Plaintiff has placed enough materials to show that Defendant is due of Rs.15,296/ with interest and expense of legal notice, but failed to pay the amount. In view of this I hold, the suit of the plaintiff has to be decreed with cost. In the plaint, plaintiff has claimed future interest at the rate of 18% per annum is very high and exorbitant. The amount claimed by the plaintiff is due amount as the defendants is purchaser of international sim card and mobile sets. Hence, by considering the present days loan interest and FD rate of interest in the nationalized banks, it is just and proper that the plaintiff is only entitled interest at the rate of 12% p.a., In view of all these reasons, I answer points No.1 and 2 in the affirmative and point No. 3 Partly in the Affirmative.
15. POINT NO.4: In view of my findings on point No.1 to 3 as above, proceed to pass the following;
: ORDER :
Suit of the plaintiff is decreed against the defendants.
SCCH13 14 SC No.85/2017 The plaintiff is entitled to recover the sum of Rs.15,296/ from the defendant with costs and future interest at 12% p.a. from the date of filing of plaint till the date of realization.
Draw decree accordingly.
(Dictated to the Stenographer and transcribed by her and then corrected by me and pronounced in the open court, on this the 18th day of February, 2021.) (Smt.Parveen A Bankapur) C/c II ADDL. JUDGE, Court of Small Causes Bengaluru.
ANNEXURE Witnesses examined on behalf of the plaintiff :
PW1 Mohan Kumar.P. Witnesses examined on behalf of the defendant:
None Documents exhibited on behalf of the plaintiff:
Ex.P.1 Authorization letter
Ex.P.2 & Original agreement form along with
P.3 annexures to the agreements.
P.3(a) Condition No.7 in the agreement
SCCH13 15 SC No.85/2017
Ex.P.4 Postal Receipts
Ex.P.5 Legal notice dated: 21.2.2015
Ex.P.6 Bill dated: 6.11.2012
Ex.P.7 Bill dated: 8.11.2012
Ex.P.8 Bill dated: 15.11.2012
Ex.P.9 Account Ledger
Defendant's Nil
(Smt.Parveen A Bankapur,)
C/c II ADDL. JUDGE,
Court of Small Causes
Bengaluru.
SCCH13 16 SC No.85/2017
ORDER
(Vide separate judgment)
Suit of the plaintiff is decreed against the defendants.
The plaintiff is entitled to recover the sum of Rs.15,296/ from the defendant with costs and future interest at 12% p.a. from the date of filing of plaint till the date of realization.
Draw decree accordingly.
(Smt.Parveen A Bankapur,) C/c II ADDL. JUDGE, Court of Small Causes, Bengaluru.
SCCH13 17 SC No.85/2017
DECREE
S.C.C.H.NO.13
IN THE COURT OF SMALL CAUSES COURT, AT BANGALORE.
S.C.No.85 of 2017 PLAINTIFF: M/s Matrix Cellular (International) Services Pvt.Ltd.
A company registered under the Companies Act, 1956 & having its Branch Office at No.95, 17th B Main Road, Koramangala, Bengaluru560 095 reptd.by its Executive, Mr.Nazeer.
(By Sri.Kashyap.N.Naik, Advocate) .vs. DEFENDANT/S : Sri.Hareesh Ramakrishna, aged about 52 years, S/o Ramakrishna, R/a No.379, 42nd Cross, 8th Block, Jayanagara, Bengaluru560 082.
(By Sri.Ashok Kumar.S., Advocate) o0o CLAIM: Suit filed on prays for directing defendant to pay a sum of Rs. with interest % , costs and such other reliefs.
SCCH13 18 SC No.85/2017
This suit coming on for final disposal before
Smt.Parveen A Bankapur, C/c II ADDL.JUDGE, CSC,
Bengaluru, in the presence of Sri/Smt
Advocate, for the plaintiff and Sri/Smt Advocate, for the defendant.
ORDER Suit of the plaintiff is decreed against the defendants.
The plaintiff is entitled to recover the sum of Rs.15,296/ from the defendant with costs and future interest at 12% p.a. from the date of filing of plaint till the date of realization.
And it is further ordered and decreed that defendant do pay to the plaintiff sum of Rupees being the amount of costs incurred in this suit, as by memorandum annexed with interest thereon at per cent per annum from this date unto the date of realization.
Given under my hand and the seal of the Court this Day of 2021.
SCCH13 19 SC No.85/2017
ASST. REGISTRAR,
COURT OF SMALL CAUSES,
Bengaluru.
MORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee __________________________ Total of Rs. ________________________ Amount payable by the defendant to the plaintiff is Rs.
Decree Drafted Scrutinised by Decree Clerk SHERISTEDAR ASST. REGISTRAR, COURT OF SMALL CAUSES, BENGALURU.
SCCH13 20 SC No.85/2017