Bangalore District Court
M/S Matrix Cellular (International vs Manjunath.S on 19 March, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI. BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 19th day of March 2018
Misc. No.204/2015
PETITIONER/S : M/s Matrix Cellular (International
Services Pvt. Ltd.) a company registered
under the Companies Act, 1956 and
having its Branch Office at No.95, 17th B
Main Road, Koramangala, Bangalore560
095 Rep. by its Executive Mr.Uday
Kumar.K
(By Sri.K.N.N Advocate )
V/s.
RESPONDENT/S: Manjunath.S
R/at No.73/A, 31st Cross, 2nd Block
Rajaji Nagar
Bangalore-560 010
(Absent)
ORDER
The Petitioner has filed this Misc. Petition under Order IX Rule 5(2) of CPC to set aside the order and decree dated 2 Misc.204/2015 1.7.2014 passed by this court in OS.3276/2013 and restore the same to the original stage.
2. The petition averments in brief is that the petitioner is a Company carrying out the business of International Mobile Connections in the name and style of Matrix Cellular International Services Pvt. Ltd. The respondent is one of the clients of the petitioner, who had applied for International Mobile Connection and procured the Standard Application Form containing the Terms and Conditions regarding the usage of said connection in Bangalore. After being satisfied about the Terms and Conditions, the respondent agreed to hire a mobile connection for the No.91274552 under the Account code 294979 for usage in Singapore and categorically signed a statement that he has read and understood the terms and conditions of the agreement Form No.M1804829 and agreed to abide by them.
Several bills were raised on the basis of the respondent's usage of the said mobile connections. However, 3 Misc.204/2015 inspite of several requests and demands, the defendant has failed to pay a sum of Rs.6,58,839/ despite the respondent having specifically and expressly agreed to clear all the dues charges for the rental/usage of the mobile connection.
Petitioner had even got a legal notice dated 12.3.2012 to the respondent calling upon him to make the payments along with interest at the rate of 18% p.a. However, the respondent has neither chosen to reply to the said notice nor complied with the demands made in the notice.
The petitioner had filed a OS.3276/2013 under XXXVII Rule 1 and 2 and r/w Section 26 of CPC for recovery of amount of Rs.6,58,839/ due from the respondent on 26.4.2013 before the XLI ACCJ, Bangalore The petitioner through their then counsel Mr.Ashok Bannidini took necessary steps to serve summons to respondent through RPAD. But the summons was not served to the respondent since it was returned as door locked. Thereafter, the petitioner failed to take fresh steps and this court dismissed the said suit.
4 Misc.204/2015 The said non-appearance on part of the petitioner and his counsel were for bonafide reasons. During the said period, one Mr.Avinash Kamath, Deputy Manager of the Company was the Company's authorized representative on record. He was appointed as thus through a board resolution passed on 14.2.2012. Since Mr.Avinash Kamath was transferred to Delhi he was replaced by Mr.Vikas Suresh Kale on 24.3.2013.
When the order pronouncing the dismissal of the suit for the want of prosecution was pronounced on 1.7.2014, the petitioner was in between of appointing a new authorized representative on the account of Mr.Vikas Suresh Kale having resigned from the Company. Finally on 14.8.2014 Mr.Mallikarjun A.U. was appointed as the petitioner's new authorized representative. In subsequent turn of events the then Advocate on record Mr.Ashok Bannidini moved to New Delhi for pursuing his carrier at the Supreme Court.
Due to the said turn of events, there was no one who were following up the matter due to the constant changes in 5 Misc.204/2015 the authorized representatives and advocate on record. By the time the petitioner became aware of the dismissal of the suit, in an immediate succession the authorized representative Mr.Mallikarjun quit the services of the company and therefore a new authorized representative came to be appointed by way of a board resolution passed on 13.11.2014 appointing Mr.Uday Kumar.K as the new authorized representative. He got his authorized letter only on 17.12.2014.
It is very recently a new authorized representative has been appointed on behalf of the petitioner and only lately while perusing the records did the petitioner figure out about the dismissal of the suit. Upon the knowledge of the dismissal of the suit the petitioner obtained a copy of the order sheet.
The petitioner has good case on merits and there is more than a reasonable probability of the petitioner succeeding in the suit filed by him and also in this petition. So, the petitioner prays to allow the petition.
6 Misc.204/2015
3. The respondent has not filed objection to the petition.
4. Advocate for the petitioner has filed I.A. under Section 5 of Limitation Act, 1963 R/w Section 151 of C.P.C. to condone the delay of 230 days in filing the petition.
5. In the annexed affidavit the authorized signatory of petitioner company has contended that the this court on 1.7.2014 had dismissed the OS.3276/2014 based on the ground that the plaintiff in the said suit had failed to apply for fresh summons after the summons had returned unserved on subsequent dates of hearing. The non-appearance on the part of the applicant to take necessary steps were for bonafide reasons. During the said period the authorized representative on record had resigned from the position and new authorized representative was not appointed. The Advocate on record shifted to New Delhi to practice and failed to follow up with the said suit. Very recently he was appointed as authorized 7 Misc.204/2015 representative on behalf of the plaintiff and only lately while perusing the records figure out about the dismissal of the suit. Upon the knowledge of the dismissal of the suit the plaintiff obtained a copy of the order sheet to figure out the reason for dismissal. They have a good case on merits and a likelihood of succeeding in the petition. Hence, prays to allow the application.
6. Inspite service of notice the respondent remained absent.
7. Thereafter the authorized signatory of petitioner's company examined himself as PW1 and got marked six documents at Ex.P.1 to P.6.
8. Heard the arguments of the learned counsel for the petitioner and perused the records of the case.
9. On the basis of the above materials, the following points arise for my consideration.
8 Misc.204/2015 (1) Whether the petitioner made out sufficient grounds to set aside the judgment and decree dated 1.7.2014 passed by this court in OS.3276/2013?
(2) Whether the petitioner made out a case to condone to the delay of 230 days in filing this petition?
(3) What Order?
10. My findings to the above points are as under:
POINT No.1: Do not arise for consideration POINT No.2: In the negative POINT No.3: As per the final order, for the following :
REASONS
11. POINT Nos.1 AND 2:- Since these points are interconnected with each other hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
12. The petitioner filed this petition to set aside the judgment and decree dated 1.7.2014 passed by this court in OS.3276/2013 stating that the suit was dismissed for default 9 Misc.204/2015 as the petitioner failed to take steps to serve the summons on the defendant. Ex.P.2 is c/c of order sheet in OS.3276/2013, which discloses that since the steps were not taken by the plaintiff and hence the suit was dismissed for default.
13. For the sake of convenience, firstly I would like to consider the IA filed by petitioner under Section 5 of the Limitation Act to condone the delay of 230 days in filing this petition. Admittedly, OS.3276/2013 was dismissed for default on 1.7.2014. The petitioner filed this petition on 20.3.2015. So, from the date of dismissal of OS.3276/2013 till filing of this petition there is delay of 260 days. On perusal of the IA under Section 5 of the Limitation Act it is only stated that after the knowledge of dismissal of the suit, he has obtained the order sheet and he came to know the reason for the dismissal. In the application, the petitioner has not stated when he came to know regarding the dismissal of the suit. As per Article 122 of the Schedule of Limitation Act the petition for restoration has to be filed within 30 days 10 Misc.204/2015 from the date of knowledge of dismissal. So, the IA filed for condonation of delay is bald one and it will do not state when he came to know regarding the dismissal and why there is delay of 230 days in filing this petition. So, the petitioner absolutely failed to made out a case for condonation of delay of 230 days.
14. When the petitioner failed to make out a case with regard to the condonation of delay, then the question of considering to set aside the judgment and decree passed in OS.3276/2013 do not arise for consideration. Hence, Point No.1 is answered as do not arise for consideration and Point No.2 is answered in the negative.
15. POINT No.3:- After having answered the Point No.1 as do not arise for consideration and point No.2 in the negative, the petition is liable to be dismissed with costs and hence I proceed to pass the following:
11 Misc.204/2015 ORDER The petition filed by the petitioner is dismissed with costs.
(Dictated to the Stenographer directly on the computer, thereof, is corrected and then pronounced by me in the open court, on this the 19th day of March 2018).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
ANNEXURE I. List of witnesses examined on behalf of :
a) Petitioner's side:
P.W.1 Nazeer
b) Respondent's side: NIL.
II. List of documents exhibited on behalf of :
a) Petitioner's side:
Ex.P.1 Board Resolution
Ex.P.2 C/c of order sheet in OS.3276/2013
Ex.P.3 Copy of resolution dated 7.9.2015
Ex.P.4 Letter of authorization
12 Misc.204/2015
Ex.P.5 Copy of e-mail
Ex.P.6 Certificate u/S 65B of Indian Evidence
Act
b) Respondent/s side : NIL
( BASAVARAJ )
XLI Addl. City Civil Judge,
Bangalore.