Delhi District Court
Matrix Cellular (International) ... vs Hemant Bhagat on 31 July, 2018
Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat
Suit no. 82904/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURT, NEW DELHI
In the matter of:
Suit no. 82904/16
CNR No. DLST030001932013
Matrix Cellular (International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri
Mandi Road, Mehrauli
New Delhi ...............Plaintiff
Versus
Hemant Bhagat
H.No. N10/19, DLF PhII,
Gurgaon, Haryana122002 ..............Defendant
Date of Institution : 16.09.2013
Date of Pronouncement : 31.07.2018
Decision : Dismissed
SUIT FOR RECOVERY OF AMOUNT OF RS. 43,650.07/ (RUPEES
FORTY THREE THOUSAND SIX HUNDRED FIFTY AND SEVEN
PAISA ONLY) UNDER ORDER XXXVII CPC
Present: None.
EX PARTE JUDGMENT
1.This suit (initially filed as a summary suit) has been filed by the plaintiff for recovery of a sum of 43,650.07/ (Rupees Forty Three Thousand Six Hundred Fifty and Seven Paisa only) from the defendant towards the usage of SIM/Calling cards services rendered by the plaintiff.
Page no. 1 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16
2. By virtue of the plaint, it has been submitted that the plaintiff is a private limited company providing country specific SIM/ calling cards to travelers going from India to places around the world. Defendant had applied to the plaintiff for international SIM/calling card and had signed the written contract after reading the terms and conditions therein. On that basis, plaintiff had issued a SIM Card (SIM No. 176147044471) bearing mobile no. 07550068506 and a SIM card (SIM No. 8941010732040304718) bearing mobile no. 0795716525 under the agreement nos. M1421834 and M1543552. As per the terms and conditions of the contract, monthly bills were raised as per the agreed tariff plan. Defendant availed services of plaintiff from 01.06.2011 to 18.06.2011 and from 12.06.2011 to 17.06.2011. As per the accounts maintained by the plaintiff company, an outstanding amount of Rs.43,650.07/ is due and payable by the defendant towards services provided by the plaintiff company. Bills dated 15.06.2011 and 30.06.2011, remain unpaid by the defendant. Despite being aware of the admitted outstanding amount, and despite repeated requests and reminders, the defendant has not paid the same. Legal notice dated 06.12.2012 was also sent to the defendant. Despite service, till date the outstanding liability has not been cleared. Hence, this suit.
3. By way of statement on 24.08.2017, suit was converted into ordinary suit. Notice of the suit was served by way of publication. However, defendant failed to appear and vide order dated 18.01.2018, defendant was proceeded against exparte.
4. In exparte evidence, plaintiff examined its authorized Page no. 2 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16 representative, Mr. Binod Kumar Sinha as PW1 and filed his evidence by way of affidavit Ex.PW1/1. He also relied upon the following documents:
(i) Ex. PW1/A (OSR) i.e. copy of certificate of incorporation dated 20.01.2014;
(ii) Ex. PW1/A1 (OSR) i.e. copy of resolution dated 20.01.2014;
(iii) Ex. PW1/B i.e. original agreement form;
(iv) Ex. PW1/C i.e. tariff plan;
(v) Ex. PW1/D i.e. ledger account;
(vi) Mark A (colly) i.e. copy of passport, ticket of the defendant;
(vii) Mark B (colly) i.e. copy of itemized bill; and
(viii) Mark C (colly) i.e. copy of legal notice and postal receipt.
5. Thereafter, vide a separate statement, plaintiff's evidence was closed.
6. Exparte arguments on behalf of the plaintiff were heard and the record carefully perused.
7. It is an elementary rule of civil litigation in this country that a plaintiff must stand or fall on the strength of his own case.1 Therefore, in the present case as well, the plaintiff has to prove its case and stand on its own legs. It cannot be entitled to a decree merely because the defendant failed to appear or defend her case. In light of this settled position, let us now analyze whether the plaintiff has been able to establish its case or not.
8. In order to prove its case, plaintiff has relied on Ex. PW1/B i.e. the original agreement form, Ex. PW1/C i.e. the tariff plan, Ex. PW1/D i.e. ledger account as well as Mark B (colly) i.e. copy of itemized bill.
1 Ganpatlal v. Nandlal Haswani, AIR 1998 MP 209; Harish Mansukhani v. Ashok Jain 2009 (109) DRJ 126 (DB) Page no. 3 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16 Defendant did not step into the witness box nor did he crossexamine the plaintiff in order to dispute his signatures on Ex. PW1/B and Ex. PW1/C. Therefore, it is proved that a contractual relationship was entered into between the plaintiff and the defendant as per the terms and conditions contained in Ex. PW1/B and Ex. PW1/C.
9. The plaintiff is seeking recovery of Rs.43,650/ from the defendant. The burden to prove the quantum of outstanding amount is on the plaintiff. In discharge thereof, plaintiff has placed on record certified copy of statement of account as Ex. PW1/D as well as copy of itemized bills as Mark B (colly).
10. It is noted that as per Section 34 of Indian Evidence Act, entries in books of account, including those maintained in an electronic form, regularly kept in the course of business are relevant, whenever they refer to a matter into which the Court has to inquire; but such statements are not alone sufficient evidence to charge any person with liability. While elaborating upon the scope of this section, it has been held in the case of Arakkam Narajanan v. M/s Indian Handloom Traders & Ors.2 that, and I quote:
"This section makes it clear that all entries in the books of account regularly kept in the course of business are relevant. But it must be shown that the accounts are in the books, the book must be book of accounts, and the accounts must be regularly kept in the course of business. The entries [a]re however not by themselves sufficient to charge any person with liability. It is a piece of evidence which the Court may take into consideration for determining whether the amount referred to therein [w]as in fact paid by the plaintiff to the defendant. The regular proof of books and 2 1999 (3) Civil Court Cases 68 (Ker).
Page no. 4 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16 accounts requires that the clerks who have kept those accounts, or some person competent to speak to the facts, should be called to prove that they have been regularly kept and to prove their general accuracy. The quantum of evidence required for corroboration would vary in each case".
11. In Chandradhar v. Gauhati Bank,3 also referred in the case above, the Hon'ble Supreme Court has observed as follows:
"It is clear from a bare perusal of the section that no person can be charged with liability merely on the basis of entries in books of account, even where such books of accounts are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of account in order that a person may be charged with liability thereunder, except where the person to be charged accepts the correctness of the books of account and does not challenge them. In the present case, however, the appellant did not accept the correctness of the books of account."
12. Further, in J.K. Synthetics Ltd. v. Dynamic Cement Traders,4 it has been held that, and I quote:
".... In view of Section 34 of Indian Evidence Act, 1872, a mere entry in the statement of account is not sufficient to fasten any liability and entries in the statement of account have to be proved by means of the documents/vouchers of the transaction.....The object of law is that mere entries should not be sufficient to fasten the monetary liability unless documents of transaction (which would be invoices, challans and receipts of supply of goods etc.) are filed and exhibited in support of the entries made."
13. Furthermore, as per the Harpal Singh @ Chhota v. State of 3 AIR 1967 SC 1058.
4 2012(6) ILR (Del) 398.
Page no. 5 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16 Punjab JT5 case, printed copy of computer generated call details were held to be inadmissible in evidence in the absence of Section 65 B certificate, and I quote:
"As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65 B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. (emphasis supplied)."
14. Further, as per the Anvar P. V. v. P. K. Basheer and others 6 and I quote:
"An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65 B are satisfied. Thus, in the case of CD, VCD, chip etc. the same shall be accompanied by the certificate in terms of Section 65 B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record is inadmissible.(emphasis supplied)"
15. Analyzing the facts of the present case in light of the aforesaid legal position, accounts have not been proved in terms of the Section 34 of the Indian Evidence Act. The books of account of the plaintiff have not been produced. No clerk who has maintained these accounts has been called upon to prove that the books of the accounts were regularly kept and that they are accurate. It is not proved that the accounts are written in a book and that book is a book of account and that account was regularly kept in the course of business. Furthermore, Ex. PW1/D is a computer printout, and in the absence of certificate under section 65B of Indian 5 J T 2016 (11) SC 194 6 (2014) 10 SCC 473 Page no. 6 of 7 Matrix Cellular (International) Services Pvt. Ltd. v. Hemant Bhagat Suit no. 82904/16 Evidence Act, the statement of accounts being electronic record, cannot be admitted in evidence. Similarly, call record Mark B (colly) being computer generated call record, is not admissible in evidence. Thus, Ex. PW1/D and Mark B (colly) are inadmissible in evidence and cannot be relied upon to determine the of liability of the defendant.
16. Plaintiff has failed to lead any other documentary or ocular evidence to prove any outstanding obligation of the defendant under the contract. Onus was on the plaintiff to establish his case and he has failed to do so.
17. In light of the aforesaid discussion, relief sought cannot be granted to the plaintiff. The suit is therefore, dismissed.
18. No order as to costs.
19. Decree sheet be prepared accordingly.
20. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 31.07.2018 Announced by me in the open court today on 31.07.2018. All the seven pages of this judgment have been checked and signed by me.
Digitally signed (NEHA PRIYA)
NEHA by NEHA
PRIYA Civil Judge01(South)
Date: Saket Courts/New Delhi
PRIYA 2018.08.01
15:36:05 +0530 31.07.2018
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