Delhi District Court
M/S K.R.F Limited vs M/S Bharti Airtel Ltd on 1 June, 2022
In the Court of Shri Ajay Kumar Malik : Additional Senior Civil Judge of
South West District at Dwarka Courts, New Delhi
CS SCJ No. 32249/11
CNR No.DLSW03 001037 2011
In the matter of :-
M/s K.R.F Limited
formerly known as
Kailash Ribbon Factory (Ltd.)
Administrative & Registered Office,
B-7, Mayapuri Industrial Area,
Phase-II,
New Delhi - 110064.
Through
its Authorised Representative
Mr. Partho Pratim Chandra
........Plaintiff
VERSUS
1. M/s Bharti Airtel Ltd.
Plot no. 16, Air Tel Centre,
Udyog Vihar, Phase-IV, Gurgaon
Through its General Manager
Lease Line Department.
2. The Chief Managing Director
Bharti Airtel Ltd.,
Aravali Crescent,1,
Neilson Mandela Road, Basant Kunj,
Phase-III, New Delhi - 110070.
.....Defendants
Date of institution : 07.10.2011
Reserved for Judgment : 27.05.2022
Date of decision : 01.06.2022
CS No.32249/2011 Page no. 1 of 10
Suit for Recovery of Rs. 2,26,481/-
JUDGMENT
Suit for Recovery
1. This is a suit for recovery filed on behalf of plaintiff against the defendants for a sum of Rs.2,26,481/- (Rupees Two Lacs Twenty Six Thousand, Four Hundred and Eighty One only) with pendentelite and future interest @ 18% per annum from the date of filing of the suit till the date of realization.
Plaintiffs' Case
2. The case of the plaintiff as averred in the plaint is that the plaintiff is engaged in the business of manufacturing and supplying multi colour satin, taffeta, polyster, cotton and printed labels for textile/leather garment, laces and 100% spun polyster sewing thread, buttons etc. It is stated that an agreement was entered into between the plaintiff and defendants for installation of internet lease lines in five locations and an advance of Rs. 152,963/- was sent to the defendants vide cheque no. 363141 dated 14.02.2009 alongwith TDS certificate of Rs. 3,217/- and the total amount comes to Rs. 1,56,180/-. It is stated that plaintiff intimated the defendant through various mails and through letter dated 25.03.2009 sent through registered post about non installation of internet connection at site no. B-7, Mayapuri Indl. Area, Phase-I, New Delhi and at other sites latency problems were being faced. It is stated that despite the said correspondence and information sent on telephone many times, the defendants failed to CS No.32249/2011 Page no. 2 of 10 solve the problem resulting in financial losses to the plaintiff. It is stated that the plaintiff has requested defendant time and again to remove the said internet connections and to refund the advance money but defendant did not adhered the said request of defendants. It is stated that plaintiff sent legal notices dated 09.02.2011 and 28.05.2011 to the defendants demanding the return of advance paid by the plaintiff, but to no avail. Hence, the present suit.
Defendants' Case
3. Written statement has been filed on behalf of defendants wherein it has been contended that plaintiff has booked four internet lease lines and the said connections were duly installed by the defendant on their respective places. It is stated that the plaintiff company has been using extensively the internet lines which is clearly reflected from the monthly bills. It is stated that plaintiff in order to exonerate itself from making the payment of outstanding dues with malafide intention raised the dispute of non installation of 5th connection at B-7, Mayapuri Indl. Area, Phase-I, New Delhi and problems in the internet connection of the defendant. It is stated that as per the statement of account and bills pertaining to the said four connections, plaintiff is liable to make payment of Rs. 50,403/- to the defendants after the adjustment of amount of Rs. 1,52,963/-. It is stated that plaintiff never made a request for installation of fifth internet lease connection. The contents of the plaint are denied as wrong and incorrect. It is prayed that the suit may be dismissed.
4. Replication has been filed by the plaintiff to the written statement of the defendants wherein the contents of the plaint have been reiterated and CS No.32249/2011 Page no. 3 of 10 the contentions of the defendants in its written statement have been denied except the admissions made.
Issues
5. After completion of pleadings, vide order dated 06.06.2012, the following issues were framed by my learned Predecessor for trial :
1 Whether the plaintiff is entitled for decree of recovery of Rs. 2,26,481/- with interest, as prayed for? OPP 2 Relief.
Plaintiff's Evidence
6. Sh R.K. Goel was examined as PW-1, who in his affidavit in evidence Ex. PW-1/A has stated and reiterated on oath the contents of the plaint. He has relied upon following documents :
i) Ex. PW1/1 (OSR) is the copy of certificate of incorporation Consequent upon change of name .
ii) Mark 'A' (colly) is the copy of Agreement (General Terms and conditions of Bharti Airtel) (Same was de-exhibited from Ex. PW1/3 and Marked as the original of the same is not available).
iii) Mark 'B' is the copy of cheque bearing no. 363141 (Same was de-
exhibited from Ex. PW1/4 and Marked as the original of the same is not available).
iv) Ex. PW1/5 to Ex. PW1/9 are office copy of Purchase Order bearing my signatures in original.
v) Mark 'C' is the copy of email dated 14.02.2009(Same was CS No.32249/2011 Page no. 4 of 10
de-exhibited from Ex. PW1/10 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
vi) Mark 'D' is the copy of email dated 21.02.2009 (Same was de- exhibited from Ex. PW1/11 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
vii) Mark 'E' is the copy of reply of email dated 21.02.2009(Same was de-exhibited from Ex. PW1/12 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
viii) Mark 'F' is the copy of email dated 21.02.2009(Same was de- exhibited from Ex. PW1/13 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
ix) Mark 'G' is the copy of email dated 21.02.2009(Same was de- exhibited from Ex. PW1/14 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
x) Mark 'H' is the copy of email dated 07.03.2009(Same was de- exhibited from Ex. PW1/15 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
xi) Mark 'I' is the copy of reply to email dated 07.03.2009(Same was de-exhibited from Ex. PW1/16 and Marked as the same is accompanied with certification U/s 65 B of Indian Evidence Act).
xii) Ex. PW1/17 is the letter dated 25.03.2009.
xiii) Ex. PW1/18 is original postal receipt.
xiv) Ex. PW1/19 is the legal notice dated 09.02.2011.
xv) Ex. PW1/20 are original UPC and Postal receipts. xvi) Ex. PW1/21 is legal notice dated 28.05.2011. xvii) Ex. PW1/22 are original postal receipts.
xviii) Ex. PW1/23 is original payment voucher.
CS No.32249/2011 Page no. 5 of 10 xix) Ex. PW1/24 is the TDS voucher.
xx) Ex. PW1/25 is the Internet bill.
xxi) Ex. PW1/26 is the internet bill.
xxii) Ex. PW1/27 is the original payment voucher. xxiii) Ex. PW1/28, PW1/29, PW1/30 are internet bills. xxiv) Mark 'J' is the copy of bill of Tata communication dated 12.08.2011. (Same was de-exhibited from Ex. PW1/31 and Marked). xxv) Mark 'K' is the copy of office communication to the account department. (Same was de-exhibited from Ex. PW1/32 and Marked). xxvi) Ex. PW1/33 is the Statement of Account.
7. Sh Partho Pratim Chandra was examined as PW-2 who stated he is working as Account Executive in plaintiff company. He stated that he is the authorized signatory of plaintiff company and has filed the present suit. He has relied upon following documents :
(I) Ex. PW-2/1 is the Resolution dated 21.12.2010.
(ii) Ex. PW-2/2 is the copy of plaint alongwith supporting affidavit Ex.
PW-2/3.
8. Plaintiff's evidence was closed on 06.03.2019 and matter was adjourned for defendant's evidence.
Defendant's Evidence
9. Sh Amit Bhatia was examined as DW-1, who in his affidavit in evidence Ex.DW-1/A has stated and reiterated on oath the contents of the written statement. He has relied upon following documents :
(i) Ex.DW1/1 (OSR) is power of attorney dated 01.12.2015.
CS No.32249/2011 Page no. 6 of 10
(ii) Mark A is photocopy of power of attorney dated 16.02.2009.
(iii) Mark B (Page 1 and 2) is the copy of screenshots from defendant system reflecting 4 internet lease lines were duly activated dated on and about February 2009 (same was de-exhibited)
(iv) Mark C (Page 1 and 2) is the copy of screenshots from defendant system reflecting cancellation request as the plaintiff was using services of TATA Tele Services dated on and about 9.12.2011 (same was de-
exhibited)
10. Thereafter the defendant's evidence was closed on 11.05.2022 and matter was listed for final arguments.
11. Final arguments have been heard. I have gone through the judicial record.
12. Now I shall give my issue-wise findings.
Issue Whether the plaintiff is entitled for decree of recovery of Rs. no. 1 2,26,481/- with interest, as prayed for? OPP
(i) The onus to prove this issue was on plaintiff who got examined Sh R.K Goel as PW-1. The prayed recovery by the plaintiff finds its origin in the requirement of internet services by plaintiff and agreement to pay the same by the defendant. In order to start the internet services and to pay consideration qua internet services both the parties entered into agreement which incorporates the required modalities and prospective eventualities between the parties. PW-1 brought on record an agreement Mark-A which is divided into several parts like General Terms & Conditions for internet CS No.32249/2011 Page no. 7 of 10 services, agreement for internet services, Service Level Agreement (SLA) for internet leased port/line and regulatory compliance for internet service. Mark A is admitted document by the plaintiff so it does not cast any liability upon the defendant to prove that document. Mark A is written contract between the parties to sue which contains the inspection of work, nature of consideration, mode of payment of consideration, stipulatory clauses, non-obstantate clause, penalties and condition for optional rescinding of contract by either party to contract.
(ii) General term and condition for Airtel Internet Services opens with the locking period clause (i) for the plaintiff "Minimum Commitment period of internet service by customer for is one year from the date of Commission of the circuit the customer can terminate the internet circuit after one year by giving one month notice to Airtel.
Clause (xi) contains the liability of defendant to provide the service "As is and available" basis and exempts the defendant with wording that neither Airtel nor its affiliates warrants that service will not be interrupted or error free.
Clause (xii) further absolves Airtel, its affiliates for any damages thereby containing under no circumstances shall Airtel, its affiliates or its contractors be liable for any direct, indirect, incidental, special, punitive or consequential damages that result in any way from customers, use of or inability to use the service or to access the internet or any part thereof, or customers reliance on or use of information, services or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance.
CS No.32249/2011 Page no. 8 of 10 Clause 1.8 of agreement for internet services read that date on which the circuit handed over to customer for its use after successful end- to-end test (i.e. test between modems in both customer locations). Billing will start from the Link commissioning date.
The agreement for internet services also contain the clause for termination of service on the part of customer/plaintiff.
Clause 6 (b) read as under:
"If Customer terminates this agreement prior to the agreement expiry date, customer shall pay Airtel immediately an amount equivalent to the charges payable for remaining part of this agreement period unless otherwise agreed in writing by the parties."
In service level agreement clause 2 (iii) the plaintiff has waived the liability of defendant by signing on the term that : Any damages- direct or consequential- sustained by any customer/partner/affiliate of the customer shall not be covered by agreement.
In service level agreement clause 3 it is specifically mentioned that in case Bharti fails to deliver the service levels within the definition contained in this agreement the customer shall be eligible for the certificate credit claims against the respective parameters. It is the compensatory clause in nature. An exception clause further clarifies that penalty shall mean service extension offered as compensation.
13. The admitted document by plaintiff i.e. Mark A itself contains the remedies and compensation for alleged deficiency in the service. It specifically contains that the penalty on defendant shall be the service extension offered as compensation. The minimum locking period of agreement is one year. The connection specifically provided on "as is and CS No.32249/2011 Page no. 9 of 10 available" basis. The plaintiff has duly signed Mark A filed by plaintiff himself. The plaintiff here has come for recovery of amount and not for rescinding of contract and then to get the damages or compensation or other recoveries to the quantum prayed for. As there is written agreement between the parties which is not contrary to law so the court has to proceed as per agreed terms and conditions mentioned in contract. By virtue of Mark A the plaintiff has admitted to have the internet services on "as is and available" basis and has also absolved the defendant from direct and consequential damages so the plaintiff cannot claim the interest on any quantum of money. The Plaintiff has also admitted to sign the compensatory clause which specifically contains that the penalty on defendant shall be the service extension offered as compensation so instead of availing the compensation the plaintiff jumped outside the scope of contract and filed the suit for recovery of money. The plaintiff has failed to show that how the plaintiff company is entitled to recovery of money within the ambit of its admitted document Mark A and hence, failed to discharge its onus to prove the issue no.1.
Relief
14. In view of my aforesaid findings on issues no. i, the suit of the plaintiff is dismissed. No order to costs. Decree sheet be prepared.
File be consigned to the record room after due compliance.
AJAY Digitally signed
by AJAY KUMAR
KUMAR MALIK
Date: 2022.06.01
Announced in the Open Court MALIK 17:22:17 +0530
on 01.06.2022
(Ajay Kumar Malik)
Additional Senior Civil Judge
South West District: Dwarka Courts: New Delhi
CS No.32249/2011 Page no. 10 of 10