Delhi District Court
Matrix Cellular (International) ... vs Litton Tea Company on 22 February, 2014
IN THE COURT OF MS. POOJA TALWAR: ACJ/CCJ/ARC(SE), SAKET
COURT, NEW DELHI
CS No. 40/2013
Unique case ID No. 02406C0438682010
Matrix Cellular (International) Services Pvt Ltd
7, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehrauli, New Delhi. ........... Plaintiff
Vs.
Litton Tea Company,
Through its Authorized Signatory,
Mr. Kiran Pal Singh Chowdhary,
A404, 2nd Floor, Defence Colony,
New Delhi. ......... Defendant
Suit instituted on : 09.07.2010
Arguments heard on : 13.02.2014
Judgment pronounced on : 22.02.2014
JUDGMENT
1. This is a suit under order XXXVII of CPC, instituted by the plaintiff company for recovery of Rs. 47,066/ along with pendente lite and future interest at the rate of 18% per annum along with costs of the suit from the defendant.
2 Facts as stated by the plaintiff are that the defendant applied for International Mobile Connection in South Delhi and procured the Standard Application Form containing the terms and conditions regarding the usage of CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 1/6 said connection. After being satisfied about the terms and conditions, the defendant applied for hiring the mobile connection. Defendant categorically signed a statement stating that he has read and understood the terms and conditions of the Agreement Form dated 27.02.2008 and agreed to abide by them. Thereafter on the basis of the information/statement furnished by the defendant in the Application Form, the plaintiff gave him a International Mobile Connection No. 0420912719 and 0420912721 under the Agreement No. m519432 and m519433. It is further stated that as per the account maintained by the plaintiff company, there is an outstanding amount of Rs. 47,066/ due and payable by the defendant towards the International Mobile Connection. Demand against invoices has been raised upon the defendant through monthly bills sent to the defendant by the plaintiff company. Inspite of repeated reminders and requests, the defendant has intentionally and deliberately failed to pay the same with ulterior motives. Plaintiff sent a legal notice dated 01.12.2009. The same was duly received by him. The defendant failed to clear the outstanding liabilities. Hence, the present suit.
3. The defendant was served on 22.03.2011 and put his appearance and thereafter his application for leave to defend was allowed on 26.11.2012 Written statement was then filed by the defendant. Plaintiff then filed his replication and reiterated the averments made in the plaint and refuted the submissions of the defendant as set out in the written statement.
4. On the pleading of both the parties, the following issues were framed: CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 2/6
(i) Whether the plaintiff is entitled to a decree for recovery of Rs. 47,066/ from the defendant as prayed for?OPP
(ii) Whether the plaintiff is entitled for interest, pendente lite and future; and if so at what rate? OPP
(iii) Whether the present suit has been instituted, signed and verified by a duly authorized representative of the plaintiff company? OPP
(iv) Whether the plaintiff has concealed material facts, and if so, its effect? OPD
(v) Relief.
5. In plaintiff's evidence, AR of the plaintiff Sh. Tarun Yadav was examined as a sole witness and proved the documents Ex.PW1/A to Ex.PW1/D and Mark A to Mark C. No other witness was examined. He was cross examined by the counsel for the defendant.
6. Similarly, the defendant stepped into the witness box and tendered his affidavit Ex.DW1/A. He too passed the test of cross examination by the counsel for the plaintiff.
7. Issue wise findings are as follows:
Issue No. 1: The onus to prove this issue was on the plaintiff. The plaintiff has based his claim on the agreement Ex.PW1/B entered into between plaintiff and the defendant company. As per which, an international connection was issued to the defendant by the plaintiff. In order to substantiate his claim, the plaintiff has filed a ledger account Ex.PW1/C. It has been deposed by the CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 3/6 plaintiff's witness that the demand upon the defendant to pay the amount was raised by way of monthly bills sent to the defendant. But it is admitted case that the plaintiff has not filed the monthly bills allegedly sent to the defendant. They have only filed the ledger account which does not give any details about the calls made by the defendant.
The case of the defendant is that his SIM card was stolen alongwith the mobile phone and he had not made any call through the SIM card purchased by the plaintiff company and in this regard, he had telephonically informed the plaintiff company. Since the onus was on plaintiff to prove that the defendant had made the calls through the two SIMs purchased from it. The plaintiff should have filed the bills depicting the call details. Once the claim of parties is based on a certain document that document itself be produced for the inspection of the Court. The witness of the plaintiff deposed that the bills were duly sent to the defendant but the plaintiff has not filed any proof of delivery of the alleged bills to the defendant. In case, the original bills had been sent to the defendant, the plaintiff should have sought leave of the Court to lead secondary evidence as per section 65 of the Indian Evidence Act, 1872. Simply by filing the ledger account, the plaintiff cannot discharge the onus of proving their claim as it is within the right of the defendant to have a note of the details of the calls made by him upon which the bill was raised.
Even otherwise it is within the right of the defendant to know that what were the charges applicable on the particular day and what was the rate of CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 4/6 currency of the particular country from which the calls were made or received by the defendant. It is own admission of the plaintiff's witness that they issue mobile bills on the basis of actual usage and the tariff applicable. The usage bill is prepared in terms of the foreign currency and the same is converted into Indian currency as per the prevailing rate. The ledger filed by the plaintiff does not depict any of these bills as stated by the plaintiff's witness. When one party bases its claim on the document as per Evidence Act, it has to be proved by a certain mode i.e by production of that document. In the instant case, the plaintiff has failed to produce the bill upon which he it has based his claim. Hence, this issue is decided against the plaintiff and in favour of the defendant. Issue No. 2: Since the issue no. 1 is decided against the plaintiff, therefore, he is not entitled to any interest. This issue is accordingly decided against the plaintiff. .
Issue No. 3: The onus to prove this issue was on the plaintiff. The plaintiff by filing the copy of board resolution which is Ex.PW1/A has been able to prove that the suit has been instituted by a duly authorized representative of the company. This issue is decided in favour of the plaintiff. Issue No. 4: The onus to prove this was on the defendant. The defendant has not lead any positive evidence to prove that any material fact was concealed by the plaintiff. I feel that the defendant has failed to discharge the onus put on him. Accordingly, this issue is decided against the defendant. Relief: As decided above in issue no. 1, the plaintiff h as failed to prove CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 5/6 that he is entitled to a decree for recovery. Hence, suit is liable to be dismissed. Dismissed accordingly. Decree sheet be prepared. File be consigned to Record Room.
Dictated and announced in the open Court (Pooja Talwar)
Today on February 22, 2014 ACJ/CCJ/ARC(SE)
Saket Court, New Delhi
CS No.40/2013 Matrix Cellular (International) Services Pvt Ltd Vs. Litton Tea Company Page 6/6