Delhi District Court
Cs No. 291/12 Matrix Cellular ... vs . Asmita Sharma Page 1 on 22 January, 2014
CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 1
IN THE COURT OF SH. VISHAL GOGNE, SCJ/RC
SOUTH WEST, DWARKA ,NEW DELHI
Civil Suit No. 291/12
UID No.02405C0165162012
In the matter of:
Matrix Cellular (International) Services Pvt. Ltd.
07, Khullar Farms, 140, New Manglapuri,
Mandi Road, Mehraulli,
New Delhi-110030. ... Plaintiff
Vs.
Asmita Sharma
D/o Sh. Pragyesh Chandra Sharma,
B-64, Sarvesanjhi Apartments,
Sector-9, Dwarka, New Delhi-110075. ...Defendant
Date of institution of suit : 06.08.2012
Date on which judgment reserved : 17.01.2014
Date on which judgment pronounced : 22.01.2014
SUIT FOR RECOVERY OF A SUM OF RS.1,05,122/- (RUPEES ONE
LAKH FIVE THOUSAND ONE HUNDRED TWENTY TWO ONLY)
UNDER ORDER XXXVII C.P.C.
JUDGMENT
1. The plaintiff seeks to recover outstanding dues towards use of two international mobile phone numbers by the defendant.
2. The suit was filed under Order 37 CPC. However, leave to defend was granted to the defendant by the Ld. Predecessor Court upon the plaintiff expressing no objection.
CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 2
3. The relevant facts, emerging from the plaint may be detailed as under:
4. Upon the application of the defendant, the plaintiff provided two international mobile connections bearing No. 07534931331 and 07550049107 (hereafter referred to as the first number and second number respectively) to the former. The accounts of the plaintiff company reflect an outstanding amount of Rs.1,05,122/- against the defendant for use of these numbers. A security deposit amount of Rs.10,000/- has been adjusted by the plaintiff against the outstanding bill. The suit was filed after the defendant failed to meet the above liability despite service of legal notice of demand dated 06.02.2012.
5. The written statement of the defendant denied liability to pay the suit amount. It was asserted that before visiting Russia for an internship during the period 08.06.2010 to 11.08.2010, the defendant had sought an international SIM card from the plaintiff company. The executive of the plaintiff visited the house of the defendant and obtained her signatures on an application form in duplicate and issued a SIM card bearing No. 176116690953 having mobile number 07534931331. A cheque for Rs.10,000/- was collected by the executive. This amount included a security deposit of Rs.5,000/- and another amount of Rs.5,000/- to cover the call charges.
6. The defendant averred that services to the above SIM card were disconnected during her stay in Russia. On inquiry, the plaintiff's customer care centre revealed that a wrong SIM card had been issued to the defendant and that instead of issuing a SIM card for Russia, the plaintiff had issued a SIM Card of UK and Europe. The plaintiff then requested the defendant to collect a Russia specific SIM Card without payment of any amount apart from the already paid amount of Rs.10,000/-. The defendant was assured that the amount of Rs.10,000/- would be refunded to her if she did not wish to collect the new SIM card. It is the averment of the defendant that she could not collect the new SIM card and the plaintiff failed to refund the amount of Rs. 10,000/- upon her return to India.
7. The defendant denied in specific terms that she had ever been issued a second CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 3 SIM card bearing No. 176123269245.
8. The following issues were framed for trial:
i. Whether plaintiff is entitled to recovery of suit amount? ....OPP ii. Whether plaintiff is entitled for interest in suit amount, if so, at what rate? iii. Relief.
9. The findings on the issues are as follows:
ISSUE No. (i)
10. The Ld. Counsel for the plaintiff relied upon the deposition of the sole witness for the plaintiff company i.e. PW 1. It was submitted that this witness had filed both original applications/agreement forms executed by the defendant (Ex. PW1/B) which revealed that she had duly applied for tariff code MUK 50410 in her two applications for separate mobile connections. The Counsel submitted that this code related to UK and Europe and the defendant could not escape liability when she did not deny her signatures on the agreements. Further, that PW 1 has filed the ledger account (Ex. PW1/D) reflecting the liability of Rs.1,05,122/- along with the itemized bills and call details (Mark A) of the two numbers which revealed that calls were made between these numbers. The argument of the counsel was that calls could have been made between these numbers only if the defendant was in possession of both.
11. In response, the Ld. Counsel for the defendant agitated that notwithstanding the filing of Visa papers for a visit to Russia, the plaintiff had wrongfully issued a SIM card for UK and Europe. The counsel submitted that PW 1 was neither the sales executive who issued the SIM cards nor in personal knowledge of the transaction with the defendant. The counsel argued that wrongful liability was sought to be affixed on the defendant on the basis of chargeable incoming calls and higher outgoing call charges for the SIM card for UK and Europe whereas incoming calls were free and the outgoing calls were cheaper from Russia for a Russia specific SIM card. Reference was made to the cross examination of PW 1 where he admitted that the Visa was required for issuance of a SIM card and that the SIM card did not bear CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 4 the name of the country for which it was issued. The counsel also pointed out that PW 1 had admitted entries in different pens in the two agreements Ex. PW1/B. It was the argument of the counsel for the defendant that the wrong country/tariff code had been entered by the sales executive of the plaintiff without the knowledge of the defendant, leading to the generation of false bills.
12. The court has considered the evidence at hand and the submissions of the respective counsels.
13. At the outset, the court would observe that it is not a matter of dispute between the parties that the first number was used by the defendant while in Russia. It is also not in dispute that the Visa of the defendant for Russia related to the period 08.06.2010 to 11.08.2010. It was also not disputed by the parties that the first number was used between 10.06.2010 to 19.06.2010.
14. Seen in this background, the Court would find it incredible that a person intending to visit a specific country viz. Russia would apply for a SIM card for an altogether different territory viz. UK and Europe. It would be the natural inclination of a person to avail a plan specific to the country of visit. The witness of the plaintiff filed the Visa of the defendant (Mark C). Though this Visa was a copy, the same was treated as proved as it was not disputed by defendant. If the plaintiff issued a SIM card on the basis of a Visa for Russia, it was required that the SIM card relate to the same territory. If the SIM card then came to be issued for an altogether different territory, the probability of error on the part of the plaintiff company/sales executive far exceeds the probability of the defendant having willfully applied for a SIM card for UK and Europe.
15. Now, the court is mindful that the territory of Russia straddles two continents viz. Asia and Europe. Yet, it was not the case of the plaintiff company that the tariff code for UK and Europe included the territory of Russia.
16. An indication of error on the part of the sales executive of the plaintiff came from the cross examination of PW 1.
PW 1 first stated that the passport and Visa were among the documents CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 5 required for issuance of a SIM card and then contradicted himself by asserting that the copy of the visa had not been filed by the defendant with her application. The Court does not place belief in the later assertion. If the routine process of providing a new SIM card involved the submission of the visa by the applicant, the presumption is that the plaintiff did obtain the copy of the visa from the defendant before providing her the first number. This conclusion is emboldened by the fact that PW 1 himself filed a copy of the visa of the defendant during evidence (Mark C).
17. The court would draw the presumption under Section 114 (Illustration f) of the Indian Evidence Act which provides that the common course of business has been followed in particular cases.
18. Since the court has reached a finding that the copy of the visa was supplied to the plaintiff, the necessary corollary is that the issuance of a SIM Card for UK and Europe was a manifest error on the part of the plaintiff company.
19. Here, the Court would specifically note answers provided by PW 1 in response to Court Questions.
On being asked as to who fills up the tariff code, mobile number and SIM number in the application forms/agreements of customers, PW 1 replied that the same was filled up by the sales person of the plaintiff company. To a further question as to whether the above details were filled up by the sales person of the plaintiff company in the application form/agreements Ex. P/2 (Ex. PW1/B) executed by the defendant, PW 1 answered in the affirmative and revealed that a sales person by the name of Atul Kumar had filled up these details in the agreement with the defendant.
20. The above practice revealed by PW 1 goads the court to read the application form/agreements Ex. PW1/B in two parts. The first part relates to formal details including the name, address and existing phone number of the defendant whereas the second part concerns details i.e. the tariff code, mobile number and SIM number which could have been in the knowledge of only an official of the company. The admission by PW 1 that these details were filled up by sales person Atul Kumar raises the strong probability that the tariff code MUK 50410 was filled up by Atul Kumar CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 6 and not the defendant. It is notable that PW 1 acknowledged during cross examination that ink from two different pens was apparent in the agreements Ex. PW1/B. PW 1 also acknowledged that customers approached the plaintiff company only with the name of the country for which the SIM card was desired and not the tariff code. The Court may presume as normal the lack of knowledge in an ordinary person regarding the specific tariff code used by a service provider. It is apparent that the defendant applied for mobile connection for Russia but was provided with a UK and Europe SIM card by the sales person of the plaintiff company. Any liability arising out of a wrongfully issued SIM card becomes vitiated for want of consent on part of the consumer i.e. the defendant in the present case. The defendant would have been liable to pay for what she applied for and not rates which were imposed upon her by the evident mistake of the competent official of the plaintiff company. Consequently the bill Ex. PW1/D does not impose an enforceable liability upon the defendant.
21. It is also noted by the Court that the plaintiff did not examine sales person Atul Kumar. As the representative who provided the first number and purportedly also the second number to the defendant, Atul Kumar was best placed to depose whether the defendant had indeed sought a mobile connection for UK and Europe. The failure of the plaintiff to bring forth this witness indicates that the company had something to hide. Moreover, the defendant was denied the opportunity of confronting PW 1 with her assertion that the copy of the visa was duly provided to him along with the application form and that the SIM card had wrongfully been issued for the first number.
22. The Court would again place reliance upon the Indian Evidence Act, Section 114 (illustration g) of which reads as under:
"(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
In the present facts, the Court draws the presumption that the deposition of Atul Kumar would have been unfavourable to the plaintiff by revealing the error in CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 7 issuing a SIM card for UK and Europe to the defendant and that he was withheld as a witness for this reason.
23. The witness who did come to be examined viz PW 1 was apparently not privy to the execution of the agreement Ex. PW1/B. He neither received the application form or any document from the defendant nor issued the two SIM Cards in question. In the face of complete denial of liability by the defendant, the court finds the plaintiff to have failed to discharge the onus of proving that the two SIM cards were issued with the consent of the defendant.
24. Certain observations may also be made qua the second number.
Admittedly, the visa of the defendant was for the period 08.06.2010 to 11.08.2010. The application form for the second number, however, records the duration of the trip to be 05.06.2010 to 12.06.2010. The trip commencing on 05.06.2010 cannot be reconciled with the visa period commencing on 08.06.2010. The Court would find it more probable that the plaintiff continued its error in providing the first number for a wrong territory by issuing the second number without the consent of the defendant. The Court also finds it intriguing as to why a student visiting another country for an internship would apply for two SIM cards of over lapping trip durations. When the first application mentioned the trip duration from 10.06.2010 to 19.07.2010, it was improbable that the defendant would again apply for a second number stating the trip duration to be 05.06.2010 to 12.06.2010.
25. Also, it was the specific suggestion of the defendant to PW 1 during cross examination that the second agreement was a duplicate of the first and not an independent agreement and that no second SIM card was issued to her. Though PW 1 denied this suggestion, he was not aware of the facts of the transaction which was conducted by Atul Kumar. The failure to examine Atul Kumar renders the issuance of the second number to the defendant not proved much like the issuance of a connection for UK and Europe with the consent of the defendant remains not proved.
26. Undoubtedly, the call details of the two numbers (Mark A colly) suggest calls inter se. However, this circumstance does not by itself suggest the issuance of the CS No. 291/12 Matrix Cellular (International) Services Pvt. Ltd. Vs. Asmita Sharma page 8 second number to the defendant. A person is unlikely to make calls to herself using two phones. If, on the other hand, the calls were made to a second person, it is more probable that the second person was an independent person whose bill has been fastened upon the defendant. As discussed earlier, liability does not fall upon the defendant on account of the issuance of SIM cards for the wrong territory i.e. UK and Europe.
27. The Court may lastly also highlight the admission of PW 1 that the customer cannot determine only by examining the SIM card whether it relates to the country for which it was applied for. It is reasonable to assume that an examination of the SIM card would not have made the defendant any wiser regarding the territory for which it was issued.
28. In sum, the plaintiff has failed to prove the liability of the defendant to pay the suit amount.
29. Issue No. (i) is decided against the plaintiff.
ISSUE No. (ii):
30. Since the liability of the defendant to pay the principal amount remains not proved, there exists no liability to pay interest either.
31. Issue No. (ii) is decided against the plaintiff.
Relief:
32. In view of the findings upon Issue No. (i) and (ii), no relief can be granted to the plaintiff.
33. The suit is dismissed.
34. Let decree sheet be drawn accordingly.
35. File be consigned to record room.
Announced in open court today on 22nd January 2014.
(VISHAL GOGNE) SCJ/RC:SOUTH WEST DWARKA/NEW DELHI