Delhi District Court
Matrix Cellular (International) ... vs Gaurav Gill on 27 September, 2018
Matrix Cellular (International) Services Pvt. Ltd. v. Gaurav Gill
Suit no. 293/17
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURT, NEW DELHI
In the matter of:
Suit no. 293/17
CNR No. DLST030004452017
Matrix Cellular (International) Services Pvt. Ltd.
7, Khullar Farms, 140, New Manglapuri
Mandi Road, Mehrauli
New Delhi ...............Plaintiff
Versus
Gaurav Gill
S/o Gurnam Singh Gill,
R/o 1C13, Jawahar Nagar, Sriganganagar,
Rajasthan335001 ..............Defendant
Date of Institution : 22.02.2017
Date of Pronouncement : 27.09.2018
Decision : Dismissed
SUIT FOR RECOVERY OF AMOUNT OF RS. 38,722/ (RUPEES
THIRTY EIGHT THOUSAND SEVEN HUNDRED TWENTY TWO
ONLY) UNDER ORDER WITH INTEREST AND COSTS
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 38,722/ (Rupees Thirty Eight Thousand Seven Hundred Twentytwo only) from the defendant towards the usage of international mobile phone services rendered by the plaintiff.
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2. By virtue of the plaint, it has been submitted that the plaintiff is a private limited company providing international mobile phone services. Defendant had applied to the plaintiff for international mobile connection and had signed the standard application form after reading the terms and conditions therein. He had specifically signed a statement stating that he had read and understood all the terms and conditions of the agreement dated 31.08.2013, and agreed to abide by them. On that basis, plaintiff had given an international mobile connection no. 7942850015 under the agreement no. T1000419451. As per the accounts maintained by the plaintiff company, an outstanding amount of Rs.38,722/ is due and payable by the defendant towards usage of the aforesaid connection. Information for the aforesaid amount by way of monthly bills was sent to the defendant but despite repeated requests and reminders, the defendant has not paid the same. Legal notice dated 13.06.2014 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 25.10.2017, 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 04.09.2018, defendant was proceeded against exparte.
4. In exparte evidence, plaintiff examined its authorized representative, Mr. Binod Kumar Sinha as PW1 who filed his evidence by way of affidavit Ex.PW1/1. He also relied upon the following documents:
(i) Ex. PW1/A (colly) (OSR) i.e. copy of Board Resolution dated 03.04.2014;
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(ii) Ex. PW1/B (colly) i.e. Eagreement;
(iii) Ex. PW1/C i.e. tariff plan;
(iv) Ex. PW1/D i.e. ledger account;
(v) Ex. PW1/E (colly) i.e. copy of itemized bill;
(vi) Ex. PW1/F Certificate of correctness and genuineness of computer output in respect of Section 65B(2) of the Indian Evidence Act, 1872;
(vii) Mark A (colly) i.e. legal notice and original postal slip;
(viii) Mark B (colly) i.e. copy of passport and VISA; and
(ix) Ex. PW1/G i.e. email confirmation letter.
5. Thereafter, vide a separate statement, plaintiff's evidence was closed.
6. I have heard exparte arguments on behalf of the plaintiff and have also perused the record carefully.
7. In order to prove its case, plaintiff has relied on Ex. PW1/B (colly) i.e. the original agreement form, Ex. PW1/C i.e. the tariff plan, Ex. PW1/D i.e. ledger account as well as Ex. PW1/E (colly) i.e. copy of itemized bill along with Ex. PW1/F i.e. certificate under Section 65B of the Indian Evidence Act. Defendant did not step into the witness box nor did he crossexamine the plaintiff in order to dispute the genuineness or authenticity of Ex. PW1/B (colly) 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 (colly) and Ex. PW1/C.
8. The plaintiff is seeking recovery of Rs. 38,722/ from the defendant. To prove the same, plaintiff has placed on record certified copy Page no. 3 of 5 Matrix Cellular (International) Services Pvt. Ltd. v. Gaurav Gill Suit no. 293/17 of statement of account as Ex. PW1/D as well as Ex. PW1/E (colly) i.e. copy of itemized bills along with Ex. PW1/F i.e. certificate under Section 65B of the Indian Evidence Act. Although statement of accounts Ex PW1/D has not been proved by the plaintiff in terms of Section 34 of the Indian Evidence Act, the testimony of the PW1 has gone unchallenged, uncontroverted and unrebutted with regard to the liability of the defendant to pay the aforesaid amount as per the itemized bills Ex. PW1/E (colly).
9. However, as per Section 3 of the Limitation Act 1963, every suit which is instituted after the expiry of the period of limitation computed in accordance with the provisions of the Act, shall be dismissed, even if limitation has not been set up as a defence. While the defendant has not appeared to contest the suit and has not questioned the limitation, it is the prerogative of the court to dismiss any suit which is found to be barred by limitation. The bill Ex. PW1/E (colly) against which payment is sought from the defendant by virtue of this suit is dated 30.09.2013 and the due date for payment is specified as 22.10.2013. The entry in the statement of accounts Ex PW1/D for the outstanding bill amount is dated 07.10.2013. The period of limitation in the present case is three years from the date of accrual of cause of action. The cause of action accrued on the date when this amount became due, and period of limitation started running therefrom. The mere fact that late payment charges have been reflected upto 07.06.2014 in the statement of accounts, would not have the effect of extending the limitation period. This suit was instituted only on 22.02.2017 which is after the expiry of the threeyear period, and is therefore barred by limitation as per the Limitation Act 1963.
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10. In this view of the matter, being barred by limitation, plaintiff is not entitled to recover any amount from the defendant under the present suit. The suit is accordingly dismissed.
11. No order as to costs.
12. Decree sheet be prepared accordingly.
13. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 27.09.2018 Announced by me in the open court today on 27.09.2018. All the five pages of this judgment have been checked and signed by me.
Digitally (NEHA PRIYA)
signed by Civil Judge01(South)
NEHA NEHA PRIYA
Saket Courts/New Delhi
Date: 27.09.2018
PRIYA 2018.09.28
16:26:52
+0530
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