Delhi District Court
Matrix Cellular (International) ... vs Navin Kohli on 8 August, 2018
Matrix Cellular (International) Services Ltd. v. Navin Kohli
Suit No. 83115/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURTS, NEW DELHI
In the matter of:
Suit no. 83115/16
CNR No.:DLST030002512013
Matrix Cellular (International) Services Ltd.
7, Khullar Farms, 140 New Manglapuri,
Mandi Road, Mehrauli,New Delhi110030 ...............Plaintiff
Versus
Navin Kohli
S/o Sh. Ajay Kohli
R/o 234, Ground Floor, Defence Colony
New Delhi110024
Also at:
R/o B16, Site B, Surajpur, Industrial Area
Greater Noida, Uttar Pradesh201306 ..............Defendant
Date of Institution : 25.08.2012
Date of Pronouncement : 08.08.2018
Decision : Dismissed
SUIT FOR RECOVERY OF A SUM OF RS. 44,065.05 (RUPEES
FOURTY FOUR THOUSAND SIXTY FIVE AND FIVE PAISA
ONLY) ALONGWITH INTEREST AND COSTS
Present: None
JUDGMENT:
Page no. 1 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16
1. This suit (initially filed as a summary suit) has been filed by the plaintiff for recovery of a sum of Rs.44,065.05/(Rupees Fourty Four Thousand Sixty Five and Five Paisa only) from the defendant towards the usage of international mobile phone services rendered by the plaintiff. Averments in the plaint:
2. By virtue of the plaint, it has been submitted that the plaintiff is a private limited company providing international mobile rental services. Defendant had applied to the plaintiff for international mobile connection in south Delhi 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 07.05.2010, and agreed to abide by them. On that basis, plaintiff had given an international mobile connection no. 017610085455 under the agreement no.M1033668. As per the accounts maintained by the plaintiff company, an outstanding amount of Rs.44,065.05/ is due and payable by the defendant towards its usage of the aforesaid connection. Demand 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 10.02.2012 was also sent to the defendant. Despite service, till date the outstanding liability has not been cleared. Plaintiff and defendant reside and work for gain in South Delhi. The cause of action arose at South Delhi as the agreement was entered in Head Office of the plaintiff company. Hence, this court has territorial jurisdiction to try and entertain the present suit. It is prayed that the suit be decreed with costs.
Written Statement:
3. By virtue of its written statement, the suit has been opposed Page no. 2 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 and it has been submitted that the plaintiff has suppressed vital facts from this court. Defendant has paid a sum of Rs. 18029.44/ vide cheque dated 19.08.2010 bearing no. 341552 as a full and final settlement of the alleged bill and the same has been duly acknowledged, accepted and encashed by the plaintiff. This Court lacks territorial jurisdiction to entertain and try the present suit because admittedly the defendant resides and works in Greater Noida and furthermore no alleged cause of action has arisen, within the territorial limits of Delhi. In the year 2010, since defendant was to visit Germany and UK for business and fair, which is held every year twice, the defendant requested the plaintiff company to provide international mobile services. Defendant had to travel different countries. Defendant had specifically asked the plaintiff to provide separate mobile SIM cards, one for Germany and another for UK. Defendant had also requested for a data card for the use of internet service during the stay in Germany, to avoid any likely additional expenses incurred while roaming. On request made by defendant to the plaintiff, the plaintiff deputed one of its representative Mr. Manish Gupta, to visit defendant at his Greater Noida office cum residence, to collect the relevant documents, and for execution of the agreement.
4. On 07.05.2010, an agreement was entered into between the defendant and the plaintiff for issuance of SIM card. The agreement was meant for the SIM card to be used in Germany only. Defendant used another SIM card for UK. After returning to India, defendant received an invoice from the plaintiff against the purported usage of SIM cards and data card in Germany. Upon receipt of the invoice, defendant was shocked and surprised to note that the bill of SIM card which was taken for Germany was prepared wrongly, since it had certain infirmities since it Page no. 3 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 contained charges which were not concerning the usage by the defendant. Defendant made complete payments against the bills of UK SIM card and the data card vide cheque nos. 749895 and 749896 respectively because they were correct and were matching with the usage of defendant. While making payment against the invoice for usage against UK SIM Card, defendant pointed out the error in the invoice pertaining to Germany SIM card, and requested the plaintiff to correct the bill of SIM card of Germany such that the defendant could clear the invoice at the earliest.
5. Despite repeated requests and reminders made by defendant over phone as well as by emails and letters to Mr. Manish Gupta, no heed was paid by the plaintiff. Having left with no other alternative, defendant on 31.08.2010 sent a letter to the plaintiff stating therein the correct charges as per the usage by the defendant. Based on actual usage, defendant made calcuations on its own and calculated the amount payable for the wrongly billed usage time at the same rate as charged for the usage time in Germany, and accordingly vide cheque dated 19.08.2010 bearing no. 341552 for a sum of Rs. 18029.44/, paid the entire money as was due and payable towards full and final settlement of the charges due and payable by the defendant to the plaintiff. After having received and encashed the cheque, to the utter shock and surprise of the defendant, plaintiff by a purported legal notice dated 10.02.2012, illegally made demand of Rs. 44,065.05/ alleging therein that the said amount is due and payable by the defendant against the roaming charges outside Germany. The ledger account filed by the plaintiff is also incorrect. Suit is meritless and therefore, be dismissed.
6. Despite opportunity, no replication was filed on behalf of the plaintiff.
Page no. 4 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 Issues:
7. Vide order dated 13.05.2014, following issues were framed:
Issue no.1 Whether the plaintiff is entitled to the recovery of Rs. 44,065.05/ as prayed for?OPP Issue no. 2 Whether plaintiff is entitled to interest thereupon, if yes, then at what rate?OPP Issue no. 3 Whether the suit is not maintainable for want of cause of action? OPD Issue no. 4 Whether the suit is not maintainable as the plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD Issue no. 5 Whether the present court does not have the territorial jurisdiction to entertain the matter? OPD Issue no. 6 Relief.
Plaintiff's Evidence:
8. In order to establish its case, plaintiff examined its authorized representative Sh. Binod Kumar Sinha as PW1. PW1 tendered his evidence by way of affidavit Ex. PW1/1 and relied upon the following documents:
(i) Ex. PW1/A i.e. certificate of incorporation and board resolution;
(ii) Mark A i.e. board resolution in favour of Mr. Chandershekhar Pandey;
(iii) Ex. P1 i.e. original agreement form;
(iv) Ex. P2 i.e. tariff sheet;
(v) Ex. PW1/D (colly) i.e. legal account;
(vi) Mark B (colly) i.e. itemized bills;
(vii) Mark C (colly) i.e. legal notice dated 10.02.2012 with postal receipt;
(viii) Mark D (colly) i.e. photocopy of visa and passport of defendant; and
(ix) Mark E i.e. photocopy of credit card.
9. PW1 was duly cross examined by the defendant. Thereafter, vide a separate statement, plaintiff's evidence was closed.
Page no. 5 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 Defendant's evidence:
10. In support of its defence, defendant examined himself as DW1 and hand writing expert, Mr. Deepak Jain as DW2.
11. DW1 tendered his evidence by way of affidavit Ex. DW1/A and relied upon the following documents:
(i) Mark D/1 i.e. photocopy of bank statement evincing clearance of cheque no. 749895 and 749896;
(ii) Mark D/2 i.e. photocopy of letter dated 11.08.2010 and email dated 10.08.2010;
(iii) Mark D/3 i.e. photocopy of letter dated 31.08.2010;
(iv) Ex. DW1/B i.e. original courier receipt dated 16.08.2010;
(v) Ex. DW1/C i.e. certificate under Section 65B IE A;
(vi) Ex. DW1/D i.e. original courier receipt dated 10.09.2010; and
(vii) Ex. DW1/E i.e. bank statement.
12. DW2 tendered his evidence by way of affidavit Ex. DW2/A and relied upon Ex. DW2/B i.e. report dated 22.04.2018 and Ex. DW2/C (colly) i.e. photographs (07 in number) on a juxtaposed chart paper.
13. Both DW1 and DW2 were duly cross examined by plaintiff. Thereafter, vide a separate statement, defendant's evidence was closed. Findings:
14. Final arguments on behalf of parties were heard. Ld. Counsels presented their arguments in accordance with their pleadings. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsels for both the sides. My issueswise findings are as under:
Page no. 6 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 Issue no. 3 Whether the suit is not maintainable for want of cause of action? OPD
15. Since the findings of this issue will have a direct bearing on the outcome of subsequent issues, this issue is being dealt with first. Onus to prove this issue is on the defendant. It is contended by the defendant that the suit is not maintainable since it is based on a claim that has already been settled between the parties. Defendant claims that its outstanding dues against the Germany SIM card issued pursuant to Ex. P1 have already been settled for an amount of Rs. 18029.44/, which was paid by way of cheque to the plaintiff, and was duly encashed by the plaintiff. For this purpose, defendant has relied on Mark D/2 as well as Mark D/3. While Mark D/2 and Mark D/3 are photocopies, the same were relied and referred by plaintiff during argument. In fact, DW1 has been crossexamined/ contradicted in respect of Mark D/3. Thus, these documents stand admitted by plaintiff, and therefore proved.
16. By virtue of Mark D/2, it was communicated to the plaintiff that the defendant was not agreeable to the excess billing done by the plaintiff, and plaintiff was asked to correct the calculation and submit the correct bill, such that the defendant could clear the balance. By virtue of Mark D/3, plaintiff was informed that since no response was received to Mark D/2, a calculation of Rs. 18029.44/ was done by the defendant, and cheque no. 341552 dated 19.08.2010 was sent to the plaintiff towards full and final settlement of SIM card no. 017610085455. The said amount is also admitted to have been received by the plaintiff, and also forms a part of the statement of accounts Mark B (colly) filed and relied by the plaintiff. It is also an admitted position between the parties that there was no protest by way of any correspondence by the plaintiff, to the amount that had been Page no. 7 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 sent by the defendant by way of this cheque. Further, no reply to the letter Mark D/3 or to the letter Mark D/2 was ever sent by the plaintiff to the defendant stating that they are not satisfied or convinced with the calculation arrived at by the defendant for an amount of Rs. 18029.44/. Defendant contends that in view of the above, the account was fully settled for an amount of Rs. 18029.44/.
17. As per Section 8 of the Indian Contract Act, 1872:
"Acceptance by performing conditions, or receiving consideration. Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal".
18. As per judgment of Bhagwati Prasad Pawan Kumar v. Union of India1 relied upon by the defendant:
"16. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offered did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in facts and circumstances of the case the conduct of the "offered" was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand if the evidence disclose that the "offered" had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act (emphasis supplied)".
19. In light of the above, if an offer is accepted without 1 Judgment dated 25.05.2006 of the Hon'ble Supreme Court of India in CA No. 150151 of 2001.
Page no. 8 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 expressing any reservation or protest, then the offer is deemed to be accepted by conduct but if the evidence discloses that there was a reservation in accepting the offer, then the same may not amount to acceptance in terms of Section 8 of the Contract Act.
20. In the present case, vide letter Mark D/2, defendant had called upon the plaintiff to submit the revised bills such that he can make the payment. Having received no response, defendant again by way of Mark D/3 dated 31.08.2010 submitted his own calculation of Rs. 18029.44/ and offered a cheque for the same amount towards full and final settlement of dues against Germany SIM card. The said cheque was credited in the account of the plaintiff on 09.10.2010. The cheque was sent on 31.08.2010, and was deposited only on 09.10.2010, which would have given time to the defendant for due deliberations before accepting the amount, and given sufficient time to the defendant to express any reservation or raise any protest, if it found the amount to be insufficient. There was no correspondence prior to encashment of the cheque by the plaintiff to the defendant that the amount was insufficient. Despite being put specific question on this point during crossexamination, PW1 stated that he could not say whether the plaintiff conveyed any disagreement to the offer of full and final settlement before or after encashment of cheque. Further, legal notice in respect of the current transaction was issued on 10.02.2012 i.e. almost one year four months after encashment of the cheque which shows that at the time of acceptance, the plaintiff had accepted the settlement for the said amount, and it was only as an after thought that the notice dated 10.02.2012 i.e. Mark C (colly) was sent to the defendant.
21. Defendant has also relied on Section 63 illustration (b) of the Page no. 9 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 Indian Contract Act, 1872 which is as follows: "Promisee may dispense with or remit performance of promise. Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. Illustrations:
...........
(b) A owes B 5,000 rupees. A pays to B, and B accepts, in satisfaction of the whole debt, 2,000 rupees paid at the time and place at which the 5,000 rupees were payable. The whole debt is discharged."
22. In light of the above as well, by accepting an amount of Rs. 18029.44/ towards the account of the defendant, the defendant stood discharged from making any further payment towards the said account. Thus, it is established that payment against SIM card issued to the defendant for use in Germany vide Ex. P1 had already been settled, debt of the defendant stood discharged, and, therefore, no cause of action arose in favour of the plaintiff for reasserting its right for payment towards the same account. This issue is accordingly decided in favour of the defendant and against the plaintiff.
Issue no. 1 Whether the plaintiff is entitled to the recovery of Rs. 44,065.05/ as prayed for?OPP
23. Onus to prove this issue is on the plaintiff. In order to prove its case, plaintiff examined PW1 who relied on Ex. P1 i.e. the admitted original agreement form, Ex. P2 i.e. the admitted tariff plan, Ex. PW1/D (colly) i.e. ledger account as well as Mark B (colly) i.e. copy of itemized bill. Both Ex. P1 and Ex. P2 are admitted documents. Therefore, it is proved that a contractual relationship existed between the plaintiff and the Page no. 10 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 defendant as per the terms and conditions contained in Ex. P1 and Ex. P2.
24. As per the conditions specified in Ex. P2 from point A to A, it was made clear that for any usages outside Germany, roaming rates will be applicable. During crossexamination, DW1 has stated that he had not been informed about the aforesaid clause at the time of signing of the agreement. However, as per the case of Grasim Industries Ltd. & Anr. v. Aggarwal Steel2, relied by plaintiff:
"5. In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document property and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case. There is no allegation of force or fraud in this case. Hence it is difficult to accept the contention of the respondent while admitting that the document Ex. D8 bears his signatures that it was signed under some mistake (emphasis supplied)".
25. Defendant does not deny signing Ex. P1 and Ex. P2. Therefore, it not open for the defendant to contend that the condition regarding billing on roaming charges for usage outside Germany was not acceptable to him or was not within his knowledge when he signed Ex. P1 and Ex. P2. During crossexamination, DW1 has also admitted that the Germany SIM card was used by him while traveling from Germany to UK and that his Germany SIM card did not stop working when he entered UK from Germany meaning thereby that the Germany SIM card was in use by the defendant in UK as well. Defendant contends that although his data card got automatically switched off but SIM card did not switch off when 2 2009 (4) R.A.J. 675 (SC).
Page no. 11 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 he entered UK from Germany. However, none of the terms and conditions of the agreement between the parties contain any such condition of the automatic switching off of the SIM card while moving from one country to another. In fact, the very fact that roaming charges have been specified, presupposses that the SIM card will not switch off but will continue to work on a roaming basis while moving from one country to another. Further, in Mark D/3, that had been written by defendant to plaintiff, it is stated that, "Sir, as you are aware that during the trip from Germany to UK, the train runs through France and Belgium. In the meantime, the Sim card was being billed for roaming charges, for which nobody from your side has informed us earlier, otherwise, we would not have used such kind of sim card. There was not any kind of information provided from your side regarding the roaming charges, and hence we therefore request you to write off the remaining payment so as to close this issue ASAP". DW1 contends that this fact was wrongly recorded by his manager in Mark D/3. Defendant cannot blow hot and cold as per his own convenience. He cannot rely on Mark D/3 to show his bonafide on one hand, and then disown certain statement therein if it goes against him. Thus, it is established that the Germany SIM card was used by the defendant outside Germany as well, whether deliberately or inadvertently, and he was thus liable to pay roaming charges on the same as per Ex. P1 and Ex. P2. Now what remains to be seen is the amount outstanding towards the said usage.
26. The plaintiff is seeking recovery of Rs. 44,065.05/ from the defendant. The burden to prove the quantum of outstanding amount is on the plaintiff. In discharge thereof, PW1 has placed on record copy of statement of account as Ex. PW1/D (colly) as well as copy of itemized bills as Mark B (colly).
Page no. 12 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16
27. 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.3 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 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 (emphasis supplied)".
28. In Chandradhar v. Gauhati Bank,4 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 3 1999 (3) Civil Court Cases 68 (Ker).
4 AIR 1967 SC 1058.
Page no. 13 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 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."
29. Further, in J.K. Synthetics Ltd. v. Dynamic Cement Traders,5 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. (emphasis supplied)".
30. Furthermore, in the Harpal Singh @ Chhota v. State of Punjab JT6 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)."
31. Further, as per the Anvar P. V. v. P. K. Basheer and others7 and I quote:
"An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under 5 2012(6) ILR (Del) 398.
6 J T 2016 (11) SC 194.
7 (2014) 10 SCC 473.
Page no. 14 of 26
Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 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)"
32. 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. In fact, PW1 i.e. the sole witness on behalf of the plaintiff is from the legal department of the plaintiff and has stated in his crossexamination that the bills Mark B (colly) were prepared by the billing team and not by him. 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 (colly) is a computer printout, and in the absence of certificate under section 65B of Indian Evidence Act, the statement of accounts being electronic record, cannot be admitted in evidence. Similarly, call records Mark B (colly) being computer generated call record, are not admissible in evidence in absence of Section 65B certificate. Thus, Ex. PW1/D (colly) and Mark B (colly) are inadmissible in evidence and cannot be relied upon to determine the liability of the defendant.
33. As per findings in issue no. 3 above, an amount of Rs. 18029.44/ had already been paid by the defendant towards full and final settlement of its dues under the agreement Ex. P1 and Ex. P2, and his liability stood discharged. Plaintiff has failed to lead any other Page no. 15 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 documentary or ocular evidence to prove any outstanding obligation of the defendant under the contract Ex. P1. This issue is accordingly decided against the plaintiff and in favour of defendant.
Issue no. 2 Whether plaintiff is entitled to interest thereupon, if yes, then at what rate?OPP
34. The onus of proof of this issue is on the plaintiff. As per findings in issue no.1 above, the plaintiff is not entitled to recover any amount from the defendant. Since the principal amount itself is not recoverable, there is no question of payment of interest. Accordingly, this issue is also decided against the plaintiff and in favour of the defendant.
Issue no. 4 Whether the suit is not maintainable as the plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD
35. Onus to prove this issue is on the defendant. It is contended by the defendant that the suit is not maintainable as plaintiff has not approached the court with clean hands and has suppressed material facts. A settlement for an amount of Rs. 18,029.44/ had already been reached between the parties and the said amount was also paid by the defendant to the plaintiff. However, the plaint does not contain even a whisper about this settlement, thereby showing the mala fide of the plaintiff. Ld. Counsel for the plaintiff, on the other hand, contended that the amount of Rs. 18029.44/ has not been specified in the plaint on account of an inadvertent error. Plaintiff has never denied receipt of this amount, however, plaintiff never accepted the same as settlement amount. In the statement of accounts filed by the plaintiff, credit entry for this amount has been shown, and has been duly taken into consideration while calculating the balance amount Page no. 16 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 payable by the defendant.
36. After due consideration of these rival contentions, it is noted that whilst this amount of Rs. 18029.44/ has not been averred in the plaint as having been received by the plaintiff from the defendant in respect of usage of the Germany SIM card, the plaintiff has indeed filed on record statement of accounts i.e. Ex. PW1/D (colly) wherein against entry dated 09.10.2010, a credit of Rs. 18029.44/ has been shown as received from the defendant. The recovery sought by the plaintiff by virtue of this suit is also for an amount arrived at, after deduction of the aforesaid amount of Rs. 18029.44/. Thus, no mala fide can be attributed to the plaintiff for not specifying this amount in the plaint.
37. Defendant has also claimed that second page of copy of passport Mark D (colly), and signatures on Mark D (colly) do not belong to him. The same was deliberately filed by the plaintiff to set up cause of action within the territorial jurisdiction of this court by showing the address of the defendant as that of Defence Colony, New Delhi. On the other hand, it is contended by the plaintiff that they have simply filed the document that had been submitted by the defendant at the time of execution of Ex. P1, and did not verify it against the original. They have not fabricated the document or the signatures.
38. From perusal of the record, it is evident that the defendant has not filed copy of his passport (as he claims to have been submitted by him with the plaintiff at the time of execution of Ex. P1) in order to substantiate that Mark D (colly) had not been submitted by him to the plaintiff. While the defendant had produced the original passport in court on 20.12.2017, despite specific directions, copy of the passport was not placed on record. Even if it is taken to be true that the second page of the Page no. 17 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 passport in Mark D (colly) does not belong to the defendant, that does not lead to the inference that the same was filed by the plaintiff mala fidely and only with the intent to create jurisdiction of this court since plaintiff has asserted the jurisdiction of this court even independently of Mark D (colly) by contending that the agreement Ex. P1 had been executed within the jurisdiction of this court.
39. Secondly, even if it is assumed that signatures on Mark D (colly) do not belong to the defendant, that does not lead to the only presumption that the signatures were forged by the plaintiff on Mark D (colly) only to make out the jurisdiction of this court. The possibility of the same having been submitted by the defendant at the time of execution of Ex. P1 cannot be ruled out. Besides, it does not have any bearing on the merits of the case, and is only related to the jurisdiction, which is claimed by plaintiff even on basis of documents (i.e. Ex. P1) other than Mark D (colly). Thus, on the basis of evidence on record, no mala fide can be attributed to the plaintiff. In these given circumstances, as no mala fide can be attributed to the plaintiff, the judgment of Arun Khanna & Anr. v. Rajeev Gupta & Ors.8 relied by the defendant is not applicable to the facts and circumstances of the present case. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue no. 5 Whether the present court does not have the territorial jurisdiction to entertain the matter? OPD
40. Onus to prove this issue is on the defendant. It is contended by the defendant that this court does not have jurisdiction to try the present suit as the defendant is not residing within its territorial jurisdiction and no cause of action has arisen within its territorial jurisdiction. Since the 8 (2006) 129 DLT 14 (DB).
Page no. 18 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 agreement Ex. P1 was executed at Greater Noida and the defendant is also a resident of Greater Noida, appropriate court having jurisdiction would be that of U.P. On the other hand, the plaintiff has contended that this court has jurisdiction since the defendant resides here and cause of action also arose within the territorial jurisdiction of this court as agreement Ex. P1 was executed at the Head Office of the plaintiff at Mehrauli.
41. As per Section 20 of the Code of Civil Procedure, 1908 ("CPC"):
"Other suits to be instituted where defendants reside or cause of action arises. Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises....."
42. As far as place of residence of defendant is concerned, defendant contends that he resides in Noida and has stated so in his affidavit Ex. DW1/A on oath. The defendant contends that although first page of the passport, copy of Mark D (colly) is his, the second page bearing the Defence Colony address does not belong to him. Further, his signatures on Mark D (colly) have been forged by the plaintiff. In this respect, DW2 who was examined as an expert witness on behalf of the defendant, has also stated that the signatures on Mark D (colly) are not the Page no. 19 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 same as those on the written statement. The Greater Noida address is also specified in Ex. P1 which is admitted document by both the parties.
43. On the other hand, Ld. Counsel for plaintiff has submitted that the defendant resides at Defence Colony, New Delhi and for this purpose has relied on copy of passport i.e. Mark D (colly) which shows the address of the defendant to be that of Defence Colony, New Delhi. It is settled law that a document is required to be proved by way of primary evidence. As per Section 649 of the Indian Evidence Act, 1872, a document is required to be proved by primary evidence except when grounds are made out for leading secondary evidence in terms of Section 65 10 of the said Act. While discussing the law relating to secondary evidence, in the case of U.Sree v. U. Srinivas,11 it has been held by the Hon'ble Apex Court that in the absence of foundational evidence for leading secondary evidence, secondary evidence is not admissible.
44. The Hon'ble Supreme Court referred to the case of Ashok 9 64. Proof of documents by primary evidence. - Documents must be proved by primary evidence except in cases hereinafter mentioned.
10 65. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
11 (2013) 2 SCC 114.
Page no. 20 of 26
Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 Dulichand v. Madahavlal Dube12 wherein it has been held that:
"7....... According to clause (a) of Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the documents is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it."
45. The Hon'ble Supreme Court further referred to the case of J. Yashoda v. K. Shobha Rani13, wherein after analysing the language employed in Section 63 and 65 (a), the Hon'ble Court held as follows:
"9..... Section 65, however, permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without nonproduction of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in the section. (emphasis supplied)"
46. The Hon'ble Apex Court also cited the case of M. Chandra v. M. Thangamuthu14, wherein it has been held that:
"47..... It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of contents or in 12 (1975) 4 SCC 664.
13 (2007) 5 SCC 730.
14 (2010) 9 SCC 712.
Page no. 21 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.(emphasis supplied)"
47. Further, the Hon'ble Apex Court referred to its judgment in H. Siddiqui v. A. Ramalingam15, wherein while dealing with Section 65 of the Evidence Act, the Hon'ble Apex Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations, and held:
"12.... In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the nonproduction of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.(emphasis supplied)"
48. Plaintiff has neither given any notice under Section 66 of the Indian Evidence Act to the defendant nor has he accounted for the absence of the original. He has also not produced any foundational evidence to the effect that the alleged copy of the passport of the defendant is in fact true copy of the original. Therefore, in the absence of any foundational evidence on behalf of the plaintiff, in light of the aforesaid legal position, Mark D (colly) cannot be read in evidence. The plaintiff has failed to prove Mark D (colly) and on that basis, defendant cannot be deemed to be 15 (2011) 4 SCC 240.
Page no. 22 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 resident of Defence Colony, New Delhi.
49. During crossexamination as well, no suggestion had been put to DW1 that the passport copy at page 2 in Mark D (colly) belongs to him. There was no suggestion that the defendant resides at Defence Colony, New Delhi. Further, no proof of the Defence Colony address belonging to the defendant has been putforward on behalf of the plaintiff. Defendant could not be expected to prove a negative fact of nonresidence at Defence Colony, New Delhi and, it had to be proved by the plaintiff that he so resides, by leading positive evidence. Plaintiff has failed to discharge this burden.
50. As far as the cause of action is concerned, defendant contends that the agreement was signed at his residence at Greater Noida whereas plaintiff contends that it was signed at the Head Office in Mehrauli. The admitted agreement Ex. P1 does not mention the place of execution. Although, the words 'Head Office' are mentioned in Ex. P1 and are relied by the plaintiff, the same are not written against 'place of execution' but are written against the heading 'hired from' thereby not referring to the place where the agreement was entered into between the parties. The plaintiff states in the plaint as well as affidavit that cause of action is in the jurisdiction of this court since the agreement was signed at head office, however, no specific pleadings in this regard have been put forward.
51. On the other hand, the defendant has stated on oath in Ex. DW1/A that the agreement was executed at his residence in Greater Noida between him and Mr. Manish Gupta on 07.05.2010 when Mr. Manish Gupta had come to visit the defendant for collecting the relevant documents and execution of the agreement. Specific details have been Page no. 23 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 provided by the defendant. PW1 has, in fact, admitted during cross examination that the agreement was entered into between the company represented by Mr. Manish Gupta and the defendant, thereby lending further weight to the aforesaid contention of defendant. DW1 has not been crossexamined on his statement regarding execution of the agreement at his residence at Greater Noida, U.P.
52. It is settled law that in the absence of crossexamination, the averments are deemed to be admitted. In this regard, guidance is sought from the case of Shashi Bala v. Rajiv Arora,16 wherein it is held that, "absence of proper rebuttal or failure of not putting one's case forward would certainty lead to acceptance of testimony of that witness whose deposition remains unchallenged".
53. Guidance is also sought from Saikou Jabbi v. State of Maharashtra,17 wherein the Hon'ble Apex Court accepted the testimony of the witness since his statement was not challenged or shaken in cross examination and there was no cross examination to point out the falsity in the statement of the witness.
54. Further, guidance is also sought from the judgment of the Hon'ble Calcutta High Court in Smt. Asoka Mitra v. Sri Swapan Kumar Mitra,18 wherein it is held that "whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all".
55. In light of the above judicial precedents, testimony of DW1 regarding the agreement being executed at Greater Noida, U.P. stands 16 188 (2012) DLT 1.
17 (2004) 2 SCC 186.
18 (2007) 3 CLLT 503 HC.
Page no. 24 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 proved. In this view of the matter, it is established that agreement Ex. P1 was executed between the parties at Greater Noida, U.P. and not at the Head Office of the plaintiff as Mehrauli.
56. Thus, neither the defendant resides within the jurisdiction of this court nor any cause of action has arisen within the jurisdiction of this court. As per judgment of Carmel Overseas Ltd. v. Sturdy Industries Ltd.19, relied by defendant, it is settled principle of law that by a contract or an agreement, parties cannot confer jurisdiction on a court if it otherwise does not have, or where no part of cause of action has accrued in favour of the party claiming enforcement of its claims. The aforesaid judgment also refers to the case of Golden Peakock Overseas Ltd. (M/s) v. Ranjit Industries20 to reiterate that "some correspondence inter se the parties would be of no help to the plaintiff to vest jurisdiction in a Court if the Court otherwise has no jurisdiction to entertain a lis." Although, Ex. P1 at Para 22 of the terms and conditions states that agreement shall be subject to jurisdiction of courts at Delhi, the parties could not have conferred jurisdiction on the courts at Delhi by virtue of this agreement in the absence of any part of cause of action arising here or the defendant residing within its territorial jurisdiction. This issue is accordingly decided in favour of the defendant and against the plaintiff.
Relief:
57. In view of the findings on issue no. 5, this court lacks territorial jurisdiction to try and entertain the present case. In view of findings on the other issues, documents on record, pleadings of the parties, and evidence led, the plaintiff has also failed to prove his case on the scale 19 Judgment dated 06.10.2010 of the Hon'ble High Court of Delhi in CS (OS) 2448/2008. 20 2006 2 AD (DELHI) 130.
Page no. 25 of 26 Matrix Cellular (International) Services Ltd. v. Navin Kohli Suit No. 83115/16 of preponderance of probabilities. Accordingly, suit of the plaintiff is dismissed.
58. No order as to costs.
59. Decree sheet be prepared accordingly.
60. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 08.08.2018 Announced by me in the open court today on 08.08.2018. All the twenty six pages of this judgment have been checked and signed by me.
Digitally
signed by (NEHA PRIYA)
NEHA NEHA PRIYA
Date:
Civil Judge01 (South)
PRIYA 2018.08.09 Saket Courts/New Delhi
15:52:46
+0530
08.08.2018
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