Bangalore District Court
Matrix Cellular (International) vs Abjijith Ramapriyan on 10 December, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this the 10th day of December 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.28/2010
PLAINTIFF : Matrix Cellular (International)
Services Pvt.Ltd.
Represented by Captain Devaraj Naidu,
S/o Venu Naidu,
Aged about 29 years,
Branch Office,
#9, Ramakrishnappa Road,
Near Pankaj Dairy,
Opp. to Corporation High School,
Cox Town,
Bangalore.
(By Smt.M.C.Nagashree,Advocate)
-VS-
DEFENDANT : Abjijith Ramapriyan,
(father's name not known
to the plaintiff)
Flat No.Dil-201,
Sriram Whitehouse Apartments,
15th Cross, RT Nagar,
Bangalore-560 032.
(By Sri M.R.Rajgopal, Advocate)
2 O.S.NO.28/2010
Date of Institution of the suit : 22/12/2009
Nature of the Suit : Recovery of money
Date of commencement of recording
of evidence : 4/6/2011
Date on which the Judgment was
pronounced : 10/12/2015
Year/s Month/s Day/s
Total Duration : 05 11 18
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.2,28,833.41/- with interest at 18% p.a. from the date of suit till realization; for court costs and for such other reliefs.
2. The case of plaintiff in nutshell is that plaintiff is doing the business of international mobile connections in the name and style of "Matrix Cellular International Private Limited" having its head office in New Delhi and branch office in Bangalore. The defendant has applied for international mobile connections and procured the 3 O.S.NO.28/2010 standard application form which contains terms and conditions regarding the usage of international mobile connections. The said agreement was signed by defendant after understanding its terms and conditions. Defendant was given a mobile connection bearing No.96510525 under the agreement No.635107. The Sim card was bearing No.525016100323157 and the connection from the international cell number was started from 3/10/2008 for making calls. The charges where also shown to the defendant after using the said connection. The defendant has not yet paid the bills. The amount due for the mobile services is Rs.2,28,833.41. Plaintiff issued legal notice dtd:23/1/2009 and it was served upon the defendant and further notice was also given to defendant calling upon him to pay the balance amount, but defendant has not paid the balance amount. Hence, the suit for appropriate reliefs.
3. The defendant filed his written statement wherein, he admitted that he has received the legal notice. 4 O.S.NO.28/2010 Defendant returned to India on 30/9/2008, but the bill raised by plaintiff is 20 days after defendant returned to India, despite the fact that the defendant has intimated the loss of SIM card on 30/9/2008 itself. There are records to show the loss of Sim card was enlightened to the plaintiff and ought to have blocked the Sim card to avoid its mis-utilisation. But instead of adopting such recourse, plaintiff allowed the Sim card to be mis-utilised by third parties and plaintiff made the impugned claim. Defendant has given proper reply to legal notice dtd:23/1/2009. There were various correspondences between plaintiff and defendant and as such, suit claim is badly put forth by plaintiff. Defendant is not liable to pay it. The contract could not have been directly entered between plaintiff and defendant as defendant was minor at that point of time and he was aged about 16 years. Hence, the contract with a minor is void. Various documents were taken before issuance of Sim card and for mobile installation and they disclose the age of defendant and as such, plaintiff was aware that defendant was minor 5 O.S.NO.28/2010 at that point of time and was not eligible to enter into contract. Hence, prayed for dismissal of suit with costs.
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that the defendant is due and liable to pay suit claim of Rs.2,28,833-41 Ps. as prayed for?
2. Whether the plaintiff proves that the defendant is also liable to pay interest as claimed?
3. Whether the plaintiff is entitled for a judgment and decree as sought for?
4. To what order or decree?
5. On behalf of plaintiff, the then authorized signatory of plaintiff company was examined as PW-1, got marked Ex.P.1 to Ex.P.7 and closed its side. No evidence was let in on behalf of defendant and this suit was decreed on 9/6/2011. Afterwards, defendant preferred R.F.A.No.1826/2011 and it was allowed and the matter was remanded back to this court for fresh consideration 6 O.S.NO.28/2010 by giving suitable opportunity to defendant to cross-
examine plaintiff's witness. There was also direction that if for any reason plaintiff's witness is not available, it is open to plaintiff to tender fresh evidence. After reminder, P.W.1 was not available for plaintiff and hence, it discarded the evidence of P.W.1 and the present authorized signatory was examined as P.W.2, got marked Ex.P.1 to Ex.P.10 and closed its side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.5 and closed his side.
6. Heard the arguments of both sides.
7. Findings of this court on the above issues are :-
Issue No.1:- In Negative;
Issue No.2:- In Negative;
Issue No.3:- In Negative;
Issue No.4:- As per the final order for the following:
REASONS ISSUE No.1
8. Admitted facts of the case are that defendant has obtained international mobile connection from plaintiff. 7 O.S.NO.28/2010 The date of obtaining such mobile connection was wrongly pleaded in the plaint as 3/10/2008, but in the application form produced by plaintiff as per Ex.P.2, it reveals that defendant has filled the application form on 25/9/2008 for a period from 26/9/2008 to 1/10/2008 and validity of Sim card was up to 3/11/2008 and expected date of return of Sim card was 3/10/2008. Thus, it is clear that the plaintiff is wrongly pleaded the date of issuance of Sim card to defendant as 03.10.08 in the plaint. Ex.P.2 is admitted by defendant in his cross-examination. Hence, this document clearly establishes that the defendant purchased the Sim card from plaintiff.
9. The cross-examination of defendant reveals that after security check-up in Airport, Bangalore, while he was going to Singapore, he purchased this Sim card. Ex.P.3 is the Tariff list showing the price of the Sim card. Ex.P.4 is the ledger account extract of defendant's Sim card which reveals that the amount payable as on 20/10/2008 was Rs.80,518.27 and as on 30/1/2008, it is Rs.2,28,833.41. 8 O.S.NO.28/2010 Ex.P.4 contains the bills - detailed use of Sim card. According to it, the Sim card was used up to 9th October, 2008. After 30/9/2008 from 2/10/2008 it was used as roaming Sim and hence, tariff applicable for roaming charges were applied by plaintiff.
10. It is the specific contention of defendant that he has purchased this Sim card only after he had seen the counter of plaintiff in Airport after his security check-up. Then only he decided to purchase the Sim card. He travelled with the credit card of his father and from said credit card, he paid security deposit amount to plaintiff. He himself filled the application form as per Ex.P.2 and puts his signature as per Ex.P.2(a).
11. According to defendant, he has requested plaintiff to block the Sim card immediately after he returned from Singapore to India on 30.09.08; he had sent the e-mail in that regard.
12. Plaintiff had sent the bill dtd:20/10/2008 to defendant for the first time. After receipt of said bill, 9 O.S.NO.28/2010 defendant's father has replied to it through e-mail dtd:21/10/2008 at 13.02 hours as per Ex.D.3. In the said e-mail, defendant's father has stated that 20 days after returning to India, the bill was being generated and sent that Abhijith(defendant) has returned to India on 30/9/2008, he cannot be billed up to 3rd October 2008; he had sent the e-mail upon reaching India, to deactivate the Sim and said e-mail copy is re-produced in this e-mail. Thus, Ex.D.3 contains even the e-mail dtd:30/9/2008 at 21.52 hours wherein defendant has given mail to [email protected] and to [email protected]; wherein he has specifically stated that he has returned to India and he do not need the Sim card any more and also requested to block the card and let him know the procedure to complete the transaction. This e-mail was sent from the defendant's father e-mail I.D. It reads as follows:-
"Customer Care @ matrix, i have returned to India & i do not need the simcard any more. pl block the card & also let me know the process to complete the transaction.
Thanks, 10 O.S.NO.28/2010 Abhijith Rampriyan.
Mobile#+6596510525"
13. Thus, according to Ex.D.3, defendant has sent e- mail requesting to block the Sim card after returning to India on 30/9/2008.
14. P.W.2 in the cross-examination has deposed that the e-mail I.Ds. of their company are [email protected] and [email protected].
15. As stated above, defendant had made mail to these 2 e-mail I.Ds. Hence, it is to be presumed that the mail sent by defendant was received by plaintiff. Furthermore, in Ex.P.2 application form, it is clearly mentioned that for any enquiry, the party can contact to these 2 e-mail I.Ds.
16. P.W.2 in the cross-examination has stated that he cannot verify about this e-mail in their office, because, data base for 2008 in their e-mail I.D. could not be traced and hence, he could not answer whether their office has received e-mail dtd:30/9/2008, 20/10/2008 and 21/10/2008. Under these circumstances, when defendant 11 O.S.NO.28/2010 has produced the e-mail print out taken by him at the time of this e-mail conversation with plaintiff, along with certificate under S.65-B of the Evidence Act, it is to be held that defendant had sent such an e-mail to the plaintiff.
17. When it is held that defendant had sent an e-mail as per Ex.D.3 dtd:30/9/2008, it was the bounden duty of plaintiff to block the usage of Sim, but it did not do so. Hence, defendant is liable to pay the amount to plaintiff for the period he used the Sim card from 26/9/2008 to 30/9/2008 and not for the further period. Defendant specifically deposed that they have made call to plaintiff's Customer Care Centre. There were series of conversations between his father and plaintiff regarding this bill demanding excess charges.
18. The above discussion reveals that plaintiff has issued international Sim card to defendant on 25/9/2008 for a period from 26/9/2008 till 1/10/2008. However, according to the evidence of P.W.2 and the documents produced by 12 O.S.NO.28/2010 plaintiff, Sim card was used up to 9/10/2008, but defendant has mailed to block the same on 30/9/2008 itself. Hence, defendant is liable to pay the Tariff charges from 26/9/2008 to 30/9/2008. However, if the contract between plaintiff and defendant were valid, then only, defendant is liable to pay the amount and plaintiff can recover the said amount from defendant.
19. Admittedly, at the time of giving filled application form, defendant has furnished copies of his passport, Visa, air-ticket and credit card. P.W.2 has identified the Xerox copy of said passport as per Ex.D.1. Date of birth of defendant is mentioned in Ex.D.1 as 5/2/1992. Hence, defendant could attain the majority only on 5/2/2010. However, this transaction between plaintiff and defendant took place on 25/9/2008. Hence, admittedly on said date, defendant was minor. Even P.W.1 admitted in his cross- examination that as per Ex.D.1, defendant was minor at the time of agreement.
20. Learned counsel for plaintiff vehemently submitted arguments that defendant intentionally concealed his date 13 O.S.NO.28/2010 of birth and not mentioned in application form which he kept blank and he filled all other blanks in the application form; admittedly this Sim card was issued after security check up at airport; officials of plaintiff were busy at that time and they have to attend so many customers and thus, they could not verify the date of birth of defendant in passport furnished by defendant and they would collect this passport only for address proof and not for age proof. She further submitted arguments that defendant himself swiped the credit card and paid the security deposit and did all acts like a major and thus, there was reasonable presumption for plaintiff to believe that defendant was major at that time. Hence, whatever benefits defendant has taken from this agreement, he has to re-imburse those benefits to the plaintiff as per S.65 of the Contract Act and S.33 of the Specific Relief Act. In this regard, plaintiff's counsel relied on the citation reported in AIR 1926 Nag 108 in "Gokuldas and others v/s Gulab Rao" wherein, their Lordships held as under:- 14 O.S.NO.28/2010
"5. In that case both parties to the agreement that was in fact made were aware of the minority of one of them, so that the agreement could not be said to have been "discovered to be void"; it was known to be void when it was made. In the present case probably both parties and certainly the plaintiffs at least, were under a mistake of fact as to Gulab Rao's minority, which was not discovered till after the institution of the present suit. To such a case S.65 of the Contract Act undoubtedly applies. The opening words of that section can refer to nothing but an agreement that was old when it was made. It may be remarked that though the learned Judges of the lower Courts have considered this matter with great care they have both fallen into the error of using the expression "void contract". If we use the terms of Indian law with any precision, the two words are directly contradictory, as will be seen by references to clauses (e), (g),
(h) and (j) of S.2, and to S.10 of the Contract Act."
21. However, this judgment is only of Napuar Court and not binding precedent on this court. In the above said citation, their Lordships discussed about Privy Council judgment between "Mokori Bibee v/s Dharmodas" (1903) 30 Cal.539 and differentiated the facts of said case and concluded as above. Said Mokori Bibee judgment was 15 O.S.NO.28/2010 relied by Hon'ble Supreme Court of India in a recent judgment reported in (2015) 5 SCC 622 in "Mathai Mathai v/s Joseph Mary @ Marykkutty Joseph and others" and holds that both mortgagor and mortgagee must be competent to enter into contract and the minor being incompetent cannot enter into contract of mortgage either as mortgagor or mortgagee and thus, holds that the agreement between major and minor in void ab initio and non-est in the eye of law.
22. In the above said citation, their Lordships of Hon'ble Supreme Court of India held as follows:-
"F. Property Law - Transfer of Property Act, 1882- Ss.58 and 7 - Mortgage - Conditions of validity - Held, both parties, mortgagor and mortgagee, must be competent to enter into contract of mortgage either as mortgagor or mortgagee - Mohori Boibee , (1902-03) 30 IA 114, applied - Hence, mortgage deed executed in favour of minor mortgagee is not a valid mortgage deed unless such minor is represented by natural guardian or guardian appointed by court - View of many courts that minor can be a mortgagee as it is transfer in interest of minor, is not a correct view - Law cannot be read differently for a minor who is a 16 O.S.NO.28/2010 mortgagor and a minor who is a mortgagee as there are rights and liabilities in respect of immovable property which would flow out of such mortgage contract and bind both of them - On facts, mortgage deed (Ext.A-1) executed by uncle of appellant in favour of his deceased mother who at the time of execution and registration of deed was minor aged 15 yrs and was not represented by her natural guardian, held void ab initio - Hence, no rights could be claimed by appellant under such deed - Family and Personal Laws - Majority Act, 1875 - S.3 Contract Act, 1872
- S.11 - Formation Defects and Void and Voidable Contracts - Formation Defects Rendering Contracts Voidable - Incapacity
- Minors."
23. In the said judgment, their lordships relied on Mokori Bibee's Privy Council judgment, wherein it is held as under:-
".....Looking at these sections, Their Lordships are satisfied that the Act makes it essential that all contracting parties should be 'competent to contract', and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act."
In the later part of the same paragraph, it is stated: (Mohori Bibee case, IA p.124) 17 O.S.NO.28/2010 ".........The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant. Their Lordships are, therefore, of opinion that in the present case there is no any such voidable contract as is dealt within Section 64."
24. On careful perusal of the above rulings and provisions of 65 of the Contract Act & S.33 of the Specific Relief Act, this court holds that in the absence of existence of valid contract between plaintiff and defendant, plaintiff cannot enforce the alleged agreement between plaintiff and defendant.
25. As per S.11 of the Contract Act, every person is competent to contract who is of the age of the majority according to the law to which he is subject to and who is of the sound mind and not disqualified from contract by any law to which he is subjected. Admittedly, under Indian Majority Act, the age of majority is attaining 18 years. As on the date of agreement, defendant has attained only the age of 16 years and not the age of 18 years. Though defendant himself filled the agreement as 18 O.S.NO.28/2010 per Ex.P.1, which contains the terms and conditions of the agreement; and though he himself paid the security deposit from credit card of his father, in law defendant was minor as on the date of agreement. Hence, he was incompetent to enter into contract with plaintiff. Hence, as per S.11 of the Contract Act, he is not having competency to enter into contract with anybody. Hence, as per the above said ruling and as per S.11 of the Contract Act, the agreement as per Ex.P.2 is not at all come into existence and hence, plaintiff cannot enforce it against defendant. Hence, any contract with defendant is void ab initio in the eye of law.
26. Only if plaintiff could not have discovered that defendant was minor at the time of entering into contract, then, S.65 of the Indian Contract Act would apply to the facts of the case. However, admittedly, plaintiff collected copy of passport of defendant at the time of entering into agreement with him, which clearly shows that defendant was minor at that time. Hence, it cannot be said that 19 O.S.NO.28/2010 factum of minority of defendant was discovered subsequent to agreement. Hence, S.65 of the Contract Act does not apply to the present case.
27. Section 33 (1) of the Specific Reliefs Act applies only to cancellation of instruments. An instrument is formally executed document that evidences a legally enforceable agreement between two or more parties and expresses a contractual duty, obligation or right.
28. S.33(2) of the Specific Relief Act reads as follows:-
" Where a defendant successfully resists any suit on the ground -
(a) .........
(b) that the agreement sought to be enforced
against him in the suit is void by reason of his not having been competent to contract under Section 11 of the Indian Contract Act, 1872(9 of 1872), the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby."20 O.S.NO.28/2010
29. Under this provision, if defendant is benefited under the agreement, then, the court may require him restore such benefit to that party. That means, if defendant is benefited from agreement as per Ex.P.2, then, it may be ordered to restore the same to plaintiff.
30. In the instant case, under agreement as per Ex.P.2, plaintiff has handed over the international Sim card to defendant for a limited period from 26/9/2008 to 1/10/2008 and its validity was only up to 3/11/2008. Thus, defendant was benefited with the Sim card under Ex.P.2. Hence, even if the court holds that it is to be restored to plaintiff, there is no use in restoring it to plaintiff, because, already its validity is lapsed and moreover, defendant pleaded that Sim card is lost and plaintiff is not disputing this fact. Hence, there is no question of restoring this Sim card to plaintiff.
31. Plaintiff has filed the suit for recovery of Tariffs for the Sim card used by defendant. Said Tariff charges cannot be called as benefit accrued to defendant under 21 O.S.NO.28/2010 the agreement. Hence, this provision of S.33(2)(b) of the Specific Relief Act is not helpful to plaintiff to overcome the incompetency of defendant at the time of agreement.
32. Under these circumstances, this court holds that defendant was minor and in the eye of law, there was no agreement with him by plaintiff and hence it is not enforceable. Furthermore, as on the date of filing the suit, i.e., on 22.12.09 also, defendant was minor. However, plaint was presented before court without disclosing the same in the plaint. Hence, suit against minor without appointing guardian for defendant is bad in the eye of law and against O.XXXII.R.2 CPC. Hence, plaintiff cannot claim the dues from defendant. Accordingly, issue No.1 is answered in negative.
ISSUE No.2
33. In view of finding on issue No.1, this court holds that plaintiff is not entitled for interest as claimed in the plaint. Accordingly, issue No.2 is answered in negative.
22 O.S.NO.28/2010
ISSUE No.3
34. In view of findings on issue Nos.1 and 2, this court holds that plaintiff is not entitled for judgment and decree as prayed for. Accordingly, issue No.3 is answered in negative.
ISSUE No.4
35. In view of findings on issue Nos.1 to 4, this court proceeds to pass the following:-
ORDER Suit is dismissed.
Under facts and circumstances of the case, parties are directed to bear their own costs.
Office is directed to refund the amount, which is deposited by defendant as per the order passed by Hon'ble High Court of Karnataka in R.F.A.No.1826/2011 dtd:12/2/2015.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 10th day of December, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
23 O.S.NO.28/2010ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Suresh (P.W.1 Evidence Discarded) P.W.2 - K.Uday Kumar
b) Defendant's side : -
D.W.1 - Abhijith Ramapriyan II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Copy of the Board Resolution
Ex.P.2 Customer agreement form
Ex.P.3 Sim card tariffs
Ex.P.4 Extract of the account extract of
the defendant
Ex.P.5 Copy of the legal notice
Ex.P.6 Postal acknowledgement
Ex.P.7 Postal receipt
Ex.P.8 & Ex.P.9 2 computerized bills Ex.P.10 Certificate u/s 65-B of the Evidence Act
(b) Defendant's side : -
Ex.D.1 Xerox copy of passport of
defendant
Ex.D.2 to E-mail printouts dtd: 21/10/2008 at
Ex.D.4 17.40.56 hours, 21/10/2008 at
13.02 hours and 20/10/2008 at
21.04 hours
Ex.D.5 Certificate u/s 65-B of Evidence Act
(K.B.GEETHA)
XIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
GVU/- BANGALORE CITY.