IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1898 of 1992. SUIT NO.1898 of 1992. SUIT NO.1898 of 1992. 1. Mahanagar Telephone Nigam Ltd. having their registered office at Khurshidlal Bhavan, Janpath, New Delhi 110 050 and head office at Telephone House, Prabhadevi, Dadar (West), Bombay 400 028 2. The Accounts Officer (West-I) Mahanagar Telephone Nigam Ltd. Jeevan Seva, Estension Building, S.V. Road, Santacruz (West), Bombay 400 054 ..Plaintiffs versus 1. Lt. Col (Dr.) Sushil Kumar Jain, of Bombay, Indian Inhabitant, permanently residing at 176-H, Tanpora Gardeo Coop. Hsg. Soc, Ltd Linking Road, Andheri (West), Bombay 400 058. At present residing at Artificial Limb Centre, Pune 2. Dr. D.R.Baruah, having his office at H-176, Oshiwara Tarapora Garden Co-op. Hsg. Soc., Linking Road, Andheri (West), Bombay 400 058 ...Defendants Ms.S.I.Shah for the plaintiffs None for the defendant CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 4th March, 2009. DATED : 4th March, 2009. DATED : 4th March, 2009. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. -2- 1. Plaintiff No.1 is Mahanagar Telephone Nigam Limited and the defendant No.1. was the subscriber in respect of telephone No.6263769, (hereafter referred to as the suit telephone). The plaintiffs have filed suit against the defendant No.1 the subscriber and the defendant No.2 who was said to be using the suit telephone, for recovery of sum of Rs.2,94,979.92 and for interest as set out in the prayer clause (a) and for costs. The brief facts of the present suit are as under: 2. Plaintiffs supplied telephone connection in regard to the suit telephone to defendant No.1. According to plaintiffs defendant No.1 allowed defendant No.2 to use the said telephone. According to plaintiffs bills were raised by the plaintiffs from time to time which are at Exhibit 15 to 21 and the said bills have remained unpaid. According to plaintiffs though the suit telephone stood in the name of defendant No.1, defendant No.2 used the same and that is how defendant No.2 is also liable. According to plaintiffs defendant No.2 was provided with a telephone connection bearing No.6263908 for one year for the period 25.5.1998 to 3.1.1989 at the same address where the suit telephone was installed. The plaintiffs -3- allege that the defendant No.2 used the suit telephone. According to plaintiff, defendant No.2 used the suit telephone for making telephone to United Kingdom at No.0-41-7624133 and that from the telephone No.6263908 also a call was made to United Kingdom on the same number i.e. 0-41-7624133. The plaintiffs have relied upon the telephone bills as well as the trunk call tickets which are at Exhibit P-1 to P-14 to support the use of the suit telephone by the defendant No.2. In substance plaintiffs claim that the defendant No.1 was the subscriber of the said telephone and therefore he is liable to pay outstanding bills. It is also a case of the plaintiffs that defendant NO.2 used the said telephone and therefore he is liable to pay the outstanding bills. 2. The suit came to be contested by defendant No.1 by filing written statement and it is contended by the defendant No.1 that the suit is barred by period of limitation. It has also been the stand of the defendant No.1 that he has not used the suit telephone and that defendant No.2 is misusing the suit telephone by joining hands with the employees of the plaintiffs. No written statement is filed by the defendant No.2. -4- Following issues came to be framed on 11.1.2008. It appears that through oversight issues came to be framed on 29.7.2008. However, at a later point of time the issues engrossed were brought to the notice of the Court being issues dated 11.1.2008. The original evidence of the plaintiffs witness Mr. Rao was also brought to the notice of the Court and that is how this Court was informed that the parties have attended to the matter based on the issues framed on 11.1.2008. Hence this Court is required to deal with the issues which are framed mon 11.1.2008, and they are as under: Issues Findings i) Whether the plaintiffs prove that the defendant No.1 In the affirmative is the subscriber of a telephone No.6263769? 2) Whether the plaintiffs prove that the defendant No.2 In the affirmative is the user of the telephone No.6263769? 3) Whether the plaintiffs In the negative to prove that the defendants the extent of jointly and severally are Rs.1,76,067.25/- liable to pay the outstanding in respect of amount of telephone bills Bills Ex.15,16,17. dated 5.1.1988 for In the affirmative Rs.55,028/-, Bill dated to the extent of 5.1.1989 fot Rs.51,759/-, Rs.40,829/- in bill dated 21.4.1989 for respect of Bills Rs.19,086/- bill dated Ex. 19, 20 and 21.6.1989 for Rs.7,386/-, 21. bill dated 24.6.1989 for -5- Rs.14,357/- being total sum of Rs.2,16,897/- together with interest @ 18% p.a. for January 1990 till December 1991 for Rs.78,082.92 with no furtherinterest as prayed for? 4) Whether the plaintiffs In the affirmative prove that the defendant No.1 has allowed the defendant No.2 to use and occupy the suit premises with telephone facility of telephone Nos.6263769? 5) Whether the defendant NO.1 In the negative proves that the defendant No.2 had no access to the suit telephone No.6263769? 6) Whether the defendant No.1 In the negative proves that the defendant No.2 has used the telephone No.6263769 in collusion and connivance of the Officers of the plaintiffs ? 7) Whether the defendant No.1 In the negative has complied the an order dated 3.10.1989 passed by HIs Lordship Mr. Justice Pratep in Writ Petition No.602 of 1989 directing the defendant NO.1 to deposit Rs.1,17,000/- with the plaintiff on or before 30.1.1990? 8) Whether the plaintiffs are As per operative entitled to decree as prayed order. for? 9) Cost of the suit. In the affirmative My answer to each of the issue is mentioned against the respective issue. 3. At trial evidence was led by the plaintiffs -6- through their witness Mr.R.S.Rao who was then working as Accounts Officer (Tr). The plaintiffs have also examined 2nd witness i.e. Mrs. Salian as P.W.2. The plaintiffs have relied upon the documents namely Exhibit P-1 to P-14 as trunk call tickets and the bills at Exhibit 15 to 21. 4. I have heard learned Counsel Ms.Shah appearing on behalf of the plaintiffs. It is to be noted that the plaintiffs have filed present suit for recovery of the following bills as per the table mentioned below i.e. Period of Bill Date of Amount of From To Bill Bill 08.08.1988 8.10.1988 05.11.1988 55028.00 08.10.1988 8.12.1988 05.01.1989 61280.00 08.12.1988 8.02.1989 21.02.1989 51758.75 08.02.1989 8.04.1989 21.04.1989 19086.00 08.04.1989 8.06.1989 21.06.1989 7386.00 08.07.1988 8.06.1988 24.06.1989 14357.00 5. I had perused the various bills and upon perusal of the said bills it is seen that the bill is payable within the period of 20 days from the -7- date of bill and this has been stated on the basis of Exhibit 17 where the bill is dated 21.2.1989 and the due date is 10.3.1989. 6. Now I turn to the various issues which have been framed and which are required to be decided. Issue No.1. Issue No.1. Issue No.1. 7. It is the case of the plaintiffs that the suit telephone stood in the name of defendant No.1. The perusal of written statement as well as the documents which are produced by the plaintiffs clearly show that the defendant No.1 was subscriber of the suit telephone . Hence issue No.1 is answered in the affirmative. Issue Nos.2 and 4. Issue Nos.2 and 4. Issue Nos.2 and 4. 8. By this issues plaintiffs were required to prove that the defendant No.2 is user of the suit telephone. In so far as this aspect is concerned, the plaintiffs have specifically pleaded in the plaint at paragraph 1 as well as paragraph 3 and 4 that defendant No.2 used the suit telephone and the plaintiffs have come out with a specific averment that from the said averment call was made to United Kingdom at No.0-41-7624133. It is also the case of -8- the plaintiffs that a call on the aforesaid telephone was made from the telephone No.6263908 which telephone was installed at the premises where suit telephone is installed in the name of defendant No.2. These averments set out in paragraph 3 are not denied by the defendant No.2 by filing the written statement. Even defendant No.1 has stated in the written statement that the defendant No.2 has misused the suit telephone by joining hands with the employees of the plaintiffs. True that no evidence is placed before the Court by defendant No.1 in support of this proposition, still the fact remains that the stand of the plaintiffs that defendant No.2 has used the suit telephone is not disputed by the defendant No.2 by filing written statement and as such allegations to that effect have gone unchallenged, and hence issue No.2 is required to be answered in the affirmative and hence I answer issue No.2 in the affirmative. Once it is observed that defendant No.2 has used the suit telephone, undoubtedly it will have to be observed that the defendant No.1 allowed defendant No.2 to use the suit telephone particularly when no evidence is placed before the Court by the defendant No.1 to support his stand that defendant No.2 has misused the suit telephone by joining -9- hands with the employees of the plaintiffs. If this is so, issue No.4 will also have to be answered in the affirmative and accordingly issue No.4 is answered in the affirmative. Issue No.5 Issue No.5 Issue No.5 9. It was the stand of the defendant No.1 that the defendant No.2 had no access to the suit telephone and with the help of the employees of the plaintiffs, suit telephone was misused. Burden of proof was on defendant No.1 in so far as this aspect is concerned and defendant No.1 has not furnished any evidence in support of this. Accordingly, issue No.5 is answered in the negative. Issue No.6. Issue No.6. Issue No.6. 10. This issue came to be framed on account of specific stand taken by the defendant No.1 that defendant No.2 misused the suit telephone by joining hands with the officers of the plaintiffs. If this was the stand of the defendant No.1 he should have placed before the Court appropriate evidence and in the absence of such evidence, it will have to be observed that the defendant No.1. has failed to discharge the burden cast on him. -10- Accordingly, issue No.6 is answered in the negative. Issue No.7. Issue No.7. Issue No.7. 11. By this issue defendant No.1 was required to prove that he has complied with the order passed in Writ Petition No.602 of 1989 by which defendant No.1 was required to deposit Rs.1,17,000/- with the plaintiffs on or before 3.1.1999. No evidence is placed before the Court by the defendant No.1 to show that the said amount was deposited by the defendant No.1. Accordingly, issue No.7 is answered in the negative. Issue No.3 Issue No.3 Issue No.3 12. By this the plaintiffs were required to prove that both the defendants are jointly and severally liable to pay the outstanding amount in regard to telephone bills which are mentioned in the earlier part of this judgment. 13. The plaintiffs have approached this Court with a case that the bills at Exhibit 15 to 21 came to be raised in respect of the respective amounts for the user of the suit telephone by defendant No.1 as well as defendant No.2. Considering the -11- respective period for the bills, I am of the view that this Court will also have to consider as to whether the demand for the bill is within the period of limitation or not, particularly because the user period commenced from August 1988 and suit came to be filed on 29.4.1992. In view of this, I called upon the counsel for the plaintiffs to show as to how the suit is within the period of limitation atleast in regard to the bills which are for the amounts namely Rs.55028/- (bill Exhibit 15), bill for Rs.69280/- (bill Exhibit 16), bill for Rs.51758.75 ( bill Exhibit P-17), and bill for Rs/14357/- (bill Exhibit 21). Learned Counsel Ms. Shah appearing on behalf of the plaintiffs contended that to the facts of this case, the provisions of Article 113 of the Limitation Act would be applicable and according to her the period of limitation would be three years from the date when the cause of action arose. It was also her contention that the cause of action would arose from the date when the bill amount is demanded, In support of this contention she relied upon the judgments in case of P.Ramachandraiah Chetty vs. P.Ramachandraiah Chetty vs. P.Ramachandraiah Chetty vs. The Andhra Pradesh State Electricity Board reported The Andhra Pradesh State Electricity Board reported The Andhra Pradesh State Electricity Board reported in AIR 2003 Andhra Pradesh 338, (2) Board of in AIR 2003 Andhra Pradesh 338, (2) Board of in AIR 2003 Andhra Pradesh 338, (2) Board of Trustees of the Port of Bombay vs. Rmanlal Trustees of the Port of Bombay vs. Rmanlal Trustees of the Port of Bombay vs. Rmanlal -12- Mohanlal Parikh reported in 2003 (4)Mh.L.J. and Mohanlal Parikh reported in 2003 (4)Mh.L.J. and Mohanlal Parikh reported in 2003 (4)Mh.L.J. and (3) Board of Trustees of the Port of Bombay vs. (3) Board of Trustees of the Port of Bombay vs. (3) Board of Trustees of the Port of Bombay vs. M/s. Rainbow Products and anr. reported in M/s. Rainbow Products and anr. reported in M/s. Rainbow Products and anr. reported in 2007(2) Mh.L.J. 2007(2) Mh.L.J. 2007(2) Mh.L.J. She had read to the Court the said judgements and had submitted that her contention as regards the question of limitation should be accepted. 14. It was also contended by the learned Counsel for the plaintiffs that the present suit came to be filed on 29.4.1992 on the basis of liability of both the defendants at the foot of the account. She had also contended that the cause of action arose to the plaintiffs from the date when the suit telephone was disconnected. She however she could not tell the Court the precise date on which the suit telephone came to be disconnected. She also drew my attention to the fact that defendant No.1 had filed Writ Petition No.602 of 1989 and by Order dated 3.10.1989 this Court had directed defendant No.1 to deposit the sum of Rs.1,17,000/- with plaintiffs. She contended that the date, namely 3.10.1989 would be the date from which the period of limitation would start and that is how the institution of the suit on 29.4.1992 would be within the period of limitation. -13- 15. I have considered the aforesaid submissions and I have also perused the provisions of Indian Limitations Act, 1963. There is no specific period of limitation provided in regard to the recovery of the monies due and payable in regard to the telephone bill. As a result of this the stand of the plaintiffs that, to the facts of this case provisions of Article 113 of the Limitation Act would be applicable is required to be accepted. In accordance with the provisions of Article 113 being residuary article the period of limitation will be three years and the starting point of limitation is date when the right to sue accrues. Learned Advocate Ms. Shah had contended that the period of limitation would start from the date of demand. In the present case it is required to be specifically mentioned that there is no specific notice of demand issued by the plaintiff calling upon the defendant No.1 as well as the defendant No.2 to make the payment as such the question is what would be the act of the plaintiffs by which the demand is being made. If that is so, issuance of the telephone bill by itself will have to be treated as demand made by the plaintiffs to the defendants i.e. to say the telephone bills at Exhibit 15, 16, -14- 17, 19m 20 and 21 will be treated as the demand made by the plaintiffs and the date of the bill shall be the date of demand i.e. to say for Exhibit 15 date of demand will be 5.11.1988, for exhibit 16 date of demand will be 5.1.1989, for exhibit 17 date of demand will be 21.2.1989, for exhibit 19 date of demand will be 21.4.1989, for exhibit 20 date of demand will be 21.6.1989 and for exhibit 21 date of demand will be 24.6.1989. 16. Once it is observed that the date of bill is to be treated as date of demand, the period of limitation will start running from the date of bill i.e. 5.11.1988, 5.1.1989, 21.2.1989, 21.4.1989, 21.6.1989 and 24.6.1989. The stand taken by the plaintiffs that the date of the order passed by this Court in Writ Petition No.602 of 1989 would rule the period of limitation cannot be accepted because that Order came to be passed by the court in the litigation which was initiated by the defendant No.1. The stand of the plaintiffs that the date on which the telephone line was disconnected is relevant for the purpose of determining the period of limitation is also required to be rejected particularly when the plaintiffs have not been able to provide the date -15- on which the suit telephone was disconnected. In any case the date on which the suit telephone came to be disconnected has no relevance once it is observed that the date of the bill is date of the demand. The reliance placed by the learned Counsel for the plaintiffs on the two judgements Board of Trustee of the Port of Bombay vs. Ramanlal Mohanlal Parikh and Board of Trustees of the Port of Bombay vs. M/s. Rainbow Products & Anr. ( supra) is not proper in as much as the said two judgments relate to the facts where the port trust charges were required to be recovered The aforesaid observation that the date of the bill is the date of demand and that the date of demand will govern the period of limitation has been accepted on the basis of the judgment in Case of P. Ramachandraiah P. Ramachandraiah P. Ramachandraiah Chetty vs. The Andhra Pradesh State Electricity Chetty vs. The Andhra Pradesh State Electricity Chetty vs. The Andhra Pradesh State Electricity Board. Board. Board. 17. Once it is observed that the date of bill is the date of demand and that is the day on which the cause of action has arisen, the court will have to consider as to out of these six bills which of the bills would be within the period of limitation, keeping in view the fact that the suit is filed on 29.4.1992. By inspection of the respective dates -16- of bills at Exhibit 15 to 21 I hold that the period of limitation of three years in regard to the bills at Exhibit 15, 16 and 17 will expire prior to 29.4.1992 and therefore the institution of the suit on 29.4.1992 for the amounts covered by the three bills at Exhibit P-15, 16 & 17 will have to be treated as beyond the period of limitation. In view of the aforesaid observations, institution of the suit for the bills at Exhibit 19, 20 and 21 will have to be treated as the suit within the period of limitation. 18. The argument advanced by the learned Counsel for the plaintiffs that the suit is for recovery of the dues, at the foot of the account cannot be accepted. In my view each of the bill constitutes an independent cause of action. In the normal course it was necessary for the plaintiffs to institute separate suit for the separate bill. However considering the peculiar facts clubbing of the six bills considered as proper and hence the suit came to be entertained. At the same time, merely because the suit is filed to recover monies in respect of these six bills taken together will not make this suit as suit for recovery of the monies in respect of the amount due and payable at -17- the foot of the account. 19. For the aforesaid reasons, I hold that the suit instituted by the plaintiffs for the recovery of monies under the bills at Exhibit 15 to 17 for a total amount of Rs.1,76,067.25 suit would be beyond the period oflimitation and to that extent the claim in regard to bills at Exhibit 15 to 17 will have to be rejected. The institution of the suit for the bills at Exhibit 19 to 21, totalling to Rs.40,829/- will have to be treated as within the period of limitation and to that extent the plaintiffs case is required to be accepted and the plaintiffs will be entitled to decree to the extent of Rs.40,829/- by way of principal amount. 20. The plaintiffs have claimed interest at the rate of 18% per annum on the outstanding bills. No specific evidence is placed before the Court by the plaintiffs in support of their contention that the plaintiffs are entitled to receive interest at the rate of 18% per annum. In my view, if the interest at the rate of 12% is granted to the plaintiffs keeping in view the year in regard to which this suit claim is being made, it would meet the ends of justice. Hence, plaintiff would be entitled to -18- recover interest at the rate of 12% per annum from January 1990 till filing of the suit. The interest on the outstanding bill is being granted w.e.f. January 1990 on the basis of the claim made by the plaintiffs and set out in particulars of claim. 21. The plaintiffs have claimed interest at the rate of 6% per annum from the date of filing of the suit till realisation. The demand for interest at the rate of 6% per annum from the date of filing of the suit is fair and can be granted. Plaintiffs will also be entitled to receive the costs of the suit. In view of the aforesaid discussion, issue NO.3 is answered to hold that part of plaintiffs claim to the extent of Rs.1,76,067.25 is held to be beyond the period of limitation. Part of the claim to the extent of Rs.40829/- is held to be within the period of limitation and plaintiff will be entitled to decree as per the operative order. Issue No.8. Issue No.8. Issue No.8. 22. In view of answer to issue No.3 plaintiffs will be entitled to decree as per the operative order. Issue No.9 Issue No.9 Issue No.9 -19- 23. The plaintiff will be entitled to receive costs of the suit. For the reasons mentioned aforesaid, I pass the following decree. DECREE DECREE DECREE . Defendants jointly or severally do pay to plaintiffs Rs.40,829/-. . Defendants jointly or severally do pay to plaintiffs interest at the rate of 12% per annum from 1.1.1990 upto the date of filing of the suit on Rs.40,829/-. . Defendants jointly or severally do pay to plaintiffs interest at the rate of 6% per annum from the date of filing of the suit till realisation on Rs.40,829/-. . Defendants jointly or severally do pay to plaintiffs costs of the suit. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)