1 60 sj.255.09 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 255 OF 2009 IN SUMMARY SUIT NO. 3381 OF 2008 Vodafone Essar Limited, (Formerly known as Hutchison Essar Limited). ... Plaintiff Versus Prakashchand Tak. ... Defendant -------- Ms. Kavita Brid i/b Dholakia Law Associates for the Plaintiff. Mr. R.S.Dave i/b M/s. N.N.Vaishnawa and Company for the Defendant. -------- CORAM : A.S.OKA, J. DATE : 10 th January, 2011. JUDGMENT : 1 Heard the learned counsel appearing for the Plaintiff in support of summons for judgment. The suit is filed for recovery of a sum of Rs.1,60,423.94. According to the case of the Plaintiff, the Defendant subscribed the prepaid cellular phone services provided by the Plaintiff. On or about 11 th November, 2005, the Defendant converted status of his cellphone services from prepaid to postpaid and accordingly, executed 2 60 sj.255.09 customer agreement form (for individual suppliers). A cellphone number was allotted to the Defendant and the use of postpaid cellphone services commenced from 11 th November, 2005. Reliance is placed by the Plaintiff on the terms and conditions of the said agreement. It is stated that on 24 th March, 2007, the Defendant also subscribed a national and international roaming facility, which were activated by the Plaintiff. It is alleged that the Defendant committed default in making payment of bills of cellular mobile phone from 28 th December, 2008. It is stated that bills dated 28 th December, 2007, 28 th January, 2008, 28 th February, 2008, 28 th March, 2008 and 28 th April, 2008 were not paid by the Defendant. 2 The Plaintiff has relied upon the aforesaid bills. It is stated that on 8 th December, 2007, the Plaintiff has sent SMS to the Defendant informing him that his usage has reached Rs.17,000/- and requested the Defendant to make interim payment in order to enjoy uninterrupted services. It is stated that the Defendant made an interim payment of Rs. 10,000/- on 10 th December, 2007. It is alleged in the plaint that an attempt was made on 10 th December, 2007 by the representative of the Plaintiff of 3 60 sj.255.09 calling the Defendant to inform about the high usage of Rs.63,000/- and called upon him to make interim payment of atleast a sum of Rs.40,000/-. He stated that the cellphone of the Defendant was switched off. Reliance is placed on the SMS send by the Plaintiff to the Defendant on 9 th, 12 th and 15 th January, 2008 calling upon the Defendant to make a payment of Rs.1,57,486.83. It is alleged that on 17 th January, 2008, the representative of the Plaintiff called upon the Defendant requested the Defendant to pay the outstanding bill dated 28 th December, 2007. The Defendant was informed that after part payment of a sum of Rs.10,000/-, the credit limit of the Defendant was raised to Rs.21,300/-. The Plaintiff is relying upon the request made to the Defendant calling upon the Defendant to pay bill in the sum of Rs.1,60,736.29 by sending SMS from time to time in February and March, 2008. Reliance is placed on notice dated 27 th May, 2008 calling upon the Defendant to make payment of a sum of Rs. 1,62,547.56. 3 The learned counsel appearing for the Plaintiff in support of summons for judgment submitted that the bill dated 28 th December, 2007 4 60 sj.255.09 contains details of the calls made by the Defendant many of which were international roaming calls. The learned counsel invited attention of the Court to the terms and conditions incorporated in the customer agreement executed by the Defendant and submitted that the Defendant has no defence. 4 The learned counsel appearing for the Defendant submitted that the suit is not maintainable as the summary suit as the same is not based on any agreement, but it is on the basis of the bills issued by the Plaintiff. He submitted that the credit limit of the Defendant was Rs. 11,000/- and it is pointed out in the reply to the summons for judgment that the Defendant has not made any calls exceeding the limit of Rs. 11,000/-. It is stated that on receiving of SMS in the year 2008, the Defendant deposited a sum of Rs.10,000/- to keep balance amount of Rs. 11,000/- He submitted that as credit limit of the Defendant was Rs. 11,000/-, the services could not have been continued by the Plaintiff after the bill amount exceeded the said amount. He stated that the Defendant has pointed out that the credit limit was never increased by the Plaintiff 5 60 sj.255.09 and the same continued to be Rs.11,000/-. Lastly, he pointed out that there is a serious discrepancy in the amount claimed in the suit by pointing out that the claim made in the suit is Rs.1,60,423.94. Even according to the case made out by the Plaintiff in the plaint, the amount under the bill was Rs.1,62,547.56. He submitted that there are several triable issues and therefore, unconditional leave deserves to be granted. 5 The learned counsel appearing for the Plaintiff pointed out that under the terms of the agreement, the Plaintiff was entitled to adjust security deposit of Rs.2,000/- and that is how the claim is made at the sum of Rs. 1,60,423.94. 6 I have given careful consideration to the submissions. In paragraph No. 3 of the plaint, reliance is placed by the Plaintiff on customer agreement form executed by the Defendant. There is no denial by the Defendant as regards the execution of the said agreement. A true copy of the agreement form duly signed by the Defendant has been annexed to the plaint, which incorporates terms and conditions. Clause 6 60 sj.255.09 (4) incorporates a covenant by the customer that payment of services will be due when the Plaintiff raises the billing statement on the customer. The sub-clause (ii) of clause 4 provides that the Plaintiff is entitled to apply payments/deposits made by the customer towards any charges outstanding including for any other HMTL cellular connection held by the customer. There is an obligation created by the terms of the agreement, under which the Defendant is bound to pay for services rendered by the Plaintiff on billing statement being raised by the Plaintiff. The Plaintiff has relied upon billing statements the receipt of which is not disputed by the Defendant. Thus, the claim appears to be based on contract between the parties. 7 The Plaintiff has relied upon outstanding bills from 28 th December, 2007 onwards, which are marked as Exhibit Nos. H, I, J, K and L. Exhibit – G is the statement of the account, which shows that the total amount is due and payable by the Defendant is Rs.1,62,423.94. In paragraph No.12 of the plaint, reliance has been placed on the billing statements marked as Exhibit No. H, I, J, K and L. Perusal of the billing 7 60 sj.255.09 statement dated 28 th December, 2007 shows that it incorporates a statement of itamised calls giving particulars of calls made by the Defendant including the name of the roaming partner. Details of the calls made by Defendant have been set out. In the reply filed to the summons for judgment by the Defendant, there is neither a specific denial of the said details nor a specific assertion that the calls of which particulars are incorporated in the bill dated 28 th December, 2007 were not made by the Defendant. Perhaps the only contention raised in the reply is that the credit limit fixed by the Plaintiff was of Rs.11,000/- and that the Defendant has not made calls exceeding the credit limit. It is contended that the credit limit was never enhanced by the Plaintiff and therefore, there was no question of Defendant making any calls exceeding the credit limit. In this connection, sub-clause (h) of Clause 3 of the terms and conditions in the agreement will have to be considered. Under the said clause, the Plaintiff reserved a right to apply a monthly financial limit and such other conditions for charges incurred by the customer and to demand interim advance, suspend or disconnect access to the services if such limits are exceeded. Thus, it is the choice of the Plaintiff to disconnect or suspend 8 60 sj.255.09 services if the credit limit is exceeded. There is nothing in the agreement which obliges the Plaintiff to stop service immediately on the customer exceeding the prescribed credit limit. The customer continues to be liable to pay the bills in respect of services rendered even after expiry of credit limit. 8 The grievance made by the learned counsel appearing for the Defendant about the claim amount does not have any merit inasmuch as in paragraph No.3 of the plaint, there is a specific assertion that a sum of Rs.2,000/- has been received by the Plaintiff as security deposit. Thus, in this case, there is practically no defence available to the Defendant. However, an opportunity deserves to be granted to the Defendant to contest the suit by deposit of the principal amount claimed. Reasonable time deserves to be granted to deposit the amount. 9 Hence, summons for judgment is disposed of by passing the following order: 9 60 sj.255.09 i. Conditional leave is granted to the Defendant to defend the suit subject to deposit of a sum of Rs. 1,60,423.94 in this Court within a period of three months from today; ii. In the event, the entire amount is not deposited within the stipulated time, it will be open for the Plaintiff to apply for judgment ; iii. If, the amount is deposited within the stipulated time, the Defendant will be entitled to defend the suit by filing written statement within a period of twelve weeks from the date of deposit of the amount ; iv. On deposit, the suit shall be transfered to the list of commercial causes ; 10 60 sj.255.09 v. As and when amount is deposited, the Plaintiff will be entitled to withdraw the same subject to giving an undertaking to this Court to restitute the amount with interest at such rate as may be directed by this Court, in the event the Plaintiff fails in the suit. [ A.S.OKA, J ]