1 s-118-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 118 OF 2009. Mahanagar Telephone Nigam Limited. ..Plaintiffs. vs. Shah Afzal Ali. ..Defendant. .... Mr. Viral D. Shukla, i/b. Shukla & Associates, for Plaintiffs. None for Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 12TH JANUARY 2011. P.C. The Plaintiffs are Mahanagar Telephone Nigam Limited, a Government of India Enterprise. The Plaintiffs are seeking an ex- parte decree against the Defendant, who has his place of business at Shop No. 4-A, ground floor, Ashra Estate Road, 19, V.K. Wadi, Dharavi, Mumbai – 400017 and Godown No. 4, PMP Wadi, No. 230, Dongar Khana, V.K. Wadi, Dharavi, Mumbai-400017 (hereinafter referred to as “the said premises”) for non payment of telephone bills issued by the Plaintiffs. 2. The Plaintiffs have tendered Affidavit of Evidence of Shri D.B. Salunkhe dated January 6, 2011, who is working in the office of the Plaintiffs as a Junior Accounts Officer TR, in-charge office of Sion Telephone Exchange (TR) section. The said evidence is taken on record and marked ‘X’ for identification. Letter of authority dated January 4, 2011 issued by the Plaintiffs in favour of Shri D.B. Salunkhe to file the Affidavit of Evidence is marked as Exhibit P-1. 2 s-118-09 3. The Defendant applied for nine new telephone connections with the Plaintiffs for commercial use at the said premises. Pursuant thereto the Plaintiffs allotted the nine new telephone connections to the Defendant bearing numbers: 24017264, 24017836, 24037821, 24040366, 24040367, 24040368, 24030719, 24031924 and 24032936. 4. The Plaintiffs have produced copies of all outstanding bills certified by Mr. Prakash Raya Naik, predecessor of the deponent. The deponent submits that he has personally confirmed the detailed particulars of each and every bill from his computerized system and the same are true and correct. The deponent submits that he can identify the signature of Mr. Prakash Raya Naik on the said bills. The certified copies of the said bills are produced before the Court. Particulars of the bills along with the exhibit numbers given to the bills are set out hereunder:- S. No. Telephone No. Bill date Amount Total Outstandi ng Exhi bit 1. 24017264 May 6, 2006 Rs. 1,984 September 6, 2006 Rs. 6,801 October 6, 2006 Rs. 8,233 Rs. 17,018 P-2 P-3 P-4 2. 24017836 May 6, 2006 Rs. 6,529 June 6, 2006 Rs. 6,748 July 6, 2006 Rs. 3,683 August 6, 2006 Rs. 8,250 September 6, 2006 Rs. 5188 October 6, 2006 Rs. 4,115 Rs. 34,513 P-5 P-6 P-7 P-8 P-9 P-10 3. 24037821 December 6, 2006 Rs. 10,454 January 6, 2007 Rs. 10,692 February 6, 2007 Rs. 6,704 Rs. 27,850 P-11 P-12 P-13 4. 24040366 December 6, 2006 Rs. 11,779 January 6, 2007 Rs. 10,439 February 6, 2007 Rs. 7,098 March 11, 2007 Rs. 200 Rs. 29,516 P-14 P-15 P-16 P-17 3 s-118-09 5. 24040367 November 6, 2006 Rs. 12,974 December 6, 2006 Rs. 10,955 January 6, 2007 Rs. 6,500 February 8, 2007 Rs. 200 Rs.30,629 P-18 P-19 P-20 P-21 6. 24040368 December 6, 2006 Rs. 9,912 January 6, 2007 Rs. 9,941 February 6, 2007 Rs. 6,407 June 11, 2007 Rs. 200 Rs.26,460 P-22 P-23 P-24 P-25 7. 24040719 January 6, 2007 Rs. 2,387 February 6, 2007 Rs. 4,489 March 6, 2007 Rs. 1,330 Rs.8,206 P-26 P-27 P-28 8. 24031924 January 6, 2007 Rs. 1,470 February 6, 2007 Rs. 1,685 March 6, 2007 Rs. 658 Rs.3,813 P-29 P-30 P-31 9. 24032936 January 6, 2007 Rs. 789 Rs. 789 P-32 5. The Plaintiffs have stated in the Plaint as well as in the Affidavit of Evidence that by their letter dated 26th March 2008 addressed to the Defendant, the Defendant was called upon to pay the outstanding amounts as mentioned therein within a period of 7 days, failing which legal action would be taken against the Defendant. The said letter was duly received by the Defendant. The Plaintiffs are in receipt of the acknowledgment slips for the same. The said letter along with the acknowledgment are marked as Exhibit P-33. 6. The Plaintiffs have stated in the Plaint as well as in the Affidavit of Evidence that since the payment was not forthcoming, the Plaintiffs deputed their Telephone Revenue Inspector to visit the premises of the Defendant. It was found that the telecom service was being misused as the Defendant was found to use the said telephone connections as STD PCO, allowing the general public to utilise telecom services and collect money for the same purporting to be an agent of the Plaintiffs. The Plaintiffs submit that the Defendant was not authorised to provide telecom services and have misused the services of the Plaintiffs. The Plaintiffs also submit that the 4 s-118-09 Defendant has already collected money as per the usage of the said telephones but has failed and neglected to pay the same to the Plaintiffs and has thus earned unlawful gain and caused loss to the Plaintiffs. 7. The plaintiffs have stated in the Plaint as well as in the Affidavit of Evidence that they issued Advocate’s notice dated 19th April 2008 to the Defendant directing him to forthwith pay the outstanding amounts plus surcharge as mentioned therein, failing which legal action would be taken against the Defendant. The Plaintiffs are in receipt of the acknowledgment slips of proof of dispatch for the said notice. The Advocate’s notice along with the acknowledgment are marked as Exhibit P-35. 8. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. From Exhibits P-2 to P-32, it is established that the Plaintiffs had provided nine telephones to the Defendant at the said premises pursuant to his application/request. The Defendant has used the said telephones and the total amount payable to the Plaintiffs by the Defendant is Rs. 1,78,794/-. From Exhibit P-33 and Exhibit P-35, it is established that the Defendant was called upon to make payment of the outstanding amounts but the Defendant failed and neglected to pay the same as and when they became due and that the Plaintiffs are entitled to receive the amount as recorded / called upon in the said notices of the Plaintiffs. 9. As set out in the Affidavit of Service of the writ of summons dated 14th May 2009 the Defendant has refused service. Refusal of service is good service. The Defendant has therefore not 5 s-118-09 come forward to defend the Suit and has not filed his written statement. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the Plaintiffs have stated in the Plaint as well as in the Affidavit of Claim should not be accepted. 10. In my view, the relief sought by the Plaintiffs is required to be granted. In view thereof, I pass the following order:- (i) The Defendant is ordered and decreed to pay to the Plaintiffs a sum of Rs. 1,78,794 along with simple interest at 12% from the date of filing of the Suit till the payment and / or realisation. (ii) The Defendant shall pay to the Plaintiffs the costs of this Suit. (iii) The Suit is accordingly disposed of in favour of the Plaintiffs and against the Defendant. [ S.J. KATHAWALLA, J. ]