M/S. Sita Ram & Sons vs Mahanagar Telephone Nigam Ltd.
2010 Latest Caselaw 5658 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                     RFA No. 231/1997
 %                                             13th December, 2010


 M/S. SITA RAM & SONS                            ...... Appellant

                                   Through:    Mr. Lakshay Sahni,
                                               Advocate.

                       VERSUS

 MAHANAGAR TELEPHONE NIGAM LTD.                 .... Respondent

                                   Through:    Mr. Dinesh Agnani,
                                               Advocate.

 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?

 2.   To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the

impugned judgment and decree dated 7.6.1997 whereby the suit of

the respondent Mahanagar Telephone Nigam Ltd. (M.T.N.L) has been

decreed for Rs.3,41,980/- with pendente lite and future interest @ 18%

per annum. The facts of the case are that two bills of the amount of

Rs.1,46,677/-, dated 2.6.1991 and Rs.1,94,983/- dated 2.4.1991 were

raised against the appellant. The bills in question being for just two

periods are running in approximately 200 pages in number showing

calls to various numbers internationally which itself in the facts and

circumstances of this case is quite clearly incredible. The appellant

contended that all its earlier bills were in the region of but a few

hundred rupees and therefore under no circumstances could at all such

a billing amount exist against the subject telephone connection. It was

contended that reference to these bills show that these bills pertained

to various international calls made at short intervals by misusing the

STD/ISD facility on the telephone connection of the appellant. It is

contended that there was in fact misuse of the telephone line by

certain field staff of the respondent and the appellant should not be

unnecessarily burdened with such large amount. By the impugned

judgment and decree, the suit has been decreed and the relevant issue

in this regard is issue No.3 which reads as under:-

"Whether the deft. was not having STD connection as alleged by the deft, if so to what effect?"

2. The counsel for the appellant has contended that the bills

which have been raised by the respondent in this case were during the

days when exchanges were not wholly electronic and field staff used to

misuse the lines. It is contended that in all such cases where ever

there was alleged to be misuse, the respondent used to conduct a

detailed enquiry including vigilance enquiry and after giving a show

cause notice, only then liability was fastened to a consumer, but which

the respondent for some strange reason failed to conduct although the

appellant contends that all this was specifically informed to the

respondent and specific complaints in writing were made. These

complaints are exhibited as Ex.DW1/5 dated 10.4.1991 and Ex.DW1/10

dated 11.1.1992.

3. A reference to the aforesaid findings with respect to issue

No.3 shows that all the relevant aspects with respect to past bills being

of a few hundred rupees, the fact that the numbers at which calls were

made whether the same were called in the past or not, whether show

cause notice has not been given and whether enquiries/vigilance

proceedings were conducted by the respondent, are all conspicuous by

their absence in the impugned judgment. The counsel for the

respondent therefore could not with any vehemence argue the case

because the admitted position is that in all such cases where

complaints are received for misuse of telephone having STD/ISD

facility an enquiry is invariably conducted by the respondent and such

enquiry will look into various aspects including the value of past bills,

the numbers to which the calls have been made using the STD/ISD

facilities and so on. It is trite that a liability should only arise when the

same is really existing. The facts and circumstances of the case show

that the principles of natural justice have not been followed and no

enquiry including a vigilance enquiry took place. The respondent is

thus quite clearly guilty in discriminating against the appellant

whereas admittedly this procedure with respect to disputed bills was

the admitted norm.

4. Accordingly, I set aside the impugned judgment and

decree and hold that the appellant would therefore be only liable to

pay the normal demands as raised with respect to these bills.

However, one cannot rule out the possibility that at least some calls

may have been made using the STD/ISD facility, though the business is

stated to have been closed as per the appellant. I feel that in the

peculiar facts and circumstances of this case instead of the decretal

amount, the appellant should be ordered to pay a sum of Rs.50,000/-

in full and final settlement of all the claims of the respondent under the

bills to take care of the bill amount of normal calls and interest

thereon. The counsel for the appellant says that in view of the fact

that the admitted norms/rules were not followed in this case and since

there is no enquiry report available in the records, the respondent

should in the peculiar facts of this case seek to put a rest to litigation

at this stage itself and to which the counsel for the respondent has

noted to be accepted accordingly by the respondent on account of the

direction of this court to the appellant to pay Rs.50,000/- in full and

final satisfaction of all claims of the respondent against the subject

telephone connection and on the lines of which certain talks for

compromise unsuccessfully took place. I must note that quite clearly,

the respondent has failed in its duty in the present case in not

conducting necessary enquiry and which enquiry report would have in

fact come in evidence in the present judicial proceedings where these

bills are being challenged.

5. In view of the above, the appeal is partly accepted and the

impugned judgment and decree is modified by directing that the

appellant shall be liable to pay a sum of Rs.50,000/- to the respondent

in full and final satisfaction of the claims of the respondent under the

unpaid bills of the respondent. The appellant is granted two months

time to make payment of this amount, however, in case the payment is

not made then the impugned judgment shall stand revived. Appeal is

accordingly disposed of, leaving the parties to bear their own costs.

Trial Court record be sent back.

DECEMBER 13, 2010                               VALMIKI J. MEHTA,J
ib