Final Order 1

Order Details: Copy of Judgment
Pdf Text: SJ 179 of 2018 .. J/1 ..
in Sum Suit 1402 of 2017
MHCC010076832018
EXH.
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON
SUMMONS FOR JUDGMENT NO.179 OF 2018
IN
SUMMARY SUIT NO.1402 OF 2017
Vodafone India Limited,
A company incorporated under the Companies
Act I of 1956 and having its registered office
situate at Peninsula Corporate Park, Ganpatrao
Kadam Marg, Lower Parel, Mumbai – 400013.
...Plaintiff.
V/s.
Pentacle Consultants (India) Pvt. Ltd.
A company incorporated under the Companies
Act I of 1956 and having its office formerly
situate at B-102, Kemps Plaza. Off Link Road,
Mindspace, Malad West, Mumbai – 400 064.
and
presently situate at B/406, Pranik Chambers,
Sakinaka Road, Near Sakinaka Junction, Andheri
East,
Mumbai – 400 072.
...Defendant.
Appearances:
None For plaintiff.
Adv. Vijeet Trivedi For defendant.
CORAM : HIS HONOUR JUDGE
N. B. LAVTE, (C.R.No.83)
DATED : 20th November, 2025
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SJ 179 of 2018 .. J/2 ..
in Sum Suit 1402 of 2017
ORDER
The suit is filed for recovery of an amount of
Rs.4,78,496.74/- as unpaid bills of the mobile services.
2. In short, it is the case of the plaintiff company that;
It is engaged in the business of providing Mobile Telephone
Services. The defendant by purchase order dated 18.10.2014 on behalf
of their director Mr. Mahendra More had subscribed for one Sim Card
and executed requisite documents. Thereafter, Mobile Telephone
No.9820556303 was allotted. The defendant opted for 3G, 499 plan.
The defendant executed customer application form (CAF). The
defendant agreed the terms and conditions. The bills in regular course
of business were generated and bill dated 01.03.2017 and 01.04.2017
for Rs.4,36,126.74/- and Rs.4,39,441.48/- were issued. Part payment of
Rs.3,314.74/- was made on 18.04.2017, however, inspite of repeated
reminders, an amount of Rs.4,36,126.74/- was not paid. On
27.05.2017, legal notice was issued. Inspite of it, the amount was not
paid. Hence, suit. In the said suit, the present Summons for Judgment
is filed with prayer to make it absolute.
3. The defendant appeared and filed their reply and admitted
to be the subscriber of cell No.9820556303. Between 15.02.2017 to
22.02.2017 Mr. Mahendra More was travelling to France and as per
defendants Standard Practices of ‘auto updates including auto updates
on emails were disabled during travelling. The hotel where Mr. More
was staying was having Wi-Fi access. At the request of Mr. More, the
IROAM Free Pack was activated for one day at flat rate of Rs.500/- per
day. It was continued for 2 more days i.e on 20.02.2017 to 21.02.2017.
Inspite of it, Mr. More received message of bill of Rs.6,50,000/- though
IROAM Free Pack was already activated. On query with customer Care
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in Sum Suit 1402 of 2017
Number of plaintiff, it was informed that IROAM Free Pack was not
activated though the website reflected it was active. The protest letter
was issued. On 22.02.2017 it was only international roaming was
activated which did not include data services for which IROAM Free
Pack would have to be separately activated. The plaintiffs are trying to
recover Rs.4,36,126.74/- towards data use while on international
roaming although no such data was utilized. Exorbitant user charges
and rates for the data of Rs.550/- for every 1 MB which is more than
500 times charges levied by any national or international mobile carrier.
The charges levied for purported use and data was never used. No
discounted rates were given for incoming or outgoing calls or data
services. Part payment of Rs.4,814 was already made. The plaintiffs are
attempting to recover the purported bill amount for data and services
that were never used. Hence, unconditional leave to defend the suit is
prayed.
4. Heard Adv. Trivedi for defendant. No any argument
advanced by advocate of plaintiff inspite of sufficient opportunities.
According to Adv. Trivedi the plaintiffs have charged exorbitant bill
inspite of the defendant taking IROAM Free Pack which was valid,
however, by taking false excuse that only international roaming was
activated bills were raised. The documents filed on record clearly shows
that IROAM Free Pack was activated, therefore, the plaintiffs cannot
claim the amount of the purported bill. He further submitted that,
whether only international roaming was activated or IROAM Free Pack
was activated is a matter of evidence. Therefore, being triable issues,
the defendant are entitled for an unconditional leave to defend the suit.
5. The defendants are not denying the fact that cell
No.9820556303 was used by their director Mr. Mahendra More. It is
also not in dispute that Mr. More travelled to France and the purported
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in Sum Suit 1402 of 2017
bill was sent for GPRS usage charges. The defendants are denying the
same by taking defence of activating IROAM Free Pack which entitled
them to free access. The plaintiffs have filed on record the copies of
bills, letters and email exchanged between the parties which shows that,
the plaintiffs are claiming that the pack was only for international
roaming which did not include data services. As discussed above the
defendants are claiming the IROAM Free Pack included data roaming.
Thus, I am of the view that evidence on this aspect will have to be led
by both the parties and the issue cannot be decided on the basis of the
documents in view of strong denial by defendants. Thus, defendants
have raised triable issues which will be considered after the parties lead
their evidence.
6. Apart from it, the plaintiff failed to file the original
documents relied by them alongwith the SJ. The Hon’ble Apex Court in
Neebha Kapoor vs. Jayantilal Khandwala AIR 2008 S.C. 1117, held:
For the purpose of obtaining a summary judgment in terms of O.37,
ordinarily, the original documents must be produced. Where the
original documents are not available, the plaintiff, is obligated to
prove the loss of documents and only because the suit has been
entertained as a summary suit, the same by itself may not be a ground
for passing of a judgment on mere asking.”
7. Considering the law laid down in
Neebha (supra), if the
original documents are not filed on record, in that event, the defendant
is entitled for unconditional leave to defend the suit. As the original
documents are not filed on record, it is an additional ground to grant an
unconditional leave to defend the suit. Therefore, I am of the view that,
the SJ is liable to be dismissed and an unconditional leave to defend the
suit is necessary to be granted to the defendants. In the result, I proceed
to pass following order:-
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in Sum Suit 1402 of 2017
: O R D E R :
1. The Summons for Judgment No.179 of 2018 in Summary Suit
No.1402 of 2017 is dismissed.
2. The defendants are granted an unconditional leave to defend the suit.
3. The defendants to file their written statement within two months
from the date of this order.
4. The Summons for Judgment No.179 of 2018 is disposed off.
(N. B. Lavte)
Judge, (C.R.No.83)
Dt.: 20.11.2025 City Civil Court, Mazgaon,
MUMBAI MUMBAI
Dictated on : 20-11-2025
Transcribed on : 20-11-2025
checked on : 21-11-2025 (N. B. Lavte )
Signed on : 21-11-2025 Judge, (C.R.No.83)
City Civil Court, Mazgaon,
MUMBAI.
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in Sum Suit 1402 of 2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21.11.2025 at 04.25 p.m.
UPLOAD DATE AND TIME
(MANISHA SRINATH)
NAME OF STENOGRAPHER
Name of the Judge H.H.J.Shri N. B. Lavte
(COURT ROOM NO.83)
Date of pronouncement of
judgment/order
20.11.2025
Judgment/order signed by P.O. on 21.11.2025
Judgment/order uploaded on 21.11.2025
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