Vodafone Idea Limited GJ (Delhi) vs Syed Sultan Jamil And Anr. (Madhya Pradesh)

This Cyber Appeal No. 15/ 2018, by Vodafone Idea Limited, Telecom Service Provider, has been filed against Shri Syed Sultan Jamil, Respondent No. 1 and Smt. Farah Jamil, Respondent No. 2, under Section 57 (3) of Information Technology Act, 2000(IT Act), against Impugned Judgment of Learned Adjudicating Officer/ Principal Secretary, Madhya Pradesh Government, Department of Science and Technology, Bhopal in Petition No. 12/ 2017, Shri Syed Sultan Jamil and Another versus Bank of India and Others, dated 01.10.2018, with this contention that the Respondents, who were complainant, before Learned Adjudicating Officer, were not the persons having SIM issued in their favour by Telecom Service Provider, the then Idea Cellular Company; rather, the SIM said to be got issued as a duplicate, by using forged and fictitious documents, were admittedly been issued in the name of Pushpraj Namdeo and Smt Jav Gazala i.e., else than the Complainant and there was no Privity of Contract, in between, Appellant-Telecom Service Provider and the Complainant.

This fact was raised by way of reply in above complaint, before Learned Adjudicating Officer that the duplicate SIM by Idea Cellular was got issued, after making compliance of the scheduled procedure for issuing the same, having obtained the identity of document from the Applicant. The Mobile No. 9826035855 was of Shri Pushpraj Namdeo and Mobile No. 9826035891 was of Smt. Jav Gazala, and both of the complainants were not the same, in whose favour, it may be presumed to have been issued by Appellant, Telecom Service Provider.

The facts and evidences, led before Learned Adjudicating Officer, were not taken into account, and impugned order was got passed, whereby, the Telecom Service Provider, as well as concerned Bank, which is Appellant in connected CA No. 4/ 2019, were fastened with the liability in equal ratio, with imposition of other cost written in impugned judgment.

The Tribunal in CA No. 1/ 2019, Vodafone Idea Limited Vs. Mahakali Food Private Ltd., as well as CA No. 10/ 2018, Vodafone Idea Limited Vs. Rajkumar Shreelal Singhee & Ors., had laid down the proposition of law that, unless there is a Privity of Contract, the liability may not be imposed, as against Bank or Telecom Service Provider, because of the fact that there was no contract, in between, nor any rights and liabilities had accrued, in between. Rather, liability, if any, would have been in favour of the person, who was the valid cell phone number subscriber, having obtained SIM from Appellant, Telecom Service Provider, and who was the party to contract with Bank- Appellant. Any third party, unless pleaded or appeared in the proceeding, for having check of their veracity under the anvil of cross examination, may not be said to be beneficiary or sufferer in above contractual liabilities, being said to have been accrued without being there any Privity of Contract, in between.

Learned Counsel for Complainant is fair enough to admit this situation that the real person, in whose favour the SIM card was issued, and who had entered into agreement with Telecom Service Provider was not the party in the complaint, filed before Adjudicating Officer. Rather, the sufferer of above fraud was the complainant, who was under use of the above SIM card in the banking transaction, as well as other activities, because of being mere in relation or in capacity of employee of above real SIM card holder. But, this fact was never pleaded by complainant, nor the real person, who was issued with the SIM card, and who had entered into contract and who was the person having Privity of Contract with Telecom Service Provider, as well as Bank, nor was added as a party, before Learned Adjudicating Officer.

Under above factual circumstances, and the points raised before Learned Adjudicating Officer, but not taken care of, nor having addressed by Learned Adjudicating Officer, coupled with the law laid down by this Tribunal itself, in those previously decided Cyber Appeals, cited supra, this impugned judgment is of this nature to be set aside. Thereby, the file is to be remanded back to concerned Adjudicating Officer, for hearing afresh after amending the complaint, in light of above observation, having specific mention of the person, who is having the Privity and the locus of present Complainant, who is said to be user and looser of the above fraud in the Petition.

The matter is to be adjudged after amendment in the complaint, additional reply in addition to Previous one by Telecom Service Provider as well as Bank and the evidences led before Learned Adjudicating Officer.

It is noteworthy to mention that the Petition is of year 2017 and 09 years have been lapsed. The sufferer is running from pillar to post, hence, the expeditious disposal is needed and for this, no unnecessary adjournment to either side is to be given.

Learned Counsels for both side are expected to extend their full cooperation for getting the matter adjudged by Learned Adjudicating Officer.

With above observation, the impugned judgment is being set aside. File is being remanded back to Learned Adjudicating Officer for making disposal as above.

Cyber Appeal No. 4 of 2019 is also being allowed as above, because the main judgment has already been set aside. Hence, the remand order will apply to this Cyber Appeal too. ….......……………… (Justice Ram Krishna Gautam) Member 28.07.2026 /BN/