Victim's claim for SIM swap fraud against Bank and Vodafone set aside as 'Privity of Contract' must be established for liability.

In brief

The question

1. Whether the Adjudicating Officer could impose liability on the Appellants in the absence of a Privity of Contract between the Complainants and the service providers.

The court held

The Tribunal allowed both Cyber Appeal No. 15 of 2018 and Cyber Appeal No. 4 of 2019.

It also directed

The impugned judgment dated 01.10.2018 was set aside and the matter was remanded to the Adjudicating Officer for a fresh hearing.

The Tribunal directed the Complainants to amend their petition to include the necessary parties and clarify the locus standi regarding the fraud.

Considering the case originated in 2017, the Tribunal ordered an expeditious disposal with no unnecessary adjournments.

01Facts

The Respondents (Complainants) filed a petition before the Adjudicating Officer, Madhya Pradesh, alleging a cyber fraud involving duplicate SIM cards and banking transactions.

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The Adjudicating Officer held the Telecom Service Provider (TSP) and the Bank liable in equal ratio.

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On appeal, the Appellants contended that there was no "Privity of Contract" because the mobile numbers in question (9826035855 and 9826035891) were registered under the names of third parties—Shri Pushpraj Namdeo and Smt. Jav Gazala—rather than the Complainants.

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The Complainants admitted they were merely users (employer/employee relationship) of the SIMs, but the registered owners were never made parties to the original proceedings.

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02Issues

i.1. Whether the Adjudicating Officer could impose liability on the Appellants in the absence of a Privity of Contract between the Complainants and the service providers.

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ii.2. Whether the impugned judgment is sustainable when the formal subscribers of the SIM cards and bank accounts were not parties to the litigation.

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03Law Applied

Section 57(3) of the Information Technology Act, 2000 regarding appeals against the Adjudicating Officer.

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Doctrine of "Privity of Contract," establishing that contractual rights and liabilities accrue only between the specific parties to the agreement.

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Precedents from Vodafone Idea Limited vs. Mahakali Food Private Ltd. (CA 1/2019) and Vodafone Idea Limited vs. Rajkumar Shreelal Singhee (CA 10/2018), which hold that liability cannot be fastened upon a Bank or TSP in favor of a third party who is not a valid subscriber or party to the contract.

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Provisions in the judgment · 1 · Linked ones open on LawLens

Information Technology Act, 2000 Section 57

04Reasoning

The Tribunal observed that the Adjudicating Officer failed to consider that the duplicate SIM cards were issued based on the identities of Namdeo and Gazala, the actual contract holders.

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Applying the precedents cited, the Tribunal reasoned that since the Complainants failed to plead their specific relationship with the registered owners or join the owners as parties, the "Privity of Contract" remained between the Appellants and the registered owners only.

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The Complainants could not be legally recognized as the "sufferers" or beneficiaries of contractual liabilities without a trial involving the actual subscribers.

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The Tribunal determined that the facts led before the lower authority were not properly analyzed under the anvil of the law of contracts.

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