Lahori Mal & Sons And Anr. vs Union Of India And Anr.
1996 Latest Caselaw 247 Del

JUDGMENT

Manmohan Sarin, J.

(1) The plaintiff No. 1 firm is an advertising agent and has filed this suit for perpetual injunction to restrain the defendants from demolishing or in any manner defacing or damaging the advertisements/hoardings put up by the plaintiff firm. Plaintiff No. 2 is partner of the firm. The case of the plaintiffs is that they had entered into contracts with the Northern Railway for display of the hoardings/advertisements at the sites belonging to the Railways.

(2) The particulars of the contracts as given in para 6 of the plaint as per information furnished thereafter are :- ____________________________________________________________________________ SI. Site Reference No. of Date from which No. the defendants the site is in possession of the plaintiff & date of expiry of contract. ____________________________________________________________________________ 1. Park Office, 3 Pub./3199 28.11.1994 Rest House on & State Entry Road. 14.1.1996 2. Shadipur Bridge 3 Pub./2860 3.4.1992 facing Patel & Nagar. 30.11.1995 3. Minto Bridge 3 Pub./2985 6.8.1993 & 30.11.1995 4. Three Panels at 3 Pub./31.93 5.12.1994 Pragati Maidan Bridge & 31.3.1996 5. Dhobi Ghat near State Entry Road. 3 Pub./2794 28.12.1991 & 30.11.1995 ____________________________________________________________________________

(3) The case of the plaintiff is that the contracts are in operation and the plaintiffs have paid the rentals for the said sites.

(4) The plaintiff's case is that there had been no dispute with regard to the sites till October 1995. On 1st November 1995, the Divisional Commercial Manager of the Railways is reported to have called the plaintiffs' partner and threatened to remove the hoardings. The plaintiffs have sought an injunction against the alleged illegal and arbitrary action in threatening to demolish the advertisement/hoardings in violation of principles of natural justice.

(5) The suit was taken up on 15th November, 1995 when time was granted to the plaintiff to file better particulars with regard to subsisting contracts. The defendants did not appear despite summons being served on 22.11.1995. On the said date an interim order was passed restraining the defendants from removing the advertisements/ hoardings from the five sites at Park Office, Rest House on State Entry Road; Shadipur Bridge Facing Patel Nagar; Minto Bridge; Three Panels at Pragati Maidan Bridge and Dhobi Ghat Near State Entry Road.

(6) The defendants have filed a written statement, followed by an additional affidavit. The defendants in the written statement and the additional affidavit filed have contended that the contracts in question were cancelled due to non-payment of dues, breaches of the contractual terms by the plaintiff. It is claimed that the plaintiff had in violation of the agreed terms and the permitted size of hoardings had put up over-sized hoardings and put up illuminations other than those permitted. The plaintiffs had been called upon to remedy the breaches and remove the violations and contraventions and pay the penal rent for the same. The plaintiffs failed to do so. It was denied that the cancellation of the contract was without any cause.

(7) The defendants have set out their case in detail in the written statement and also produced the original record with regard to the communication sent to the plaintiffs for remedying the breaches and demanding the penal rent. It is the defendants' case that the plaintiffs have filed the present suit making false averments, gross misrepresentation and withholding from the Court the information with regard to communication issued for cancellation of the contracts. The defendants claim that the ex parte injunction has been obtained by gross misrepresentation and concealment off acts. The plaintiff is not entitled to the discretionary relief of injunction.

(8) A perusal of the particulars of the contract given in para 7(a) of the plaint shows that three contracts at serial Nos. 2, 3 and 5 expired on 30.11.1995 while contracts at serial no.l expired on 14.1.1996 and it is only contract No. 4 which expires on 31.3.1996.

(9) Before going into the actual details in respect of each of the hoardings the main submissions of learned Counsel for the plaintiff may be noticed. Learned Counsel claims that the cancellation of the contract is bad since there was no notice to show cause given prior to cancellation. Further the ground of the hoardings being over-sized was a mere ruse as the plaintiffs had been displaying these hoardings all through. Learned Counsel submitted that though for molly the contract expired on the dates indicated, the plaintiff had a legitimate expectation of having the same extended as had been happening all along. It was further contended that the hoardings at Pragati Maidan Bridge had been removed despite the stay granted by this Court on 1.12.1995.Learned Counsel also relied on Navjyoti Co-Group Housing Society etc. v. Union of India and Others reported at . Counsel also relied on Food Corporation of India v. M/s. Karndhenu Cattle Feed Industries reported at .

(10) Let me notice the case set up by the defendants for cancellation of contracts, at the different sites in question :- 1.Park Office Rest House on State Entry Road, 3 Pub/3199 : As regards the hoardings at the aforesaid site, the contention was that the plaintiff displayed more than the permitted size of hoardings i.e. 40 ft. x 20 ft. as against 30 ft. x 15 ft. The plaintiff had not made the payment of penal rental and outstanding charges amounting to Rs. l,84,640.00 . An additional ground taken was that a Policy decision had been taken to cancel the sites in residential colonies on account of safety and aesthetic consideration. 2. Shadipur Bridge facing Patel Nagar 3 Pub/2860 : As regards the hoardings at above mentioned site, the plaintiff was found to be display ing over-sized hoardings in an inspection on 4.4.1995. A notice under clause 25 of the terms and conditions for cancellation of the display of over-sized hoardings was sent, which had been duly served. As the plaintiff did not remove the hoardings, the same were removed by the staff on 20.11.1995. Outstandings were claimed at Rs. 75.000.00 . 3. Minto Bridge 3 Pub/2985 : The cancellation of the contract was again on account of over-size hoarding and notice dated 20.11.1995 was sent to the plaintiff demanding outstanding payment of Rs. 71,250.00 . 4. Dhobi Ghat near State Entry Road 3 Pub/2794: The site was cancelled on account of the Policy decision to remove the hoardings in residential colonies. Notice of cancellation dated 3.11.1995 was sent to the plaintiff. 5. 3 Panels at Pragati Maidan Bridge 3 Pub/3193 : The defendants' case is that as per the contract only two hoardings were permitted. The plaintiff displayed two over-size hoardings and in addition a third panel for which there was no sanction. The hoardings were also illuminated with high power bulbs. The defendants therefore decided 271 to cancel and recover penal rent. Letter of cancellation was sent to the plaintiff on 10.11.1995 but they refused to accept the same. The case was processed for allotment of the site to another agency who deposited the rental and security money. The defendants claim to have removed the hoardings on 14.11.1995. Mr.Rohtagi very strenuously submitted that the removal of the hoarding was done despite the Court orders between 29th and 1st December, 1995. Mr. Rohtagi relies on the fact that the mean commencing date fixed for the next agency was 1.12.1995. The argument being that if indeed the hoardings had been removed on 14.11.1995, there was no occasion to fix the mean commencing date for the next agency from 1.12.1995.

(11) Upon consideration of the pleadings, rival contentions, submissions made and documents produced on record, the position that emerges is that out of the five contracts the period of three contracts has even otherwise expired. It also become evident that the averments made in the plaint that the defendants without any cause were illegally threatening to remove the hoardings was not correct. The record shows communications by the defendants to the plaintiffs complaining about the breaches and irregularities and demanding penal rent. The plaintiff therefore concealed the factum of the irregularities and breaches pointed out by the defendant. This alone is sufficient to disentitle the plaintiff from the equitable and discretionary relief of injunction. Besides in cases where decision to cancel the site had been taken on ground of the sites being in the residential area, it is not the contention of the plaintiff that the said policy was not being applied uniformly or in a discriminatory mannner.

(12) I find that the basic foundation of the plaintiff's case that the action to remove the hoardings was being taken without any cause and without any prior notice regarding breaches or irregularities is not correct. The plaintiff has concealed material facts and is not entitled to the discretionary relief of injunction. As regards the Pragati Maidan hoarding the plaintiff has relied on a letter, wherein the heading was given as three panels at Pragati maidan by the defendants. The plaintiff urges this in support of the argument that three panels were contracted for. The heading cannot be conclusive of the factum of cither two or three panels. In any case, an extra panel was just one of the breaches. Further simply because the mean commencing date for the new agency is fixed as 1.12.1995, it would not follow that the removal of hoarding was also on 1.12.1995. The defendants have produced on record internal correspondence which shows the action for removal initiated much prior to that and of removal of the panel on 14.11.1995. As observed earlier, the record reveals the defendants claimed breaches and irregularities by the plaintiff and nonpayment of the penal charges payable. In these circumstances, the plaintiff has failed to make out a prima facie case for grant of injunction. In fact because of material concealment the plaintiff is disentitled to the injunction.

(13) As regards the authorities cited by the plaintiff, namely Navjyoti Coo- Group Housing Society etc. v. Union of India and Others' case, in support of his proposition that the action of the Public Authorities should not be arbitrary and so to deprive legitimate expectations, without affording an opportunity to make representations, will not advance the plaintiff's case in the present set off acts and circumstances. Similarly, the case Food Corporation of India v. M/s. Karndhenu Cattle Feed Industries's does not advance the plaintiffs' case, as it cannot be said that the action of the defendant was arbitrary. The balance of convenience is also against the grant of injunction as plaintiff who would not suffer any irreparable injury which cannot be compensated by damages. The remedy of the plaintiff may lie in an action for damages for breach of contract if the plaintiff feels that the defendants have acted contrary to the terms and conditions of the contract. The application has no merit and is dismissed. The ex parte injunction granted stands vacated.