Hdfc Bank Ltd vs Delhi Gymkhana Club Ltd
2012 Latest Caselaw 3394 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.226/2012

%                                                          21st May, 2012

         HDFC BANK LTD                                 ..... Appellant
                 Through:          Mr. Dharam Dev, Adv.


                      versus



         DELHI GYMKHANA CLUB LTD               ..... Respondent

Through: Mr. Tungesh, Adv. for R.Dayal & Co.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

Caveat Nos.527 & 528/2012

Since the respondent/Delhi Gymkhana Club Ltd. has filed the

caveats, I have heard counsel for both the parties in appeal. Caveats stand

disposed of.

RFA No.226/2012

1. The challenge by means of this Regular First Appeal filed

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

impugned judgment of the trial Court dated 27.1.2012 decreeing the suit

filed by the respondent/plaintiff for an amount of `65,000/- per month from

April, 2006 to December, 2007 alongwith pendente lite and future interest

at 8% per annum simple. The suit has been decreed on account of the fact

that the respondent/plaintiff/M/s. Delhi Gymkhana Club Ltd. for the

aforesaid period in its magazine/newsletter issued advertisements of M/s.

Bank of Punjab Ltd., the predecessor-in-interest of the appellant

no.1/defendant no.1. Appellant no.1/defendant no.1/M/s. HDFC Bank Ltd.

is the successor-in-interest of M/s. Bank of Punjab Ltd. and thereafter M/s.

Centurian Bank of Punjab Ltd., inasmuch as, the Centurian Bank of Punjab

Ltd. merged with M/s. HDFC bank Ltd. pursuant to a scheme of merger.

2. The facts of the case are that the respondent/plaintiff at the

request of the then Bank of Punjab Ltd. issued advertisements in its

magazine/newsletter. The charges for advertisements of `65,000/- per

month were regularly paid by the Bank of Punjab Ltd. from January, 2004

onwards till March, 2006. The last payment of `1,95,000/- was made by

M/s. Centurian Bank of Punjab Ltd. on 31.3.2006. The advertisement

charges having not been paid for the months from July, 2006 to December,

2007, the subject suit came to be filed after the legal notice dated

21.10.2008 failed to yield any appropriate response.

3. The appellant no.1/defendant no.1 contested the suit on the

ground that there were no written instructions of or written agreement with

the Bank of Punjab Ltd. or Centurian Bank of Punjab Ltd. for the

respondent/plaintiff to publish the advertisements in its

magazine/newsletter. It was further pleaded in the alternative that when the

payment of `1,95,000/- was released by the Centurian Bank of Punjab on

31.3.2006, clear instructions were given not to publish further

advertisements. In the replication, the respondent/plaintiff stated that the

advertisements were always published as per the instructions, and in fact

this becomes clear from the fact that logo of the bank in the

magazine/newsletter was also changed by the respondent/plaintiff/M/s.

Gymkhana Club Ltd. from time to time

4. Trial Court has decreed the suit by giving the following

findings/conclusions:-

"27. Question for consideration before the court is that in the absence of any written agreement between the plaintiff club and defendant bank whether plaintiff is entitled for charges for publication of advertisement of defendant bank. It is submitted b the plaintiff club that defendant bank was continuously assuring he plaintiff club that the pending dues of plaintiff club would be released very soon.

28. In the WS, defendant mentioned that the last payment of `1,95,000/- which was released on 31.3.2006 was with the clear instructions that no advertisement shall be published further. So as per the admission of defendant it can safely be arrived upon that the payment

made by the defendant bank till 31.3.2006 were on account of publication charges only and the submissions of the counsel that these payments were on account of charges for ATM does not stand in the eyes of law.

29. It is further submitted by the plaintiff that design and material of the advertisement was also changed by the defendant from time to time by submitting fresh designs on stencils and CD.

30. Submissions made by the counsel for plaintiff that since defendant was paying the publication charges from January, 2004 to March, 2006 on the basis of oral agreement only then it also substantiate his claim for the period April 2006 to December 2007 onwards attracts merit.

31. Plaintiff has also placed on record two copy of Newsletter- "Club Life" dated April 2006 and December 2007. In both these newsletter logo of defendant bank is published. There is no doubt that advertisements of defendant bank is published by the plaintiff club but whether the same was published consequent upon agreement or not. However, no direct evidence is available. But it is admitted by defendant that publication for the period from January 2004 t March 2006 was with their consent.

32. It is submitted by counsel for plaintiff tat from time to time the logo has been changed as per the material/disk provided by defendant bank only. From the facts and circumstances, although no direct evidence has been led by the plaintiff to prove its agreement but it is admitted by the defendant that there was an agreement between the plaintiff for the period January 2004 to March 2006 in para 17 of the WS which reproduced herein below:

"That the contents of the para no. 17 of the plaint are not denied to extent that the payment has been released till 31.3.2006 with clear instructions that

no advertisements shall be published. It is submitted that the plaintiff was not given any instructions by the defendants to publish the advertisements after 31.3.2006. The plaintiff may be put to strict proof of it."

33. It is submitted by Ld. counsel for plaintiff that from time to time a new logo has been provided by the defendant bank and provided same to the plaintiff club shows that defendant bank was fully aware of the publication, but no letter for stopping the same was written by defendant bank. It is also admitted that the logo cannot be changed by the plaintiff on its own and there are strong presumption that the material of the changed logo would have been provided by defendant bank only. Hence, it was in the knowledge of the defendant bank that the advertisements in the Newsletter- "Club Life" are being published by the plaintiff club on providing date to them. No document refusing or directing the plaintiff club not to publish the advertisement has been placed on record by the defendant bank. It is a matter of fact that the advertisement was published in the Newsletter- "Club Life" of plaintiff club from January 2004 to December 2007.

34. Upon facts and circumstances, I am of this considered opinion that the plaintiff is entitled for recovery of charges for the publication done. However, there is no written agreement as to the rate of publication charges but on the basis of previous charges which the defendant himself has admitted for the period January 2004 to March 2006 was `65,000/- per month hence plaintiff is entitled for recovery of amount @Rs.65,000/- for the period April 2006 to December 2007 alongwith pendente lite interest and future @ 8% p.a. till the recovery. No order as to cost." (underlining added)

5. I completely agree with the aforesaid findings and conclusions

of the trial Court inasmuch as if there was no contract, there would be no

question of having made payments of the monthly charges upto March,

2006. Appellant no.1/defendant no.1/HDFC Bank has also failed to file

any instructions given at the time of payment of `1,95,000/- made on

31.3.2006 that no advertisements be published further. Trial Court has

rightly held that once payment of `1,95,000/- was made for advertisements

upto 31.3.2006, it does not lie in the mouth of the appellant no.1/defendant

no.1/HDFC Bank to contend that for the earlier period there was no

contract to publish the advertisements. Trial Court has also rightly held

that the logo of the Bank in the advertisements were changed from time to

time by submitting fresh designs on stencils and CDs showing that it

cannot be said that the advertisements were published without any

instructions. To the aforesaid reasoning, I must add that the

respondent/plaintiff is not an individual but is M/s Gymkhana Club Ltd.,

and therefore, it cannot be said that there can exist collusion between the

respondent/plaintiff and the Manager of the erstwhile Bank of Punjab Ltd.

6. A civil case is decided on balance of probabilities. The

balance of probabilities in the present case shows that the appellant

no.1/defendant no.1 was liable to pay the charges for advertisements

inserted by the respondent/plaintiff in its magazine/newsletter. An

appellate Court will not interfere with the findings of the Court below,

unless, findings of the Court below are illegal or perverse. I do not find

any illegality or perversity in the impugned judgment which calls for

interference in this appeal.

7. In view of the above, the appeal being without merit is

accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J MAY 21, 2012 ak