North Delhi Muncipal Corporation ... vs M/S. Graphisads Pvt. Ltd.
2014 Latest Caselaw 6945 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          C.R.P. No.11 /2014

%                                                      18th December, 2014

NORTH DELHI MUNCIPAL CORPORATION & ORS.          ......Petitioners
                  Through: Ms. Biji Rajesh, Advocate.


                           VERSUS

M/S. GRAPHISADS PVT. LTD.                                  ...... Respondent

                   Through:              Mr. R.K. Mittal, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 115 of the Code of Civil Procedure,

1908 (CPC) is filed by the defendants in the suit namely North Delhi

Municipal Corporation and its two officers impugning the order of the trial

court dated 17.8.2013 which has dismissed the application filed by the

petitioners/defendants for rejecting the plaint under Order VII Rule 11 CPC

on the ground that the suit is barred by limitation.

2. The subject suit for recovery of Rs.20 lacs has been filed by the

respondent/plaintiff, who was a registered advertiser of the petitioner no.1.

It was the case of the respondent/plaintiff in the plaint that it was given on

15.5.2009, a NOC for displaying advertisements at the site of Nathu Sweets,

Okhla-II, Delhi for one signage of 20' X 8', however, this NOC was

cancelled and the advertisement/display was illegally removed on 30.3.2010.

These facts are averred in para 5 of the plaint. In para 6 of the plaint, it is

averred that on account of removal of the advertisement/display, the

plaintiff is shown as a thief in the eyes of his clients and that the

respondent/plaintiff has been mentally tortured and tensed by the illegal

actions of the petitioners/defendants. In this para 6, it is also stated that the

image and reputation of the plaintiff has been affected by the illegal actions

of the petitioners/defendants. Thereafter in para 7 of the plaint it is stated

that the plaintiff had withdrawn the illegal demand notices issued for

removal of the advertisement. It is further pleaded in para 7 of the plaint that

the respondent/plaintiff has suffered irreparable loss of money, image,

reputation and experienced mental tension, agony, harassment at the hands

of the petitioners/defendants and therefore the defendants are liable to

compensate the respondent/plaintiff an amount of Rs.50 lacs and which as

per para 9 has been reduced to Rs.20 lacs for the purpose of recovery in the

suit. Paras 5 to 7 and 9 of the plaint read as under:-

"5. That in the year 2008, the Defendant No.1 to augument their revenue, had planned to allow the Parking Contractors to put up the display advertisement signages in the parking areas on revenue

sharing basis. Under the said scheme, our client had entered into various agreements in respect of the various parking sites authorized by them. In pursuant to the said scheme, on the request of the Plaintiff, the Defendant No. 1 had issued NOC on 15/05/2009 in respect of the site of Nathu Sweets, Okhla-II for the signage of 20' x 8' vide NOC dated 15/05/2009 and the Plaintiff had been regularly paying their licence fees to them for the said site and was continuing to display the advertisement for their client, M/s. Essar Hypermart, Essar Steel Limited when on 19/03/2010, the Defendant No.1 illegal cancelled the NOC so granted for the site of the Plaintiff and resorted to illegal removal of the advertisement so displayed on the said side on 30/03/2010 and confiscated the material of the Plaintiff which was so displayed on the site. The Hon'ble High Court of Delhi vide its Order dated 09/04/2010 had set aside the illegal cancellation dated 19/03/2010 of the said site. The Defendants have removed the display material of the Plaintiff without giving any reasonable opportunity or time to the Plaintiff without giving any reasonable opportunity or time to the Plaintiff to take the remedies available to then under law. Not only this, after removal of the advertisement material, the Defendants have claimed removal charges from the Plaintiff vide their letter dated 16/04/2010. Even further at the instance and instructions of the Defendants, the Defendant No.2 and 3 under the powers of the Defendant No.1 have issued demand notices dated 22/04/2010 claiming damage charges to the tune of Rs.

4,23,334/- from the Plaintiff as well as from the client of the plaintiff. The issuance of the said illegal demand notice not only caused immense tension and torture to the Plaintiff but also has resulted in maligning the image of the Plaintiff in the eyes of their client namely, M/s.Essar Hypermart, Essar Steel Limited who with the act of the Defendants were made to believe that the Plaintiff is indulged in illegal advertisements.

6) That the Plaintiff earns a reputation and image in the advertisement world and stands at 36th position in the best advertisement Company in the World as per the last study with the

branded clients as shown in Annexure-A and is a well known in the business circle for the business of advertisement through legal means but issuance of such a demand notice and removal of the display of the Plaintiff had made the image of the Plaintiff of a thief in the eyes of the client of the Plaintiff which had resulted in loosing of the business from the said client. Inspite of the requests made by the plaintiff to the Defendants and bringing the fact to their notice that the said notice had been illegally issued by them, they further issued demand notice under Section 154 of DMC Act, 1957 against the Plaintiff for taking coercive action for the recovery of the said amount form the Plaintiff as well as from the client of the Plaintiff. The Defendant had not stopped here but further issued their specific letter dated 06/08/2010 to the Plaintiff again reiterating their illegal demand and threatening them with the dire consequences as stated herein. A copy of the said letter dated 06/08/2010 is being filed hereto which can be read as part and parcel of the parcel of the present plaint. The said illegal demand made by the Defendants not only mentally tortured and tensed the Plaintiff but even the aforesaid client of the Plaintiff had withdrawn his entire business from the hands of the Plaintiff and further threatened to not to give any further business to the Plaintiff and as a result of which the Plaintiff had been put to a loss which cannot be computed into money terms as the image and reputation of the Plaintiff is worthless. The Plaintiff is having turnover in crores which had been affected due to the illegal acts of the Defendants.

7) That the aforesaid demands made by the Defendants are illegal and unwarranted and being terrorized by the demand made by the Defendant, the Plaintiff approached the Hon'ble High Court of Delhi by way of Writ Petition (Civil) No.8450 of 2010 wherein the Defendants had agreed to withdraw their alleged demand notices dated 14/05/2010, 17/90/2010, 20/08/2010 which itself shown that their demands and notices sent by the Defendants to the Plaintiff and the clients' of the Plaintiff are patently illegal. Earlier to the filing of the writ petition by the Plaintiff, the Defendants have not withdrawn

the said demand notices inspites of repeated requests made by the Plaintiff to the Defendants and by the time the Defendants agreed to withdraw the said demand notices before the Hon'ble High Court of Delhi, the Plaintiff had already suffered irreparable loss of money, loss of image, reputation and experienced mental tension, agony, harassment at the hands of the Defendants for which the Defendants are liable to compensate the Plaintiff to the tune of Rs. 50,00,000/-

9) That the Plaintiff is unable to pay the Court Fees on the said amount of Rs. 50,00,000/- of the loss sustained by the Plaintiff and the plaintiff is only claiming a sum of Rs. 20,00.000/- towards token damages from the Defendants in the present suit."

(emphasis is mine)

3. On the basis of aforesaid paras constituting the cause of action,

and facts of which are consolidated as per para 11 of the plaint, the reliefs

are claimed and which is for recovery of Rs.20 lacs alongwith interest. Para

11 of the plaint averring facts with respect to arising of cause of action reads

as under:-

"11) That the Plaintiff has got cause of action and right to sue. The cause of action has firstly arisen on 15/05/2009 when NOC for display was granted by the Defendants with respect to the site of Nathu Sweets, Okhla-II, The cause of action had further arisen on 19/03/2010, when the Defendants illegal cancelled the NOC so granted for the said site of the Plaintiff. The cause of action had further arisen on 30/03/2010 when the said advertisement material was removed by the Defendants and the material displayed was confiscated from the site. The cause of action and further arisen on 09/04/2010 when the Hon'ble High court of Delhi had set aside the illegal cancellation dated 19/03/2010 of the site. The cause of action

had further arisen on 16/04/2010 when the Defendants issued their demanding the removal charges. The cause of action had further arisen on 22/04/2010 when the damage charges to the tune of Rs.4,23,334/- were being claimed by the Defendants form the Plaintiff and its client. The cause of action had further arisen on 06/08/2010 when the defendants again issued the letter to the Plaintiff reiterating their illegal demand and threatening. The cause of action had arisen on 14/05/2010, 17/08/2010, 25/08/2010 when the demand letters/notices were issued by the Defendants against the Plaintiff and its client. The cause of action had arisen on various dates when the plaintiff had written letters/given representation against the illegal demands raised by the Defendants. The caue of action had further arisen when the Writ Petition (Civil) No. 8450 of 2010 was heard by Hon'ble High Court of Delhi. The cause of action had further arisen when the notice dated 28/02/2011 was served and issued to the Defendants and no payment was made by the Defendants as per demand made there in nor any reply thereof was sent by the Defendants Moreover, it is a recurring cause of action which is arising and re-arising at the every moment till the payment is made."

4. It is an undisputed position before me that if the suit is a suit for

damages on the basis of alleged tortious actions of the

petitioners/defendants, then, the suit will have to be filed as per Articles 75

and 76 of the of the Schedule of the Limitation Act, 1963 i.e the suit had to

be filed within one year when the libel is published or the slanderous words

are spoken. So far as any illegal seizure of the goods of the

respondent/plaintiff are concerned, Article 80 of the Schedule of the

Limitation Act applies, and as per which one year period of limitation is

prescribed commencing from the date of the wrongful seizure of the

moveable property under a legal process.

5. Learned counsel for the petitioners/defendants argues that the

suit is time barred inasmuch as the suit is only for damages on account of

tortious actions which have been stated in paras 5 to 7 and 9 of the plaint,

and all of which averments pertain only to either the respondent/plaintiff

being mentally tortured, or suffered loss of image, reputation, mental

tension, agony and harassment. It is argued that the suit therefore is only a

suit for damages on the basis of the alleged tortious acts of the

petitioners/defendants and therefore the suit should have been filed within

one year from 30.3.2010 when the alleged illegal removal of the

advertisement took place by the petitioners/defendants. Learned counsel for

the respondent/plaintiff per contra argues that the cause of action and the

limitation commenced only when the respondent/plaintiff sent a legal notice

to the petitioners/defendants and since the legal notice was sent on 28.2.2011

claiming damages, the suit filed on 12.9.2011 is within limitation. It is also

argued on behalf of the respondent/plaintiff that since the

petitioners/defendants issued the demand notices on 14.5.2010, 17.8.2010

and 25.8.2010, causes of action will accrue when these demand notices were

sent claiming the removal charges.

6. The admitted position before this Court is that the subject suit

was filed on 12.9.2011. The question is that whether the suit filed on

12.9.2011 is within limitation with respect to the actions of the alleged

illegal removal of the advertisements/display on 30.3.2010, and if cause of

action would arise not when the advertisement/display was removed on

30.3.2010 but only when the respondent/plaintiff issued the legal notice on

28.2.2011.

7. Articles 75, 76 and 80 of the Schedule of the Limitation Act,

1963 read as under:-

             Article Description of Period       of Time     from     which
                     suit           limitation      period begins to run
             75      For             One year        When the       libel   is
                     compensation                    published
                     for libel
             76      For             One year        When the words are
                     compensation                    spoken or, if the words
                     for slander                     are not actionable in
                                                     themselves, when the
                                                     special         damage
                                                     complained of results.
             80      For           One year          The date of seizure.
                     compensation
                     for wrongful
                     seizure    of
                     movable


                     property
                    under    legal
                    process

8. A reading of the aforesaid Articles of the Schedule of the

Limitation Act, 1963 alongwith paras 5 to 7 and 9 of the plaint leaves no

manner of doubt that the subject suit is only a suit claiming damages of

Rs.20 lacs on account of tortious actions of the petitioners/defendants and

which damages are stated to have been caused on account of loss of image

of the respondent/plaintiff before its customers and also because the

respondent/plaintiff suffered tension, harassment, agony, loss of image and

reputation. I may note that for the alleged tortious actions of the

petitioners/defendants, a consolidated amount of Rs.20 lacs is claimed as

damages. The stray averments in the plaint of loss of earnings are only

general averments in the plaint and which is actually a suit claiming

loss/damages on account of loss of image etc. A reading of the averments of

the plaint as a whole shows that without doubt the suit is a suit for damages

as per the law of torts and on account of the alleged wrongful removal of the

display/advertisement on 30.3.2010.

9. In my opinion, therefore, the suit filed on 12.9.2011 would

clearly be barred by limitation because cause of action with respect to loss of

reputation or damage or any mental torture or tension or agony arose when

the alleged illegal action of removal of the advertisement took place on

30.3.2010. Counsel for the respondent/plaintiff is not correct in arguing that

cause of action arose for the tortious actions only when the

respondent/plaintiff had issued the legal notice dated 28.2.2011 because the

sending of the legal notice making a claim is not an action which has caused

any loss on account of loss of image, reputation etc etc. Also, sending of

legal notices by any party does not cause deferment to the arising of the

cause of action.

10. Counsel for the respondent/plaintiff argues that actually the suit

is not only for the tortious actions of the petitioners/defendants and the suit

is also filed alleging breach of contract on the part of the

petitioners/defendants and the loss of earnings on account of breach of

contract, however, I am not able to agree with the argument urged on behalf

of the respondent/plaintiff for the simple reason that the relevant paras of the

plaint which have been reproduced above show that there is no averment

with respect to what is the breach of contract, and what is the specific

amount of monetary loss caused on account of the so-called breach of

contract, inasmuch as and as already stated above, only a consolidated

amount of Rs.20 lacs is claimed and which is really the reduced amount

from Rs.50 lacs as stated in last line of para 7 of the plaint which has been

reproduced above. I therefore reject the argument urged on behalf of the

respondent/plaintiff that the suit is also for recovery of damages for breach

of contract inasmuch as no different amounts or separate/bifurcated amounts

towards damages on account of loss of reputation etc and the amount for the

alleged breach of contract are pleaded, even assuming for the sake of

arguments that breach of contract is pleaded. In fact no case of any breach

of contract and consequent losses are pleaded in the existing plaint.

11. In view of the above, the impugned order of the trial court dated

17.8.2013 is set aside. Suit of the respondent/plaintiff is held to be barred by

limitation and is therefore dismissed as such. No costs.

DECEMBER 18, 2014                                   VALMIKI J. MEHTA, J.
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