M/S Newfields Advertising (P) ... vs Banking Services Recruitment ...
2018 Latest Caselaw 5859 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.392/2005

%                                              27th September, 2018

M/S NEWFIELDS ADVERTISING (P) LTD.
                                                            ..... Appellant

                           Through:       Mr. C.S.Bhandari, Advocate
                                         (8860346364)
                           versus

BANKING SERVICES RECRUITMENT BOARD
                                                          ..... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the Trial Court dated 31.01.2005 by which

the trial court has dismissed the suit filed by the appellant/plaintiff for

recovery of Rs.5,46,193/-, out of which the principal amount claimed

is Rs.4,55,193/- and the interest claimed is Rs.91,000/-. The suit

amount however has been restricted to a sum of Rs.5,00,000/- instead

of the amount out of the Rs.5,46,193/-, in order to bring the suit within

the pecuniary jurisdiction of the District Judge.

2. The appellant/plaintiff claimed that the respondent no.1/

defendant no.1, namely Banking Service Recruitment Board issued to

the appellant/plaintiff a Release Order dated 31.07.2000, asking the

appellant/plaintiff to publish the Advertisement No. 6/2000 in the

Indian Express (English) in all Editions and in Jansatta (Hindi) Edition

of Indian Express. Appellant/Plaintiff was requested to publish the

advertisements at the earliest. The appellant/plaintiff claims that after

publishing the advertisements in the early part of August 2000, it

raised a Bill dated 25.08.2000 upon the respondent no.1/defendant

no.1 for a sum of Rs.11,33,430/-. The bill was raised at the amount of

Rs.2500/- per column cm of the advertisements issued. Respondent

no.1/Defendant no.1 is said to have made only a payment of

Rs.6,78,245/- against the bill of Rs.11,33,438/-, and therefore, the

subject suit was filed for claiming of the balance amount.

3. The suit was contested by the respondent no.3/defendant

no.3/Punjab National Bank. The respondent no. 1/defendant no.1

which is the Banking Service Recruitment Board, and respondent

no.2/defendant no.2/Union of India were proceeded ex parte on

01.04.2003 and 13.11.2002 respectively, by the trial court. The

respondent no.3/defendant no.3/Punjab National Bank, for whose

benefit the respondent no.1/defendant no.1 got published the

advertisements for recruitment in the Banking Service Exam, denied

the claim of the appellant/plaintiff by pleading two main aspects.

Firstly, it was pleaded that advertisements were to be published on

01.08.2000 but the advertisements were published later on, on the

different days in the first week of August 2000. Secondly, it was

contended that advertisements were published not in the main

newspaper Indian Express but the advertisements were published in

the Newsline Section, and therefore, the rate of Rs.2500/- per column

cm was not to be paid, and which rate would have been payable only

if advertisements were issued in the main section of the newspaper.

4. The only issue to be decided by this Court is that as to

what is the rate of payment which has to be made to the

appellant/plaintiff for the advertisements that were published by the

appellant/plaintiff for respondent no.1/defendant no.1 for the benefit

of the respondent no.3/defendant no.3/Punjab National Bank. Putting

it in other words, the issue is whether the appellant/plaintiff who has

raised the bill dated 25.08.2000/Ex.PW1/5 for a sum of Rs.11,33,430/-

at rate of Rs.2,500/- per column cm, is entitled to be paid or

appellant/plaintiff is only entitled to a lesser rate of Rs.2000/- per

column cm on account of the advertisements being published not in

the main section of the newspaper, but in the Newsline Section.

5. Learned counsel for the appellant/plaintiff has argued that

it is not in dispute that the charges claimed by the Indian Express for

publication of advertisement were at Rs.2,500/- per column cm and

that this has been deposed to by the witness PW-2 Sh. S.N. Jha who

was the employee of the Indian Express Newspaper. It is argued on

behalf of the appellant/plaintiff that PW-2 has duly deposed with

respect to rate charged at Rs.2,500/- per column cm from the

appellant/plaintiff and that this witness orally stated that such payment

was made by the appellant/plaintiff to Indian Express.

6. In my opinion, though the trial court has not given the

correct reasoning for dismissing the suit, however, in exercise of

powers of this Court under Order XLI Rule 24 CPC, this Court is

hereafter giving the appropriate reasoning, and which shows that the

suit of the appellant/plaintiff was bound to be dismissed.

7. The reasoning of this Court for the suit to be dismissed is

the same reasoning which is given by the respondent no.1/defendant

no.1 in its Letter dated 14.09.2000 to the appellant/plaintiff, and which

reasoning is that the payment which has to be made to the

appellant/plaintiff cannot be at Rs.2,500/- per column cm inasmuch as

that is the rate for publication in the main newspaper and not in the

Newsline Section. This Letter dated 14.09.2000/Ex.PW1/12 of the

respondent no.1/defendant no. 1 reads as under:-

"Banking Service Recruitment Board (Delhi) Ref: 797/2000

M/s NewFields Advertising Pvt. Ltd. 14th September, 2000 3/4A,Asaf Ali Road, New Delhi

Dear Sir,

Reg: Your Invoice No.091814/AUG/dated 25.8.2000

With reference to above, we would like to invite your attention to our order dated 31.7.2000 We would like to bring to your notice, the following anomalies observed by us:

1. In our said order it was requested to release our advertisement no.6/2000 for publication in all editions of Indian Express (English) and Jansatta (Hindi). It was also mentioned in our

order that release of advertisement in Jansatta (Hindi) will be free of cost. The order was given to you with the understanding that our advertisement will be released in the main body of Indian Express Delhi edition of 1st August, 2000 and for all other editions including Jansatta, it will be released on 2nd August, 2000. But our advertisement was released in various editions as mentioned here under:

                  Indian Express
                  Delhi              01.8.2000
                  Chandigarh         09.8.2000
                  Mumbai             04.8.2000
                  Ahmedabad          10.8.2000
                  Pune               12.8.2000
                  Baroda             10.8.2000
                  Nagpur             09.8.2000
                  Chennai            06.8.2000

                  Jansatta (Hindi)
                  Delhi              03.08.2000
                  Calcutta           05.08.2000

Late release of advertisement in various editions of the paper has resulted in less time to prospective candidates for whom this advertisement was released.

2. We have observed that contravening our instructions, advertisement was released in the Newsline and not in the main paper

3. During discussion it was admitted that charges for release of advertisement in the Newsline portion of Indian Express are much less then that of main paper and you will give special discount for the same.

4. In calculation given in your letter dated 11.9.2000, you have shown charges for publication of advertisement in Jansatta as Rs.390 whereas as per our order and the understanding on which order was placed in your favour it is free of cost.

Moreover in these calculations, you have shown charges of advertisement in four different publications and in bill you have shown three publications whereas our instructions were for single publication (all editions) only.

5. As per the rate list submitted by you along with your letter dated 11.9.2000, rates of publications of advertisement (appointment) in all editions of Indian Express plus Financial Express is Rs.2000/- whereas you have submitted bill at the rate of Rs.2500/-. Please note that you are publishing our advertisement in Jansatta in place of Financial Express free of cost.

You are requested to clarify on the above mentioned points and submit us the correct bill to enable us to do the needful

Yours faithfully

Secretary"

(underlining added)

8. It is seen that it is an important aspect to determine as to

whether the appellant/plaintiff has at all actually paid to the Indian

Express Group, charges at Rs.2,500/- per column cm, or

appellant/plaintiff has only paid a lesser amount. In this regard,

admittedly the appellant/plaintiff has not filed any proof of what was

the payment made by the appellant/plaintiff to Indian Express Group,

even though the Indian Express Group has raised a bill of Rs.2,500/-

per column cm. PW-2 in his cross-examination was specifically put

this question as to the fact that details of payments made by the

appellant/plaintiff to the Indian Express Group have not been

deliberately filed because payments have not been received by the

Indian Express Group as per the bills raised upon the

appellant/plaintiff. This witness in the very next line in his cross-

examination dated 22.04.2003 has admitted that advertisements which

were published were only in the Newsline Section, which carries the

Appointment Section. Therefore, it is clear that the advertisements

which was got published by the appellant/plaintiff for the respondent

no.1/defendant no.1 was not in the main section of the newspaper and

advertisements were only published in the Newsline Section. Further,

no documentary evidence has been led by the appellant/plaintiff to

show that what payment has been made by the appellant/plaintiff to

the Indian Express Group i.e. payment proof at Rs.2,500/- per column

cm has not been filed, and therefore it has to be held that the payment

would have been made by the appellant/plaintiff at a lesser amount

after claiming discount and this is clearly stated by the respondent

no.1/defendant no.1 in para 3 of its Letter dated

14.09.2000/Ex.PW1/12, and which has already been reproduced

above.

9. In view of the aforesaid discussion, I do not find any

merit in the appeal. Dismissed.

 SEPTEMBER 27, 2018/ib                      VALMIKI J. MEHTA, J