M/S Pavani Advertising vs Bengaluru Metropolitan ...
2023 Latest Caselaw 6681 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 21ST DAY OF SEPTEMBER, 2023

                         BEFORE

         THE HON'BLE MR. JUSTICE K. NATARAJAN

           REGULAR FIRST APPEAL NO.939 OF 2019

BETWEEN:

M/S PAVANI ADVERTISING
(A DIVISION OF PAVANI ENTERPRISES INDIA PVT. LTD.)
NO.1355, 11TH MAIN ROAD,
VIJAYANAGAR, BANGALORE-40
REPRESENTED BY ITS MANAGING DIRECTOR,
MR H ARUN KUMAR
                                            ... APPELLANT
(BY SRI MAHESH R UPPIN, ADVOCATE)

AND:

1.     BENGALURU METROPOLITAN TRANSPORT CORPORATION
       (BMTC)
       CENTRAL OFFICERS, K H ROAD,
       SHANTHINAGAR,
       BENGALURU-560027
       BY ITS MANAGING DIRECTOR

2.     CHIEF TRAFFIC MANAGER (COML.)
       BMTC CENTRAL OFFICES, II FLOOR,
       COMMERCIAL DEPARTMENT,
       K H ROAD,
       SHANTHINAGAR,
       BENGALURU-560027
                                         ... RESPONDENTS
(BY SRI JAYAPRAKASH R V, ADVOCATE)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED
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28.02.2019 PASSED IN OS.NO.5424/2011 ON THE FILE OF THE
XI ADDITIONAL CITY CIVIL JUDGE, BANGALORE CITY
DECREEING THE SUIT FOR RECOVERY OF MONEY.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 11.8.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:


                   JUDGMENT

This appeal is filed by the appellant under

Section 96 of CPC for setting aside the judgment and

decree dated 28.02.2019 passed by the XI Additional

City Civil Judge, Bangalore City, in O.S No.5424/2011,

for having decreed the suit and directing the appellant

to pay the sum of Rs.1,10,424/- with interest at the

rate of 10% p.a. from the date of suit till realization.

2. Heard the arguments of learned counsel

appearing for the appellant as well as the learned

counsel appearing for the respondents.

3. The appellant is the defendant and the

respondents are the plaintiffs before the trial Court.

4. The rank of the parties before the trial Court

is retained for the sake of convenience.

5. The case of plaintiffs is that plaintiff No.1 -

Bengaluru Metropolitan Transport Corporation

(hereinafter referred to as 'BMTC') and plaintiff No.2 -

Chief Traffic Manager of BMTC (Commercial) filed the

aforesaid suit for granting decree of Rs.1,10,425/-

together with interest at the rate of 10% p.a. from the

date of suit till realization. The plaintiffs alleged that

they granted licence to defendant to erect hoardings

in RPC Layout Bus Stand, Bengaluru, by inviting

tender notification No.3/2005-06 dated 01.06.2005.

The defendant was the successful bidder and there

was an agreement entered into between the plaintiffs

and the defendant on 11.11.2005. The licence was

granted for the period of three years commencing

from 15.11.2005 and the defendant was offered to

pay the licence fee of Rs.2,400/- p.m. with 10%

escalation over the existing licence fee every year

from the second year up to the end of the contract..

The defendant also paid Rs.14,400/- as security

deposit towards 6 months licence fee. After the lapse

of three years, the defendant failed to pay the licence

fee. Therefore, a notice was issued to the defendant,

but it did not respond. There was arrears of licence

fee for Rs.74,883/- plus interest up to 14.11.2008 and

another interest at 10% p.a. on the delayed payment

of licence fee during the period of licence up to

14.11.2008 and also the interest at 10% p.a. on the

balance due for the period from 15.11.2008 till date of

filing the suit. Totally, Rs.1,10,425/- was to be

payable by the defendant after deducting the security

deposit made by him. The defendant was due in a

sum of Rs.1,14,946/-. Hence, the plaintiffs filed the

aforesaid suit.

6. The defendant appeared in pursuance of

summons and filed written statement by admitting the

agreement made between the plaintiffs and himself,

for erecting the hoardings for three years. The

defendant also admitted the payment of advance

amount as security deposit of Rs.14,400/- and

monthly license fee of Rs.2,400/-, but contended

that when the defendant tried to erect the hoardings

in the Bus Stand, the Manager of the Bus Stand did

not allow defendant to erect the advertisement

hoarding at the spot and the said Manager directed

the defendant to erect the same on the back side of

the Bus Stand. Therefore, the defendant has not at

all erected any hoardings and in spite of request, the

plaintiffs did not agree for erecting the hoardings and

the defendant also demanded the refund of

Rs.14,400/- paid towards security which was not

returned by the plaintiffs. The plaintiffs failed to

correspond with the defendant for non payment of

licence fee. Therefore, there is no question of making

the payment as claimed by the plaintiffs and the

plaintiffs required to repay the security amount with

interest and prayed for dismissing the suit and also

contended that the suit is barred by limitation of law.

7. Based upon the pleadings, the trial Court

framed five issues as under:

1. Whether the plaintiffs prove that the defendant is liable to pay the suit amount with interest at the rate of 10% p.a. ?

2. Whether the defendant proves that no advertisement hoarding has been erected and the plaintiffs are not entitled to make any claim against him ?

3. Whether the defendant proves that the claim made by the plaintiffs is barred by time ?

4. Whether the plaintiffs are entitled for the relief sought for ?

5. What order of decree ?

8. To support the case of the plaintiffs, the Asst.

Traffic Manager was examined as P.W.1 and got

marked 5 documents as per Exs.P.1 to P.5 and on

behalf of the defendant, the Managing Director of the

defendant was examined as D.W.1, but not marked

any documents. After hearing the arguments, the

trial Court answered issue Nos.1 and 4 in the

affirmative and issue Nos.2 and 3 in the negative and

finally, decreed the suit. Being aggrieved by the

same, the defendant has filed this appeal.

9. Learned counsel for the appellant-defendant

has contended that the appellant had not at all

erected the hoardings due to non-providing space by

the BMTC Manager. The appellant was orally

requesting the respondents to accord permission to

erect the advertisement board in front of the bus

stand, but they refused. Therefore, he has not at all

utilized the space for advertisement and the same was

admitted by P.W.1 in is evidence. Therefore, the

question of paying any licence fee does not arise.

Even otherwise, the amount due, payable to the

plaintiffs was in the year 2008. The suit was required

to be filed within three years from the date of due, but

the suit was filed on 27.07.2011 after the lapse of

limitation. It is further contended that the appellant

was required to pay only Rs.14,400/- which was due

in April, 2008. Therefore, the suit was barred by

limitation for recovery of the entire amount. In

support of his contentions, the learned counsel has

relied upon the judgments of the Division Bench as

well as Co-ordinate Bench of this Court.

10. Per contra, learned counsel for the

respondents has supported the judgment of the trial

Court and contended that the amount was due from

the date on which it was not paid. Therefore, after

issuing notice, the suit was filed and it is not barred

by limitation. Hence, prayed for dismissing the

appeal.

11. Having heard the arguments of learned

counsel for the parties, perused the records.

12. The points that arise for consideration in

this appeal are :

(i) Whether the plaintiffs prove that the defendant is liable to pay the suit amount together with interest at 10% per annum?

(ii) Whether the suit is barred by limitation for recovery of the entire licence fee which falls due once in six months ?

(iii) Whether the judgment and decree passed by the trial Court requires interference ?

13. On considering the evidence on record and

pleadings, it is an admitted fact that the appellant

entered into an agreement with the BMTC for the

purpose of keeping advertisement hoardings in the

RPC Layout Bus Stand. An agreement was entered

into between them on 11.11.2005 for three years

commencing from 15.11.2005, which expires on

14.11.2008. Admittedly, the rent was fixed at

R.2,400/- p.m. for the first year and from the second

year, the rent was agreed to be paid at 5%

enhancement on the licence fee. It is also an

admitted fact that as per the agreement, the security

amount is to be deposited i.e. six months rent

(Rs.2,400/- x 6=Rs.14,400/-) and it had to be paid

once in six months. It is also an admitted fact that

the appellant has not at all erected the hoardings due

to non availability of space on the front side of the bus

stand and the BMTC Manager also not allowed him to

erect the hoardings on the front side of the bus stand,

but they permitted to put up hoardings on the back

side. Therefore, the appellant-defendant has not at all

put up any hoardings. It is also an admitted fact that

Rs.14,400/- was paid by the appellant-defendant as

security deposit which amounts to six months rent.

Thereafter, appellant-defendant neither erected the

hoardings nor paid any licence fee. Admittedly, the

lease agreement was expired on 14.11.2008. The suit

was filed in July 2011. The last due for paying the

licence fee was June 14, 2008. From the evidence on

record, it is clear that the BMTC has not issued any

notice during the three years period between 2005

and 2008 and thereafter, between the year 2008 and

2011. The notice was issued for the first time only on

13.01.2011 as per Ex.P.3 and thereafter, on 5.2.2011.

Then, they filed the suit.

14. Of course, there is violation of condition by

both parties. Though plaintiffs did not allow the

defendant to erect the hoardings, the defendant could

have issued legal notice to the plaintiffs for canceling

the agreement, which was not done. On the other

hand, the plaintiffs kept quite and not issued any

notice for non payment of licence fee to be payable

once in every six months and they also kept quite for

more than 3 years from the date fee falls due. The

Division Bench of this Court in a similar case in K.

NAGESHWARARAO AND ANOTHER Vs. BRANCH

MANAGER, CANARA BANK AND OTHERS (in R.F.A.

No.6017/2013 delivered on 24.02.2023) has held that

the rent preceding three years can be claimed from

the date falls due for the purpose of recovery and if

any rent due payable more than 3 years is not

recoverable and the said appeal was allowed.

Likewise, in another case in PUNJAB NATIONAL

BANK NEW DELHI Vs. M/S. SRINIVASA

ENTERPRISES BENGALURU, the Division Bench has

also taken the similar view. In paragraph 12 of the

judgment, it is held as under:

"12. It is forthcoming from the plaint that the Plaintiff has claimed the arrears of rent from the year 1998 to 2006. Article 52 of Limitation Act, 1963, specifies the period of limitation for arrears of rent as three years "when the arrears become due". Hence, the claim of the Plaintiff ought to have been made in three years from when the rent payable is due. The plaint having been filed on 25.09.2006, the claim of the plaintiff, could have been from 26.09.2003 and not prior to it. Hence, the claim of the Plaintiff from any date prior to 25.09.2006 is barred by the law of limitation and cannot be considered."

15. In the afore cited judgments of the Division

Bench of this Court, it is categorically held that the

rent due is recoverable within three years from the

date, on which the rent falls due. Here, in this case,

the licence fee is nothing but rent and the last rent

due payable on 14.06.2008 which expires on

14.11.2008 for six months, and the rent which was

not paid prior to 14.06.2008 cannot be recoverable as

it is barred by limitation as per Article 52 of Limitation

Act, thereby, I am of the view that the plaintiffs are

failed to prove the suit amount to be payable by the

defendant for Rs.1,10,424/-, on the other hand, the

defendant is liable to pay only for six months due from

June 2011 to November 2011, that is calculated as

under:

From November 2006, 5% increment on

Rs.2,400/-, it comes to Rs.2,520/-.

From November 2007, 5% increment on

Rs.2,520/-, it comes to Rs.2,646/-.

Though the defendant is payable at Rs.2,646/-

p.m. from November 2007 till November 2008, but in

view of time barred for recovering the rent for June

2006 onwards, the plaintiff is entitled to recover only

six months rent at the rate of Rs.2,646/- equals to

Rs.15,876/- (Rs.2,646/- x 6 till November 2008) and

the remaining rent is barred by limitation.

Accordingly, I answer point Nos.1 and 2 partly in the

affirmative in favour of the defendant. In view of

the above reason, the judgment of the trial Court

requires interference and liable to be set aside.

16. Accordingly, I pass the following order:

(i) The appeal is allowed in part.

(ii) The judgment dated 28.02.2019 passed by

the XI Additional City Civil Judge, Bangalore City, in

O.S No.5424/2011, is hereby modified as under:

(a) The suit of the plaintiffs is

decreed in part.

(b) The defendant is liable to pay

only Rs.15,876/- for the rent from June

2008 to November 2008. The interest/

damage cannot be imposed since the

appellant-defendant has not at all kept

the hoardings.

(c) The appellant shall deposit the

said rent of Rs.15,876/- in the trial Court

within two weeks from the date of receipt

of the copy of this order, failing which the

said amount carries interest at 10% p.a.

till realization.

Sd/-

JUDGE

CS CT: SG