Patna High Court
Bihar State Hydro Electric Pow vs M/S Bennet Coleman & Company on 21 June, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.151 of 2007
Against the Judgment and Decree dated 29.03.2007 passed by
the learned Subordinate Judge-I, Patna in Money Suit No. 1 of
2003.
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BIHAR STATE HYDRO ELECTRIC POWER & ORS
------------------Defendant -Appellants
Versus
M/S BENNET COLEMAN & COMPANY, Public Ltd. Company
---------Plaintiff/respondent.
For the Appellant :- Mr. Lalit Kishore, Sr. Advocat (A.A.G.III)
With Smt. Binita Singh, Advocate
Mr. P.K. Shahi, Sr. Advocate (A.G.)
With Vikash Kumar, Advocate.
For respondent : Mr. Chakradhari Sharan Singh, Advocate.
PRESENT
HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
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Mungeshwar (1) This First Appeal has been filed by the defendants-
Sahoo, J.
appellants against the Judgment and decree dated 29th March, 2007 passed by Sri Mithilesh Kumar Roy, Subordinate Judge-I, Patna in Money Suit No. 1 of 2003 decreeing the plaintiff-respondents money suit.
(2) The plaintiff-respondents filed the aforesaid money suit against the defendants-appellants claiming a decree of a sum of Rs.1904568/- with interest at the rate of 24 percent per annum from the date of filing the suit.
(3) The plaintiff-respondent claimed the aforesaid relief on the 2 facts inter alia that the plaintiff is a public limited company and it publishes a number of leading national newspapers and magazines including Times of India. In the newspaper advertisement of various types are published. When any order is placed for advertisement, the rate depends upon its size and the page in the newspaper and nature of the news to be advertised and thereafter bill is sent.
(4) The further case is that the defendant No.3 who is Manager, Personnel and Administration of defendant No.1 placed release orders on behalf of the defendants and accordingly the plaintiff published 98 advertisements. Out of 98 advertisements, 17 advertisements were published in Patna edition and remaining 81 advertisements will publish in other editions of Kolkata, Mumbai, Ahmedabad, Delhi, Bangalore, Hyderabad, Lucknow, Pune, and Chennai of the Times of India group of Publication. The details of publication has been mentioned in Scheduled I of the plaint.
(5) The further case of the plaintiff is that at the time of placing the release order by the defendant No.3, the plaintiff has briefed him about the commercial rate applicable for the publication of advertisements in other editions of Times of India Group of Publication and D.A.V.P. rate for publication in Patna edition only and handed over the rate card also to the defendant No.3 (Exhibit '3'). After publication of advertisement, the plaintiff submitted news item date-wise along with bill amounting to Rs.19,07708/- for payment but in spite of repeated demand, it was never paid. Legal notice were sent on 22.05.2002 but the defendant-appellants raised the question of 3 D.A.V.P. rate through their reply dated 31.05.2002. The plaintiff sent reminders explaining all the queries and also reminding the defendants about the past payment by the defendant on commercial rate from time to time without any objection. The defendant thereafter paid Rs.2,313 only after deducting Rs.250 as tax through cheque on 01.11.2002. Subsequently, through cheque Rs.2,21,740/- and Rs.19586/- were sent but the plaintiff refused to accept the same on technical difficulty and then filed the present suit.
(6) The appellants appeared and filed a contesting written statement contending that the plaintiff committed the breach of the contract and failed to comply with the terms and conditions of the contract and also raised the ground that the plaintiff charged exorbitant bill instead of charging at D.A.V.P. rate.
(7) The further defence is that by release order No.1181 dated 21.04.2001, request was made to publish the tender on 25.04.2001 and 13.05.2001 but the same was published on 12.05.2001 in Kolkata and 14.05.2001 at Puna as such the plaintiff did not follow the instruction of the defendants. Similarly, the release order No.2046 dated 02.07.2001 was published only in State of Bihar and not in Jharkhand. It is further alleged that likewise release order dated 13th July, 2001 was not published on the specified date. The plaintiff also avoided to publish amended version of the tender notice and got the old process published on 15.08.2001 against the release order dated 13th July, 2001. On these facts, it is alleged that the plaintiff has violated the terms and conditions so he cannot be allowed to claim any amount. 4 The further defence is that apart from the variation in the tenders publication, the plaintiff has also charged exorbitant price. According to them the tender notice was to be published on D.A.V.P. rate but the plaintiff has not charged the agreed rate. The further case is that it cannot be said that there was valid contract between the parties and in absence of valid contract, the claim of the plaintiff cannot be allowed. On these grounds, the defendant-appellants prayed for dismissal of the suit.
(8) On the basis of the aforesaid pleadings, the learned Court below framed 4 issues and after trial by the impugned judgment and decree after discussing the evidence available on record came to the conclusion that the plaintiff has been able to establish his case from the cogent evidence and decreed the suit awarding interest at the rate of 9 per cent per annum from the date of institution of the suit till realization.
(9) The learned senior counsels appearing on behalf of the appellant assailed the impugned judgment and decree on two accounts. Firstly, on the ground that the release order were to be published on a particular date but the plaintiff instead of publishing the same on that particular date according to instructions of the appellants, published the same on other dates causing immense loss and therefore the plaintiff committed breach of terms and conditions so the plaintiff is not entitled to claim amount of bill regarding those release orders but the learned Court below has wrongly decreed the plaintiff's claim. Secondly, the impugned judgment and decree is 5 assailed on the ground that it was agreed between the parties that the plaintiff will charge according to the D.A.V.P. rate but the plaintiff submitted bill on commercial rate which could not have been allowed but the learned Court below allowed the same. The learned senior counsels submitted that the learned Court below should have considered each and every release order as a separate contract between the parties and should have given finding as to which of the contract was violated but instead of doing so, the learned Court below has considered all the release orders together and thereby caused prejudice to the defendant-appellants. The learned senior counsels further submitted that it was agreed between the parties that D.A.V.P. rate was to be paid for the publications and in all the release orders Exhibit 1 to 1/P, the defendant requested the plaintiff to publish the tender notice on D.A.V.P. rate and alternatively, it was said that if D.A.V.P. rate is not possible then to publish on commercial rate. The plaintiff never communicated to the defendants that D.A.V.P. rate is not possible and in the bill the plaintiff instead of charging at D.A.V.P. rate charged commercial rate which is contrary to the agreement between the parties and therefore, the learned Court below should not have allowed the claim of the plaintiff. On these grounds, it is submitted that the impugned judgment and decree are liable to be set aside.
(10) On the other hand, the learned counsel, Sri Chakradhari Saran Singh appearing for the plaintiff-respondents submitted that the grounds taken by the appellant are not teneable at all. Prior to 6 publication of the tender notices, according to release order issued by the defendants, the rate card containing rules and regulations as contained in Exhibit 3 was handed over to the defendants and according to the Government instructions, the parties agreed for the payment regarding advertisement. The learned counsel further submitted that for Patna edition only D.A.V.P. rate was applicable and for publication outside Bihar State, commercial rate was applicable and that was the instruction of the Government also to the defendants- appellants. So far publishing the tender notice on other date then specified date is concerned, the learned counsel submitted that because of delayed communication by the defendants, the notices were published on the other dates after giving information to the defendant and moreover the defendants never raised any objection. According to the learned counsel, the release orders were issued from the month of April, 2001 to March, 2002, i.e., Exhibit 1 series which is for a period of about one year. Had there been any objection by the defendant, it could have been communicated by them but instead of raising any objection, the defendants placed orders and orders and orders for publication repeatedly for such a long period and about 98 publications were made and for the first time when bill was raised, this objection was made. According to the leaned counsel, the defendants have failed to show any loss what to speak about serious loss because of non-publication on the specified date. The learned counsel further submitted that after accepting the advertisement and obtaining the fruits and benefit relating to the advertisement though 7 publish subsequently after giving information, the defendants are estopped to say now that they will not pay the amount of bill because some of the release orders were published on other dates then specified by the defendants. The learned counsel further submitted that the leaned Court below has considered all these aspect of he matter and, therefore interference in the impugned Judgment and Decree is not called for. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed.
(11) In view of the above, submissions of the parties, the question arises for consideration in the instant Appeal is as to whether the plaintiff-respondent is entitled for the reliefs as prayed for and whether the learned Court below has rightly decreed the suit.
Findings (12) It may be mentioned here that the plaintiff has examined 5 witnesses in support of his case. P.W.1, Gopal Prasad Singh is senior Officer of Plaintiff and P.W.2, Jaymangal Singh is response Officer of plaintiff. Both of them have fully supported their case as made out in the plaint. P.W.2 at paragraph 11 has stated that at the time of submission of the release order, the plaintiff had agreed to publish the same at D.A.V.P. rate so far Patna edition is concerned and so far publication of the same in other editions outside Patna is concerned, it was agreed that the same shall be published at commercial rate and at that time the rate card containing the rules and regulation was handed over to the defendant No.3. The said rate card has been marked as Exhibit 3. So far this evidence at paragraph 11 is 8 concerned, there is not cross-examination by the appellant. Therefore, this evidence of P.W.2 stands admitted by the defendants. In other words, the defendants-appellants have admitted to the effect that at the time of publication of tender notice, the rate card Exhibit 3 was given by the plaintiff and it was agreed that for Patna Edition D.A.V.P. rate shall be charged and for other edition, commercial rate will be charged. P.W.3 also at paragraph 11 has stated that according to the agreement for advertisement in Patna Edition, D.A.V.P. rate was charged and for other editions outside Patna, commercial rate was charged in the bill. At paragraph 21, this witness has stated that because at the last moment, the defendants changed the dates for publication in the release order on the specified date, the notices could not be published. At paragraph 22, this witness stated that because of delayed publication, no loss was caused to the defendants and prior to the institution of the case, no objection was raised by the defendants. At paragraph 23, he has clearly stated that there is clear stipulation in Exhibit 3 that for delayed publication, the plaintiff will not be responsible. As stated earlier, no cross examination on these points have been made to this witness also. It is well settled principal of law that the point which was not cross-examined will be deemed to have been admitted. From perusal of the evidence of the witness, P.W.2 at paragraph 28, P.W.3 at paragraph 21, P.W.5 at paragraph 32, it appears that they have categorically stated that at the eleventh hour, the date was changed by the defendants and gave late information because of which the advertisement could not be published on the due 9 date. P.W.5 at paragraph 39 and 40 has stated that because publication was not possible as per release order No.1181 dated 21.04.2001 on the date specified therein, the same was published in subsequent date after giving information. He has further stated that no edition of Times of India is published in State of Jharkhand so the advertisement was published in Patna only.
(13) The learned senior counsels for the appellant submitted that so far these evidences explaining the delayed publication are concerned cannot be looked into because these evidences are based on no pleading. Accordingly to the learned counsels, the plaintiffs never pleaded in the plaint as to why delay was caused. So far these submissions are concerned, in my opinion, cannot be accepted because it was the defence of the defendants hat the plaintiff is not entitled for the amount of bill for some of release order because of delayed publication and to explain these defence, the evidence has been adduced. In my opinion, therefore, this evidence cannot be discarded. It is well settled principal of law that the plaintiff is required to plead the facts of the case and evidence is not required to be pleaded. Moreover in this case, appellants had not challenged those part of the evidence by cross-examine the witnesses. From perusal Exhibit 1/P, it appears that it was issued on 20th March, 2002 in connection with Exhibit 1/O and it was stated that instead of 20 March, 2002, the advertisements may be made on 21st March, 2002. From these two letters, it appears that there were communications between the parties regarding shifting of dates in connection with 10 publications.
(14) From perusal of the release orders, Exhibit 1 to1/P, it appears that in some of the release orders relating to Patna edition, it was requested that the publication may be made according to D.A.V.P. rate. From perusal of Exhibit 1/C, it appears that request was made to publish the same in Patna and in New Delhi. In that letter, it is specifically mentioned that for Bihar and Jharkhand, it should be published on D.A.V.P. rate and for outside Bihar, it should be published on commercial rate. Exhibit 1/D and 1/E are concerned, those release order relates to publication in Patna edition. In those release orders, only it was requested that it should be published in D.A.V.P. rate. Likewise Exhibit 1/G and 1/I are concerned, those relate to publication in Patna edition only and, therefore, D.A.V.P. rate is mentioned. In Exhibit 1/L, 1/M, 1/N, it appears that the release order were to be published in Times of India outside Bihar and in those release order, it has been mentioned that if it is not possible to publish at D.A.V.P. rate, the same may be published at commercial rate. The learned counsels for the appellants submitted that the plaintiff never communicated to the defendant that it was not possible to publish the same at D.A.V.P. rate. Therefore, he cannot be allowed to raise bill at commercial rate. So far this submission is concerned also, I find no force because as stated above while discussing oral evidence, it is the specific case in the evidence of P.W.2 that at the time of release order for publication earlier the rate card Exhibit 3 was handed over to the defendant No.3-appellant and it was agreed that so 11 far Patna edition is concerned, D.A.V.P. rate will be charged and outside Bihar edition, commercial rate will be charged. As stated above, this evidence stands admitted. Moreover, the plaintiff has filed Exhibit '9' which is dated 19th January, 1991 issued by Director of Information and Public Relation Deptt., Govt. of Bihar. At paragraph 3, it is clearly mentioned that so far the publication in newspapers in Bihar is concerned, it should be paid at D.A.V.P. rate and so far newspapers outside Bihar are concerned, it should be paid at commercial rate. At paragraph 3, names of the newspapers have been specified for which commercial rate is payable which are published outside Bihar. Times of India is one of them. This is the letter of the State Govt. and there is clear guideline regarding payment of commercial rate for newspapers in which notices are published outside Bihar. This guideline is issued in 1991. From perusal of the said letter, it is clear that so far newspaper outside Bihar are concerned always commercial rates are being paid. There is a clear stipulation in this letter that if newspaper in Bihar are concerned do not agree to publish at D.A.V.P. rate then the concerned authority should not publish it in the newspaper. It may be mentioned here that so far this letter, Exhibit '9' is concerned, it is not denied at all by the defendants-appellants.
(15) D.W.1 and D.W.2 on the other hand in their evidence have only stated that because of non-publication of advertisements as per terms and conditions, the defendants suffered loss. Except this statement, there is nothing on record to show what is the loss suffered 12 by the defendant and what is the nature of the loss and extent of loss. Moreover, D.W.2 has stated that his statement about loss is based on his experience. It may be mentioned here that both these witnesses have admitted in their evidence that the plaintiff changed the date after giving information to them. We have seen Exhibit 1/P and 1/O as discussed above.
(16) As stated above, the release orders exhibit one series ranges from April, 2001 to March, 2002. It will not be out of place to mention here that for this long period, the defendant placed orders for publication with the plaintiff. It appears that for many months one after the other, release orders were placed. Had there been any loss caused to the defendant? It was expected from them to have raised the objection regarding delayed publication causing loss to them because the defendant-appellants are the Govt. undertakings and cannot be expected to behave like ordinary litigant. They did not raise any objection but the conduct shows that in spite of delayed publication, subsequently also orders were placed for publication of notice which clearly indicates that impliedly they had not objection if there was any delay for one day or otherwise because they did not suffer any loss. Moreover as stated above, there is no pleading and evidence regarding nature and extent of loss. From perusal of some of the release order, it appears that the tender notice once published were again requested to be published subsequently.
(17) From perusal of the reply to the legal notices, it appears that the objection has been taken by the defendants-appellant that the 13 other newspaper charged D.A.V.P. rate for publication outside Bihar but so far this fact is concerned, no evidence has been produced. The other objection raised is that there is instruction of the Government to pay D.A.V.P. rate for publication of tender in newspapers and if it is paid at commercial rate, Accountant General will raise objection. So far this objection is concerned also has got no merit in face of Exhibit- '9'. The guideline given by the State Government.
(18) From perusal of the legal notices, Exhibit '4' series, it appears that earlier also, the defendants were paying the bills at commercial rate regarding publication outside Bihar. For the first time, they raised objection when the bill was submitted in this case.
(19) In view of my above discussion, it appears that the parties had agreed that D.A.V.P. rate shall be charged for publication in Patna edition and commercial rate shall be charged in publication outside Bihar. At the time of this negotiation, the plaintiff had handed over Exhibit 3, the rate card which will be applicable to the parties and it was agreed by them. It further appears that the defendant-appellants have failed to show any loss caused to them because of delayed publication and moreover the plaintiff has been able to explain the delay. After placing orders for publication for such a long period in spite of delayed publication, one ground or the other after communicating to the defendants now after submission of bill, the defendants cannot be allowed to give a surprise to the plaintiff by saying that the plaintiff has committed the breach of terms and conditions of the contract. I, therefore, find no force on the ground 14 raised by the leaned senior counsels for the appellants. Accordingly I find that the plaintiff is entitled for the decree as prayed for and the leaned Court below has rightly decreed the suit. Therefore, the finding of the learned Court below are hereby confirmed.
(20) In the result, I find no merit in this Appeal and accordingly this Appeal is dismissed. In the facts and circumstances of the case, the party shall bear own cost.
(Mungeshwar Sahoo, J.) Patna High Court, Patna Dated 25th May, 2010 AFR/ Sanjeev