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Delhi District Court

Delhi Transport Corporation ) vs M/S Aircel Limited ) on 16 March, 2020

 IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
  ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
              DWARKA COURTS, DELHI

 CS DJ ADJ No. 516773/2016
 CNR No. DLSW01000109201




IN THE MATTER OF:

Delhi Transport Corporation                       )
Through its Senior Manager (Publicity)            )
DTC Head Quarter, I.P Estate                      )
New Delhi                                         )       ... Plaintiff

                                  v.

M/s Aircel Limited                                )
Through its Managing Director                     )
at B-1, Local Shopping Arcade                     )
Vasant Kunj, New Delhi - 110070                   )     ... Defendant


 Date of institution of suit:                     25.05.2011
 Date of judgment reserved:                       12.03.2020
 Date of pronouncement of judgment:               16.03.2020


JUDGMENT

1. Delhi Transport Corporation (hereinafter "DTC" / "plaintiff"), a government undertaking providing transport services in the National Capital Territory of Delhi by its behemoth fleet of buses to the citizenry and visitors of Delhi has preferred a suit for recovery of ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) along with pre-suit interest @24% per annum w.e.f.

March 2009 until the date of the filing of the suit i.e. 24.05.2011, pendente lite and future interest @24% p.a. from the date of filing of the suit i.e. 24.05.2011 until its realization against Aircel Limited (hereinafter "Aircel" / "defendant").

Facts

2. The facts of the case in a nutshell are that Aircel without any permission, authorization and contract displayed its advertisements on the bus queue shelters (BQS) at the bus stops of DTC, which space is usually let out by DTC for advertisement purposes on contractual basis. On a request letter being sent by DTC to Aircel, the Aircel did not respond and consequentially DTC raised a demand of ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) upon Aircel by a legal notice. Aircel neither responded to the request letter, legal notice nor paid any amount to DTC. Hence, the present suit.

Pleadings

3. The case urged by DTC in its plaint is that the Aircel displayed its advertisements on various bus queue shelters (BQS) constructed and maintained by DTC without its consent, permission and/or any contract. DTC has omnipresent existence in Delhi with a wide network working as one of the prime modes of transport in the national capital Delhi. DTC has further urged that as a standard practice their bus queue shelters and vehicles are often used as tools and spaces for display of advertisements, which do rake in money as an alternate source of funds. Such funds generated by way of advertisements indeed go to the coffers of public exchequer. It is urged by DTC that any unauthorized use of its space for display of advertisements by any person not only causes loss to DTC but also to CS DJ ADJ No. 516773/2016 Page No. 2/15 public exchequer.

4. As per averments in the plaint, Aircel at 14 (fourteen) different bus queue shelters of DTC in Delhi viz., Malviya Nagar crossing; Begumpur Shivalik; Vasant Continental; Vasant Lok; S.M. Temple; JNU Ber Sarai; Katwaria Sarai; Qutab; B-1, Vasant Kunj; Munirka Village; Khalsa College; Shri Ram College; School of Soc. Science, and S.J. Enclave displayed its advertisements without any permission, authorization and contract.

5. DTC issued a letter dated 09.04.2009 to the Aircel calling upon to either disclose the name of the contractor/advertiser, who permitted Aircel to display their advertisements at various bus queue shelters belonging to DTC or to make payment for such unauthorized display of advertisements. It is further urged by DTC that despite receipt of letter dated 09.04.2009, Aircel neither intimated the name of the contractor/advertiser who permitted them to display their advertisements on various bus queue shelters nor made payment as sought by DTC in the said letter.

6. Thereafter, DTC issued a legal notice dated 30.04.2010 calling upon Aircel to make payment of ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) along with interest @ 24% p.a. within 15 days from the receipt of the said notice. As per averments made in the plaint, Aircel did not respond to the legal notice. No reply to the said legal notice was given by Aircel to DTC. Consequently, DTC on 24.05.2011 preferred the present suit for recovery ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) along with pre-suit interest, pendente lite interest and future interest @24%p.a.

7. Pursuant to issuance of summons for settlement of issues, on CS DJ ADJ No. 516773/2016 Page No. 3/15 15.12.2011 Aircel did lodge its appearance through counsel. However, on account of default in appearance on 04.04.2012, the defendant was proceeded ex parte. On an application moved by the defendant under Order IX, Rule 7 of the Code of Civil Procedure, 1908 (hereinafter "CPC"), the ex parte order dated 04.04.2012 was set aside and an opportunity was granted to the defendant to file written statement subject to costs of ₹3,000/- (Rupees Three thousand only) to be paid by the defendant to the plaintiff.

8. On 17.05.2012, the defendant filed its written statement in defence to the claim made by the plaintiff. Aircel in its defence urged a preliminary objection that no cause of action has arisen against it and no claim can be maintained by DTC against Aircel. It is also urged by the defendant that the suit is bad for misjoinder of parties, as defendant does not display its advertisements of its own. It is averred by the defendant that the advertisements are displayed through different agencies.

9. On merits, the defendant has urged in its defence that the plaintiff did not undertake any inspection of its bus queue shelters as alleged in the plaint. The defendant denied illegal display of advertisements on the bus queue shelters of plaintiff. The defendant denied the genuineness of the claim made by the plaintiff on the ground that the plaintiff did not first inform the defendant with regard to the illegal display of advertisement. It is also urged by the defendant that had the plaintiff informed the defendant about the illegal advertisements displayed at the bus queue shelters, the same would have been removed in the presence of the officials of the defendant company. The defendant has urged that the claim made by the plaintiff against it is false and baseless. The defendant not only CS DJ ADJ No. 516773/2016 Page No. 4/15 denied receipt of letter dated 09.04.2009 but also of legal notice dated 30.04.2010. In short, the defendant has urged that the claim made by the plaintiff against it is false and baseless and bound to be dismissed.

10. On 09.08.2012, the plaintiff filed replication to the written statement of the defendant refuting the defence urged by the defendant as hollow and reiterating its claim made in the plaint. Questions

11. The following issues were framed vide order dated 09.08.2012:

i) Whether plaintiff is entitled to recover from defendant Rs 7,84,800/-? ... OPP

ii) Whether plaintiff also entitled to interest, if so, to what extent? ...OPP

iii) Relief

12. Before marching ahead, I deem appropriate to state certain observations traced from the case record. On 17.01.2013, the plaintiff moved an application under Order VI, Rule 17, CPC seeking amendment of plaint. The amendment of plaint was sought on the ground of some typographical errors having crept in the plaint. The amendment application was allowed on 17.01.2013 itself and the amended plaint was taken on record. The proceedings stood adjourned for plaintiff's evidence.

13. Amidst the trial, plaintiff once again moved on 30.01.2014 an application under Order VI, Rule 17, CPC seeking amendment of plaint. The second amendment application was allowed vide order dated 11.09.2014 and the plaint stood amended for a second time. It is further observed from the case record that vide order dated 21.05.2015, on account of default on the part of defendant to file CS DJ ADJ No. 516773/2016 Page No. 5/15 amended written statement, the defendant's defence was struck off. Thereafter, the defendant moved an application under Section 151, CPC seeking recall of order dated 21.05.2015. The Court vide order dated 12.05.2016 allowed the application moved by defendant and the written statement of the defendant already on record was permitted to be read as the amended written statement to the amended plaint. It is also observed from perusal of the order dated 12.05.2016 that pursuant to the amendment application moved on behalf of the plaintiff being allowed vide order dated 11.09.2014, the plaintiff sought certain documents to be brought on record as a consequence of the amendment of plaint. The Court vide order dated 12.05.2016 allowed the application moved by the plaintiff and the documents were taken on record.

14. On account of default in appearance, the defendant was proceeded ex parte vide order dated 22.08.2016. However, the ex parte order was set aside on an application moved by the defendant vide order dated 13.10.2016.

15. Penultimately, the defendant was proceeded ex parte on 12.07.2018 for repeated default in its appearance before court. The plaintiff on 18.10.2018 closed its evidence.

16. To prove its case, the plaintiff examined seven witnesses in total, namely, R.S Minhash (PW1), Rishi Pal (PW2), Vikash Batra (PW3), Suresh Kumar (PW4), Pawan Kumar (PW5), Balwant Singh (PW6) and Lalit Kumar Singh (PW7).

17. R.S. Minhas (PW1) stepped into the witness box on 22.08.2013. PW1 relied and proved the following documents:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Certified copy of circular dated Ex.PW1/1 11.03.1987 ii. Agreement dated 29.08.2008 Ex.PW1/2 iii. Letter dated 13.08.2008 Ex.PW1/3 iv. Letter dated 21.11.2008 Ex.PW1/4 v. Letter dated 20.03.2009 Ex.PW1/5 vi. Copy of order dated 26.03.2009 Ex.PW1/6 vii. Photographs Mark A1 to Mark A13 viii. Police complaints and reminder Ex.PW1/8A to dated 30.08.2010 Ex.PW1/8E ix. Copy of notice dated 09.04.2009 Ex.PW1/9 (Objected to) x. Postal receipt Ex.PW1/10 xi. Legal notice dated 30.04.2010 Ex.PW1/11 (Objected to) xii. Postal receipt Ex.PW1/12 xiii. Survey report dated 26.03.2009 Ex.PW1/DA

18. Rishi Pal (PW2) relied and proved the following documents:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Authority letter issued by DTC to Ex.PW2/1 PW2.

  ii.        Photographs of PW2 holding Ex.PW2/2                      to
             newspaper on various dates.       Ex.PW2/9

19. Vikash Batra (PW3) relied and proved the following documents:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Police complaint Ex.PW3/1 ii. Police complaint Ex.PW3/2 iii. Police complaint Ex.PW3/3 iv. Police complaint Ex.PW3/4 v. Letter dated 26.03.2009 Ex.PW3/5 vi. Police complaints and reminder Ex.PW1/8A to dated 30.08.2010 Ex.PW1/8E vii. Survey report dated 26.03.2009 Ex.PW1/DA CS DJ ADJ No. 516773/2016 Page No. 7/15

20. Suresh Chand (PW4) relied and proved following document:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Complaint lodged at police station Ex.PW4/1 Malviya Nagar ii. Photographs Mark A1 to Mark A13

21. Pawan Kumar (PW5) relied upon and proved the following document:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Copy of letter/report of Publicity Ex.PW5/1 Department, DTC dated 27.03.2009

22. Bhim Singh (PW6) relied and proved the following document:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Copy of police complaint Ex.PW6/1

23. Lalit Kumar Singh (PW7) relied and proved the following:

S.No. Description and date, if any of Exhibit Mark put the document on the document i. Copy of photographs Mark PA6 - Mark (de-exhibited and marked as Mark PA13 PA6 - Mark PA13) ii. Copy of a photograph Mark PA14 iii. Police complaint Ex.PW7/1 Submission by Ld. Counsel for the plaintff

24. Mr. Hardwari Lal, learned counsel for the plaintiff submitted that the defendant did indulge in nefarious activity of publishing its advertisements at the bus stops of the plaintiff without any authorization and permission. The learned counsel for the plaintiff further submitted that when the plaintiff did intimate the defendant through written communication, the defendant failed to disclose the name of the person and agency, who permitted the defendant to CS DJ ADJ No. 516773/2016 Page No. 8/15 display their advertisements. The learned counsel for the plaintiff further submitted that despite written communication and a legal notice issued by the plaintiff to the defendant, the defendant failed to make payment to the plaintiff with regard to unauthorized display of advertisements.

25. The learned counsel for the plaintiff further submitted that the defendant is liable to pay compensation not only for unauthorized display of advertisement but also for causing damage and unwarranted expense in removal of illegal and unauthorized advertisements.

26. Mr. Hardwari Lal, learned counsel for the plaintiff submitted that the defendant was proceeded ex parte on account of default of appearance and the averments made in the plaint by the plaintiff remain unimpeached and there is no rebuttal evidence on record to denial the claim sought by the plaintiff against the defendant.

27. Mr. Hardwari Lal, further submitted that during the pendency of the present legal proceedings, the defendant company underwent insolvency proceedings and an interim resolution professional (IRP) has been appointed, however, the same does not come in the way of the plaintiff's claim against the defendant. To buttress his submissions, learned counsel for the plaintiff placed reliance upon the latest judgment of the Hon'ble High Court of Delhi in SSMP Industries Limited v. Perkan Food Processors Pvt. Ltd.1 The learned counsel for the plaintiff concluded his submissions on the note that the suit must be decreed against the defendant alongwith interest @ 24% per annum and the costs of the suit be also awarded to the plaintiff.

Reasoning & Findings

28. I, have perused the complete case record and considered and 1 CS(COMM) 470/2016 and CC(COMM.) 73/2017 date of decision 18.07.2019 CS DJ ADJ No. 516773/2016 Page No. 9/15 deliberated the submissions advanced by the learned counsel for the plaintiff. This court observes that even though the defendant has been proceeded ex parte, the court shall state its finding or decision, as issues have been framed - See Order XX, Rule 5 of the Code of Civil Procedure, 1908.2 The issue-wise findings ensue in the following paragraphs of this judgment.

Whether plaintiff is entitled to recover from defendant Rs 7,84,800/-?

29. The onus to prove issue No. 1 was casted upon the plaintiff. The case urged by the plaintiff is that the defendant displayed and published its advertisement at 14 different locations comprising of bus queue shelters without any authorization and permission. The plaintiff's case is that the plaintiff as a standard practice lets out not only its spaces at the bus queue shelters but also the buses serve as an effective mode of advertisement. The plaintiff by such use of its spaces does generate an alternate source of income, which goes to the coffers of public exchequer.

30. The defendant' advertisements have been urged to be unauthorized, without any permission and which consequentially caused loss and damage to the plaintiff's property. The plaintiff has led evidence to prove the unauthorized display of advertisement by proving various colour photographs displaying the advertisement of the defendant with the slogan, "Your world of possibilities. Aircel". It is also proved by the plaintiff by placing on record an agreement dated 2 Order XX Judgment and Decree ......

5. Court to state its decision on each issue.-- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit.

29.08.2008 (Ex.PW1/2) with M/s U.S. Advertising through its proprietor Mr. U.S. Sharma for his appointment as contractor, advertiser for displaying of advertisement boards to the bus queue shelters, time keeping booths, etc., for the south zone, Delhi. It is observed that as per the aforesaid agreement, unauthorized display of advertisement board on unallotted bus queue shelters and time keeping boards would attract payment of double the rates of license fee and removal of such advertisement board.

31. Before proceeding further, the claim urged by the plaintiff has to be tested at the anvil of its maintainability and not being barred by any legal impediment. The plaintiff has urged that the unauthorized display of advertisement came to its knowledge on 19.03.2009, which duly reflects in the survey report dated 20.03.2009. The plaintiff preferred the present suit against the defendant on 24.05.2011. This Court finds that the plaintiff's claim of compensation against the defendant is not based on a contractual liability rather on a tortious liability. This Court observes that the period of limitation within which the plaintiff's claim against the defendant ought to be filed is not squarely covered under any specific Article of First Division - Suits, The Schedule, Limitation Act, 1963. I, am of the considered opinion that plaintiff's claim is squarely covered under Article 113, Part X - Suits for which there is no prescribed period, First Division - Suits, the Schedule, Limitation Act, 1963. Article 113 provides that where any suit for which no period of limitation is provided elsewhere in the Schedule, the period of limitation shall be 3 years and the limitation period shall begin to run when the right to sue accrues. In the case at hand, the right to sue accrued in the favour of the plaintiff on 19.03.2009 and thus the suit is held to be preferred within the 3 years CS DJ ADJ No. 516773/2016 Page No. 11/15 period of limitation.

32. The High Court of Delhi in SSMP Industries Limited v. Perkan Food Processors Pvt. Ltd.3 dealt with an interesting issue which arose in respect of an interpretation of Section 14 of the Insolvency and Bankruptcy Code, 2016 (hereinafter "IBC") in a suit and a counter claim under the Commercial Courts Act, 2015. The High Court answered the question whether the plaintiff company which had since gone into insolvency and a resolution professional has been appointed, whether the adjudication of the counter claim would be liable to be stayed in view of Section 14, IBC.

33. The relevant extract of the judgment SSMP Industries Limited v. Perkan Food Processors Pvt. Ltd.4 is reproduced in verbatim:

"8. The Court has considered the plaint and the written statement/counter claim. The adjudication of the plaint, defences in the written statement and the amounts claimed in the counter claim would have to be considered as a whole in order to determine as to whether the suit or the counter claim would be liable to be decreed. A counter claim would be in the nature of a suit against the Plaintiff which in this case is the `corporate debtor'. Under Section 14(1)(a) of the Code, strictly speaking, a counter claim would be covered by the moratorium which bars `the institution of suits or continuation of pending suits or proceedings against the corporate debtor‟. A counter claim would be a proceeding against the corporate debtor. However, the counter claim raised in the present case against the corporate debtor ie., the Plaintiff, is integral to the recovery sought by the Plaintiff and is related to the same transaction. Section 14 has created a piquant situation i.e., that the corporate debtor undergoing insolvency proceedings can continue to pursue its claims but the counter claim would be barred under Section 14(1)(a). When such situations arise, the Court has to see whether the purpose and intent behind the imposition of moratorium is being satisfied or defeated. A blinkered approach cannot be followed and the Court cannot blindly stay the counter claim and refer the defendant to the NCLT/RP for filing its claims.

9. The nature of a counter claim is such that it requires proper 3 CS(COMM) 470/2016 and CC(COMM.) 73/2017 date of decision 18.07.2019 4 ibid.

pleadings to be filed, defences and stands of both parties to be considered, evidence to be recorded and then issues have to be adjudicated. The proceedings before NCLT are summary in nature and the RP does not conduct a trial. The RP merely determines what payment can be made towards the claims raised, subject to availability of funds. The NCLT/RP cannot be burdened with the task of entertaining claims of the Defendant which are completely uncertain, undetermined and unknown. Moreover, the question as to whether the Defendant is in fact entitled to any amounts, if determined by the NCLT, prior to the adjudication of the plaintiff's claim for recovery, would result in the possibility of conflicting views in respect of the same transaction. Under these circumstances, this court is of the opinion that the Plaintiff's and the defendant's claim ought to be adjudicated comprehensively by the same forum. At this point, till the defence is adjudicated, there is no threat to the assets of the corporate debtor and the continuation of the counter claim would not adversely impact the assets of the corporate debtor. Once the counter claims are adjudicated and the amount to be paid/recovered is determined, at that stage, or in execution proceedings, depending upon the situation prevalent, Section 14 could be triggered. At this stage, due to the reasons set out above, the counter claim does not deserve to be stayed under Section 14 of the Code. The suit and the counter claim would proceed to trial before this Court."

34. This Court finds that in terms of the aforesaid judgment, the claim preferred by the plaintiff against the defendant need not be stayed under Section 14, IBC.

35. This Court observes that the plaintiff has computed its claim against the defendant on the basis of clause XV of the agreement and sought interest @ 24% per annum on the computed amount.

36. Though, the defendant has urged in its amended written statement that there is no cause of action in favour of the plaintiff to maintain the suit against the defendant and the plaintiff is not entitled to any claim of compensation but with the defendant being proceeded ex parte there is no rebuttal evidence to decline the claim made by the CS DJ ADJ No. 516773/2016 Page No. 13/15 plaintiff against the defendant. It is also observed that the plaintiff has rightly proved that there was unauthorized display of defendant' advertisement on 14 different locations and inspite the defendant being put to notice by the plaintiff, the defendant failed to pay any compensation, be it towards unauthorized usage of the bus queue shelters and non payment of expenses with regard to removal of such unauthorized advertisements.

37. In view of the above observations, this Court finds that the advertisements pertaining to the defendant company were displayed without any authorization, permission of the plaintiff and thus the defendant is held liable to pay compensation, as sought by the plaintiff. This Court finds no lapse, fault in plaintiff's claim against the defendant seeking compensation computed twice the amount of the applicable contractual rates. Accordingly, issue No.1 is answered in favour of the plaintiff and against the defendant.

Whether plaintiff also entitled to interest, if so, to what extent?

38. The onus to prove issue No. 2 was also casted upon the plaintiff. This Court finds that the pre-suit interest, pendente lite interest and future interest @ 24% per annum is way to onerous and on the higher side. There being no contractual relation between the parties to the suit, awarding interest @ 12% per annum would be more reasonable as that appears to be the rate of interest at which the banking sector advances loan to their customers. The ends of justice would serve by awarding the simple interest @ 12% per annum on the compensation amount sought by the plaintiff against the defendant. This Court finds plaintiff to be entitled for interest @ 12% per annum CS DJ ADJ No. 516773/2016 Page No. 14/15 on the compensation of ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) from the date of filing of the suit until its actual realization. Accordingly, issue No.2 is answered in favour of the plaintiff and against the defendant.

Relief

39. With the issue Nos.1 and 2 being answered in favour of the plaintiff and against the defendant, this Court rule that the plaintiff is entitled for a money decree of ₹7,84,800/- (Rupees Seven lakhs eighty four thousand and eight hundred only) alongwith interest @12% p.a. from the date of filing of the suit i.e. 24.05.2011 until the date of its actual realization. The costs of the suit are also awarded to the plaintiff. Suit stands decreed in above terms. Let decree sheet be drawn accordingly.

40. File be consigned to record room only after due compliance and necessary action, as per Rules. HARGURVARINDER Digitally signed by HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2020.03.16 16:13:48 +0530 Pronounced in the open (Hargurvarinder Singh Jaggi) Court on March 16, 2020 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi CS DJ ADJ No. 516773/2016 Page No. 15/15