Delhi District Court
Shri Sanjay Jaiswal vs N.D.M.C on 24 November, 2011
In the Court of Ms. Ina Malhotra,Additional. District JudgeI,
New Delhi District Patiala House Courts, New Delhi.
Suit No. 494/09
Shri Sanjay Jaiswal
S/o Shri Purshottam Das
R/o 7/635,Frash Khana,
Delhi110006 .....Plaintiff
VERSUS
N.D.M.C.
through its Chairperson
Palika Kendra
Parliament Street, New Delhi .....Defendant
PLAINT PRESENT ED ON 23.12.2009
ARGUMENT CONCLUDED ON 24.11.2011
JUDGEMENT ON 24.11.2011
J U D G M E N T
The plaintiff has filed a suit for recovery of Rs. 11,92,440/.
2. Brief facts of the case are that the defendant had invited tenders for allotment of various parking lots vide advertisements in daily newspapers. The plaintiff submitted his quotation and his bid was accepted for the contract of managing Suit No.494/09 ....1 the parking lots in and around the Sarojini Nagar market on a licence basis. The allotment was for a period of one year effective from 01.12.07 to 30.11.2008 on payment of a monthly license fees of Rs. 2,83,778/ for an approximate area of 5679 sq. meters. The plaintiff was also required to deposit two months' license fees and a security amount equivalent to four months license fees. The plaintiff completed all the formalities and the defendant handed over possession of the parking lot vide their possession letter dated 30.11.2007 for manging it for 1 year w.e.f. 01.12.2007. Other conditions of allotment including the tariff rates were mentioned in the said possession letter. An agreement was also executed between the parties.
3. The plaintiff managed the parking lot upto 28.07.2008 on terms and conditions agreed upon. However, the parking lots at 'G Avenue' Sarojini Nagar and at the Newly developed area were closed from 29.07.2008 for an indefinite period on account of a bomb blast. This fact was communicated to the defendant vide letters dated 11.08.2008 and 18.09.2008 while requesting for a remission in the licence fees. The defendant in their letter dated 22.09.2008 asked the plaintiff to seek Suit No.494/09 ....2 confirmation that the parking lot had been declared as "No Parking Zone" for safety purposes from 29.07.2008 by the Delhi Police. Written confirmation dated 27.10.2008 from SI Ram Phal of the concerned Police Station was obtained regarding closure of the parking lots at G Avenue Sarojini Nagar and the newly developed area which was forwarded to the defendant.
4. The plaintiff prayed for a remission in the licence fees in terms of the agreement but the defendant failed to response. Despite reminders, the defendant failed to take the same into consideration. The plaintiff ultimately sent a legal notice dated 3.09.2009. As the agreement between the parties provided for arbitration in the event of any dispute, the plaintiff asked the defendant to appoint an Arbitrator in terms of the clause 36 of the said agreement, but the defendant declined to invoke the arbitration clause on the ground that the contract had come to an end in March 2009. The plaintiff has therefore claimed recovery of the license amount paid by him proportionate to the area which was not made available i.e an area of 3912 sq. meters for 183 days, being encumbered by NDMC. The plaintiff has also claimed interest thereon.
Suit No.494/09 ....3
5. In the Written Statement filed by the defendants, they have repudiated their liability on the ground that it was clearly mentioned in the agreement entered into between the parties that the parking lots were alloted on an "As is where is" basis.
5. From the pleadings of the parties, the following issues were framed :
i. Whether the plaintiff is entitled for the recovery of Rs. 11,92,440/ OPP ii. Whether the plaintiff is entitled for interest on the amount claimed, if the answer is in affirmative, at what rate and for which period? OPP iii. Whether the plaintiff is not entitled for the relief claimed in view of clause 6(a) of the agreement? OPD iv. Whether there is no cause of action in favour of plaintiff as claimed by the defendant in preliminary objections No. 2? OPD v. Relief.
6. The plaintiff has examined himself as PW1 and filed his evidence by way of affidavit. He has stated that the defendant Suit No.494/09 ....4 invited application/tender for allotment of the parking lot in NDMC area through advertisements in the daily newspapers. He submitted his tender, and his bid was accepted by the defendant. Vide letter dated 29.11.2007, the defendants awarded him the contract for operating the parking lot at 'G Aveneue' Sarojini Nagar and at the Newly developed area on a monthly licence fees of Rs. 2,83,778/. He was required to deposit the security amount as well as the advance license fees. The copy of the letter of offer is Ex. PW1/1. After fulfilling all the requirements, the possession of the parking lot was handed over to him on 30.11.2007. The possession letter is Ex. PW1/2. The tenure under the Agreement Ex. PW1/3 was w.e.f. 01.12.2007 to 30.11.2008 which was extended by two months. The grievance of the plaintiff is that he was prevented from putting to use an area of 3912 sq mt for about 183 days on account of State imposed restrictions and as such had requested the respondent for a proportionate remission in the license fees. His written communiques are Ex.PW1/45. In response to various reminders, the defendant sent a letter dated 22.09.2008 asking the plaintiff to file a written confirmation from the Delhi Police Authority that the specific portion of the parking Suit No.494/09 ....5 lot had been declared as "No Parking Zone" for safety reasons from 29.07.2008 onwards. In compliance a letter dated 21.09.2008 Ex.PW1/6 was sent to the concerned Police Station. Written confirmation declaring the subject area was received from a "No parking Zone". SI Ram Phal vide Ex.PW1/7 confirming that parking lots at G Avenue Sarojini Nagar and the Newly Developed Area had been declared a "No Parking Zone". Despite the report and communication Ex.PW1/8 the defendant did not take any steps for grant proportionate remission in the license fees. Further reminders by the plaintiff to the defendants higher officials are Ex. PW1/910. The plaintiff also asked for arbitration which the defendants rejected. He has therefore filed the present suit for recovery of the license fees proportionate to the area which was not made available and has calculated the loss as under: Loss of parking area of 3912 sq.meters for 183 days @ Rs. 2,83,778 per month for approximately 5679 sq meters. 2,83,778 x 3912 x 183/30/5679=11,92,440/.
7. In his crossexamination, PW1 reconfirmed that the tender and the contract was granted in his name. At the time of signing Suit No.494/09 ....6 of the agreement, he had understood the terms and conditions. The contract was for a period of one year as his bid was the highest.
8. The defendant has examined one of their officials Sh. T.R. Sharma as DW1. Through the deposition of this witness, the defendant repudiates any liability on the ground that in view of the specific terms and condition of clause 6(a), the parking lot was allotted on an "As is where basis", and the allottee had agreed not to raise any dispute regarding the area of the allotted land which was to be treated as an approximate area. In view of the said condition, the present suit is not maintainable and the plaintiff had merely approached the court by misleading facts and coming with unclean hands.
9. In his crossexamination, DW1 admitted that the plaintiff had made various representation and also forwarded the confirmation from the Delhi Police about the parking lot being closed for security reasons.
10. An appraisal of the evidence on record, my observation on the issues framed are as follows: Suit No.494/09 ....7 I S S U E No. 4 Whether there is no cause of action in favour of plaintiff as claimed by the defendant in preliminary objections No. 2? OPD
11. The defendant had raised the issue stating that no cause of action had arisen in favour of the plaintiff and the suit was liable to be dismissed under Order 7 Rule 11 CPC. An appraisal of the entire plaint does not substantiate that the plaint did not disclose any cause of action or was liable to be dismissed under the provision of Order 7 Rule 11 CPC. The onus to prove this issue was squarely on the shoulders of the defendant but no evidence or law has been cited by them to give effect for this issue to be decided in their favour. This issue is therefore decided against the defendant.
I S S U E No. 1 & 3 I. Whether the plaintiff is entitled for the recovery of Rs.11,92,440/ OPP III. Whether the plaintiff is not entitled for the relief claimed in view of clause 6(a) of the agreement?
OPD
Suit No.494/09 ....8
12. An appraisal of the evidence on record reflects that the plaintiff had bid for the parking lot Sarojini Nagar Market which was accepted and possession was handed over to him vide Ex. PW1/2 w.e.f. 01.12.2007 for a period of one year. The defendant had also fixed the tariff for parking of cars and scooters. An agreement was entered into and executed between the parties. On account of emergent security reason, portion of the parking lot i.e. at 'G' Avenue and in the newly developed area measuring a total of 3912 sq meters was declared a 'No Parking Zone' by the Delhi Police for security reasons. Though vide Clause 6(a) of the agreement, the parking lot was allotted on an "As is where is" basis, vide Clause8 of the Agreement, the defendant had categorically agreed, that in the event of the parking lot being effected due to execution of any work conducted by any Governmental Authority, the contractor would be entitled for a proportionate rebate in the agreed license fees. The loss of use of the subject area was solely by the restriction imposed by the State. This was duly communicated to the defendant and was also confirmed in writing by the Delhi Police. There is no cogent explanation as to why remission for this temporary hindrance, by Suit No.494/09 ....9 the Government Authority was not given to the plaintiff. Apart from the agreement, equity demands that the plaintiff should pay only for the area which could effectively be put at his disposal. The attitude of the defendant which is also a limb of the Government, is highly unjustified in not considering the plaintiff's request for remission. The plaintiff cannot be made to pay for the area which he could not use on account of restrictions imposed by the government. The plaintiff is therefore entitled to remission of in the licence fees for 3912 sq. meters for a period of 183 days. This has been quantified by the plaintiff as Rs. 11,92,440/.
13. In view of the same, the plaintiff is entitled to a decree for recovery of Rs. 11,92,440/ on account of remission in the licence fees as worked out by him for a period of 183 days for being prevented to put the same to use on account of government restrictions.
The issues 1 and 3 have been decided as above.
I S S U E No. 2 II. Whether the plaintiff is entitled for interest on the amount claimed, if the answer is in affirmative, at Suit No.494/09 ....10 what rate and for which period? OPP
14. The defendants did not consider redressing the plaintiff's grievance despite their very clear terms of agreement viz. Clause No. 8. They have no cogent explanation to offer for denying the same. Having constrained the plaintiff to initiate litigation for his rightful claim, the defendants would be liable to pay interest. The plaintiff is therefore being awarded interest @8% per annum on the amount recoverable from the months in which the remissions were due.
This issue is decided in favour of the plaintiff. R E L I E F
15. In view of the above, the suit of the plaintiff is decreed in the sum of Rs. 11,92,440/ together with costs and interest @8% from the date of entitlement till recovery thereof Decree sheet be prepared. File be consigned to Record Room.
Announced
(Ina Malhotra)
Addl.District JudgeI
PHC:New Delhi 24.11.2011
Suit No.494/09 ....11
Suit No.494/09
Present: Counsel for the parties.
Vide separate Judgment the suit of the plaintiff is decreed in terms thereof. Decree sheet be prepared. File be consigned to Record Room.
(Ina Malhotra)
Addl.District JudgeI
PHC:New Delhi 24.11.2011
Suit No.494/09 ....12