Bangalore District Court
Mr.Sanjeevi.K vs The Commissioner on 18 June, 2020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 18th day of June, 2020
O.S.No.26836/2011
Plaintiff: Mr.Sanjeevi.K.,
S/o Late Kannappa,
R/a No.127, 2nd Main Road, 12th
Cross, Nanjamba Agrahara,
Chamarajpet, Bengaluru-18.
[By Sri.NLA-Advocate]
Vs.
Defendants: 1. The Commissioner,
Bruhat Bangalore
Mahanagara Palike,
Corporation Building, Rani
Chennamma Circle,
Bengaluru.
2. The Deputy Commissioner,
(Market) Dasappa Hospital,
Town Hall Circle, Bengaluru
[By Sri.K.L.M.-Advocate]
2
O S No.26836/2011
Date of Institution of suit: 21.10.2011
Nature of the Suit (Suit for
Pronote, Suit for
Declaration and Possession, Injunction
Suit for Injunction, etc.):
Date of Commencement of
recording of evidence: 19.06.2019
Date on which the
Judgment was pronounced: 18.06.2020
Total Duration:
Years Months Days
08 07 27
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
3
O S No.26836/2011
JUDGMENT
Plaintiff has initially instituted this suit for the relief of permanent injunction against defendants 1 and 2 who are the Commissioner and Deputy Commissioner of B.B.M.P. from interfering with plaintiff's physical possession and enjoyment of suit schedule parking area situated at K.R.Market basement and around in Bangalore City in respect of which by way of tender licence was awarded to him and also for mandatory injunction to defendants to extend the period of licence for six months in accordance with the loss suffered by the plaintiff on account of civil work being carried out at Avenue Road and not clearing the debris and police vehicles stored in the suit schedule parking area. Subsequently, Plaintiff has given up the said relief sought against the defendants by bringing an 4 O S No.26836/2011 amendment to the plaint and in the place of the said original relief he has sought for a decree for as sum of Rs.19,72,700/- with current and future interest at 18% per annum by way of damages.
2. Brief facts of Plaintiff's case are as below:-
Vide Tender notification dated 07.07.2010 defendants called for tender to run Pay and Park place situated at suit schedule. Notification was bearing No.Sa/ Ka/Aa/[Pa-Ma]P.R156/2010-11. Plaintiff became highest bidder in the tender and he paid entire tender amount of Rs.52.00 lakhs pursuant to the demand notice dtd. 20.11.2010 and entered into written agreement with the defendants as contemplated under the Tender notification. He was put in possession of the suit schedule parking area on 21.11.2010. However, 5 O S No.26836/2011 since civil work was undertaken by B.W.S.S.B at Avenue Road which was only way to the suit schedule parking area, plaintiff was not able to allow vehicles inside the parking area for 64 days. As a result, he suffered loss of Rs.10,550/- per day. He submitted several requisitions to the Defendants to compensate loss, but he was not compensated. From 21.11.2010 to 23.01.2011 plaintiff was not in a position to park any vehicles and he could not conduct any business of parking vehicles. He requested the defendants to furnish detailed description of parking places/plan or sketch and to clear up the parking lot as there was lot of debris stored thereat. Defendants did not care to get the parking lot cleared and debris removed. Also police had stored their vehicles and footpath vendors had occupied the parking place. In view of not removing the debris and police 6 O S No.26836/2011 vehicles from the parking lot plaintiff suffered loss of Rs.4,500/- per day from the beginning of the contract till expiry of the same. It was one year contract. When the plaintiff approached the defendants, latter had assured that his licence period would be prorata extended by a period of six months without need for him to pay any further amount. But, thereafter defendants turned hostile and did not keep their word. Plaintiff in view of the same caused a legal notice u/s.482 of Karnataka Municipal Corporations Act 1976. Defendants however did not take any action despite receiving notice. Therefore, at the rate of Rs.10,550/- per day for the period from 21.11.2010 to 23.1.2011 he has sought damages of Rs.6,75,200/- regarding not being able to run parking business due to civil work undertaken by B.W.S.S.B. on Avenue Road and at the rate of Rs.4,500/- per day for the entire 7 O S No.26836/2011 contract period he has sought damages of Rs.11,92,500/- regarding the defendant causing loss by not removing debris, police vehicles and footpath vendors. Thus, in all including notice charges of Rs.5,000/- plaintiff has sought damages of Rs.19,72,700/-.
3. Defendants have filed written statement and additional written statement contending as below:-
It is admitted that plaintiff was the highest bidder in the tender called on 07.07.2010 in respect of Pay and Park at the suit schedule place. As per the tender and also agreement executed between the plaintiff and defendants, period of tender was one year from 19.11.2010 to 18.10.2011. After acceptance of tender, plaintiff was required to pay 8 O S No.26836/2011 tender amount within three days from the date of issuing work order. But, plaintiff failed to pay the said amount within the time and hence he was issued endorsements dtd. 24.09.2010 and 06.11.2011. Thereafter plaintiff paid the tender amount of Rs.52,00,000/-. Before participating in the tender itself, plaintiff was aware that Civil work of B.W.S.S.B was underway on Avenue Road.
Avenue Road was not the only entry to suit schedule parking area and suit schedule parking area has several entries and according to the Agreement, licencee was alone responsible for any any loss or damages suffered in the business. Therefore, question of defendants compensating the plaintiff does not arise. Plaintiff's case that he has suffered loss of Rs.4,500/- per day during the course of civil work carried out by B.W.S.S.B. is false. There was no debris or police vehicle parked 9 O S No.26836/2011 in the suit schedule parking area. It is denied that defendants had promised to extend the licence period by six months without any further amount to be paid by him. Plaintiff has not issued any notice u/s.482 of Karnataka Municipal Corporations Act. Plaintiff is not entitled to any damages or any relief sought for in the suit. On the said grounds defendants have sought for dismissing the suit.
4. In view of the above pleadings of the parties, following Issues and Additional issues have been framed in the case:-
ISSUES
1. Whether the plaintiff proves that since the BWSSB commenced civil work at Avenue Road, the plaintiff could not allow vehicles inside the schedule parking area for 64 days 10 O S No.26836/2011 from 21.11.2010 to 23.1.2011 and thereby the plaintiff suffered loss of Rs.10,550/- per day and in all Rs.6,75,200/-?
2. Whether the plaintiff proves that in view of storage of police vehicles and occupation by foot path vendors in respect of a portion of schedule parking area, he suffered a loss of Rs.4,500/- per day from 21.11.2010 till the date of the suit and in all Rs.11,92,500/-?
3. Whether the plaintiff proves that upon representations submitted by him regarding loss suffered, the defendant assured to extend his licence period for the schedule parking area 11 O S No.26836/2011 approximately by a period of six months?
4. Whether the suit is not maintainable for non compliance of Sec.482 of Karnataka Municipal Corporations Act, 1976?
5. Whether the plaintiff is entitled to recover a sum of Rs.19,72,500/- and interest from the defendant as sought for?
6. What order or decree?
Additional Issue dtd.
28.10.2019
Whether the defendants
prove that the suit is bad
for non joinder of
necessary party?
5. In support of the plaintiff's case, plaintiff got examined as P.W.1 and got marked 17 12 O S No.26836/2011 documents as Exs.P.1 to Ex.P.17. On behalf of defendants its Asst. Revenue Officer was examined as DW.1 and got marked 17 documents as Ex.D 1 to D.17.
6. In support of the plaintiffs case, learned counsel for plaintiff has submitted arguments, written arguments and further written arguments contending that if the tender amount of Rs.52.00 lakhs is divided by the tender period of 365 days, tender amount per day would be Rs.14,246/- and since plaintiff could not carry on parking business in the schedule area for 64 days from 19.10.2010 due to civil work undertaken by BWSSB, the plaintiff is entitled to damages of Rs.6,75,200/-.
Ex.P. 1 is the Agreement dtd.19.11.2010 entered into by the plaintiff and defendants. Said document is not in dispute. Ex.P.2 and 3 are the representations dtd. 8.10.2010 and 29.11.2010 13 O S No.26836/2011 submitted by plaintiff in connection with loss suffered by him during the above period wherein he has claimed compensation. He has given another representation as per Ex.P. 4 on 3.1.2011 by way of notice calling upon to pay compensation for the loss suffered by him. Ex.P. 5 is the information provided by the BWSSB to the effect that civil work on Avenue Road started on 26.06.2010 and completed on 30.12.2010. Apart from the same plaintiff has sent legal notice and produced Photographs and C.D. before the court to substantiate that the civil work was underway on Avenue Road which blocked entrance to suit schedule parking area. Therefore, plaintiff has proved that he has suffered loss of business for 64 days. Similarly, plaintiff has produced photographs to show that debris and police vehicles were parked in a portion of the suit schedule parking area and as 14 O S No.26836/2011 a result, plaintiff could not carry on the parking business in the said portion of the parking lot. Plaintiff has estimated loss in respect of the same at Rs.4,500/- per day and hence for 365 days he is entitled to compensation of Rs.11,92,500/-. Defendants have produced Appendix-A and B as per Ex.D 7 claiming that it has a clause that licencee is responsible for all the loss and damages suffered in the business and defendants are not liable. But, plaintiff and defendants are governed by Ex.P. 1 Agreement and not by Appendix-B of Ex.D 7. Photographs produced by defendants is only for confusing the case and they do not have any evidentiary value. On the said grounds plaintiff's counsel has argued that plaintiff has substantiated the suit claim. Further plaintiff's counsel has placed reliance on the following decisions:-
15
O S No.26836/2011
1. S.P.Chengalvaraya Naidu (dead) by Ls. Vs. Jagannath (dead) by Lrs. And ors, (1994) 1 SCC 1;
2. Meghmala and ors. Vs. G.Narasimha Reddy and Ors. (2010)8 SCC 383;
3. Maharashtra State Electricity Distribution Company Ltd. Vs. M/s. Datar Switchgear Ltd. And ors. (AIR 2018 SC. 529);
4. Goetze (India) Ltd. And anr. Vs. H.R.Thippa Gowda (ILR 2016 Kar. 1057)
7. On behalf of defendants learned counsel representing them has argued that the suit was initially filed for permanent injunction and mandatory injunction for direction to the defendants to extend licence period by six months.
When the licence period was expiring, suit came to be filed to get the licence period extended. But, however, after the I.A. was dismissed, plaintiff has by way of an afterthought got the plaint amended to claim the relief of damages against the defendants. The BWSSB had commenced the civil 16 O S No.26836/2011 works on Avenue Road much earlier to the tender was invited in respect of the suit schedule parking area and the same is evidenced by Ex.P. 5 produced by the plaintiff himself. Plaintiff was in full knowledge of the fact that BWSSB work was in progress at Avenue Road and there were other entrances available to the parking place and knowing full well about the same he participated in the tender process and as he became successful bidder tender was awarded to him. Ex.P. 2 and 3 representations produced by plaintiff themselves show that plaintiff was knowing fully well that the civil works were underway at Avenue Road. Further in Ex.P. 3 plaintiff has claimed that because of the civil work of BWSSB at Avenue Road about 60% of the vehicles cannot enter the parking lot and therefore, he suffered loss. But, in the suit he claims that he could not allow any vehicle at all to 17 O S No.26836/2011 the parking lot and as a result he suffered total loss for 64 days and has claimed compensation at the rate of Rs.10,550/- per day. Photographs produced by the defendants show that suit schedule parking area had alternative entries and therefore plaintiff's claim that he could not carry on any parking business for 64 days is false. Plaintiff having participated in the tender knowing full well about the civil work which was underway cannot claim any compensation from the defendants. Also as per Appendix-B of the Agreement which is marked at Ex.D 7 there is clear clause that plaintiff alone is responsible for any loss or damage suffered and he cannot claim compensation from the defendants for the same. Plaintiff is a signatory to Appendix-A and B. But, plaintiff has deliberately not produced Appendix A and B and so also after plaintiff was questioned about the sketch 18 O S No.26836/2011 mentioned in the agreement, during his cross examination, he has started contending that defendants have not produced it and has sought for drawing adverse inference against the defendants. But the plaintiff has come to the court and he has produced Ex.P. 1 agreement and he is required to produce all the contract documents, which he has withheld deliberately and hence, the plaintiff cannot take advantage of his own suppression of facts before the court. Plaintiff is also not entitled to any compensation regarding alleged parking of police vehicles and debris in the suit schedule parking area. Plaintiff having not raised his voice in that connection till the contract period reached its expiration date, cannot now be allowed to make grievance in that regard. Learned counsel for defendant has submitted that plaintiff's intention of filing the suit was to 19 O S No.26836/2011 somehow to get the licence period extended, but on failure to get interim order and after defendants awarded the tender for the suit schedule parking area to some other successful bidder for the following year, he has put forth false claim for damages. On the said grounds, defendants counsel has prayed for dismissing the suit.
8. For the reasons stated in the subsequent paragraphs, I answer above Issues and Additional issues , as follows:-
ISSUE NO.1 :- In the negative ISSUE NO.2 :- In the negative ISSUE NO.3 :- In the negative ISSUE NO.4 :- In the negative ISSUE NO.5 :- In the negative Addl. Issue Dtd.28.10.2019 :- In the negative 20 O S No.26836/2011 ISSUE NO.6 :- As per final order for the following:-
REASONS
9. Issue Nos.1 & 2:- Ex.P.1 is the agreement dated 19.11.2010 entered into between the plaintiff and defendants in regard to the suit schedule parking area. It is an admitted fact that plaintiff was put in possession on 19.11.2010 at 12.00 midnight of the suit schedule parking area and he admits the said fact at Para No.1, Page No.8 of his cross-examination. Whereas, Ex.D.6 is the Technical Bid Form submitted by the plaintiff which is produced by the defendants and it shows that the tender was required to be submitted on 17.07.2010. Tender notification has been issued on 07.06.2010. These facts are actually not in dispute. When the plaintiff submitted tender form on 21 O S No.26836/2011 17.07.2010, records shows that actually civil work of BWSSB at Avenue Road had already commenced. Ex.P.5 is the letter issued by the Asst. Executive Engineer of BWSSB to the plaintiff on his application under R.T.I Act, in which date of commencement of the civil work is clearly mentioned as 22.06.2010 but, plaintiff/Pw-1 states in his cross-examination that BWSSB had started work from 21.11.2010. His said statement is at Para No.2 of his cross-examination which is as below :
"BWSSB started work on 21.11.2010. I have produced document to show tht on 21.11.2010, the BWSSB started work".
At the same time he states that he has produced document to show that the BWSSB commenced the work on 21.11.2010. But, his own document marked at Ex.P.5 shows that the BWSSB had commenced the work on 26.06.2010 itself. 22
O S No.26836/2011 Apart from the same, he has produced photographs of civil work which was underway at Avenue Road as per Ex.P.8. Said photo contains digital date of taking shot. It has digital date as 07.10.2010. So, according to the plaintiff's own photograph which has date digitally recorded, BWSSB Civil Work was in progress on 07.10.2010. When he was confronted with Ex.P.8 and date mentioned in the photograph during his cross- examination, at Page No.9, instead of denying same he has given evasive answer, stating that he took said photograph on the date when BWSSB commenced work. His relevant statement is at Page No.9 of his cross-examination:-
"If it is suggested that as per Ex.P. 8 photo produced by me, the BWSSB had started work from 7.10.2010, I say I have taken photo on the date when they commenced work".23
O S No.26836/2011 Therefore, it is clear that at Para NO.2 of his cross-examination he has falsely deposed that BWSSB started work on 21.11.2010. Ex.P.8 photo show that work had already commenced and it did not start when photo was taken. As per his own document at Ex.P.5 and Ex.P.8, BWSSB had started work at Avenue Road on 26.06.2010 itself. When that is so, subsequent to the BWSSB commenced the civil work at Avenue Road, plaintiff has submitted tender form in respect of the suit schedule parking area on 17.07.2010.
10. Further Ex.P.2 representation dated 08.10.2010 submitted by Plaintiff to the A.R.O of the defendant corporation reads as below :-
K. Sanjeevi, Civil Contractor & Flower Decorator #127, 2nd Main, 12th Cross, Nanjambha Agrahara, Chamarajpet, Bangalore 18 Email : k. [email protected] 24 O S No.26836/2011 Date : 08.10.2010 ರವರಗಗ, ಸಹಹಯ ಕಕದಹಯ ಅಧಕಹರ (ಪಶಶಮ ಮಹರರಕಟಗಟ) ಬಬಹತತ ಬಗಕಗಳಳರರ ಮಹಹನಗರಪಹಲಕಗ ಬಗಕಗಳಳರರ.
ಮಹನನರಗರ, ಮಕಡನಗ ವಷಯಯ 2010-11 ನಗರ ಸಹಲನಲಲ ಶಶರಕಬಷಷರಹಜಗರಕದಶ ಮಹರರಕಟಗಟ ತಳ ಅಕತಸಸನಲಲ ಪಹವತ ಮತರಸ ನಲರಗಡಗಯ ಶರಲಲ ವಸಳಲಹತ ಮಹಡಲರ ಅನರಮತ ನರಡರವ ಬಗಗಗ.
ಉಲಗಲರಖಯ 1) ತಮಮ ಪತಶದ ಸಕಖಗನ ಸ.ಕಕ.ಅ (ಪ.ಮಹ) ಪ.ಆರತ./156/10- 11 ದ.29-7-10
2) ನನನ ಪತಶ ದನಹಕಕ 4-10-2010
3) ತಮಮ ಪತಶದ ಸಕಖಗನ ಸ.ಕಕ.ಅ.(ಪ.ಮಹ) ಪ.ಆರತ/503/10- 11 ದ. 24-9-10
4) ತಮಮ ಪತಶ ಸಕಖಗನ ಸಕ.ಕಕ.ಅ.(ಪ.ಮಹ) ಪ.ಆರತ.539/10-11 ದ. 6-10-10 ಮರಲಲಕಡ ವಷಯಕಗಲ ಸಕಬಕಧಸದಕತಗ ಕಗ.ಆರತ. ಮಹರರಕಟಗಟ ತಳಮಹಡಯ ಟಗಕಡರತ ಕಕ ಹರಹಜರ ಮಳಲಕ ಹಕಚಕಗ ಮಹಡಲರ ಟಗಕಡರತ ಪಶಕಟಣಗಯನರನ ಸಕಖಗನ ಸ.ಕಕ.ಅ.(ಪ.ಮಹ) ಪ.ಆರತ./156/10-11 ದ. 7-6-2010 ರಲಲ ಜರರಗಸಲಹಗದರದ ಸರಯಷಗಟ. ಸದರ ಟಗಕಡರತ ರಳ. 51,20,000/- ಗಳನರನ ನಹನರ ಸಲಲಸ ಅತ ಹಗಚರಶ ಬಡತ ಮತಸವನರನ ನಮಳದಸರರತಗಸರನಗ. ಸದರ ಮತಸವವ ಕಳಗದ ಸಹಲನ ಟಗಕಡರತ ಮತಸಕಗಲ ಹಗಳರಲಸದರಗ ಕಡಮಯಹಗದಗಯಕದರ ನನನನರನ ತಮಮ ಕಛಗರರಗಗ ಕರಗಸ ರಳ.
52,00,000/- ಗಳಗಗ ಹಗಚಶಸರರತಸರರ. ಆದರಗ ತಮಮಕದ ಯಹವವದಗರ ರರತಯಹದ ಉತಸರ ಅಥವಹ ಮಹಹತ ಬರದ ಕಹರಣ ನಹನರ ದ. 4-10- 2010 ರಕದರ ತಮಮ ಕಛಗರರಗಗ ಪತಶ ಬರಗದರ ತಮಮ ಕಛಗರರಯಲಲ ತಗಗಗದರಕಗಳಕಡ ತರಮಹರನದ ಬಗಗಗ ಮಹಹತಯನರನ ನರಡರವಕತಗ ತದ ನಕತರ ನನಗಗ ಆಶಶಯರವಹಗರವ ರರತಯಲಲ ದ. 24-9-2010 ರಪತಶ ಮತರಸ 6-10-210 ರ ಪತಶಗಳನರನ ಒಕದಗರ ದನ ಕಳರಹಸರರತಸರರ. 25
O S No.26836/2011 ಘನ ಖಹವಕದರಲಲ ವನಕತಸಕಗಳಳರಳವವದಗರನಗಕದರಗ ಕಗ.ಆರತ. ಮಹರರಕಟಗಟಯಕದ ಅವನಳನ ರಸಗಸಯಲಲ ಕಹಮಗರ ಕಗಲಸ ನಡಗಯರತಸದರದ, ಸದರ ಕಹರಣದಕದ ಅವನಳನ ರಸಗಸ ಕಡಗಯಕದ ಬರರವ ವಹಹನಗಳರ ಕಗ.ಆರತ. ಮಹರರಕಟಗಟ ಒಳಗಗ ಬರಲರ ಅವಕಹಶವರರವವದಲಲ. ಆದರದರಕದ ನಹನರ ತಮಗಗ ನರಡಬಗರಕಹದ ಹಣ ಅಕದರಗ ರಳ. 52,00,000/- ಗಳನರನ ( ಐವತಗಸರಡರ ಲಕಕ ರಳಪಹಯಗಳರ ಮಹತಶ ) ಕಹಮಗಹರ ಪಪಣರಗಗಳಕಡರ ವಹಹನಗಳರ ಓಡಹಡಲರ ಪಹಶರಕಭವಹದ ನಕತರ ನರಡಲರ ನನಗಗ ಕಹಲಹವಕಹಶ ನರಡಬಗರಕಹಗ ವನಕತ. ಆದರಳ ನಹನರ ರಳ. 52,00,000/- ಗಳನರನ 365 ದನಗಳಗಗ ಗರಣಸದರಗ ಪಶತದನಕಗಲ 14,36./- ರಳ.ಗಳರ ಬರರತಸದಗ. ಆದರದರಕದ ಕಟಟಲರ ಸದದನರರತಗಸರನಗ. ( ಈಗಹಗಲಗರ ನಮಗಗ ಎ.ಎಕ.ಡ ಮರಖಹಕತರ ರಳ. 1,60,000/- (ಒಕದರ ಲಕಕದ ಅರವತರಸ ಸಹವರ ರಳಪಹಯಗಳರ) ಗಳನರನ ಪಹವತಸರರತಗಸರನಗ.) ಆದರದರಕದ ನನಗಗ ಕಹಮಗಹರ ಮರಗಯರವವರಗಗಗ ಪಶತದನ ರಳ. 14,250/- ಗಳನರನ ತಮಮ ಕಛಗರರಗಗ ಕಟಟಲರ ಹಹಗಳ ಕಹಮಗಹರ ಪಪಣರಗಗಳಕಡರ ವಹಹನಗಳರ ಓಡಹಡಲರ ಪಹಶರಕಭಸದ ನಕತರ ನಹನರ ಪಶತದನ ಕಟಟದ ಹಣವನರನ ಕಳಗದರ ಉಳಕಗ ಹಣವನರನ ಕಟಟಲರ ಅನರವವ ಮಹಡಕಗಳಡಬಗರಕಹಗ ತಮಮಲಲ ಕಳಕಳಯ ಪಹಶಥರನಗ.
ವಕದನಗಗಳಗಳಕದಗಗ, ಇಕತ ತಮಮ ವಧಗರಯ, (ಕಗ. ಸಕಜರವಯನ) ಅಡಕಗಳರಯ ಕಹಮಗಹರ ನಡಗಯರತಸದರದ ಸದರ ರಸಗಸಯರ ಬಕದತ ಆಗರರವವದಕಗಲ ಸಕಬಕಧಸದಕತಗ ಅಲಲ ತಗಗಗದ (5) ಫರಟಗಳರಗಳರ As can be seen from the above letter, which is submitted by the plaintiff on 08.10.2010, he has pleaded that civil work of BWSSB is in progress and because of the same vehicles from Avenue Road 26 O S No.26836/2011 side cannot enter K.R. Market area, notwithstanding same, he will deposit tender amount. Same also shows that as on 08.10.2010 itself, civil work was underway at Avenue Road. Ex.P.3 is the representation dated 29.11.2010 which reads as below :
K. Sanjeevi, Civil Contractor & Flower Decorator ______________________________________________ _______ #127, 2nd Main, 12th Cross, Nanjambha Agrahara, Chamarajpet, Bangalore 560 018 Date : 29-11-2010 ಗಗ, ಉಪ ಆಯರಕಸರರ ಮಹರರಕಟಗಟ ದಹಸಪಪ ಆಸಪತಗಶ ಟಟನತಹಹಲತ ಸಕರಲತ ಬಗಕಗಳಳರರ ಮಹನನರಗರ, ವಷಯ ಯ ಮನವ ಉಲಗಲರಖ ಯ 1) ಮಹನನ ಆಯರಕಸರವರ ಕಛಗರರ ಆದಗರಶದ ಸಕಖಗನ ಯ ಪ.ಎಸತ.ಆರತ(ಜ) 3315/10-11, ದಯ 1-9- 2010.
2) ಮಹನನ ಅಪರ ಆಯರಕಸರರ (ಆಡಳತ) ರವರ ಕಛಗರರ ಆದಗರಶದ ಸಕಖಗನ ಎಫತ/2675/10-11, ದಯ 3-9-2010.
3) ಉಪ ಆಯರಕಸರರ ( ಮಹರರಕಟಗಟ ) ರವರ ಆದಗರಶದ 27 O S No.26836/2011 ಸಕಖಗನಯ ಪಆರತ/831/10-11, ದ. 4-9- 2010.
4) ಕಛಗರರಯ ಹಕಬರಹದ ಸಕಖಗನಯ ಸಕಕಅ (ಪ-
ಮಹ) ಪಆರತ/503/10-11, ದ. 24-9-2010.
5) ಕಛಗರರಯ ಹಕಬರಹದ ಸಕಖಗನಯ ಸಕಕಅ (ಪ-
ಮಹ) ಪಆರತ/539/10-11, ದಯ 6-10-2010 ಮತರಸ 27-10- 2010.
6) ದನಹಕಕ ಯ 8-1-2010 ಹಹಗಳ 12-11- 2010 ರ ಪತಶ
7) ಪತಶ ಸಕಖಗನಯ ಸಕಕಅ (ಪ-
ಮಹ)ಪಆರತ/539/156/10- 11, ದಯ 20-11-2010.
ಮರಲಲಕಡ ವಷಯಕಗಲ ಸಕಬಕಧಸದಕತಗ ನನಗಗ ದನಹಕಕ 21- 11-2010 ರ ಮಧನರಹತಸ 12-00 ಘಕಟಗಯಕದ ಮರಲಗ ತಳಸರರವ ವಹಹನ ನಲಹದಣವನರನ ಟಗಕಡರತ ಮಳಲಕ ನಲರಗಡಗ ವಸಳಲಹತ ಪಹಶರಕಭ ಮಹಡರತಸದರದ, ಅವಗನಳನ ರಸಗಸಯ ಪಪವರದ ಕಡಗಯ ರಸಗಸಯಲಲ ಸವಲತ ಕಹಮಗಹರ ಮದಲನಕದಲಳ ಶರರರವಹಗರರತಸದಗ. ಆದದರಕದ ಪಪವರದಹದರದಕದ ಯಹವವದಗರ ವಹಹನಗಳರ ನಲಹದಣಕಗಲ ಬರಲರ ಸಹಧನವಹಗರರವವದಲಲ. ನಹನರ ಇದಗರ ವಷಯದ ಬಗಗಗ ತಮಮಲಲ ದನಹಕಕ 8-10-2010 ರಕದರ ಮನವಯನರನ ಸಹ ಸಲಲಸರರತಗಸರನಗ. ನನಗಗ ತಹವವ ಯಹವವದಗರ ವಧವದ ಜವಹಬರ ನರಡರರವವದಲಲ. ತಹವವ ನನಗಗ ದನಹಕಕ 27-10-2010 ಹಹಗಳ 6-10-2010 ರಕದರ ವಹಹನ ನಲಹದಣದ ಟಗಡರತ ಶರಲಲದ ಮತಸವಹದ ರಳ. 52 ಲಕಕ ರಳಪಹಯಗಳನರನ ಕಟಟಬಗರಕಗಕದರ ತಳಸರರತಸರರ. ಅದಳ ಸಹ 7 ದವಸದಲಲ ಕಟಟಬಗರಕಗಕದರ ಸಳಚಸರರತಸರರ. ತಪಪದಲಲ ಟಗಕಡರನರನ ರದರದಪಡಸ ಇ.ಎಕ.ಡ. ಮತಸವಹದ ರಳ. 1,60,000 ಗಳನರನ ಮರಟರಟಗಗಳರಲರ ಹಹಕಕಗಳಳರಳವವದಹಗ ತಳಸರರತಸರರ.
ಆದರಗ ಕಹಮಗಹರಯ ಬಗಗಗ ಕಗಳಟಟ ಮನವಯ ಬಗಗಗ ಯಹವವದಗರ ರರತಯ ಜವಹಬನರನ ಕಗಳಟಟರರವವದಲಲ. ಮದಲನಕದಲಳ ರಸಗಸಯ ಕಹಮಗಹರ ಶರರರವಹಗರರವವದರಕದ ನನಗಗ ದನ ಒಕದಕಗಲ ಶಗರ.60 ರಷರಟ ವಹಹನಗಳರ ನಲಹದಣಕಗಲ ಬರಲರ ತಗಳಕದರಗಯಹಗರರವವದರಕದ ನನಗಗ ಬಹಳ ನಷಟವಹಗರರತಸದಗ. ಅಕದರಗ ಸರಮಹರರ ರಳ. 8,550/- ಮತರಸ ಸಬಬಕದಯ ವಗರತನವಹದ ರಳ. 2,000/- ಒಟರಟ ಮತಸ ರಳ. 10,550/-ಗಳಷರಟ ನಷಟವಹಗರತಸದಗ.
ಆದದರಕದ ನನನ ನಷಟದ ಮತಸವಹದ ರಳ. 10,550/-(ದನ ಒಕದಕಗಲ)ಗಳ ಮತಸಕಗಲ ತಹವವ ಪರಹಹರ ನರಡಬಗರಕಗಕದರ ತಮಮಲಲ ಕಗರಳಕಗಳಳರಳತಸದಗದರನಗ.
28
O S No.26836/2011 ಈ ಮನವ ಪತಶದಲಲ ರಸಗಸಯ ಕಹಮಗಹರ ನಡಗಯರತಸರರವ ಬಗಗಗ ಛಹಯಹಚತಶಗಳನರನ ಲಗತಸಸರರತಗಸರನಗ.
ತಹವವ ದಯವಟರಟ ನನನ ಮನವಗಗ ಸಪಕದಸ ನನಗಗ ಪರಹಹರ ನರಡಬಗರಕಗಕದರ ತಮಮಲಲ ಕಳಕಳಯಕದ ಬಗರಡಕಗಳಳರಳತಸದಗದರನಗ. ವಕದನಗಗಳಗಳಕದಗಗ, ತಮಮ ವಶಹದಸ, (ಕಗ. ಸಕಜರವಯನ) ಅಡಕ ಯ ಛಹಯಹಚತಶ ಪಶತಯನರನ ಯ ಕಕದಹಯ ಅಧಕಹರ (ಪಶಶಮ ಮಹರರಕಟಗಟ) ಉಪಕಕದಹಯ ಅಧಕಹರ (ಪಶಶಮ ಮಹರರಕಟಗಟ) In this letter plaintiff has clearly stated that the civil work at Avenue Road has commenced from the beginning. It implies that civil work has commenced prior to awarding of tender itself therefore, from the above representation and other documents of the plaintiff it can be safely concluded that civil work at Avenue Road had commenced on 26.06.2010 itself which was much prior to the notification of tender by defendants in respect of suit schedule parking area. As such said 29 O S No.26836/2011 fact clearly shows that plaintiff being full aware of the civil work in progress at Avenue Road has participated in the tender process and he has been awarded the tender. In Ex.P.2 representation dated 08.10.2010, despite being aware about the civil work in progress at Avenue Road plaintiff has sought for granting time to pay the tender amount of Rs. 52,00,000/- in installments. He was required to pay tender amount within three days of accepting bid but, on his failure, pursuant to the demand notice he has submitted the above representation undertaking to pay entire tender amount of Rs. 52,00,000/- at the rate of Rs. 14,250/- per day notwithstanding ongoing civil work of the BWSSB. While doing so, he has clearly mentioned that vehicles from Avenue Road side cannot enter suit schedule parking area. This again shows that plaintiff was full aware of the fact of civil work in 30 O S No.26836/2011 progress, at the time he participated in the tender process. It further shows that being full aware of on going civil work at Avenue Road, he has participated in the tender without raising any demur, therefore, he is estopped from raising same subsequently. Also, his mentioning in Ex.P.3 representation that 60% of vehicles cannot enter parking area due to on going civil work by the BWSSB at Avenue Road shows that his present case that he was not able to do any business at all for 64 days, is false. Off course, in the suit by way of amendment, he has restricted his claim to Rs. 10,550/- per day which is 60% of Rs. 14,250/- per day. Yet, the facts and circumstances and evidence discussed show that plaintiff had participated in the tender knowing well about the civil work of the BWSSB under progress, and subsequently he has raised said plea. When that is so, Ex.D.7 is the 31 O S No.26836/2011 technical bid submitted by plaintiff along with Appendix-A & B. Appendix-A & B bear the signature of the plaintiffs as well as the representation of defendant corporation. Clause 32 of Ex.D.7 reads as below:
"ಪರವಹನಗ ಅವಧಯಲಲ ಯಹವವದಗರ ರರತಯಲಲ ನಪಟ ಉಕಟಹದರಗ ಪರವಹನಗದಹರರಗರ ಜವಹಬಹದರರರ".
As per the above terms, if any loss is suffered by the licensee during the license period tender period, licensee alone is responsible for such loss. Plaintiff having signed Appendix-B containing above clause, now cannot take different stand stating that same is not binding on him. In the first place, plaintiffs contention that there was no alternative entrance to the suit schedule parking area except the entry from Avenue Road side which had been closed due to civil work of BWSSB, is found false. Even if Ex.P.3 representation of the 32 O S No.26836/2011 plaintiff is accepted at its face value, according to the same, 40% of the vehicles could enter the suit schedule parking area, same would show that parking lot in the suit schedule had alternative entrance. Hence, I am of the view that the plaintiffs contention that he is entitled to damages for the loss suffered for 64 days during the period the BWSSB was carrying out civil work at Avenue Road cannot be accepted. Decisions relied on by the plaintiffs counsel do not apply to the facts of the present case. Plaintiff has not produced book of account before the court to show what was the revenue during the period of civil work at Avenue Road and what was the revenue after completion of civil work by the BWSSB.
11. So far as the parking of police vehicles and debris in a portion of suit schedule parking area is 33 O S No.26836/2011 concerned, Dw-1 claims that he is not aware about the police vehicles being parked in substantial portion of suit schedule parking area. Photographs at Ex.P.13 to 16 show some two wheelers being parked in the parking area. Plaintiff refers to the same as vehicle seized by the police and stored at suit schedule parking area. According to him, from the commencement of the tender period, said two vehicles were stored in the suit schedule parking area. But, how much space of the actual parking area was occupied by the said vehicles is not stated by the plaintiff. What is total area of the suit schedule parking area and how much space had been occupied by the said two wheelers and debris stored by the police is not stated by the plaintiff. In the cross-examination of plaintiff/Pw-1 it is not denied that police vehicles and other vehicles were being parked in the suit 34 O S No.26836/2011 schedule parking area. It is again the contention of defendants that plaintiffs was aware of said fact and knowingly he participated in the tender and he did not make any grievance about the same until the contract period drew to close. It is indeed a fact that in Ex.P.2 and 3 representations submitted by plaintiff on 08.10.2010 and 29.11.2010, he has not raised any objections regarding the police parking the above vehicles in a portion of suit schedule parking area. Even in Ex.P.4 representation dated 03.01.2011 submitted by plaintiff to the Deputy Commissioner (Marketing), BBMP, he has not raised any objections regarding the said vehicles being parked by police. In Ex.P.2 to 4 he has not made any claim about suffering loss due to a portion of suit schedule parking area being occupied by the vehicles stored by police department. But, in Ex.P.6 - Legal Notice issued at 35 O S No.26836/2011 the fag end of the tender period i.e., on 10.08.2011, for the first time plaintiff has mentioned about suffering loss of Rs. 4,500/- per day due to storing of police vehicles in a portion of suit schedule parking area. Till that time without any demur plaintiff has carried on with the parking business in the suit schedule parking area and has not raised any objections regarding the vehicles of police department being stored. Even in the cross- examination he states that he did not lodge any complaint or representation to the police for removal of the said vehicles. On one hand, how much area was being occupied by the vehicles stored by the police in the suit schedule parking area, is not mentioned anywhere and on the other hand, plaintiff has knowingly kept quiet till the tender period reached its fag end without raising any objections in respect of the police vehicles 36 O S No.26836/2011 stored in a portion of suit schedule parking area. Only when the tender period was to expire, plaintiff has caused legal notice claiming compensation and in alternative to extend license period for six months and then he has filed the suit originally only for the relief of Permanent Injunction and Mandatory Injunction for direction to defendants to extend license period by six months. After realizing that he cannot succeed in getting such reliefs, he has got the plaint amended and sought relief of damages.
12. Upon considering entire facts and circumstances, the plaintiff has not proved he has suffered loss of Rs. 4,500/- per day during entire tender period in view of storing of police vehicle and occupation of footpath by vendor. 37
O S No.26836/2011 Consequently, issue Nos. 1 & 2 are answered in negative.
13.Issue No.3:- Plaintiff has not produced any material before the court to show that defendants had assured to extend plaintiff's licence period by six months in respect of the suit schedule parking area. Except his oral statement, there is no material to support said contention. In the cross examination he has admitted that he has no documents to show that defendants had assured him that tender period would be extended in view of the loss suffered by him. His relevant statement is at page-9 of his cross examination, which is as below:-
"But I submitted representation to the ARO, K.R.Market, BBMP. The ARO did not issue any written undertaking stating that in view of loss suffered by me, they would extend the tender perod by six months".38
O S No.26836/2011
14. Hence, there is no material on record to show that defendants had assured to extend tender period of the plaintiff by six months. Consequently, Issue No.3 is answered in negative.
15. Issue No.4:- Plaintiff has produced Legal Notice dtd. 10.08.2011 as per Ex.P. 6 and postal receipt for having sent same under RPAD as per Ex.P. 6(a)-postal receipt and also Ex.P. 6 notice to show that plaintiff has furnished correct address of defendant no.1 while issuing same. Therefore, there is deemed service of notice on defendant no.1. Notice has been issued u/s.482 of Karnataka Municipal Corporations Act 1976. After issuing said notice, suit has been filed on 21.10.2011. As such, there is compliance of Sec. 482 of Karnataka Municipal Corporations Act, 1976. Consequently, Issue No. 4 is answered in the negative. 39
O S No.26836/2011
16.Addl. Issue dtd.28.10.2019:- Defendants have contended that suit is bad for non joinder of party. However, since relief of damage is claimed only against the defendants, plaintiff was not required to implead any other party in the suit. Police department could have been made performa party in the suit, but not making police department as party in the suit is not rendering the suit bad for non joinder of necessary party. In the facts of the case, I am of opinion that array of parties in the suit is sufficient. Consequently, Issue No.4 is answered in the negative.
17.Issue No.5:- Since plaintiff has failed to prove Issue Nos.1 and 2, and instead it is found that plaintiff has actually tried to seek extension of tender period and on failure has got the suit converted for damages, has failed to establish that he is entitled to the same. Hence, I am of opinion 40 O S No.26836/2011 that plaintiff is not entitled to damages of Rs.19,72,500/- and interest as claimed in the suit. Consequently, issue No.5 is answered in the negative.
18. Issue No.6:- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of plaintiff is hereby dismissed.
In the facts and circumstances of the case, cost made easy.
Draw decree accordingly.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 18th day of June, 2020)
--
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Vk. Mayo Hall, Bengaluru.
41
O S No.26836/2011
ANNEXURE
1. List of witnesses examined for the plaintiff:-
P.W.1 Sri. Sanjeevi.K
2. List of witnesses examined for Defendants:-
D.W.1 Sri.Sathish
1. List of documents exhibited for the plaintiff:
Ex.P.1 Original Agreement Ex.P.2 Letter dt.8.10.2010 Ex.P.3 Letter dtd. 29.11.2010 Ex.P.4 Letter dtd. 03.01.2011 Ex.P.5 Letter dtd. 18.07.2012 Ex.P.6 Office copy of Legal Notice. Ex.P. 6(a) Postal Receipt Ex.P. 7-16 Photographs Ex.P. 17 C.D. of Photographs
2. List of documents exhibited for Defendants:- 42
O S No.26836/2011 Ex.D.1 Notice dtd. 06.10.2010 Ex.D.2 Endorsement Ex.D.3-4 Photographs Ex.D.5 Office Order dtd. 06.11.2019 Ex.D.6 Original Technical Bid Form Ex.D.7 Original financial Bid Form Ex.D.8 Letter dtd. 30.07.2010 Ex.D.9 Letter dtd.13.08.2013 Ex.D.10-12 Photographs Ex.D.13-14 Photographs Ex.D.15-16 Photographs Ex.D.17 C.D. of Ex.D.10 to 16-photographs (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru. 43 O S No.26836/2011