Bangalore District Court
On 23.03.2013 At 11Am For The Purpose Of ... vs Canceled The Agreement And Therefore on 29 January, 2021
1
Com.OS.No.119/2015
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,AT BENGALURU (CCH.83)
THIS THE 29th DAY OF JANUARY 2021
PRESENT:
SRI.DEVARAJA BHAT.M.,B.COM,LL.B.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.OS.No.119/2015
BETWEEN:
M/s Vahini Irrigation
Private Limited, A
Private Limited
Company incorporated
under the provisions
of the Indian
Companies Act, having
its Registered Office at
No.495/1, Dodda Hosur
Gate, Kunigal Road,
Guloor Post, Tumkur
Taluk and District,
represented by its
Official Signatory and
Chief Executive Officer
& Director Shri.
Annadanaiah. R. S/o
late Rangaiah, aged
about 41 years.
: PLAINTIFF
(Represented by Sri.
2
Com.OS.No.119/2015
V.B.Shivakumar -
Advocate.)
AND
1. The Karnataka State
Road Transport
Corporation, Central
Offices, Transport
House, Kengal
Hanumanthaiah Road,
Shanthinagar,
Bengaluru -560 027.
2. The Managing
Director, The
Karnataka State Road
Transport Corporation,
Central Offices,
Transport House,
Kengal
Hanumanthaiah Road,
Shanthinagar,
Bengaluru -560 027.
3. Chief Traffic
Manager
(Commercial), The
Karnataka State Road
Transport Corporation,
Central Offices,
Transport House,
Kengal
Hanumanthaiah Road,
Shanthinagar,
Bengaluru -560 027.
3
Com.OS.No.119/2015
: DEFENDANTS
(Defendants are
represented by Sri.
P.D.Surana - Advocate)
Date of Institution of the 02.01.2015
suit
Nature of the suit (suit on
pronote, suit for
declaration & Possession, Suit for recovery of money
Suit for injunction etc.)
Date of commencement
of recording of evidence 03.07.2019
Date on which judgment 29.01.2021
was pronounced
Total Duration Year/s Month/s Day/s
06 00 27
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by the Plaintiff with a request to direct the Defendants to pay a sum of Rs.5,57,33,540/- along with 4 Com.OS.No.119/2015 interest at the rate of 10% per annum from the date of suit till the date of realisation.
2. The contentions of the Plaintiff in brief are as follows:
The Plaintiff is a company involved in the transport business and the Defendant No.1 being a Government Organization, invited tenders on 27.11.2012 in No.KST/CO/TR/C- 3/5879/2012-13 to transport parcel and courier through KSRTC, NWKRTC and NEKRTC Buses and on 28.01.2013 the Plaintiff was informed that the Plaintiff has become qualified bidder vide Letter dated 28.01.2013, calling upon the Plaintiff that in order to comply with the terms and conditions, it was required to remit three times of bid amount of Rs.52,20,000/- which works out to Rs.1,56,60,000/- as Security Deposit by way of a Demand Draft, Bank Guarantee in favour of CAO/FA, KSRTC Company, Bengaluru within 10 days of receipt of the said letter and also called upon to enter into an Agreement in terms o the procedure within a period of 30 days, that though on 16.02.2013 and 19.02.2013 the Plaintiff sent a letter to 3rd Defendant requesting to send a copy of the approved Agreement and Bank Guarantee format, the Defendants failed to comply and therefore, the Plaintiff was compelled to give a 5 Com.OS.No.119/2015 Bank Guarantee on 25.02.2013 by preparing the Bank Guarantee Format on its own, that the Defendants in order to favour certain known persons, made a calculative fraud in not giving required papers to trouble the Plaintiff, so that it can get out of tender, that once again the Plaintiff wrote a detailed letter calling upon the Defendants to make available all such applications, whether the business can be undertaken, that on 19.03.2013 the Defendants wrote a letter and called upon the Plaintiff on 23.03.2013 at 11am for the purpose of consideration in regard to the execution of the Agreement, that on the said date, Plaintiff submitted three Demand Drafts drawn on Syndicate Bank, Maralur, Tumkur to the 3rd Defendant and on the same day, the Agreement was executed, that the Plaintiff underwent immense difficulties and hardship as there has been inordinate delay in the performance and conclusion fo the terms of the Agreement and it was put to irreparable loss, injury and inconvenience and hardship, that the Defendants intentionally committed breach, that the terms and conditions of the Agreement are a concluded contract, which was for a period of five years commencing from 01.04.2013 to 31.03.2018, that the Plaintiff was called upon by the Defendants to pay the License Fee and accordingly license fee has been adhered to, that the Plaintiff did not commit any breach in respect of the terms of 6 Com.OS.No.119/2015 the Agreement, that under Clause-24(a), Plaintiff was permitted to load on the Corporation buses including Ultra Deluxe, Deluxe, Express, Semi-deluxe, Volvo, Raja Hamsa buses hired by the Corporation, subject to availability of space, that the Plaintiff had a right to transport goods, docks, that the Agreement is impossible to be terminated, that on 25.05.2013, Plaintiff wrote a letter to the Director (Security and Vigilance) for non-co-
operation of staff in conducting business of transportation of parcel and courier and indicated that as per the terms of the Agreement, Plaintiff had to carryout business w.e.f. 01.04.2013 and franchisees were appointed at various places and it was also brought to the notice that without an office space, no parcel can be received and for security reasons, the parcels cannot be kept in an open bus stand, which caused immense difficulties, that apart on 14.05.2013, the Asst.Traffic Manager of Shanthinagar Bus Stand complained to the Police stating that the Plaintiff is doing business unauthorizedly under the name of KSRTC as well as the Company, that the Drivers and Conductors were not aware of the Agreement and they were not carrying parcels, that the Defendants intentionally did not give Official Memorandum with an intention of breach of Agreement, that the Defendants did not make the Agreement enforceable and did not take any steps to fulfill the obligation under the 7 Com.OS.No.119/2015 Agreement for doing business, that without making enquiry, the Defendants canceled the Agreement and therefore, Plaintiff was compelled to file a Writ Petition in W.P.No.26589/2013 which was disposed of with a direction to prefer the present suit, that the cancellation of the Agreement is high handed, arbitrary, unreasonable and there cannot be a premature termination, that the Defendants have intentionally disallowed giving opportunity to the Plaintiff to do business and ventured upon making a business appointing several persons as franchisees in contravention to the terms of the Agreement, that the Plaintiff had invested an amount of Rs.1,56,60000/- and also had invested almost an amount of Rs.4 Crores for the purpose of Computer Billing System, appointing several persons all over the State of Karnataka, that the Plaintiff estimated the breach of Rs.5,57,33,540/- by not allowing 40 days of gestation period, not handing over the draft copy of the Bank Guarantee immediately while issuing Selection Intimation Letter, not incorporating the conditions agreed in pre-bid meeting in the Agreement, one seat as agreed, was not removed from buses for Luggage Room, that third party luggage bookings were not stopped and no action was taken against the complaints filed, delayed allotment of space in bus stand and in most bus stands, space was not provided and that the drivers and crew members 8 Com.OS.No.119/2015 refused to acknowledge parcels and complaints that were lodged in respect of the said aspect were ignored and brushed aside and hence, the Plaintiff is entitled to claim an amount of Rs.5,57,33,540/- which includes the Bank Guarantee forfeited by the Defendants, that the Plaintiff sent a Legal Notice on 22.09.2014, but the Defendants failed to send any reply and hence, the Plaintiff has filed the present suit for the above- mentioned reliefs.
3. The 3rd Defendant has filed his written statement. The contentions of the 3rd Defendant are as follows:-
That a tender was invited to permit by way of license for untilization fo the space available in the buses operated by the Defendant Corporation, NWKRTC and NEKRTC for transportation of parcels and couriers and the Plaintiff's bid was accepted vide communication dated 28.01.2013 by registered post A/D, but the Plaintiff delayed receiving the communication and received it only on 08.02.2013, that as per the said communication, the Plaintiff was required to comply with the terms as mentioned in Para No.1 of the written statement , that thus the Plaintiff ought to have paid the security deposit and he was required to execute the Agreement and commence his business as on 20.03.2013 and the liability to pay the license fee ought to have commenced from 20.03.2013 itself, that the Plaintiff furnished 9 Com.OS.No.119/2015 Bank Guarantee for Rs.1,56,60,000/- towards the security of license fee on 26.02.2013 though he was required to furnish the same by 18.02.2013 and executed the Agreement on 23.03.2013 instead of 10.03.2013, that the Plaintiff was required to commence business and pay licensee from 20.02.2013, but th Plaintiff commenced business from 01.104.2013, that the request of the Plaintiff to commence his business from 01.04.2013 was accepted by the Defendants, that the Plaintiff ought to have commenced payment of license fee from 20.03.2013 i.e., on the expiry of 40 th day from the date of receipt of communication on 08.02.2013, but it commenced after 62 days, that the Plaintiff was required to enter into agreement within 30 days from 08.02.2013, but the agreement was executed on 23.03.2013, that admittedly the communication was received by the Plaintiff on 08.02.2013 and therefore the liability to pay the license fee ought to have commenced form 20.03.0213, but it commenced from 01.04.2013, that the Plaintiff has failed to pay the service tax payable on the license fee payable for the month of April 2013 and belated payment of service tax attracts interest at 18% per annum apart from the penalty and the Plaintiff also failed to pay license fee for the month of May and June 2013 and hence, the Defendants issued a notice dated 15.06.2013 and called upon 10 Com.OS.No.119/2015 the Plaintiff to pay in all a sum of Rs.1,25,48,826/- and also informed that on his failure to pay the said arrears within 7 days, the same would be appropriated from the Bank Guarantee furnished by the Plaintiff and the remaining amount will be forfeited and it will also result in termination of the Agreement, that the Plaintiff instead of complying with the said Notice, filed W.P.No.26589/2013 before the Hon'ble High Court of Karnataka seeking quashing of the said Notice, which was disposed by the Hon'ble High Court of Karnataka by Order dated 04.07.2013 directing the Plaintiff to pay the arrears within a week, that the Plaintiff failed to comply with the said Order dated 04.07.2013 and failed to avail the benefit provided therein and hence, the license granted to the Plaintiff was terminated and the bank guarantee was encashed by the Defendants, that the Plaintiff preferred W.A.No.4172/2013 before the Division Bench of Hon'ble High Court of Karnataka, wherein the Plaintiff was permitted to approach Civil Court for remedy and directed the Defendants not to take any steps for a period of one month, as the bank guarantee was already invoked by the Defendants, that only after the lapse of the said one month period as ordered by the Division Bench, Tender Notification was issued by E-portal on 12.09.2013, that the Plaintiff having failed to comply with the terms and conditions of the Agreements, 11 Com.OS.No.119/2015 caused greater loss than the three months security deposit to the Defendants, that the termination Order was issued to the Plaintiff on 10.07.2013 and the Plaintiff utilized the space available in the buses of the Defendant Corporation for transportation of parcels and courier till midnight of 10.07.2013, that the Plaintiff has failed to pay the license fee as per the terms and also failed to pay the service tax thereon, that the Plaintiff did not file the suit within a period of one month from the date of Order of the Division Bench in W.A.No.4172/2013 dated 01.08.2013, that the Plaintiff had sent notice by making false claims, the question of Plaintiff claiming the amount on the ground of hardship and inconvenience is untenable, that the Defendants have not committed any breach of the agreement, that there is no cause of action for filing the suit and therefore, prayed to dismiss the suit.
4. Based on the above pleadings, the following Issues have been framed by my Predecessor-in-Office :-
1. Whether the Plaintiff proves that Defendants were not furnished the approved agreement copy and bank guarantee in time ?
2. Whether the Plaintiff proves that Defendants caused inordinate delay in execution of the agreement ?12
Com.OS.No.119/2015
3. Whether the Plaintiff proves that Defendants intentionally committed the breach as narrated in Plaint Para No.28 ?
4. Whether the Plaintiff proves that because of that Plaintiff delayed in the performance of agreement ?
5. Whether the Plaintiff proves the claim amount as referred in Plant Para No.20 ?
6. Whether the Plaintiff is entitled for the relief sought for ?
7. What Order or Decree ?
5. During the course of Trial, the Director of the Plaintiff Company got examined himself as PW.1 and got marked documents as Exs.P.1 to P.21. The Asst.Traffic Manager of the 1st Defendant got examined himself as DW.1 and got marked Exs.D.1 to D.7.
6. I have heard the arguments of both parties. The learned Counsels appearing for both sides have also filed their written arguments.
7. My findings on the above Issues are as under:
Issue No.1 :- In the Negative Issue No.2 :- In the Negative 13 Com.OS.No.119/2015 Issue No.3 :- In the Negative Issue No.4 :- In the Negative Issue No.5 :- In the Negative Issue No.6 :- In the Negative Issue No.7 :- As per the final Order for the following reasons.
REASONS
8. Issue No. 1:- The Plaintiff is a Private Limited Company. The Ex. P. 14 is the Certificate of Incorporation dated 13.4.1999 of the Plaintiff Company. The Defendant Corporation invited Tenders on 27.11.2012 as per Ex.P.2, for selecting licensees to transport parcel and courier through its buses. Ex. P. 4 is the Terms and Conditions of the said Tender. Ex. P. 5 is the Annexure A & B of Terms and Conditions of the said Tender. Ex. P. 6 is the Form No. 5, in which the particulars of the bidders are mentioned. As per the said terms and conditions the business has to start from 20.03.2013. On 28.02.2013, the Plaintiff wrote a letter stating that due to short time in selecting the franchisee and entering into an agreement with defendants to put up structures at bus stands, the Plaintiff requested to extend gestation period from 01.04.2013. Thereafter, on 23.03.2013, the Ex.P.7/Agreement was executed. The P.W.1, during his cross-examination has deposed that after entering 14 Com.OS.No.119/2015 into Ex. P.7/Agreement, the Plaintiff has given sub-contract to M/s Shivas Translines for carrying on the business of transporting goods and parcel in the buses covered by Ex.P.7, by entering into separate agreement. The said aspect is neither pleaded in the Plaint nor deposed by the P.W.1, during his Examination-in-Chief. The Plaintiff has intimated the said fact to the Defendants as per Ex.D.1/Letter dated 02.04.2013 and Ex. D.2/ Letter dated 12.04.2013. Thereafter, on 29.04.2013, the Defendants have written Ex.P.11/letter to provide space in the bus stand to the Plaintiff. On 23.05.2013, the Plaintiff has written Ex. P. 8/Letter to the Defendants complaining about the attitude of the drivers and conductor of buses to M/s Shivas Translines. Ex. P. 9 is another similar letter of complaint submitted to the Defendants, dated 31.05.2013.
9. As per the evidence of P.W.1, during his cross-examination, as per the terms of agreement, the Plaintiff was required to pay license fee of Rs. 52,20,000/- per month to the Defendants from 01.04.2013 and then to pay license fee every month and the same was required to be paid within 7 th day of given month in advance, that at the time of entering Ex. P.7/Agreement, the Plaintiff paid the license fee for the month of April 2013 and that subsequently he did not pay the license fee to the Defendants. The P.W.1 has admitted that since the Plaintiff 15 Com.OS.No.119/2015 committed default in paying monthly license fee. As per Clause No.7 of the Ex.P.7/Agreement, the Defendants forfeited the security deposit amount and terminated the contract w.e.f. midnight of 10.07.2013 and also issued a Notice on 15.06.2013 calling upon the Plaintiff to pay the arrears of license fee for the month of May and June 2013.
10. It is to be noted that the Plaintiff has challenged the said Notice of 15.06.2013 before the Hon'ble High Court of Karnataka, in W.P. No. 26589/2013 and the same was disposed off as per the Ex.D.3/Orders dated 04.07.2013. In the said Orders, though the Notice dated 15.06.2013 was upheld, an opportunity was granted to the Plaintiff to pay the amount within a week and in the event of payment, the Defendants should not terminate the license for the reasons indicated in the said Notice.
11. In spite of the same, the Plaintiff has not paid the said amount to the Defendants. However, he has challenged the said Order in Writ Appeal in W.A.No.4172/2013 before the Hon'ble High Court of Karnataka. The said Writ Appeal was allowed to a limited extent as per Ex.P.12/Order dated 01.08.2013, and that the Hon'ble High Court directed the Defendants not to take any steps for a period of one month 16 Com.OS.No.119/2015 with regard to awarding of similar contract to any other person.
12. Thereafter, on 29.08.2013, the Plaintiff has filed a Revision Petition under Section 18 of the Karnataka Transparency in Public Procurement Act, 1999 and the same was dismissed on 05.11.2013. The Plaintiff has challenged the same in W.P. No. 51765/2013 before the Hon'ble High Court of Karnataka, as per Ex.D.4, on 19.11.2013. Thereafter, on 22.09.2014, the Plaintiff has issued a Legal Notice to the Defendants as per Ex.P.20. Thereafter, when the Ex.D.4/Writ Petition was pending, this suit is filed on 02.01.2015 contending that the Defendants have committed the breach of agreement and hence claimed the damages as estimated at Para 20 of the Plaint. The D.W.1 has deposed that the Ex.D.4/Writ Petition was dismissed on 21.03.2019.
13. According to the Plaintiff, the Defendants have committed the breach of Ex.P.7/Agreement on following aspects:-
(i) Gestation period of 40 days was not allowed by the Defendants.
(ii) The Draft Copy of the Bank Guarantee was not handed over immediately while issuing Selection Intimation Letter.
(iii) The conditions agreed in pre-bid meetings were not 17 Com.OS.No.119/2015 incorporated in the Agreement.
(iv) One Seat as agreed was not removed from buses for luggage room.
(v) Third Party luggage bookings were not stopped and complaint filed not taken any action.
(vi) Delayed allotment of space in bus-stand, and in most of the bus-stands, in spite of agreement, space was not provided.
(vii) Drivers and Crew members refused to acknowledge parcels and complaints that were lodged came to be ignored and brushed aside.
14. So far as this Issue is concerned, among the above- mentioned aspects, the second point is relevant and to be discussed. The PW.1 during his cross-examination has deposed that the Defendants as per the Letter dated 28.01.2013, informed the Plaintiff that he is the highest bidder and has been selected as a Licensee for carrying on the said business, that the said Letter was received by him on 08.02.2013, that as per the terms of the Tender, from the receipt of the said Letter, the Plaintiff was required to furnish the Security Deposit within 10 days in the form of Bank Guarantee. The Plaintiff/PW.1 has admitted during his cross-examination that all the terms and 18 Com.OS.No.119/2015 conditions shown in Ex.P.4 and that as per the said Ex.P.4, the Plaintiff was required to execute the Agreement within 30 days from receiving the said intimation, that the said 30 days plus 10 days was the trial period, and that the Plaintiff was required to pay License Fee from the next date after expiry of 40 days from the receipt of Selection Intimation, that the Plaintiff had entered into Ex.P.7/Agreement with the Defendants on 23.03.2013, that the Plaintiff had agreed in the Ex.P.7 to pay License Fee from 01.04.2013. The PW.1 has deposed during his cross-examination that the Ex.P.7/Agreement was the result of force and threat used by the Defendants to forfeit EMD amount. This evidence is without any pleadings and hence, the same cannot be accepted. As discussed by me earlier, even before the execution of Ex.P.7/Agreement, the Plaintiff had sent a letter to the Defendants on 28.02.2013 as per Ex.D.6. In Ex.D.6, the Plaintiff himself has requested to extend the gestation period till 01.04.2013. The PW.1 has admitted during his cross-examination about Ex.D.6 and that he has not made any allegation in Ex.D.6 that Officials of the Defendants delayed in giving format of Agreement and format of Bank Guarantee etc. Since he has unequivocally admitted the said aspect, the Plaintiff has failed to prove the said allegations made against the Defendants. Hence, I answer this Issue in 19 Com.OS.No.119/2015 the "Negative".
15. Issue No.2 :- This Issue also relates to the inordinate delay in execution of the Agreement caused by the Defendants. The said point has already been discussed while answering Issue No.1 above. Hence, for the same reasons, discussions, observations and findings, I am of the opinion that the Plaintiff has failed to prove that the Defendants caused inordinate delay in execution of Ex.P.7/Agreement. Hence, I answer this Issue in the "Negative".
16. Issue No.3:- This Issue relates to above-mentioned the alleged breach of terms of Contract by the Defendants, which are narrated at Para No.28 of the Plaint. As per Para No.28 of the Plaint, the first complaint of the Plaintiff against the Defendants is about gestation period of 40 days was not allowed. As discussed by me earlier, as soon as receipt of the letter dated 08.02.2013 by the Plaintiff/PW.1, he did not pay the Security Deposit within 10 days. As per the terms of the Tender, 30 days from Ex.P.7/Agreement plus 10 days is allowed as grace period or gestation period. When such being the case, as per the evidence of PW.1 himself, 40 days was given to the Plaintiff. According to the Defendants, the said 40 days has to be computed from the date of receipt of the information, i.e, 20 Com.OS.No.119/2015 on 08.02.2013. However, before executing Ex.P.7/Agreement, the Plaintiff submitted a Letter to the Defendants as per Ex.D.6, wherein he has clearly admitted the terms and conditions of the Tender and he wanted the gestation period to be extended till 01.04.2013 on the ground that he has to select his franchisees and some time is required to select the said franchisees. The contents of Ex.D.6 itself falsifies the said contentions of the Plaintiff. Hence, the Plaintiff has failed to prove that the gestation period was not provided to the Plaintiff by the Defendants.
17. The another contention of the Plaintiff is that the conditions agreed in pre-bid meetings are not incorporated in the Agreement and that one seat in every bus was required to be removed for luggage room. As could be seen from the question posed to DW.1, the Plaintiff is relying upon Clause-22 of Ex.P.7/Agreement in this aspect. The Clause-22 of Ex.P.7/Agreement reads as follows:-
"22) The licensee shall handover the consignments to the service Conductor/Driver under acknowledgement by deploying his own men and pay specified allowance per 100 Kgs. Of the weight, to the Conductor or the Driver in case of one man 21 Com.OS.No.119/2015 service. In case more than one crew performs duty on a service, the allowance payable would be divided among them. The payment to the crew shall be at the place of loading the parcels Similarly, the Conductor/Driver shall hand over the consignments to the licensee or its authorised representative at the destination under acknowledgement."
18. In Clause-22, there is no such provision for removal of one seat to provide space in the buses to carrying the parcels. Further, on a careful scrutiny of entire Ex.P.7/Agreement, there is no such clauses for the said aspect. Therefore, the Plaintiff has failed to prove any such agreement entered into between the parties in pre-bid meeting as contended by him.
19. Another contention is that the third party luggage booking was not stopped. As per Clause-26 of Ex.P.4, it is specifically mentioned that the Plaintiff/Licensee shall not have any objection for carrying any luggage by the passengers in the buses and he shall not be entitled for any luggage charges that may be collected by the Defendants for such accompanied luggage. Further, as per Clause-27 of the Ex.P.7, a similar condition is mentioned. It is not the contention of the Plaintiff that the Defendants carried the luggage in violation of the said agreed terms. The Plaintiff has produced the complaint letters 22 Com.OS.No.119/2015 as per Exs.P.8 to P.11. However, the PW.1 has admitted that the said letters were not written by the Plaintiff but by the Agents of the Plaintiff. The Plaintiff/PW.1 has also admitted that he has no records to show booking of parcels as referred in Ex.P.8 and P.10. The PW.1 has also admitted that as per the terms of the Agreement, he was permitted to use the space in all KSRTC Buses for carrying parcels and couriers and that passengers were entitled to carry their luggage with them in the KSRTC buses and that he cannot obstruct carrying of luggage by the passengers. When such being the case, the Plaintiff has also failed to prove the said contention.
20. The next contention that there was delay in allotment of space in the bus-stands and in spite of terms of Ex.P.7/Agreement, space was not provided. In order to appreciate the said contention, it is better to extract the relevant portion of cross-examination of PW.1 here itself:-
"Plaintiff gave letters to the Defendants for allotment of spaces for about 50 to 60 bus-stands only out of more than 252 to 300 bus-stands. It is true that as per the applications of the Plaintiff, the concerned Divisional Controllers and Officers of the respective bus-stands allotted spaces for the Plaintiff for carrying on business. Witness volunteers that there was delay in allotting 23 Com.OS.No.119/2015 spaces. Now I do not have any facts to show that there was delay by the Defendants in allotting spaces to the Plaintiff for carrying out the business wherever such places were sought. It is not true that copies of the application sent by the Plaintiff to the Defendants for allotment of spaces in the bus-stands, are not with the Plaintiff."
21. As per Clause No.14 of the Ex.P.7/Agreement, the defendants have to provide space in bus-stand wherever available and that in case space is not available in the bus- stand, the Plaintiff has to make his own arrangements outside the bus-stand for operating its business. As per the above said evidence of the PW.1, he had sought for allotment of space only in 50 to 60 bus-stands and that the space was allotted in the said bus-stands. Hence, there is no evidence about the delay in allotment of the said space in the bus-stands.
22. The last contention of the Plaintiff is about the non co- operation by the drivers and crew members. In order to prove the same, the Plaintiff has relied on Ex.P.8 to P.10 complaint letters. As discussed above and as admitted by the PW.1, the said letters were not written by the Plaintiff and the same were by agents of the Plaintiff. However, the said agent is the above-mentioned M/s Shivas Translines. None of the persons related to said agent has been examined. When such being the 24 Com.OS.No.119/2015 case, the Plaintiff has failed to prove the said aspect also. Therefore, I answer this Issue No.3 in the "Negative".
23. Issue No.4 :- As discussed above, the Plaintiff has failed to prove the alleged breach of Agreement by the Defendants. When such being the case, he cannot contend that because of the said breach, there was delay in performance of Agreement. Hence, the Plaintiff has failed to prove this Issue also and therefore, I answer this Issue in the "Negative".
24. Issue No.5 :- As discussed above, the Ex.P.7/Agreement was terminated by the Defendants. The said termination is more or less upheld by the Hon'ble High Court of Karnataka in the above-mentioned proceedings. The learned Advocate for the Plaintiff has vehemently argued that the Defendants in order to facilitate to give similar contract to Sri.Mahalatha Transport of Udupi had defrauded the Plaintiff. However, the PW.1 during his cross-examination has clearly admitted that after terminating the contract awarded to the Plaintiff, the Defendants issued fresh tender inviting bidders for awarding fresh contract. Hence, the said contention of the Plaintiff cannot be accepted at all.
25. In this suit, the Plaintiff has not challenged the Demand 25 Com.OS.No.119/2015 Notice dated 15.06.2013 and the termination of the Ex.P.7/Agreement. The relief claimed in this suit is not in accordance with the observations made in Ex.P.12/Order. When the termination was upheld by the Hon'ble High Court of Karnataka, the suit of the Plaintiff for recovery of advance amount, Security deposit and/or any damages as claimed at Para No.20 of the Plaint is not maintainable at all. Hence, he is not entitled for the amount referred to in Para No.20 of the Plaint. Therefore, I answer this Issue in the "Negative".
26. Issue No.6:- In view of my earlier discussions, observations and findings and for the same reasons, the Plaintiff is not entitled for any relief sought in the Plaint. Hence, I answer this Issue in the "Negative".
27. Issue No.7 :-Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is dismissed.
The Plaintiff is hereby directed to pay cost of this suit to the Defendants. The Advocate for the Defendants is directed to file Memorandum of Cost before the Office within 5 days from today as required under Rule 99 and 100 of Karnataka Civil Rules of Practice.
26Com.OS.No.119/2015 Draw up Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendants to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(Dictated to the Judgment Writer, typed by her, corrected and then pronounced by me in open Court on this the 29th day of January 2021).
(DEVARAJA BHAT.M), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW.1 Sri. Annadanaiah. R. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P-1 Board Resolution Ex.P-2 Tender Notification issued through E-
procurement dated 27.11.2012 27 Com.OS.No.119/2015 Ex.P-3 Technical Bid Form in Form-A annexed to the Tender Notification Ex.P-4 Original Terms and conditions of Tender Notification dated 27.11.2012 Ex.P-5 Annexure-A and Annexure-B of the Terms and conditions of Tender Notification dated 27.11.2012 Ex.P-6 From-5 given by the Bidders Ex. P-7 Copy of Agreement dated 23.03.2013 Ex. P-8 Copy of Complaint Letter dated 25.05.2013 Ex.P-9 Copy of Complaint Letter dated 31.05.2013 Ex.P-10 Copy of Complaint made to one Basavaraj G.S., Representative of Parcel Courier to Traffic Controller, KSRTC,Haveri.
Ex.P-11 Letter dated 29.04.2013 along with Envelop Cover sent by the Divisional Controller, KSRTC, Bellari Division, to the Plaintiff Ex.P-12 Certified Copy of Judgment in W.A.No.4172/2013 (GM-TEN) Ex.P-13 GST Registration Certificate of Plaintiff Ex.P-14 Copy of Certificate of Incorporation of Plaintiff Ex.P-15 Copy of Memorandum of Association of Plaintiff Ex.P-16 Copy of Articles of Association of Plaintiff Ex.P-17 Copy of Ledger Accounts extract (4 sheets) Ex.P-18 Bank Account Extract of Plaintiff (4 sheets) Ex.P-19 Certificate under Section 65B of Indian Evidence Act Ex.P-20 Copy of Legal Notice dated 22.09.2014 28 Com.OS.No.119/2015 sent by the Plaintiff to the Defendants Ex.P-21 File containing three postal acknowledgements.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS DW.1 Sri. Madhusudhan Reddy LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANTS Ex.D-1 Letter of Appointment of Agent dated 02.04.2013 Ex.D-2 Letter of Appointment of Agent dated 12.04.2013 Ex.D-3 Certified copy of Order passed in W.P.No.26589/2013 by the Hon'ble High Court of Karnataka dated 04.07.2013.
Ex.D-4 Certified Copy of W.Pno.51765-
766/2013(GM-TEN)
Ex.D-5 Copy of Form-5 of KSRTC
Ex.D-6 Letter dated 28.02.2013 issued by the
Plaintiff to the Director (S&V) of 1 st
Defendant.
Ex.D-7 Letter of Authorization
(DEVARAJA BHAT.M),
LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
29
Com.OS.No.119/2015
The Judgment is pronounced in
Open Court. The operative
portion of the said Orders is as
follows :-
JUDGMENT
The Suit of the
Plaintiff is dismissed.
The Plaintiff is
hereby directed to pay
cost of this suit to the
Defendants. The
Advocate for the
Defendants is directed to
file Memorandum of Cost
before the Office within 5
days from today as
required under Rule 99
and 100 of Karnataka
Civil Rules of Practice.
Draw up Decree
accordingly.
The Office is directed
to send copy of this
Judgment to Plaintiff and
Defendants to their email
30
Com.OS.No.119/2015
ID as required under
Order XX Rule 1 of the
Civil Procedure Code as
amended under Section
16 of the Commercial
Courts Act.
(vide my separate detailed
Judgment dated 29.01.2021).
(Typed to my dictation).
LXXXII ACCJ, B'LURU.