Bangalore District Court
C.Krishnappa vs The Commissioner on 31 May, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 31st day of May 2018
O.S.No.6676/2008
PLAINTIFF : C.Krishnappa
Aged about 35 years
S/o Late Chinnappa
R/at No.35, Seegehalli
Kannamangala Post
Bangalore-560 067
(By Sri.T.S., Advocate)
V/s.
DEFENDANT : The Commissioner
Bangalore Development Authority
T.Chowdaiah Road
Kumara Park West
Bangalore-560 020
(By Sri.S.N., Advocate)
Date of Institution of the Suit: 1.10.2008
Nature of the suit
(Suit on Pronote, suit for Declaration & Permanent
declaration & possession, suit injunction
for injunction)
Date of commencement of 02.06.2014
recording of evidence:
2 OS No.6676/2008
Date on which the Judgment 31.05.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
09 07 30
JUDGMENT
The plaintiff filed this suit for declaration to declare that by occupying the main parking area and its non-delivery is in violation of the tender documents and parking contract, for the collection of parking fee in respect of schedule parking zone in the schedule property, for consequential remedy to violation of parking contract he is entitled to the extension of duration for a similar period in terms and conditions of contract, for consequential injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the schedule parking zone and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
3 OS No.6676/2008
SCHEDULE The parking area specified in the hatched lines in the annexed sketch and located at South, North and on Eastern side of BDA Shopping Complex, Banashankari Second Stage, Bangalore-70 and bounded on:
East by : Park and thereafter 19th Main
Road
West by : Lawns and thereafter 21st Main
Road
North by : 22nd Cross Road
South by : 24th Cross Road
3. The plaint averments in brief is as under:
The defendant invited tenders cum auction for collection of parking fee for the year 2007-08 at B.D.A.Shopping Complex at B.S.K. II Stage, Bangalore-70 and the tenders to be opened on 18.7.2007 at 3.00 p.m. As per the tender documents comprising of sketch, the plaintiff was required to deposit an E.M.D. of Rs.60,000/- with the defendant. The plaintiff deposited the said E.M.D. of Rs.60,000/- by means of 4 OS No.6676/2008 Demand Draft bearing No.205804 dated 18.7.2007 drawn on State Bank of Mysore Whitefield Branch, Bangalore. The plaintiff's rate of Rs.8,25,579.00, which is inclusive of E.M.D. was accepted by the defendant and plaintiff was awarded contract for collection of parking fee at the parking space as demarcated in the sketch indicated which forms piece and parcel of tender document and contract. The main entrance to the BDA Shopping Complex is from 24th Cross Road and entrance leads to main entrance of foyer and centre court of the shopping complex. The main entrance from the 24th Cross Road regulates the entry of vehicles and visitors to shopping complex.
Pursuant to the awarding of contract for collection of parking fee for vehicles in the schedule property, the plaintiff has paid the remaining amount of Rs.7,65,579/- vide demand draft bearing No.012398 dated 15.10.2007 and executed an agreement on 25.10.2007 in favour of the defendant.
Pursuant to the execution of the contract agreement, the defendant issued work order on Tender on 26.10.2007 as 5 OS No.6676/2008 well as put the plaintiff in possession of the schedule property i.e. parking zone demarcated in the plan.
As per the tender documents, the plaintiff shall have unobstructed right over the parking area for the contract duration of one year commencing from 26.10.2007 to 25.10.2008. However, in the last week of August 2007, the plaintiff noticed the commencement of construction work over the shopping complex and the plaintiff immediately by means of a letter dated 28.8.2007 brought to the notice of the Executive Engineer, BDA Shopping Complex, BSK II Stage that the proposed construction of second floor over the shopping complex would cause loss in as much as the construction work would not allow the plaintiff to collect any parking fee from the customers, as the customers to shopping complex will have restricted entry and the plaintiff sought refund of his E.M.D. of Rs.60,000/-. The officials of the defendant in response to the plaintiff's representation dated 28.8.2007, called the plaintiff for discussion with a view to offer alternate area to the plaintiff by means of a letter dated 6 OS No.6676/2008 27.9.2007 bearing No.BDA/EE/S/115/2007-08 and during the meeting the officials persuaded the plaintiff to accept the tender in as much as the closure of prima area of parking on the main gate 24th Cross Road is only a temporary one and they will vacate and hand over the area within a month, as they have made alternate arrangement to shift storage area to 19th Main Road near Park.
The plaintiff in view of assurance of the Executive Engineer and other officials assurances and offering of temporary parking area, as well as to save the E.M.D. of Rs.60,000/- the plaintiff agreed to deposit the contract amount and accordingly parking contract came into existence. As per parking contract, the defendant has specified the rates of parking fee and the plaintiff has started collecting parking fee strictly in accordance with the terms of the contract. Contrary to the assurances given in the meeting vide letter dated 27.9.2007 the defendant did not vacate and hand over main parking area facing 24th Cross Road. Further to his surprise and dismay, the defendant closed the main 7 OS No.6676/2008 entrance shopping complex from 24th Cross road and entry to Shopping complex was restricted from a smaller entry point on 22nd Cross Road. On account of closure of main gate the vehicles almost stopped coming to the shopping complex and the entire shopping complex wears deserted look. The closure of main gate from 24th Cross Road and making use of the main parking area by BDA for storage of building materials and for parking of vehicles carrying building materials was contrary to the agreement and tender documents. The plaintiff repeatedly brought to the notice of the BDA its violations and requested them to hand over the main area of parking area by way of defendant fulfilling the contractual obligations. The plaintiff's request did not yield any desired result.
The proposed alternate area was too small and congested and parking another row vehicles was highly impossible. Therefore, the plaintiff caused a lawyers notice dated 28.8.2008 along with photographs of the parking zone showing the violations of BDA. The said notice was duly 8 OS No.6676/2008 served on BDA and again BDA did not respond to the statutory notice.
In pursuant of the contract the defendant has allowed the plaintiff to collect the parking fee and delivered the vacant possession of the parking place as per the sketch on 26.10.2007. The plaintiff has started his work and collected the parking fee in the parking area from 26.10.2007. When the plaintiff has started his work the defendant has started construction work in the 1st floor of shopping complex immediately after hand over the possession of the parking place to the plaintiff. Due to the construction work the entire parking area which was handed over to the plaintiff for collection of parking fee was occupied by the defendant for dumping material, sand and other construction materials and also machineries. Due to which the plaintiff could not able to carry his work as such there is no place to park the vehicle for the customers. In this regard the plaintiff has made a representation to the defendant on 8.4.2008 appraising his difficulty to collect the parking fee saying that there is no 9 OS No.6676/2008 parking place in the said premises and requested to allot alternative parking area for collection of parking fee. The defendant has received the representation and has failed to take necessary action to remove the dumping materials in the parking area. However, the defendant has allotted alternative parking area adjacent to the parking place, but the said place was too small and there also the BDA vehicles are used to park and the vehicles which are used for construction are also used to parking the said premises. Due to which, there is no proper place to allow the customers to park the vehicles in the area which allotted by the defendant and further the defendant has fixed a NO ENTRY Board in the main gate where the customers are used to access to the shopping complex. Hence, there is no customers are coming to the shopping complex and parked the vehicles in the parking area.
Due to the construction work the plaintiff could not able to collect the parking fee as such there is no place to park the vehicle for the customers and on account of closure of main 10 OS No.6676/2008 gate the vehicles almost stopped coming to shopping complex and the entire shopping complex wears deserted look. The closure of main gate from 24th Cross road and making use of the main parking area by the B.D.A. for storage of building materials and for parking vehicles carrying building materials was contrary to the agreement and tender documents. Inspite of repeated requests the defendant has not taken any necessary action to remove the said obstructions. Due to which the plaintiff has sustained to heavy loss for sum of Rs.15,00,000/- to the whole year. Hence, the plaintiff made a representation on 28.8.2008 requested to the defendant to extend the contract period for another one year enable the plaintiff to gain the loss sustained by him. Since the defendant has not taken any action on the representation of the plaintiff he got issued the legal notice to the defendant on 28.8.2008 through his Advocate calling upon the defendant to extend the contract period. The defendant has duly received the said notice has failed to take any necessary action. However, the defendant has convened the meeting in the 11 OS No.6676/2008 month of October 2008 and has agreed to extend the contract period for another 6 months for gaining loss to the plaintiff. The plaintiff has believed the words of the defendant has keep quiet all along under the impression that the defendant may extend the time as agreed in the meeting dated 6.10.2008.
Due to the breach of contract by the defendant the plaintiff has sustained heavy loss to the extent of Rs.15,00,000/- and he could not able to execute the contract work. Hence, the plaintiff is entitled for extension of contract time by the defendant or compensation of loss sustained by him. The defendant has failed to take necessary action to extend the time as per the terms of the contract and further the defendant tried to allot the tender of the parking area to somebody.
On account of deliberate violations of the tender and parking contract the plaintiff has been exposed to unsurmountable hardship, which cannot be compensated in any manner. In view of the violations, the plaintiff has not been able to collect parking fee and hence the plaintiff is 12 OS No.6676/2008 entitled to extension of the contractual period for another year i.e. instead of one year in terms of the contract. Hence prays to decree the suit.
4. Upon service of summons, the defendant appeared before the court through his counsel and filed written statement contending that there is no cause of action to file this suit, the alleged one is false and fictitious. The averments made in para 2 to 4 are admitted as true and correct to say that the plaintiff was the highest bidder of the Tender for collecting parking fee and deposited tender money and he has put in possession of the schedule property for a period of one year from 26.10.2007 to 25.10.2008 as per the terms and conditions of the averment and the said agreement expired on 25.10.2008 and this suit has become infractous.
Only after satisfaction of the terms and conditions the plaintiff has signed the agreement and the plaintiff has also accepted the alternative accommodation and affixed the signature after satisfaction and accepted the alternative space 13 OS No.6676/2008 of parking area, the question of violation of contractual obligation does not arise at all, the plaintiff with ulterior oblique malafide motivation cause issued the statutory notice dated 28.8.2008 at the fag end of the agreement, which expired on 25.10.2008.
The plaintiff has not approached this court with clean hands, deliberately with dishonest motivation to cause loss to the defendant has filed this suit and the agreement in favour of the plaintiff has already expired on 25.20.2008. Excepting contending above, the defendant denied remaining plaint averments. Hence, prayed to dismiss the suit.
5. The defendant filed additional written statement contending that after accepted the alternative parking space the plaintiff has signed the agreement. After the commencement of the 1st floor the plaintiff used alternative parking place and collected parking fee. The main gate from 24th Cross Road was always opened. BDA never fixed No Entry Board in the main gate. The plaintiff was not having 14 OS No.6676/2008 any loss and he used alternative parking place and it has been clearly mentioned in the reply given by the BDA to plaintiff through its letter dated 7.6.2008. The defendant never agreed to extent the contract period. The plaintiff has not having any loss and plaintiff is not entitle for compensation from the defendant. The plaintiff affixed his signature after satisfaction and accepted the alternative space of parking area, the question of violation of contract does not arise at all. Hence, prayed to dismiss the suit.
6. On the basis of the above pleadings of both the parties, the following issues have been framed:
1) Whether the plaintiff proves that the occupation of the main parking area and its non delivery by the defendant is the violation tender documents and parking contract for the collection of parking fee in respect of the suit schedule property?
2) Whether the plaintiff further proves that the alleged interference by the 15 OS No.6676/2008 defendant in the use of suit schedule property?
3) Whether plaintiff further proves that due to the breach of contract by the defendant he has sustained loss to the extent of Rs.5,00,000/-?
4) Whether the plaintiff is entitled to the reliefs sought for?
5) What order or decree?
7. The plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.36.
8. Heard the arguments and perused the records of the case.
9. My findings to the above issues are as under:
Issue No.1 & 2 : Do not arise for
consideration
Issue No.3 : Redundant
Issue No.4 : In the negative
16 OS No.6676/2008
Issue No.5 : As per the final order,
for the following;
REASONS
10. ISSUE No.1 and 2:- Since these Issues are
interconnected hence they are taken up together for common discussion in order to avoid repetition of facts and evidence.
11. On going through the pleadings of the parties it is admitted fact that the plaintiff was highest bidder of the tender for collecting parking fee in the parking area situated at BDA Shopping complex at B.S.K. 2nd Stage, Bangalore and towards that the plaintiff has deposited E.M.D. of Rs.60,000/- on 18.7.2007.
12. The learned Advocate appearing for the plaintiff argued that in the last week of August 2007 the plaintiff noticed that the commencement of construction work of the 2nd Floor over the shopping complex and then the plaintiff 17 OS No.6676/2008 written letter dated 28.8.2007 to the Executive Engineer stating that the construction would cause loss in collecting the parking fee and then the officials of the respondent assured that the closure of the main gate at 24th Cross Road is only temporary one and they will vacate within one month. In view of this assurance the officials of the defendant, offering temporary parking area and hence the plaintiff deposited the remaining amount in Rs.8,25,579/-. On 26.10.2007 the plaintiff and the defendant entered into agreement. On 8.4.2008 the plaintiff had written letter stating that the cement, sand and bricks falling on the vehicles parked and also written letter dated 4.6.2008 stating that no entry board is fixed. Due to this, the coming of vehicles to the shopping complex was stopped, which is contrary to the agreement and tender documents. The plaintiff repeatedly brought to the notice of the defendant regarding its violation and to hand over the main parking area.
18 OS No.6676/2008
13. The learned Advocate appearing for the defendant argued that the plaintiff by accepting alternative accommodation entered into agreement and at the fag end of the agreement he got issued notice dated 28.8.2008. The plaintiff collected the parking fee by occupying the alternate parking area. The main gate from the 24th Cross Road was always opened, the BDA never fixed NO ENTRY Board in the main gate. There was no loss to the plaintiff.
14. The plaintiff filed his affidavit in lieu of examination-in-chief of PW1, wherein he has reiterated the averments made in the plaint. In support of his case he has produced Ex.P.1 to 36. Ex.P.1 & P.34 - Legal notice dated 28.08.2008, Ex.P.2- Postal acknowledgment, Ex.P.3 to P.26
- Photographs, Ex.P.27- letter of BDA, Ex.P.28 & P.36 - Agreement, Ex.P.29 & P.35 - Work order on tender, Ex.P.30- Letter of plaintiff to BDA and Ex.P.31 to 33 - Letters of BDA to the plaintiff.
19 OS No.6676/2008
15. It is the case of the plaintiff that in the last week of August 2007 he noticed that the commencement of construction work of the 2nd Floor over the shopping complex and then he written letter dated 28.8.2007 to the Executive Engineer stating that the construction would cause loss in collecting the parking fee and then the officials of the respondent assured that the closure of the main gate at 24th Cross Road is only temporary one and they will vacate within one month. In view of this assurance the officials of the defendant, offering of temporary parking area and hence he deposited the amount. On 26.10.2007 himself and the defendant entered into agreement. On 8.4.2008 he had written letter stating that the cement, sand and bricks falling on the vehicle parked and also written letter dated 4.6.2008 stating that no entry board is fixed. Due to this, the coming of vehicles to the shopping complex was stopped, which is contrary to the agreement and tender documents. He repeatedly brought to the notice of the defendant regarding its violation and to hand over the main parking area. 20 OS No.6676/2008
16. It is the case of the defendant that the plaintiff accepted alternative accommodation and collected the parking fee. The main gate from the 24th Cross Road was always opened and no entry board is not fixed and the plaintiff collected the parking fee and there is no violation of contract by it.
17. The Ex.P.28 is the original agreement and Ex.P.36 is the copy of the same discloses that on 25.10.2007 the plaintiff and the Executive Engineer of the defendant entered into agreement with respect to the parking area situated in the BDA Shopping complex, BSK 2nd Stage, Bangalore, which is the suit schedule property. The Ex.P.29 is the original work order on tender dated 26.10.2007 and Ex.P.35 is the copy of the same discloses that the plaintiff and officials of the BDA entered into the same and the tender will commence from 26.10.2007 and ends on 25.10.2008. The Ex.P.27 is the letter of Executive Engineer to the plaintiff, which shows that 21 OS No.6676/2008 the parking area is closed temporarily for 21 days and for that alternative parking area is provided as shown in the annexed layout plan. The annexed layout map shows that the green colour boxes is the main parking area, wherein the materials going to be stored and the red colour boxes is the alternate parking area. It is came in the cross-examination of PW1 as under:
"It is true to suggest that the officials of the defendant shown the layout map of BDA, which is annexed to the Ex.P.27 before starting the construction in the 2nd Floor..............After agreeing with the layout map with respect to alternate parking area I signed the agreement dated 25.10.2007. After my agreement with the defendant dated 25.10.2007, the defendants started construction of 2nd Floor. The defendants started construction of 2nd Floor in November 2007."
18. So, from the above evidence of PW1, which is very clear that the plaintiff occupied alternate parking area as 22 OS No.6676/2008 shown in the layout map of Ex.P.27. At this juncture, it is pertinent to note that the plaintiff stating that the BDA going to construct 2nd Floor in the last week of August 2007 and though the officials of the BDA assured that the closure is temporary one and it will be vacated within one month, even then the plaintiff entered into Ex.P.28 & 29 for having accepted alternate parking area.
19. Ex.P.30 is a letter dated 8.4.2008, which discloses that the plaintiff complained that the cement, sand and bricks falling on the vehicles parked and also under the Ex.P.31 the plaintiff complained that the officials of the BDA fixed NO ENTRY board at the entrance of the gate of BDA Complex. To these Ex.P.30 and 31 the BDA written letter stating that temporary place is provided for the plaintiff and no board is fixed. The plaintiff produced Ex.P.3 to P.26 photographs but no negatives of them are produced. Hence in the absence of negatives the Ex.P.3 to P.26 cannot be considered. If the plaintiff really effected by the act of the 23 OS No.6676/2008 BDA that the cement, sand and bricks are falling on the vehicle and also NO ENTRY board is fixed, then on receipt of Ex.P.32 itself he would have taken legal action against the defendant. Instead of that, the plaintiff written Ex.P.33, which is the letter dated 28.8.2007 requesting to reduce the tender amount upto 40% or to enhance the second bid amount stating that there may be possibility of not coming of vehicles to the parking area as the materials are stored for construction of building and there may be possibility of traffic jam.
20. The plaintiff got issued Ex.P.2 - Legal notice dated 28.08.2008 stating that alternate parking area is surrounded by lawn on the northern side and it is too small and vehicles cannot be parked in as much as 4 sides of the said lawn and if the parking was allowed surrounded by lawn the vehicles cannot be removed or entry of vehicle to the exit was been hampered and no vehicles could be parked in the alternate parking area and the same reached to the defendant 24 OS No.6676/2008 on 02.09.2008 as per Ex.P.2. The work order on tender ends on 25.10.2008. So the plaintiff did not contend that cement, sand and bricks falling on the vehicles and NO ENTRY Board is fixed and new grounds and stated in the legal notice as the alternate parking are is small, vehicle cannot be removed etc. at the fag end of the agreement and filed this suit on 01.10.2008 just before completion of work order on tender.
21. When the plaintiff entered into Ex.P.28 and P.29 after accepting the alternate parking area, then it is not open for him that the occupation of main parking area and its non- delivery by the defendant is in violation of tender documents and parking contract for the collection of parking fee in respect of the suit schedule property. Such being the case, the question of considering that the occupation of main parking area and its non-delivery by the defendant is in violation of tender documents and parking contract for the collection of parking fee in respect of the suit schedule 25 OS No.6676/2008 property and the interference by the defendant in the use of the suit schedule property do not arise for consideration. Hence, I answered Issue No.1 and 2 as do not arise for consideration.
22. ISSUE NO.3:- It is the case of the plaintiff that due to breach of contract by the defendant he has sustained loss to the extent of Rs.5,00,000/-. In view of my findings on Issue No.1, I came to the conclusion that there was no breach of contract by the defendant and also in this suit the plaintiff has not sought the relief of damages. So, the framing of this issue is unnecessary and hence the same is answered as redundant.
23. ISSUE NO.4:- In view of my findings on Issue No.1 and 2 as do not arise for consideration and against the plaintiff, the plaintiff is not entitle for the reliefs sought. So, Issue No.4 is answered in the negative.
26 OS No.6676/2008
24. ISSUE NO.5:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 31st day of May 2018).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 C.Krishnappa
b) Defendant's side:
NIL
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Office copy of notice dated 28.8.2008 27 OS No.6676/2008 Ex.P.2 Postal acknowledgment Ex.P.3 to 26 Photographs Ex.P.27 Executive Engineer, BDA letter dated 27.9.2007 along with sketch Ex.P.28 Agreement dated 25.10.2007 Ex.P.29 Work order on tender Ex.P.30 Xerox copy of letter dated 8.4.2008 Ex.P.31 Xerox copy of letter dated 4.6.2008 Ex.P.32 Xerox copy of letter issued by BDA dated 9.6.2008 Ex.P.33 Xerox copy of letter dated 28.8.2007 Ex.P.34 Xerox copy of legal notice dated 28.8.2007 Ex.P.35 Xerox copy of acknowledgment of the work order dated 25.10.2007 Ex.P.36 Xerox copy of agreement dated
25.10.2007
b)Defendant's side :
NIL Digitally signed by BASAVARAJ DN: ( BASAVARAJ ) cn=BASAVARAJ,ou=GO VERNMENT OF XLI ADDL.CITY CIVIL JUDGE BASAVARAJ KARNATAKA,o=HIGH BANGALORE COURT OF KARNATAKA,st=Karnata ka,c=IN Date: 2018.06.01 12:24:30 IST 28 OS No.6676/2008 29 OS No.6676/2008