Delhi District Court
M/S. Premier Advertising vs M/S. Times Innovative Media Ltd on 21 September, 2011
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IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE(WEST)
TIS HAZARI : DELHI
C.S.111/2010
M/s. Premier Advertising,
Through its Proprietor Smt. Sunita Kapoor,
at 512 A, Ansal Majestic Tower,
Sonia PVR Complex,
Vikaspuri, New Delhi.
....Plaintiff
Versus
M/s. Times Innovative Media Ltd.,
Through its Managing Director,
Mr. Sunder Hemrajani,
Times OOH, Times Centre, FC-6,
Sector-16A, Film City, Noida-201301.
...Defendant
Date of Institution of Petition : 06.05.2010
Date of reserving the Order : 13.09.2011
Date of passing the Order : 21.09.2011
ORDER ON LEAVE TO DEFEND APPLICATION:
Plaintiff, an advertising agency, and a proprietorship concern has filed the
present summary suit under Order 37 CPC for recovery of Rs.15,52,820/- against Times
Innovative India Ltd., alleging therein that plaintiff having an assignable
right/title/interest in the property at round about crossing at Mall Road, Delhi Cantt., to
permit installation of Light Emitting Diode (LED) walls/video walls and display of
advertisements thereon, was approached at the office of the plaintiff by defendant for
taking on lease and licence, the said property for purpose of installation and display of
advertisements thereon. As per the Letter of Intent executed between the parties, one
M/s. Premier Advertising Vs. M/s Times Innovative Media Ltd.
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of the stipulations was the payment of licence fee of Rs.2,00,000/- per month. It is the
case of the plaintiff that defendant availed the facility and an amount of Rs.27,52,820/-
became due against the defendant for the different periods and bills as stated in Para 3 of
the plaint. Since the defendant failed to clear their outstanding dues, a letter was issued
on 15.05.2009 by the plaintiff, pursuant to which only Rs.12,00,000/- was paid, while
the balance of Rs.15,52,820/- still remained unpaid in spite of repeated requests and
reminders including a legal notice also dated 24.10.2009. Hence, the present suit.
2. Defendant in their present application seeking leave to defend under Order
37 Rule 3 (5) CPC have mainly stated that there was a breach of the terms of the Letter
of Intent, on the part of the plaintiff itself and for which reason the definitive legal
agreement was never executed between the parties and as such any reliance on Letter of
Intent is misconceived.
3. It has been elaborated that following were the conditions precedent to the
execution of a definitive legal agreement:-
(a) The licencer has a clean right, title and interest in the said property.
(b) Engineering/soil testing/structural safety, audit and certification obtained
.
(c) Receipt of all regulatory and statutory clearances also obtained.
4. It is the case of the defendant that the structure fabricated and installed at Delhi Cantt. is not suitable for installation of LED screen and this fact had been informed by the display agent to the defendant vide an email dated 12.05.2008.
5. At the same time defendant has also stated that plaintiff has failed to file any document to show that possession of the site for installation of LED, which it was supposed to provide as per the Letter of Intent, was ever handed over to the defendant and for which reasons no amount was paid as licence fee.
6. Plaintiff/non-applicant in turn, have taken the stand that based on the M/s. Premier Advertising Vs. M/s Times Innovative Media Ltd.
3express promise made by the defendant in the said Letter of Intent subsequent to telephonic conversation between the parties from time to time, plaintiff went ahead with the work at the site to acquire the said property after incurring huge liability and that the act of acquiring the said property and subsequent erection of the fabricated structure for supporting the LED at the spot had full consent and approval of the defendant as reflected from Annexure B filed by the defendant itself. It is also stated that it had been conveyed to one Mr. Shiv that the said property was ready for installation of the LED wall and it is the defendant who went back on his promise. It has also been denied that the display agent had informed to the defendant that the structure fabricated and installed was not suitable for installation of LED screen.
7. During the course of arguments Ld. Counsel for plaintiff who has strongly opposed and contested the application, relied heavily on an email dated 20.05.2008 exchanged between one Shiv Singh and Rajiv Saxena of the Times Group, a copy of which has been filed alongwith the list of documents. Ld. Counsel for plaintiff/non- applicant contended that going through this letter it is apparent on the face of it that the delay to install the LED screen was on the part of the defendant itself and there is not even a whisper about the site or the structure being not suitable. The relevant extract of the letter is necessary to be reproduced herein:-
"Dear Sir, With reference to our discussion about the installation of LED Screen at Delhi Cantt. Site, the proposed LED (Pitch - 20 mm Screen) will be ready for installation only after getting some spares from our supplier and it may take around 60 days. It may too late so we will install one LED in temporarily basis and it will be replaced with the P-20mm Screen. This screen has high resolution (16 mm) and far better than the 20mm. The size will be 13 ft (w) x 10 5 ft(h). Installation will start on 10.06.2008.
M/s. Premier Advertising Vs. M/s Times Innovative Media Ltd.4
We request you to please take necessary action for complete the work of the structure, Control Room and Electrical Connection at site."
8. However, the last line of the letter does show that the plaintiff also was required to take some necessary action to complete the work of the structure, control room and the electrical connection at the site.
9. Upon further perusal of the Letter of Intent, Clause b thereof specifically provides that the plaintiff has obtained certification of engineering/soil testing/structural safety, audit of the spot/structure in question.
10. During the course of arguments Ld. Counsel for plaintiff had contended that the plaintiff company was only to give a licence, the place/the land and was having nothing to do with the structure. The Letter of Intent and also the email above referred are clearly showing that some part of the work was to be done by the plaintiff related to the structure, on which the LED screen was to be displayed.
11. For the purpose of deciding an application for leave to defend, it is the settled proposition of law that what a defendant has to establish is only that there is a triable issue involved between the parties i.e. the controversy cannot be decided without affording opportunity to the parties to lead evidence. In the present case, disputed questions of facts arise between the parties and the defence of the defendant should not be thwarted at the threshold without affording it an opportunity to prove the same.
In the facts and circumstances, application is allowed.
Announced in Open Court
today i.e. 21.09.2011 SUJATA KOHLI
Addl. Distt. & Sessions Judge
(WEST) DELHI
M/s. Premier Advertising Vs. M/s Times Innovative Media Ltd.