Bangalore District Court
O.S./1359/2017 on 23 August, 2021
/1/ O.S.No.1359/2017
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
[CCH-40], BANGALORE CITY.
Dated on this the 23rd day of August, 2021.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 1359/2017
Plaintiff :-
XLHealth Corporation India Private
Limited. A company registered
under the Companies Act, 1956 and
having its registered Office at :
"Abacus Centre", #54, I Main, III
Phase, J.P.Nagar, Bengaluru-560078.
Having its Branch Office at No.4,
Salarpuria Sapphire, Hosure Main
Road, Adugodi, Bengaluru - 560 030.
Represented by its Director,
Mr.Orville Jameson D'Souza.
[By Sri.M.S.Raghavendra Prasad,
Advocate]
/ VERSUS /
Defendant :-
Manjunath B.A. S/o. K.Muralikrishna,
31 Years, Sole Proprietor, Office at
No.474, Shree Chenna Keshava
Krupa, 2nd Floor, 1st Stage, 6th
/2/ O.S.No.1359/2017
Phase, W.O.C., Basaveshwaranagar,
Bengaluru - 560 010.
(Sri.B.S.J., Advocate)
***
Date of Institution of the
: 23.02.2017
suit
Suit for permanent
Nature of suit : injunction
Date of commencement of
evidence 16.01.2021
Date on which the
judgment is pronounced : 23.08.2021
Years Months Days
Duration taken for disposal :
04 06 00
***
JUDGMENT
This suit is filed by the plaintiff - company against the defendant for the relief of permanent injunction restraining the defendant or his drivers, henchmen or anyone claiming under or through him from entering the suit schedule property, interfering with and disturbing the plaintiff's peaceful possession and creating any kind of disturbance on the suit schedule property.
/3/ O.S.No.1359/2017
2. It is the case of plaintiff that, plaintiff is a company registered under the Indian Companies Act, 1956. Plaintiff - company is engaged in the business of providing software development, software solutions, data processing, back office operation, information technology and information technology enabled services to XLHealth Corporation, USA. The defendant is the sole proprietor of Pranav Enterprises having its office at Basaveshwara Nagar, Bengaluru.
3. It is further averred that, plaintiff company has 3 units and in all, has around 1239 employees including contract staff and has operations throughout the day in shifts. To ferry its employees from their residence to the unit of plaintiff at No.4, Salarpuria Sapphire, Hosur Main Road, Adugodi, Bengaluru-30 and visa-versa, plaintiff had taken the service of defendant who had represented to the plaintiff as a leading service provider in end-to-end transport solutions. The defendant's services were /4/ O.S.No.1359/2017 availed about six years back. The defendant had steadily grown while rendering services to the plaintiff. The defendant initially had a cab or two and gradually was providing transport services with 45 cabs, the fleet comprising of several types of vehicles like Travera, Sumo, Indica, etc., The plaintiff and defendant had entered into an agreement for the transport services, that the plaintiff required and the defendant had agreed to provide. Initially an agreement was entered into and thereafter addendums or amendments were made to earlier agreement wherein the duration was extended. The last agreement was executed on 28.3.2014. Thereafter, an addendum dated 15.6.2015 wherein the terms of the defendant's services was extended till March 2016. Subsequently, there was an amendment to clause-I made to the service agreement dated 28.3.2014 on 12.6.2016 wherein the term was further extended by a period of 4 months, however to take effect from /5/ O.S.No.1359/2017 1.4.2016. The said period was ended on 31.4.2016. Another amendment dated 27.9.2016 was executed wherein the term was further extended till 31.10.2016. Subsequently the said agreement was not extended. As an ad-hoc arrangement, the defendant's service was availed and payments made on the basis of purchase order for the months of November and December, 2016. Defendant had submitted purchase order for a sum of Rs.20 Lakh.
4. It is further averred that, the defendant who was initially prompt in rendering his services to the plaintiff, in order to make more money found out various means to overcharge the plaintiff. The defendant used to overcharge by showing the distance from Point A to Point B at an inflated figure and consequently used to pocket the extra money. Plaintiff gradually became aware of this issue and started to not only question the defendant and also regularly undertook route surveys in the cabs of the /6/ O.S.No.1359/2017 defendant to cross-check the distance of routes. This exercise was undertaken on various dates and it was proved that defendant was indeed inflating the kilometers. Defendant had charged the plaintiff for a distance of 41 kilometers, when the actual distance as per the route survey was only 19 Kms, hence, overcharging the plaintiff by 22 Kms. This has been the defendant's modus apparendi, which was consequently led to the plaintiff being overcharged over a period of time. The defendant was guilty of not providing global positioning services facilities on its cab to the plaintiff. Plaintiff company intended to track the cabs provided by the defendant for the safety of its employees and also to keep an over all check on the transaction. Defendant failed to install GPS devices. Defendant also failed to support an escort during the night shift rides keeping in mind the safety of the employees of the plaintiff. The defendant had also failed on the issue of driver /7/ O.S.No.1359/2017 background verification. Therefore, the agreement was not renewed from January 2017. Therefore, the defendant with its ulterior motive and to put undue pressure on the plaintiff instigated and engaged on the drivers and along with them laid a siege to the plaintiff's premises and created disturbance. The defendants and its drivers blocked the passage of the said building and were also involved in sloganeering. The employees of the plaintiff were petrified and somehow managed to get in and get-out of the said premises. To defuse the situation and giving into the coercive tactics of the defendant and his drivers, the plaintiff made an advance payment of Rs.19,80,000/- after deducting TDS and paid the same to the defendant through cheque dated 31.1.2017 drawn on the HDFC Bank, Bengaluru. Defendant while receiving the said cheque issued an undertaking on the same day wherein he had specifically acknowledged the receipt of the said payment had also undertaken to cease and /8/ O.S.No.1359/2017 desist from creating impediments to the ingress and egress of the employees of the plaintiff - company. The defendant further represented that he would ensure that his employees, drivers and other personnel would vacate themselves from and around the vicinity of plaintiff premises and not undertake any demonstrations, dharana, slogans, etc., in the vicinity of the said premises. The defendant has no right to cause obstruction to the plaintiff's day-to-day affairs. The act of the defendant is high handed, illegal and unauthorised. Hence, prayed for decreeing the suit.
5. In response to the suit summons, defendant appeared through his counsel, but has failed to file his written statement.
6. On the basis of the pleadings, evidence and documents produced by the plaintiff - company, following points arise for the consideration of this Court :
/9/ O.S.No.1359/2017 (1) Whether the plaintiff - company proves that it is in possession of the suit schedule property ?
(2) Whether the plaintiff - company further proves the alleged interference by the defendant ?
(3) Whether plaintiff - company is entitled for the reliefs as prayed for ?
(4) What order or decree?
7. In order to substantiate its claim, the Director of the plaintiff - company has been examined as P.W.1 and got marked documents as Exs.P.1 to P.9. Though this Court has granted sufficient opportunity to the defendant for adducing his evidence, but has failed to adduce evidence. Hence, defendant's evidence has been taken as nil.
8. Heard the arguments on behalf of plaintiff.
/ 10 / O.S.No.1359/2017
9. My findings on the above Points are as follows:
Issue No.1 : In the affirmative. Issue No.2 : In the affirmative. Issue No.3 : In the affirmative. Issue No.4 : As per final order, for the following :-
REASONS
10. Issue No.1 :- Plaintiff filed the present suit for the relief of permanent injunction restraining the defendant or his drivers, henchmen or anyone claiming under or through him from entering the suit schedule property, interfering with and disturbing the plaintiff's peaceful possession and creating any kind of disturbance on the suit schedule property
11. In order to substantiate its case, the Director of plaintiff - company viz., Orville Jameson D'soza has been examined as P.W.1 and got marked the documents Exs.P.1 to P.9. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 deposed / 11 / O.S.No.1359/2017 that, the plaintiff - company has authorised him to conduct the case. Accordingly, the said company has issued authorisation letter on 21.10.2016 as per Ex.P.1. Plaintiff company is registered under the Companies Act, 1956. The company is engaged in the business of providing software development, software solutions, data processing, back-office operations, information technology and information technology enabled services to XL Health Corporation, USA. The defendant is the sole proprietor of Pranav Enterprises. The plaintiff - company has 3 units and around 1,239 employees as on the date of suit and has operations throughout the day in shifts. To ferry its employees from their residents to the unit of plaintiff, at No.4, Salapuria Sapphire, Hosur Main Road, Audugodi, Bengaluru - 30 and vice-versa, the plaintiff - company had taken the services of defendant. Accordingly, an agreement was entered between plaintiff and defendant on 28.3.2014 and thereafter an addendum / 12 / O.S.No.1359/2017 dated 15.6.2015 wherein the term of defendant's service was extended till March 2016. Subsequently there was an amendment to the Class-I of service agreement dated 28.3.2014. On 12.6.2016 wherein the term was further extended by a period of 4 months. However, to take effect from 1.4.2016, said period ended on 31.7.2016. Another amendment dated 27.9.2016 was executed wherein the term was further extended till 31.10.2016. Subsequent to 31.10.2016 the agreement was not renewed or extended. As an ad-hoc arrangement, the defendant's services were availed on payments made on the basis of purchase order for the months of November and December 2016. The defendant had submitted purchase order for a sum of Rs.20 lakh as per Ex.P.2.
12. He further deposed that, earlier defendant was prompt in rendering services to the plaintiff. In order to make out more money found out various means to overcharge the plaintiff. On verification of the route / 13 / O.S.No.1359/2017 survey it came to know about the defendant's illegal act. Ex.P.7 is the consolidated route survey from 1.8.2016 to 22.8.2016. The defendant used to overcharge by showing the distance from point A to point B at an inflated figure and consequently, used to pocket the extra money. The plaintiff gradually became aware of defendant's illegal acts and also asked for producing the route survey records for cross-check. On verification of the documents, it came to know that defendant overcharged. The defendant has also failed to produce the drivers' details. Defendant was guilty of not providing GPS facility on its cab to the plaintiff. The plaintiff intended to track the cabs provided by the defendant for the safety of its employees and also to keep an overall check on the transaction. However, in spite of repeated meetings, telephonic conversations and e-mails, the defendant failed to install said GPS to his cabs. The defendant was also supposed to provide an escort during the night shift / 14 / O.S.No.1359/2017 rides keeping in mind the safety of the employees of the plaintiff - company. However, the defendant had failed to provide the escort during the night hours. Defendant used to submit the invoices, the same would be processed and paid by plaintiff - company. On process of cross-checking for the irregularities, the total monthly payment to the defendant used to be in the range of Rs.10 Lakhs. Plaintiff has cleared all its payments to the defendant. After thorough scrutiny it came to know that defendant has overcharged. In the month of January 2017 plaintiff had made its intention of not renewing the agreement of availing further services of defendant even by way of purchase orders and had also informed the defendant that in any earlier invoices raised by the defendant would be subject to scrutiny and after verification if any payment was found due, then same would be paid to the defendant. This being the case, on 30.7.2017 defendant with his ulterior motives and to put / 15 / O.S.No.1359/2017 undue pressure on the plaintiff, instigated and engaged his drivers and along with them laid siege to the plaintiff's premises i.e., suit schedule property. The defendant and his drivers blocked the passage of the said building and were also involved in sloganising, the employees of the plaintiff were petrified and somehow managed to get in and out of the premises. That, to defuse the situation and giving into the coercive tactics of the defendant and his drivers, plaintiff - company made an advance payment of Rs.19,80,000/- after deducting the TDS to the defendant through cheque bearing No.004227 dated 31.11.2017. On receiving the said cheque, defendant issued a declaration of undertaking on the same day as per Ex.P.5 wherein he had specifically acknowledged the receipt of said amount and also undertaken to seize and desist from creating impediments to the ingress and egress of the employees of the plaintiff - company. After receipt of the said / 16 / O.S.No.1359/2017 amount defendant is trying to obstruct day-to-day affairs of the plaintiff - company. Ex.P.3 are the e-mails. Therefore, plaintiff - company issued notices as per Exs.P.4 and 8 to the defendant. Ex.P.9 is the track-report. Hence, prayed for decreeing the suit.
13. Though this court has provided sufficient opportunities to the defendant to cross-examine P.W.1 and to adduce evidence on his behalf, even then the defendant has failed. Hence, cross of P.W.1 and defendant's evidence was taken as nil.
14. On perusal of Ex.P.1 - plaintiff - company Board of Directors Resolution dated 21.10.2016, it reveals that P.W.1 has been authorised to represent the case on behalf of plaintiff - company. On perusal of Exs.P.3 to P.7
- e-mails and letters, it reveals that plaintiff - company hired the services of Pranav Enterprises. Defendant is the sole proprietor of said Pranav Enterprises. As per / 17 / O.S.No.1359/2017 agreement entered between the plaintiff and defendant, defendant has provided service to the plaintiff - company, accordingly plaintiff - company has paid the service charges to the defendant. Subsequently there is a dispute as regards to service charges between the plaintiff and defendant.
15. On perusal of Ex.P.6 - email dated 10.3.2017 issued by defendant to the plaintiff, it reveals that defendant made a demand for Rs.19,37,430/- towards service charges. On perusal of Ex.P.8 - Notice dated 15.3.2017, it reveals that the plaintiff - company has denied the claim made by the defendant as per Ex.P.6 and has instructed for withdrawal of e-mail dated 10.3.2017. Plaintiff got issued notice to the defendant calling upon him to withdraw the email dated 10.3.2017.
16. On perusal of Ex.P.5 - Declaration Of Undertaking, it reveals that defendant along with his / 18 / O.S.No.1359/2017 drivers and other staff members have made an obstruction to the plaintiff's peaceful possession and enjoyment. Subsequently on payment of Rs.19,18,000/- the defendant withdrawn his obstruction. On perusal of entire evidence of P.W.1 and Exs.P.1 to P.9 it clearly goes to show that the defendant along with his drivers and other staff members has made obstruction to the plaintiff's peaceful possession and enjoyment over the suit schedule property. It is well settled law that no one is permitted to take the law in their hands. If at all defendant has got any grievances as regards to the service charges, it can very well agitate his remedy as provided under law. He cannot take the law in his hands and thereby cause obstruction to the plaintiff's peaceful possession and enjoyment. There is no material on record to disbelieve the version of plaintiff.
17. In this case defendant had got two opportunities i.e., denying the claim of the plaintiff by / 19 / O.S.No.1359/2017 filing written statement and adducing his evidence. The defendant has failed to avail both the opportunities. As discussed supra, though this Court has granted sufficient opportunity to the defendant to adduce his evidence, he did not choose to file his written statement and also to enter into witness box to substantiate his defence.
18. Plaintiff clearly established that it is in possession of the suit schedule property as on the date of suit. Accordingly, I answer Point No.1 in the affirmative.
19. Point No.2 :- P.W.1 clearly deposed that, plaintiff is in possession of the suit schedule property, the defendant is no way concerned with the suit schedule property and is making obstruction to the plaintiff's peaceful possession and enjoyment over the suit schedule property. Ex.P.5 - Declaration of Undertaking by the defendant in favour of plaintiff - company clearly / 20 / O.S.No.1359/2017 supports the case of the plaintiff - company. There is no rebuttal evidence to disbelieve the version of plaintiff.
20. In the decisions reported in 2014 (1) KCCR 391 (Smt.Narasamma and others Vs. D.S.Narasi Reddy and another.) in which the Hon'ble High Court of Karnataka held that, "Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction." The above said decision is aptly applicable to the case in hand. The plaintiff has proved that plaintiff
- company is in possession of the suit schedule property and further proved the obstruction made by the defendant. Hence, the plaintiff is entitled for the relief claimed. Accordingly, I answer Issue No.2 in the affirmative.
21. Issue No.3 : - The plaintiff claims that the defendant has obstructed its peaceful possession and enjoyment. Plaintiff proved its possession over suit / 21 / O.S.No.1359/2017 schedule property as on the date of suit and further proved the obstruction made by th defendant. Hence, the plaintiff is entitled to the relief of permanent injunction against defendant. Accordingly, I answer Issue No.3 in the affirmative.
22. Issue No.4 :- For the forgoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed with costs.
The defendant, his drivers, henchmen, or any person claiming under or through him are hereby permanently restrained from entering the suit schedule property, interfering with and disturbing with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Draw decree accordingly. (Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 23rd day of April, 2021.) / 22 / O.S.No.1359/2017 (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City. ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Orville Jameson D'Souza.
2. List of documents exhibited for plaintiff :
Ex.P.1 Authorisation letter dated 21.10.2016 Ex.P.2 Purchase Order dated 29.11.2016 Ex.P.3 E-mails from 1.9.2016 to 14.11.2016 Ex.P.4 Notice issued to the defendant Ex.P.5 Declaration of undertaking Ex.P.6 E-mail dated 10.3.2017 Ex.P.7 Attested consolidated route survey from 1.8.2016 to 22.8.2016 Ex.P.8 Office copy of the notice dated 15.3.2017 Ex.P.9 Track report.
3. List of witnesses examined/ documents exhibited on behalf of defendant:
- Nil -
(KHADARSAB), XXXIX Additional City Civil & Sessions / 23 / O.S.No.1359/2017 Judge, Bangalore City.
*** Judgment pronounced in the open Court (Vide separate Judgment) :
ORDER Suit of the plaintiff is hereby decreed with costs.
The defendant, his drivers, henchmen, or any person claiming under or through him are hereby permanently restrained from entering the suit schedule property, interfering with and disturbing with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Draw decree accordingly.
(KHADARSAB) XXXIX A.C.C.& S. Judge, Bangalore City.