Bangalore District Court
M/S. Atc India Tower Corporation vs Smt. M. Shashiksala on 2 December, 2017
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 2nd day of December, 2017.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.2038/2009
PLAINTIFF : M/s. ATC India Tower Corporation
Private Limited, A Company
registered under the Companies
Act, 1956 having its Registered
Office at 5th Floor, Valecha
Chambers, New Link Road,
Andheri (West), Mumbai - 400
063 and having its Circle Office
at No.472, 3rd Cross, 4th Block,
HBR Lay-out, Bangalore - 560
043, represented by its Power of
Attorney holder Prakash M.
(By Sri N. Shivakumar, Advocate)
-VERSUS-
DEFENDANT : Smt. M. Shashiksala,
W/o. Jayaramu,
No.28/5, 9th Cross,
Agrahara Dasarahalli,
Magadi Road,
Bangalore - 560 079.
(By Sri S. Shankarachar, Advocate)
Cont'd..
-2- O.S. No.2038/2009
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Date of Institution of the Suit : 23-03-2009
Nature of the Suit (Suit on : Suit for damages/compensation.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 16-09-2016
of recording of the evidence
Date on which the Judgment : 02-12-2017
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 8 years, 8 months, 9 days.
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(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This is a suit filed by the plaintiff against the defendant for judgment and decree directing the defendant to pay advance rent of Rs.50,000/- which is paid by the plaintiff along with interest at the bank rate from 30-04-2008 till date of payment and further direct the defendant to pay a sum of Rs.6,76,792-55 paise towards cost of damages incurred to the plaintiff and to direct the defendant to release the sophisticated equipments in as is where condition is held by the defendant in her custody.
2. The brief facts of the plaint are as under:-
Cont'd..
-3- O.S. No.2038/2009 Plaintiff has contended that it is a Company registered under the Companies Act dealing with the construction of the telecommunication towers for leasing the same to various companies providing mobile communication such as Reliance, Spice, Vodafone, etc. It is submitted by virtue of providing the telecommunication effectively the plaintiff has constructed about 200 tower in Karnataka at various strategic locations which are technically suitable and viable. It is contended to meet its aim the plaintiff had located the building of the defendant which is suitable, plaintiff had requested for an area for the said construction and the defendant had acceded to provide the space for the said construction to the plaintiff. Accordingly, a technical survey was carried out by the company had obtained initial structural stability certificate from the technical engineers. It is contended Sri Sai Consulting Engineers certified that the existing framed structure of building is capable of sustaining the additional load imposed by 18M high Ramboll tower. The said company had also submitted on the same day a detailed feasibility and tower beam design calculation of rooftop tower to the defendant. There was no scope for any technical infirmity and any reason for damages upon the building of the defendant wherein the said tower was installed.
It is submitted subsequent to the issue of structural stability certificate, plaintiff company had Cont'd..
-4- O.S. No.2038/2009 entered into licence deed with the defendant on 07-12- 2007 for a period of 10 years to set up towers for telecommunication purpose on the premises fully described in the schedule on certain terms and conditions mutually agreed between the plaintiff company and the defendant and reduced into writing under the said licence deed. It is contended defendant had also executed possession -cum- no objection certificate on 08-12-2007. As per the licence deed, plaintiff company has agreed to take the premises on the rent of Rs.9,950/- per month and has deposited a sum of Rs.50,000/- by way of cheque dated 13-12-2007 as an interest free advance deposit with defendant. After execution of the agreement, plaintiff company obtained no objection certificate from the defendant, thereafter carried out structural work. While the work was in progress and plaintiff company had already spent more than Rs.20,00,000/- on the said project, defendant interrupted in the work. In the mean while, defendant interrupted with the work which had commenced during April, 2008. Defendant had pressurized the plaintiff by using a tactics and pleaded with the plaintiff company that her house is being damaged due to alleged vibration and generator fitted in the said site of the tower and stopped the work, as a result of the work in progress to a grinding halt.
It is contended subsequent to stoppage of work of the plaintiff company, defendant had illegally Cont'd..
-5- O.S. No.2038/2009 confiscated the sophisticated equipment belonging to the plaintiff and kept the same in her custody and same is lying with the defendant as on filing of the suit. Defendant also did not permit the workmen to remove the same from said premises nor they allowed to enter the said premises. Subsequent to stoppage of work, plaintiff had addressed letter to the defendant on 31-05- 2008 recalling the contention of the defendant to refer lease agreement dated 07-12-2007 wherein defendant had agreed to lease her residential premises to the plaintiff for installation of tower and to use it for telecom purpose. In reply to the said letter, defendant had sent a legal notice on 10-06-2008 through her husband which was full of threats and aggressive language. After receipt of the letter, plaintiff company has addressed letter to the defendant denying the allegations made by the defendant. In spite of frivolous allegation, plaintiff company has removed generator set and even then defendant never co-operated with the plaintiff. Since there was no response from the defendant with regard to said reply, plaintiff Company was constrained to issue first legal notice through its Counsel intimating that the plaintiff Company is a lease-holder in respect of the defendant premises. It is contended allegation made by the plaintiff that damage caused to her building is false and baseless. It is contended plaintiff company was constrained to issue legal notice calling upon the defendant for conducting joint inspection and also intimating that the plaintiff company is continued to Cont'd..
-6- O.S. No.2038/2009 suffer huge financial loss due to confiscation of sensitive equipments by the defendant and called upon defendant to release the said equipments and material along with advance amount of Rs.50,000/-. Subsequent to the meeting, defendant had sent her estimation through Prasanna and Associates. Plaintiff company representative along with Sri Sai Consulting Engineers inspected the spot and at site, assessed the damages and after assessing, certified that cracks of the wall is only a plaster cracks and not any kind of structural cracks and the said cracks are developed mainly not due to the structural design loads. It is contended plaintiff company is constrained to issue legal notice on 30-12-2008 calling upon the defendant to refund the advance amount with interest at 18 per cent per annum with effect from 30-04-2008 and also to release the sensitive equipments. In spite of issuance of legal notice, defendant has not responded to the same as on the date of filing of the suit hence, plaintiff is constrained to file this suit. With this submission, plaintiff prayed to decree the suit.
3. On the other hand, upon service of summons, defendant appeared through her Counsel and filed written statement. The brief facts of the written statement of the defendant are as under -
Defendant has contended suit of the plaintiff is misconceived, devoid of merits and it is liable to be dismissed in lemine. Defendant denied entire averments Cont'd..
-7- O.S. No.2038/2009 of the plaint. Defendant contended tower built on the roof of the defendant premises is not technically viable and suitable. Safety of the defendant and other inmate of the building is not protected. Plaintiff took the fullest advantage of the defendant's innocence has dumped heavy machineries, towers etc., weighing more than its capacity. Before installing said over load, plaintiff has not conducted proper test by qualified engineers and technicians and the capability of the building to withstand the said heavy weight. No technical survey was carried as contended by the plaintiff. Feasibility of the building was not technically studied. In fact, no such engineers had ever visited the defendant's building as alleged by the plaintiff either on 05-12-2007 or on any other date. It is contended plaintiff has not studied through qualified engineers about capacity of the building. Without the said requirement, plaintiff went on repeatedly loading additional weights and the loan presently laid down on the building is in excess of its capacity and it is technically suggested said additional and heavy weight will result in collapse of the building and it will have serious danger to the lives of the inmates.
It is contended now during heavy wind, the tall steel tower is shaking as a result the building is shaking and is also causing further damage to the building. Though these facts are well within the knowledge of the plaintiff, plaintiff has failed to take necessary dismantle Cont'd..
-8- O.S. No.2038/2009 the entire tower and to shift all its installations. In fact, no technical person has visited the building to conduct alleged test.
Defendant has denied plaintiff has spent more than Rs.20,00,000/- on the project. Plaintiff has commenced installing tower from the month of January 2008 itself. The generator installed by the plaintiff was of heavy capacity and due to the operation of the said heavy capacity, entire building and upon strong objection raised by the defendant after persisted demand made by the defendant one Prasanna along with Anil Sood, Company Representative visited the spot and they observed cracks developed to the building and at the instance of the said engineer, generator was immediately removed by the plaintiff. It is contended though defendant suggested to remove all items plaintiff has failed to do so. Due to this, the building and its inmates are at great risk to their safety. Therefore, plaintiffs are liable to pay damages to the defendant for non-removal of the said heavy load from the defendant's building. Hence, defendants are making counter claim against the plaintiff under Order VIII, Rule 6(a) of the Code of Civil Procedure.
It is submitted though plaintiff is fully aware of the serious consequence of the said tower and its operation to the building, they continued to justify their highhanded acts and have failed to take immediate to the damages caused to the building. Though defendant Cont'd..
-9- O.S. No.2038/2009 co-operated for several discussions and though the plaintiff found to be guilty for not taking precautionary measures, plaintiff has failed to pay adequate compensation to the defendant. It is contended plaintiff has shifted the generator and other equipments to the nearby building owned by one Rangaswamy. Even there, plaintiff played mischief. The said owner has also filed suit of O.S. No.2930/2009. This Court granted interim order in the said suit. Lastly, it is contended defendant is always ready for amicable settlement. In spite of that, plaintiff is not co-operating with the plaintiff until the plaintiff removes all their equipments, the plaintiff company is liable to pay damages to the defendant at the rate of Rs.3,000/- per month. With this submission, defendant prayed to dismiss the suit and to decree the counter claim.
4. On the basis of the above said pleadings of both the sides, this Court has framed the following -
ISSUES (1) Whether plaintiff company proves as per license deed it has agreed to take premises on rent and has deposited a sum of Rs.50,000/- as an interest free advance deposit with defendant?
Cont'd..
- 10 - O.S. No.2038/2009 (2) Whether plaintiff company is entitled to claim cost of damages incurred to it amounting to Rs.7,26,792-55?
(3) Whether Court fee paid is sufficient?
(4) Whether suit is bad for non-joinder of necessary party?
(5) What decree or order?
5. In order to substantiate the averments of the plaint, authorized representative of the plaintiff company himself examined as P.W.1 and no documents got marked on his behalf and closed her side.
6. When case posted for defendants evidence, D.W.1 got himself examined as D.W.1 and got marked the documents as per Exs.D.1 and D.2.
7. I have heard arguments from both the sides.
8. My findings on the above Issues are as under -
ISSUE No.1 - Negative;
ISSUE No.2 - Negative;
ISSUE No.3 - Affirmative;
ISSUE No.4 - Negative;
ISSUE No.5 - As per final order, for the following -
Cont'd..
- 11 - O.S. No.2038/2009
REASONS
9. ISSUE NOs.1 AND 2 : Since both these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
10. Plaintiff has filed this suit with contention plaintiff Company is a telephone company dealing with construction telecommunication towers for leasing the same to various companies providing mobile connection and plaintiff had located the building of the defendant which is suitable, thus plaintiff had requested for an area for the said construction and defendant has accepted to provide space for the said construction to the plaintiff. It is the case of the plaintiff the technical survey was carried by the company and obtained initial structural suitability certificate in order to show building is capable of sustaining additional load. It is also case of the plaintiff, plaintiff company submitted a detailed feasibility and tower beam design calculation of roof top tower to the defendant and the plaintiff company had intended to have lease deed with defendants on 07-12-2007 for a period of ten years to set up tower for telecommunication purpose over the suit schedule property. Plaintiff further contended defendant has executed possession -cum- no-objection certificate. Plaintiff company has deposited a sum of Rs.50,000/- by way of cheque as an interest free advance deposit and thereafter while work was in Cont'd..
- 12 - O.S. No.2038/2009 progress when plaintiff company had already spent more than Rs.20,00,000/-, defendant interrupted with the work which had commenced during April 2008 and thus, plaintiff Company had sustained heavy loss, therefore defendant be directed to pay a sum of Rs.6,76,792/- towards damages incurred to the plaintiff and direct the defendant to pay advance rent of Rs.50,000/- which is paid by the plaintiff Company.
11. On the other hand, defendant has totally denied averments of the plaint. Advocate for defendant argued plaintiff Company has not taken the defendant into confidence. Tower built on the roof of the defendant premises is not technically viable and suitable. Safety of the defendant and other inmates of the defendant was not protected. In fact, no such engineers had visited defendant's building as alleged by the plaintiff. It is argued without the said requirement, plaintiff went on repeatedly loading additional weight and the load presently laid down on the building is in excess of its capacity, therefore the building has developed cracks to its walls both outside and inside. It is argued plaintiff has failed to take necessary dismantle the entire tower and to shift all its installations, therefore defendant is constrained to file counter claim.
12. Whether defendant is entitled to claim or not it is to be discussed at the time of discussing Issue No.5.
Cont'd..
- 13 - O.S. No.2038/2009
13. Now, this Court has to see whether plaintiff company proves as per license deed it has agreed to take premises on rent and deposited a um of Rs.50,000/- and whether plaintiff company is entitled to claim cost of damages as prayed in the suit. First and foremost thing is plaintiff has not produced any documents to show that it had entered into license deed with defendant on 07-12-2007 for a period of 10 years to set up towers for telecommunication purpose over the suit schedule property. Plaintiff company has also not produced any piece of document to show defendant had executed possession -cum- no objection certificate on 08-12-2007 as alleged by the plaintiff. In the absence of above said two material documents, it is not at all possible to come to conclusion that plaintiff company had entered into license deed with the defendant for a period of 10 years to set up towers for telecommunication purpose in the suit schedule property. No doubt defendant in the written statement has contended plaintiff took the fullest advantage of the defendants dumped heavy machinery towers weighing more than its capacity, but that itself is not a ground to come to conclusion plaintiff company had entered into license deed with the defendant and defendant has executed possession -cum- no objection certificate on 08-12-2007. No doubt representative of the plaintiff himself examined as P.W.1. Though he has deposed reiterating averments of the plaint, but he has not produced any iota of document in support of his Cont'd..
- 14 - O.S. No.2038/2009 contention. Apart from this in the cross-examination,
he has clearly admitted he has no personal knowledge with regard to the dispute of the present case and he is deposing evidence on the basis of the records. When he has not produced any records before the Court, the contention of P.W.1 that he is deposing evidence on the basis of the records has no substance at all. Though in the cross-examination P.W.1 has deposed State Government has passed order to install tower, but he has not produced said document before the Court. Further, he has admitted alleged agreement took place between the plaintiff and defendant is not registered document and he has not produced said document before the Court. He pleads ignorance as under -
"18 «ÄÃlgï lªÀgï JµÀÄÖ PÉf vÀÆUÀÄvÀÛzÉ CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. CzÀÄ 22 ¸Á«gÀ a®ègÉ PÉd¦ vÀÆUÀÄvÀÛzÉ CAzÀgÉ ¸ÀļÀÄî. C°è E£ï¸ÁÖ¯ï ªÀiÁrzÀ d£ÀgÉÃlgï ¸ÀĪÀiÁgÀÄ 1500 PÉf vÀÆUÀÄvÀÛzÉ. ¥ÀæwªÁ¢AiÀÄ ªÀÄ£É ªÉÄÃ¯É ºÁQgÀĪÀ ©ÃªÀiï ¸ÀĪÀiÁgÀÄ 5000 PÉf zÀµÀÄÖ vÀÆUÀÄvÀÛzÉ CAzÀgÉ ¤d. "
14. If that being the case, plaintiff has to establish technical survey was carried by the company and it had obtained initial structural stability certificate from the technical engineers. Though plaintiff company in the pleading has taken above said contention, but it has not produced any structural stability certificate obtained from the technical engineers in order to show building of the defendant is capable to bear the above said load.
Cont'd..
- 15 - O.S. No.2038/2009 In the cross-examination, he has clearly admitted they have not issued any notice to the defendant informing the defendant engineers of Sai Consulting Engineers are visiting the premises on 05-12-2007. He has also admitted K.P.T.C.L. has not given any permission to install the tower on the building of the defendant when it was installed. Further, he has admitted tower which was installed on the building of the defendant is an iron tower. Further, he has admitted they have not obtained any signature of the defendant after installation of the tower or after dumping materials on the building of the defendant.
15. In the cross-examination of P.W.1, Advocate for defendant has confronted the document which is admitted by P.W.1 and the same is marked as per Ex.D.1. Ex.D.1 is the notice issued by the plaintiff to defendant wherein it is mentioned that defendants asked to remove the tower installed on his building on the ground it was getting damaged. He has also admitted contents of one more notice dated 04-11-2008 which is marked as per Ex.D.2. He has admitted in Ex.D.2, though it is mentioned both parties have decided for joint technical inspection, even plaintiffs have not produced any documents to show the joint technical inspection was conducted to assess the alleged damages to the building. He has specifically admitted one Prasanna and Anil Sood have visited the building along with their team and on that day, they Cont'd..
- 16 - O.S. No.2038/2009 removed the generator from the building of the
defendant. He has also admitted thereafter, portion of the tower has been removed from the building of the defendant and it was installed on the house of one Rangaswamy which is situated at a distance of 50 - 60 meters from the building of the defendant. These are the admissions of P.W.1 not helpful to the case of the plaintiff to prove Issue Nos.1 and 2 in his favour.
16. On the other hand, in order to resist the claim of the plaintiff, defendant herself examined as D.W.1. In her evidence, she has deposed while installing tower built on the roof of her house is not technically viable and suitable. Further deposed her safety and safety of other inmates of the building is not protected. Plaintiff took full advantage of her innocence and has dumped heavy machinery more than its capacity. Further deposed before installing the over load, plaintiff company has not conducted proper test by qualified engineers and technicians and to estimate the capability of the building to withstand the said heavy weight. D.W.1 further deposed that plaintiff has not obtained structural stability certificate and no engineers have ever visited her building as alleged by the plaintiff. Further deposed building is developed cracks to its walls both outside and inside and now during heavy wind, the tall steel tower is shaking, as a result building is shaking and is also causing further damage to the building. Further deposed though these facts are well Cont'd..
- 17 - O.S. No.2038/2009 within the knowledge of the plaintiff, plaintiff has failed to take necessary action to dismantle the entire tower and to shift all its installations.
17. In support of the above said contention, D.W.1 has relied two documents as per Exs.D.1 and D.2. In my considered view, evidence of D.W.1 and contents of Exs.D.1 and D.2 which are confronted to P.W.1 helpful to the case of the defendant to resist the claim of the plaintiff. In spite of granting sufficient opportunity, plaintiff has not come forward to cross-examine D.W.1 hence evidence of D.W.1 remained unchallenged. In view of the above said discussion, I am of the opinion that plaintiff has failed to prove Issue Nos.1 and 2 in its favour. Hence, my answers to above Issues are in negative.
18. ISSUE No.3 : Though defendant taken contention Court fee paid by the plaintiff is insufficient, but defendant has not established the above said aspect. More over on perusal of valuation slip and nature of the suit, Court fee paid by the plaintiff is sufficient. Hence, my answer to above Issue is in affirmative.
19. ISSUE No.4 : Though defendant has taken contention suit is bad for non-joinder of necessary party, but defendant has not established the above said aspect. Hence, my answer to above Issue is in negative.
Cont'd..
- 18 - O.S. No.2038/2009
20. ISSUE No.5 : In the present case, though in the written statement defendant has contended plaintiffs have to pay adequate compensation due to damage caused to the building. Though defendant has contended until the plaintiff removes all their equipments plaintiff company is liable to pay damages to the defendant at the rate of Rs.3,000/- per day, though defendant has contended defendant craves leave of the Court to seek counter-claim against plaintiff under Order VIII, Rule 6(a) of the Code of Civil Procedure, admittedly plaintiff has not paid any Court fee with regard to his alleged counter-claim. Under these circumstances, Issues have not been framed by this Court.
21. Even defendant has not sought to pass decree in respect of the counter-claim. Apart from that defendant has not at all produced any iota of documents to establish his counter claim. Even on perusal of the oral as well as documentary evidence defendant has not made out grounds to decree the counter claim. Hence, for the reasons stated above, I proceed to pass the following -
ORDER Suit filed by the plaintiff against the defendants is hereby dismissed.
Cont'd..
- 19 - O.S. No.2038/2009 Both the parties are directed to bear their respective costs.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 2nd day of December, 2017.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : M. Prakash 16-09-2016
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Nil.
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : M. Shashikala 08-06-2017
4.DOCUMENT MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Notice dated 31-05-2008.
Ex.D.2 : Notice dated 04-01-2008.
(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..