IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.39 OF 2011 BETWEEN:
M/s. Ameya Presence Marketing, No.5, 1st Block, 1st Main, Koramangala, Bangalore-560 034 Represented by its Proprietor, Sri. K.M.Shetty. …Appellant (By Sri. S.Subramanya, Advocate for M/s. Upasana Associates, Advocate) AND:
M/s. Bharathi Airtel Limited, A Company incorporated under the Provisions of Companies Act, 1956, Having its registered office at No.47, Millers Tank Bund Road, Bangalore-560 052. Represented by its Managing Director. …Respondent (By Sri. B.J.Mahesh, Advocate) This Regular First Appeal is filed under Section 96 of CPC, against the judgment and decree dated:07.09.2010 passed in O.S.No.6644/2001 on the file of the XXXI Addl.
City Civil Judge, Bangalore City (CCH No.14) dismissing the suit for recovery of money.
This Regular First Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The suit of the present appellant against the present respondent in the Court of learned XXXI Addl.City Civil Judge, Bengaluru City (CCH No.14), (hereinafter for brevity referred to a `trial Court’), in O.S.No.6644/2001, for recovery of a sum of `6,91,700/- with interest thereupon, came to be dismissed by the judgment and decree dated 07.09.2010. It is against the said judgment and decree, the plaintiff has preferred this appeal.
2. The summary of the case of the plaintiff in the trial Court was that the plaintiff is a Proprietorship concern and carrying on business in advertising. The defendant-Company approached the plaintiff to utilise the advertisement site belonging to the plaintiff at St.Patrick Complex, Brigade Road, Bengaluru, to popularise its services. The defendant wanted the said site for the purpose of Neon Sign advertisement. After due discussion and as per the letter dated 27.6.2000 of the defendant, the plaintiff agreed for the advertisement. The same was reduced into writing as per the defendant’s letter dated 27.6.2000 and the parties have signed the same. The defendant agreed that Neon Sign Board will be displayed on and from 10.7.2000 and went on postponing the same. The plaintiff also ensured the supply of power required for the display of Neon Sign by the defendant. Despite the same, the defendant did not make use of the same nor he paid the amount payable to the plaintiff monthly though agreed and signed by the parties on 27.6.2000. This made the plaintiff to demand the payment of amount, for which, the defendant stated that they were unable to proceed with the Neon Sign display.
Accordingly, taking note of the same, the contract came to be cancelled vide letter of the defendant dated 16.1.2001. Since the defendant cancelled the said contract, the plaintiff had no option, but, to claim for the amount as per the agreed terms till then. In that regard, he demanded the payment of money by the defendant and also issued a legal notice to the defendant on 5.3.2001, claiming a sum of `6,30,000/-. The defendant failed to pay the said amount, which constrained the plaintiff to institute the suit.
3. In response to the summons served upon it, the defendant appeared through its counsel and filed the written statement. In the said written statement, the defendant though has admitted of it negotiating and agreeing with the plaintiff for making use of the site belonging to the plaintiff at St.Patrick Complex, Brigade Road, Bengaluru, and agreeing to pay a sum of `1 lakh per month for the same, but, however, contended that the space negotiated had never been made available to it at any point of time, much less, on 10.7.2000. It also stated that the alleged writing dated 27.6.2000 is not a concluded contract, but, it is only a Memorandum of Understanding. The defendant further took a contention that the liability of the defendant would arise as per the said Understanding only from the date when the display is made by the defendant, not till then. Lastly, it also contended that Clause-7 of the same writing confers ample power on the defendant to terminate the contract without any financial liability. As such, the plaintiff cannot claim any amount from the defendant, much less, the suit claim.
4. Based on the pleadings of the parties, the trial Court framed the following issues :
1. Did a contract ensue between the parties in terms of defendant’s letter dated 27.6.2000 as claimed by plaintiff?
2. Did defendant fail to display neon sign inspite of plaintiff procuring power supply of 12 k.w. as alleged in para-5 of plaint?
3. Did defendant agree to pay rental charges from 15.8.2000 as alleged by plaintiff?
4. Is the defendant liable to pay Rs.6,30,000/- to plaintiff by way of rental charges?
5. Is the defendant liable to pay interest to plaintiff? If so at what rate?
6. What decree or order?
The plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-22. The defendant got examined one Sri Prashant, who is said to be the Officer (Legal) of the defendant-Company and no documents were marked as exhibits.
After hearing both side, the trial Court answered issue No.1 in the affirmative and issue Nos. 2 to 5 in the negative and by its impugned judgment and decree dated07.09.2010, dismissed the suit of the plaintiff.
It is against the said judgment and decree, the plaintiff has preferred this appeal.
5. Lower Court records were called for and the same are placed before this Court.
6. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court, including the memorandum of appeal and the impugned judgment.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. Learned counsel for the appellant in his argument submitted that the plaintiff is always ready and willing to perform his part of the obligation and which he has performed within the time, however, the defendant for no fault of the plaintiff, did not make use of the space provided to it for the display. As such, for inaction solely on the part of the defendant, the plaintiff cannot be denied of his entitlement as per the agreement agreed to between the parties. He further submitted that, even according to the defendant, the reason for cancellation of the agreement by them was not the alleged non-compliance of the terms of the agreement by the plaintiff, but, it was due to change in the marketing plan of the defendant and also since they could not get Neon for the site. The same is exhibited in Ex.P-19. However, the trial Court without considering these aspects, has proceeded to hold that the readiness of the board and the space by the plaintiff was not proved. As such, in the absence of the plaintiff showing that he was ready and completed his part of obligation, the defendant could not display the Neon Sign, as such, the liability of the defendant has not arisen.
9. Learned counsel for the respondent in his argument submitted that as per Clause-3 of the document at Ex.P-1, the liability to pay any amount to the plaintiff would arise only from the date of the display. But, admittedly the Neon Signs were never displayed by the defendant, as such, the question of liability of the defendant to pay any amount to the plaintiff would not arise. He further submitted that, in the absence of any specific terms in the document at Ex.P-1, the plaintiff cannot fix any date as a date for the performance of the agreement and he cannot contend that a reasonable time has been lapsed. As such also, the contention of the plaintiff cannot be sustained. The trial Court rightly appreciated this and proceeded to dismiss the suit, which does not warrant any interference at the hands of this Court.
10. In the light of the above, the points that arise for my consideration are :
(1) Whether the plaintiff has proved that both the parties had entered into an Agreement dated 27.6.2000 and that the defendant has failed to perform his part of the promise under the said Agreement?
(2) Whether the plaintiff proves that he is entitled for the suit claim?
(3) Whether the judgment and decree under appeal deserves any interference at the hands of this Court?
11. The plaintiff as PW-1 in his examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. He has stated that himself entered into an Agreement with the defendant which is in the form of a letter dated 27.6.2000, wherein the defendant had agreed to make use of the space to be provided by the plaintiff for display of its Neon Sign and in return, the defendant had agreed to pay the amount as per Ex.P-1 to the plaintiff. He also submitted that since defendant did not make use of the space and commenced its display within a reasonable time, he made it clear to the defendant in writing that the rental charges should be paid by the defendant to the plaintiff, at least, from 15.8.2000. Even thereafter, since the defendant has failed to either honour the invoices raised by the plaintiff and to make payment or to commence the display, the plaintiff was constrained to issue a legal notice demanding the payment of sum of a `6,30,000/- from it. Since the defendant failed to meet the demand, he was constrained to institute the suit.
PW-1 got marked a document which he calls as Deed of Contract and dated 27.6.2000 said to have been entered into between himself and defendant at Ex.P-1. He produced office copies of eleven letters at Exs.P-2 to P-12. The office copies of six invoices from Exs.P-13 to P-18. The letter dated 16.1.2001 addressed by the defendant to him at Ex.P-19. He also got produced an office copy of the legal notice dated 5.3.2001 said to have been sent on his behalf to the defendant at Ex.P-20. Office copy of the letter dated 13.6.2001 addressed to the defendant at Ex.P-21 and the reply received from the defendant at Ex.P-22.
In his cross-examination, the witness has given more particulars and the details as to what was the understanding that was between the parties and how he has discharged his obligation under the contract.
12. DW-1 in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by the defendant in its written statement and gave more emphasis on its averment that the plaintiff had never kept the place available for installation of the display of any Neon Sign. He also emphasised that, it was specifically agreed that the rents will have to be paid only after the display was installed and since there was no installation of display, the defendant was under no obligation either to consider or pay any such bills or invoices raised by the plaintiff against it. He also stated that the very same document dated 27.6.2000, at Clause-7, makes it clear that the defendant has power to terminate the contract without any financial liability.
He was subjected to a detailed cross-examination from the plaintiff’s side, wherein certain statements were elicited by the witness, which the learned counsel for the plaintiff has made use of in his argument.
13. A reading of the pleadings and the evidence led by the parties clearly go to show that it is not in dispute that the plaintiff is carrying on business in advertisement and that the defendant approached him for providing space to display Neon Sign at St.Patrick Complex, Brigade Road and Residency Road, at Bengaluru. In that regard, it was agreed to between the parties that the defendant to pay `1 lakh per month to the plaintiff, which liability of rental charges towards Neon Sign would commence from the date of display. The plaintiff was required to deface and provide the space to the defendant without delay. The parties had also agreed that the defendant had reserved the right to terminate the contract with fifteen days prior notice without any financial liability and without assigning any reasons. The said terms of their agreement is depicted in the form a letter to the defendant by the plaintiff which is shown to have been signed by both side on 27.6.2000. The said document is marked at Ex.P-1. The correctness and contents of the said document has not been denied or disputed by either side. As such, it stands established that both the parties had entered into an Agreement, though called as an understanding between them to the effect that the plaintiff should provide space at a particular place and power supply to the defendant, wherein, the defendant displays Neon Sign and in return, pays monthly a sum of `1 lakh to the plaintiff as rental charges. The evidence of PW-1 would go to show that they had offered the said space to the defendant without any delay, but, his contention is that the defendant did not make use of the same. Even in his cross-examination, PW-1 has stated that such a space was made available to the defendant. This made the plaintiff to write a letter dated 6.7.2000 to the defendant as per Ex.P-2. The said document go to show that the plaintiff has written to the defendant about the space being ready for their utilisation and in case they do not utilise it on or before 15.8.2000, the plaintiff was not ready to lose revenue due to undue delay in non-displaying the Neon Sign. The defendant has not denied the receipt of the said letter.
14. Ex.P-3 is one more similar letter which PW-1 has produced and got marked, stating that referring to their previous letter dated 6.7.2000 (Ex.P-2), the plaintiff once again brought to the notice of the defendant that even if the defendant fail to display their Neon Sign, still, they are liable to make payment to the plaintiff and their liability commences from 15.8.2000. Any delay in decision making or delay in fabrication of the Neon Sign should not effect the revenue interest of the plaintiff. In this manner, even though there was no specific day or date mentioned in Ex.P-1 as to when or before which date, the defendants were required to make use of the space provided by the plaintiff to display their Neon Sign, still, waiting for some period, the plaintiff has brought to the notice of the defendant that they cannot wait any more or any further anticipating the utilisation of the space by the defendant. The plaintiff had also made it clear that, for such anticipation, the plaintiff’s were not prepared to lose their revenue.
15. The plaintiff by his subsequent letter dated 24.8.2000, which is marked at Ex.P-4, also brought to the notice of the defendant that enhancement of the power from 6 KW. To 12 KW. had already been made and what is due was only that the defendant had to display his Neon Sign in the space provided to it. In the very same letter, the plaintiff had also demanded a sum of `1,05,000/- as first month’s amount for which he is entitled to.
Similar letters the plaintiff is said to have been written to the defendant and one such letter is at Ex.P-5, dated 25.9.2000. He has referred to his another bill dated 25.9.2000 and sought for another sum of `1,05,000/- towards second month’s bill for the period from 15.9.2000 to 16.10.2000. In that regard, the plaintiff has raised several invoices demanding the defendant to make payment, which he has got marked at Exs.P-13 to P-18. The defendant has not come up with any averment or any suggestion in the cross- examination of PW-1 to the effect that it had replied to those letters. However, it was only on 16.1.2001, the defendant has responded to the plaintiff through its letter of the same date. The material part of the contents of the said letter is reproduced here below :
“ With reference to the above, we hereby cancel the contract due to a change in our Marketing plan and as we could not get a suitable neon for the site.
Also, as the rental charges commence only from the date of display, we are not liable to pay any charges. Please arrange to update your records accordingly.”
A reading of the said letter would go to show that the defendant chose to cancel the contract which is at Ex.P-1. All these correspondences from Exs.P-1 to P-19 would go to show that the defendant has accepted and treated the document at Ex.P-1 as a contract binding between them. It is for the said reason the defendant in its letter dated 16.1.2001 (Ex.P-19) has called the said document at Ex.P-1 as a contract. As such, the contention of the defendant/respondent that Ex.P-1 was not a concluded contract between the parties, but, it is only an understanding between the parties, is not acceptable.
16. In Ex.P-19, apart from calling Ex.P-1 as a contract, the defendant has declared that he has cancelled the said contract. For the said cancellation, the reasons given by it are the change in its marketing plan and not getting a suitable Neon for the site. As such, the defendant’s alleged reason shown for the first time in its written statement for non-proceeding further with the contract stating that the plaintiff did not provide the space and as such, it could not display the Neon Sign, proves to be only an after thought made in the written statement and in the form of suggestion to PW-1 in his cross-examination. Had the alleged non-providing the space or any other alleged non-performance of the obligation under Ex.P-1 by the plaintiff being the cause for the defendant to cancel the contract, then, the defendant in its letter at Ex.P-19 should have shown the said reason for canceling the contract, but, not a change in the marketing plan or not giving suitable Neon for the site. Thus, for the first time, on 16.1.2001, the defendant brought to the notice of the plaintiff that is has unilaterally cancelled the contract.
After cancellation of the contract vide Ex.P-19 by the defendant, the plaintiff had two options either to wait till the completion of the contract period, which according to Ex.P-1 was 9.7.2001, or to accept the cancellation or breach of the contract by the defendant and eke out his remedies under the law. The plaintiff chose to opt for the second one. He accepted the said cancellation and then proceeded to issue legal notice to the defendant calling upon it to pay a sum of `6,30,000/- with interest thereupon. The said legal notice is marked at Ex.P-20. Admittedly, the defendant did not respond to the said legal notice. However, it appears that the defendant is said to have offered a sum of `1 lakh as lumpsum as a Goodwill gesture to the plaintiff, which the plaintiff has not accepted. The said letter of the defendant over Goodwill to a sum of `1 lakh is at Ex.P-22.
The above development that has taken place with respect to the suit transaction between the parties would clearly go to show that, though no specific time was fixed for the performance of the contract, but, on the other hand, the liability of the defendant to pay for the Neon Sign rental charges shown to be upon it only after it displaying the Neon Sign as per Clause-3 of Ex.P- 1, still, the plaintiff by his subsequent letter has shown that, after waiting for a reasonable time, he has decided that the date 15.8.2000 would be the cut-off date, after which, the defendant’s liability to pay the rental charges would commence.
17. Learned counsel for the appellant in his argument relying upon Section 46 of the Indian Contract Act, 1872, submitted that where the time for performance of promise is not specified, the engagement must be performed within a reasonable time and that reasonable period has been considered as 15.8.2000 in this matter and even communicated to the defendant by the plaintiff.
18. Learned counsel for the respondent in his argument submitted that Section 46 of the Indian Contract Act is not applicable, because, solely the plaintiff cannot fix any time as the reasonable time. When Agreement specifically mentions that the liability of the defendant commences once it displays the Neon Sign and as admitted by PW-1 even in his cross- examination, the defendant has never displayed the Neon Sign, the question of any alleged payment for fixing any reasonable time would not arise.
19. A reading of the document at Ex.P-1, which the parties have accepted it as a concluded contract, would go to show that the contract was for a period of one year from 10.7.2000 to 9.7.2001. Thus, the specific period for the contract has been agreed to between the parties. Further, it is agreed to between the parties in the same contract that the defendant has to pay a sum of `1 lakh per month towards Neon Sign rental charges to the plaintiff. Thus, the entitlement of the plaintiff to the Neon rental charges would be only for twelve months amounting to `12 lakhs. Admittedly, the liability had commenced from 10.7.2000 itself. However, the commencement of the liability was shown as from the date of display as per Clause-3 of the very same agreement. Thus, the defendant had an opportunity to defer displaying the Neon Sign which simultaneously would have reduced its burden from paying the rental charges which the plaintiff has called it as loss of his revenue for the said period. In that regard, Clause-5 of the very same agreement also plays some importance, which says that defacing has to be done within fortyeight hours. As submitted by both side, the said defacing was an act of the plaintiff which he was required to do before the defendant could display his Neon Sign. Since the contract at Ex.P-1 gives only a period of fortyeight hours to the plaintiff to do the same, it shows that time cannot be dragged on or extended beyond a reasonable limit and that both the parties and more particularly, the defendant was in urgency in getting the space for the display of Neon Sign.
20. Thus, a reading of the agreement in its entirety would not give an absolute freedom for the defendant to rescind contract without displaying Neon Sign only on the pretext that his liability to pay rental charges would commence from the date of display. Since the transaction being a commercial transaction, the other party to the contract i.e., the plaintiff also cannot be made to lose his revenue only because the defendant delays display of Neon Sign and simultaneously drawing the attention of the plaintiff to Clause-3 of Ex.P-1 stating that its liability to pay rental charges would commence only from the date of display. It is for the said reason, the plaintiff has written a letter as per Ex.P-2, clearly mentioning that they are not ready to lose revenue due to undue delay in supply of Neon by the defendant for its display. They have shown in the said letter their readiness and willingness to display the Neon, provided once the same is supplied to it by the defendant not later than 15.8.2000. As such, they have made it clear that they expect the defendant to erect the Neon Sign latest by 15.8.2000. The contents of the said document has not been denied or disputed by the defendant.
Further, the very same plaintiff after waiting for some more time i.e., till 4.8.2000, has made it clear that it is the defendant who has not displayed the Neon Sign or Lit Board. As such, as earlier brought to its attention vide their letter dated 6.7.2000, the liability for payment would start from 15.8.2000. Even in the said letter also, the plaintiff had brought to the notice of the defendant that the revenue interest of the plaintiff should not be affected. The said letter is also received by the defendant, but, that remained un-responded. Through its subsequent letter dated 24.8.2000, which is at Ex.P-4, the plaintiff had once again brought to the notice of the defendant that they have already enhanced the power supply from 6 KW. to 12 KW., still the defendants have not supplied the Neon or back lit signage for their display. That means, the plaintiff has discharged its obligation under the document at Ex.P-1, but, it is the defendant which is causing delay with no excuses. This made the plaintiff to raise a bill for a sum of `1,05,000/-, dated 24.8.2000, the reference about which is made in Ex.P-4.
21. Therefore, even though the contract at Ex.P-1 did not specifically mention as to within which time the defendant had to display its Neon Sign, but, the above analysis would clearly go to show that the plaintiff not only always been ready and willing to perform his promise, but, also discharged his obligation under the contract at Ex.P-1 without any delay to enable the defendant to display the Neon Sign, which facility the defendant did not made use of. Thus, the signing of the document at Ex.P-1 was earlier as on 4.7.2000 and it was agreed to between the parties that the contract was for a period of one year commencing from 10.7.2000, still the plaintiff has waited for a considerable time of not less than a month and five days to enable the defendant to supply and get the display of Neon Sign. Thus, the said conduct of the plaintiff is neither arbitrary nor unreasonable, but, he has waited for a reasonable time. Further, by communicating the defendant of the fact that the plaintiff also being a commercial establishment it was not ready to lose its revenue, still, more than a month’s delay has consequentially reduced its revenue because the date of the claim made in the bill commences from 15.8.2000, has shown that fixation of time for performance was warranted. As such, the argument of the learned counsel for the appellant that the fixation of the time was reasonable and the defendant has no reason to deny the same, is acceptable.
22. In view of the above finding that even in the absence of any specific date mentioned in Ex.P-1, the plaintiff was not wrong in fixing a reasonable time as 15.8.2000 as the period for liability to pay rental charges by the defendant to it, then, the significance of Clause-3 of Ex.P-1 which says that Neon Sign rental charges will commence from the date of display, goes to the background. Keeping the said Clause in the forefront of the agreement, the defendant cannot deny its liability to pay the rental charges or compensation or damages to the plaintiff in any manner beyond a reasonable time. As such, the said Clause-3 though is contingent, has to be read in the circumstances of the case and that too, in the light of the recital of Ex.P-1 as the one which is not absolute and a reasonable time could have been fixed by the parties for the performance of the contract, which the plaintiff has done through his conducts which are depicted in Exs.P-2, P-3 and P-4. As such, the argument of the learned counsel for the defendant/respondent that in view of non-display of Neon Sign, the defendant is not liable to pay any amount to the plaintiff, is not acceptable.
23. The last point of argument which requires consideration is the contention of the learned counsel for the defendant that the plaintiff ought to have filed a suit under Section 73 of the Indian Contract Act, for damages, but, not for claiming any sum as towards rental charges, since there is no display of the Neon Sign admittedly till the alleged cancellation of the contract. The said point of argument is also not acceptable for the reason that the plaintiff in his plaint though has called the amount of `6,30,000/- as the amount towards the invoices raised by it, however, a reading of the entire plaint would go to show that what he wants is the compensation for the breach of contract by the defendant which has caused revenue loss to him. The said revenue loss incurred by him, he has quantified at `6,30,000/-, for a period of six months at the rate of `1,00,000/- as the basic price and `30,000/- towards service charges, totally amounting to `6,30,000/-. He has also claimed interest of `56,700/- and legal notice charges at `5,000/-, thus, totally claimed a sum of `6,91,700/-.
24. As observed above, the defendant by its conduct has deprived the plaintiff of his income for the relevant period i.e., from 15.8.2000 to 16.1.2001 when the letter of cancellation of contract at Ex.P-19 was written by the defendant to the plaintiff. However, a careful reading of Exs.P-1 to P-4 would further go to show that it was for the plaintiff to ensure the supply of required electricity power to the defendant for the display of the Neon Sign. The plaintiff’s own letter at Ex.P-2, which is dated 6.7.2000, would go to show that the plaintiff was not sure as to the quantum of the power the defendant was in requirement. Stating that it has only 6 KW. power supply, has asked the requirement of the defendant. There is no evidence to show as to whether the requirement of the defendant was communicated to the plaintiff immediately. However, the plaintiff’s own letter dated 24.8.2000 at Ex.P-4 would go to show that the enhancement of power supply from 6 KW. to 12 KW. is said to have been made by the plaintiff.
25. Thus, in the absence of any other document, from the above analysis and more particularly, the documents at Exs.P-1 to P-4, it can be inferred that the defendant was in requirement of 12 KW. power supply and ensuring supply of such a quantity of power, the plaintiff had communicated to the defendant only on 24.8.2000. Therefore, only after the said letter reaching the defendant, the defendant would be in a position to display the Neon Sign. As such, any rental charges which the plaintiff would claim would be not from 15.8.2000, but, at the latest, it would be from 1.9.2000, since as observed above, the defendant after receiving the communication at Ex.P-4, should display the Neon Sign after guaranteed about the power supply. Thus, the entitlement for any amount by any name it is called, either as compensation or damages or the rent, the plaintiff was entitled to the same from 1.9.2000 till the termination of the contract, which is on 16.1.2001. However, as per Clause-7 of Ex.P-1, the said termination must be with fifteen days prior notice. As such, the said letter at Ex.P-19, which is dated 16.1.2001, after adding fifteen days notice period, the plaintiff would be entitled for the charges or damages up to the end of January 2001 i.e., 31.1.2001. Thus, from 1.9.2000 till 31.1.2001, the plaintiff is entitled for the charges payable by the defendant.
26. The next question would be the quantum of the amount for which the plaintiff is entitled from the defendant.
As per Ex.P-1, the agreed rental charge was `1 lakh per month. However, admittedly there was no display of Neon Sign by the defendant at any point of time. As such, the defendant did not make use of the benefit of its contract or its purpose. It is in that regard, the defendant has denied its liability towards the plaintiff. However, it appears, a negotiation had taken place between the parties and it is alleged that some proposal was exchanged between them. The same is evident in Ex.P-21. In the said letter written by the plaintiff to the defendant, the plaintiff has referred about the meetings which they claim to have had on 18.4.2001 and 27.4.2001, for an amicable settlement of outstanding payment from the defendant. In that regard, the plaintiff is said to have negotiated that they are willing to accept `3.5 lakhs as one time immediate settlement, whereas, the defendants are said to have indicated `1.5 lakhs to `2 lakhs as settlement amount. However, the document at Ex.P-22 would go to show that the defendant was not aggreable to the same. The defendant in response to the said letter of the plaintiff dated 13.6.2001, has offered a sum of `1 lakh as a Goodwill gesture to the plaintiff. Thus, it go to show that the plaintiff is not insisting exactly on the total quantum of the rental charges as per the terms of Ex.P-1. Similarly, the defendant is also not intending to wash off its hands denying its liability to any small extent towards the plaintiff. In such a scenario, I am of the view that since undisputedly the contract has been unilaterally cancelled by the defendant which made the plaintiff to accept the said cancellation and claim its entitlement and in view of the fact that the defendant has not displayed its Neon Sign on the space provided by the plaintiff to it, the plaintiff is required to be reasonably compensated. The said reasonable amount, in the circumstances of the case and particularly considering the fact that the plaintiff was also a commercial establishment and expressing his willingness to accept a sum of `3,50,000/- as one time settlement and has shown that the said amount is acceptable by it as on the said day, I am of the view that the same amount be considered as a reasonable compensation payable by the defendant to the plaintiff. However, considering the periodicity of more than eighteen years from 13.6.2001 (i.e., the date of Ex.P-21) till date, I am of the view that a reasonable interest be awarded on the said amount payable by the defendant to the plaintiff. Considering the fact that the transaction was a commercial transaction and the defendant’s establishment is for the public utility and service oriented establishment, the rate of interest at 8% p.a. on the said amount would be a reasonable amount.
27. The trial Court without appreciating the evidence in its proper perspective since has carried away by Caluse-3 of Ex.P-1 and held that the defendant’s liability has not accrued by virtue of the said Clause and also in view of the fact that the above analysis has clearly shown that the said finding of the trial Court is erroneous, the judgment and decree under appeal deserves to be set aside and the suit of the plaintiff deserves to be decreed in part.
28. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed in part. The judgment and decree dated 07.09.2010 passed by the learned XXXI Addl.City Civil Judge, Bengaluru City (CCH No.14), in O.S.No.6644/2001, is set aside. The suit of the plaintiff in O.S.No.6644/2001 is decreed in part. The plaintiff is entitled for a sum of `3,50,000/- (Rupees Three lakhs Fifty thousand only), with interest at the rate of 8% p.a. from the date of the suit till the date of realisation payable to him by the defendant.
Draw modified decree accordingly.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/- JUDGE bk/