IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Thursday, August 18, 2011. Present: The Hon’ble Sri Justice B. Chandra Kumar C.C.C.A.No. 236 of 2004 Between: Dr. Baquer Huyssain Qureshi ..Appellant and Mrs. Tayeb Suleman …Respondent The Hon’ble Sri Justice B. Chandra Kumar C.C.C.A.No. 236 of 2004 J u d g m e n t: This appeal has been filed by the plaintiff in the lower court challenging a part of the judgment and decree dated:05-04-2004 in O.S.No. 599 of 2001 passed by the learned II Senior Civil Judge, City Civil Court, Hyderabad denying entire claim of the plaintiff and decreeing the suit in part. For the sake of convenience, the parties herein would be referred to as they are arrayed before the lower court. 2. The brief case of the plaintiff is as follows – By virtue of an agreement – Ex A-1 on 9-11-2000, the defendant had agreed to lease out the roof of San Remo Apartments bearing No.10-1-128, Masab Tank, Hyderabad to erect advertisement hoarding for a sum of Rs.50,000-00 per year towards lease amount for five years commencing from 9-11-2000. The plaintiff paid an amount of Rs.25,000-00 towards six months rent and the defendant had issued No Objection Letter wherein she has categorically admitted that she has a right to let out the roof of the said apartment. Believing her version, the plaintiff had incurred an expenditure of Rs.27,900-00 for obtaining permission from the Municipal Corporation of Hyderabad (for short “MCH”) and paid an amount of Rs.27,900-00 vide cheque No. 16644 drawn on Canara Bank, Hyderabad and also Rs.5000-00 towards Earnest Money Deposit (EMD) to the MCH vide cheque No. 06218 drawn on the same Bank for erection of the said hoarding. It is also his case that he has paid an amount of Rs.1.65 Lakhs for making and installation to M/s. Radhikesh Advertising Media. Thus, the specific case of the plaintiff is that he had spent an amount of Rs.1,98,000-00 for erection of the hoarding. It is also his case that after erecting the hoarding, the defendant unilaterally addressed a letter along with demand draft for Rs.25,000- 00 informing him that since owners of the flats raised objection for erection of the hoarding on the terrace, the agreement stands cancelled. It is also the case of plaintiff that he had lost his reputation in the market due to the acts of the Respondent as the hoarding could not be continued. The plaintiff got issued a Lawyer’s notice and returned the amount sent by the defendant. Initially the notice was returned as un-claimed. Thereafter again the plaintiff addressed letter on 17.2.2001 claiming compensation of Rs.2.00 Lakhs for which the defendant sent a vague reply. The plaintiff filed the suit claiming Rs.1.98 Lakhs towards damages and another sum of Rs.2.00 Lakhs towards loss of reputation; Rs.5,000-00 paid towards EMD and notice charges etc., totaling to Rs.4,24,2500-00. 3. The defendant filed her written statement admitting that she received Rs.25,000-00 from the plaintiff. Her specific case is that she had informed the plaintiff that the agreement would be subject to the permission of other flat owners and that she had never voluntarily declared that she is the absolute owner of the building. She denied the claim of the plaintiff that he had spent amounts for obtaining permission from MCH and also paid Rs.1,65,000-00 to M/s. Radhikesh Advertising Media for erecting the hoarding. She further stated that she had returned the amount paid by the plaintiff by way of a demand draft with covering letter – Ex B-6 and therefore she is not liable to pay any amount to the plaintiff. It is also her case that she is a widow and that the plaintiff has harassed her and therefore liable to pay an amount of Rs.5.00 Lakhs to her towards damages for harassing her. 4. The plaintiff filed his rejoinder denying the allegations made by the defendant. His specific case is that he never harassed the defendant and he had only demanded the amounts incurred and the loss sustained by him. It is his further case that due to the acts of the defendant he has lost his reputation in the society, as he could not continue the advertisement hoarding and, therefore, his image was tarnished. 5. On the basis of the above pleadings, the following issues were settled by the lower court for trial. i) Whether the plaintiff is entitled to recover the suit amount of Rs.4,24,500-0 as prayed for from the defendant? ii) Whether the counter claim made by the defendant in her written statement is maintainable and is entitled to recover such damages from the plaintiff as prayed for? iii) Whether the plaintiff has no cause of action to file the suit? iv) To what relief are the parties are entitled? 6. In support of his claim the plaintiff himself was examined as PW-1 and got examined PW-2 and Ex A-1 to A11 were marked and on her behalf, the defendant, herself was examined as DW-1 and DWS 2 to 4 were examined on her behalf, but no documents were marked. 7. The lower court holding that the plaintiff has failed to prove that he had obtained permission from MCH and that PW-2 appears to be a regular client of PW-1; that there is no evidence to show that the plaintiff had incurred an amount of Rs.1.65 Lakhs for making the hoarding; that the plaintiff is entitled only for the advance amount by paid by him to the defendant and accordingly decreed the suit for Rs.25,000-00. 8. Learned counsel for the appellant Sri S.Ramachandra Murthy submits that believing the version of the defendant, the plaintiff entered into the agreement with the defendant and there is nothing in Ex A-1 to show that the defendant can unilaterally cancel the same. It is also his submission that the lower court has failed to take into consideration Ex A-6, which shows that the plaintiff paid certain amounts to the MCH for obtaining permission and that the oral and documentary evidence adduced by the plaintiff would prove that he got prepared the hoarding and subsequently erected the same and now in view of the unilateral cancellation of the agreement, he is put to loss and the lower court has failed to consider the evidence in proper perspective. It is also his further submission that the admissions made by DW-1, herself, reveals that the hoarding has been erected and it is clear that she had committed breach of agreement, but these facts were not considered by lower court. 9. Per contra Smt. I. Mamu Vani, learned counsel appearing for the respondent submitted that there is no evidence on record to show that the plaintiff had obtained permission from MCH or erected the hoarding. It is also submitted that since the flat owners raised objection, the defendant had to cancel the agreement and she had accordingly informed the same to the plaintiff through letter dated: 9-1-2001 and returned the amount paid by the plaintiff by enclosing a demand draft. It is also her submission that there is no evidence on record to show that the plaintiff incurred any expenditure for making the hoarding and there is nothing to interfere with the well-reasoned judgment of the lower court. 10. The point that arises for consideration is whether the plaintiff has erected the hoarding and sustained loss and whether he is entitled for the claims made by him? 11. As seen from the record and as admitted by the parties, it is not in dispute that the plaintiff and defendant have entered into an agreement on 09-11-2000 under Ex A-1. As seen from the recitals of Ex A-1, it is clear that the defendant had agreed to grant lease of the roof of San Remo Apartments, Masab Tank, Hyderabad to the plaintiff. It is also not in dispute that she had received an amount of Rs.25,000-00 from the plaintiff on the same day. As seen from the recitals of Ex A-2, it is clear that the defendant had made a declaration that she is the absolute owner of the building. Ex A-3 is the declaration form submitted by plaintiff to MCH. It bears the seal of MCH. It shows that the plaintiff had paid an amount of Rs.27,900-00 vide cheque No.16644 towards permission fee and Rs.5,000-00 towards EMD vide cheque No.06218 drawn on Canara Bank, Hyderabad. Ex A-6 is the notice dated: 18-01-2001 issued by the Additional Commissioner (Finance) (Advertisement Section), MCH, Hyderabad addressed to the plaintiff. The recitals of the said letter reveal that on verification in Circle-IV, it was found that the plaintiff had paid an amount of Rs.32,800-00 leaving a balance of Rs.100-00 and he was liable to pay the balance amount of Rs.100-00 within seven days from the date of receipt of the said letter. Thus it is clear that the plaintiff paid an amount of Rs.32,800-00 to the MCH towards permission fee and EMD. 12. The learned counsel for the defendant submitted that there is no evidence to show that the plaintiff had erected the hoarding and that PW-2 is his regular client and the lower court rightly dismissed the claim of the plaintiff with regard to making charges of the hoarding. Therefore, it has to be seen whether the plaintiff had incurred any other expenditure for erecting the hoarding i.e., whether the hoarding was erected or not. The lower court has disbelieved the evidence of PW-2 on the ground that he appears to be a regular client of plaintiff and the receipt issued by him is a bill-cum-receipt. A reading of the entire evidence, particularly the admissions made by the defendant in her evidence reveals that the advertisement hoarding was in fact erected. During the course of cross- examination, the defendant admitted that as per Ex A-5 she was claiming ownership over roof rights, where the hoarding was erected. Thus, it is clear from the evidence of DW-1, itself, that the hoarding was already erected. But the trial court failed to consider this evidence. When once it is proved that the hoarding was erected, it is clear that the plaintiff had incurred expenditure in making of the hoarding. The evidence of PW-2 also proves the same. PW-2 is the proprietor of M/s. Radhikesh Advertising Media and that the plaintiff had approached him in November, 2000 for erection of hoarding admeasuring 1000 square feet on the terrace of complex known as “San Remo” Apartments, Masab Tank, Hyderabad and that he had erected the hoarding as per the directions and specifications of the Plaintiff and submitted a bill-cum-receipt dated: 12.12.2000 for a sum of Rs.1,65,000-00 and received the said amount from the plaintiff. According to him the said amount was paid through a cheque. However, in the cross examination he has admitted that PW-1 issued a cheque for Rs.80,000-00 out of Rs.1,65,000-00 and the remaining amount was paid in cash. 13. The evidence of the defendant on this aspect is evasive. She admitted that as per Ex A-4 an amount of Rs.1,65,000-00 has been received by M/s. Radhikesh Advertising Media from the plaintiff; but, she pleads ignorance about the expenditure incurred by the plaintiff in making the advertisement hoarding. 14. I have gone through the entire evidence. The Lower court has not considered the admissions made by the defendant that the advertisement hoarding was erected on the terrace and the same proves that the plaintiff had incurred expenditure for its making. It is clear that since the defendant made the plaintiff to believe that she has absolute right of leasing terrace of the Apartment, the plaintiff had incurred the expenditure and therefore, the defendant is liable to return the total expenses incurred by the plaintiff in erecting the hoarding. In view of the same, I am of the view that there is nothing to disbelieve the evidence of PWs-1 and 2 on this aspect. Therefore, it is clear that the plaintiff is entitled for the expenditure incurred by him for seeking permission from the MCH and making the advertisement hoarding. Thus, the plaintiff is entitled for the advance amount of Rs.25,000-00 paid to the defendant; Rs.27,800-00 paid by him to the MCH towards permission fee and an amount of Rs.1,65,000.00 towards expenses for making and erecting of the advertisement hoarding. Since the amount of Rs.5,000-00 is paid to the MCH towards EMD only, in all probability the plaintiff might have claimed that amount from the MCH. Therefore the plaintiff is entitled for rest of the claim. 15. The evidence of DW-1 reveals that her daughter is in Australia; that she had visited Australia; that she is conversant with English language and after going through recitals of Ex A-1 she had signed on Ex A-1. Her evidence also reveals that she is having nine flats in San Remo Apartments and out of nine flats, she had let out five flats. Therefore, her contention that she is a widow and that she is living alone cannot be taken into consideration. It is clear that she has sufficient means to pay the due amount to the plaintiff. 16. Though the plaintiff has claimed Rs.2.00 Lakhs towards damages on the ground that he lost his reputation in the society; a reading of the entire material gives an impression that there is no satisfactory evidence to substantiate the said claim of the plaintiff. It is also clear that the defendant was compelled to cancel the agreement, when other flat owners did not agree and it cannot be said that the defendant intended to cause any loss to the reputation of the plaintiff. 17. Thus, the appeal is allowed for and consequently the suit filed by the appellant/plaintiff is decreed for a sum of Rs.2,17,800-00 with proportionate costs and interest @ 9% per annum from the date of suit, till the date of the decree of the lower court and thereafter @ 6% per annum from the date of the said decree till the date of realization. ________________________ B. CHANDRA KUMAR, J. August 18, 2011. *BVS