1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.922 OF 1990 Messrs Anurag Sites ) a partnership firm duly ) registered under the ) provisions of Indian ) Partnership Act, carrying ) on business at 10, Raj-Hans, ) Doongersey Road, Malbar Hill, ) Bombay – 400 006. ) ....Plaintiffs. V/s Messrs W.M.I. Cranes Limited, ) a Public Limited Company, ) having their registered office ) at Industry Manor, ) Near Century Bazar, Prabhadevi ) Bombay – 400 025. ) .... Defendants. Mr. Tanvir Shaikh with Mr. S.A. Jabbar for Plaintiffs. Mr. Karl Shroff with Mr. Raju Yadav i/b Dhru & Co. for Defendants. CORAM: V.M. KANADE, J. DATE : 13TH JANUARY, 2010 ORAL JUDGMENT: 1. Heard. 2 2. Plaintiffs are a partnership firm duly registered under the provisions of Indian Partnership Act and they are carrying on business of acquiring various sites, erecting hoarding and permitting their customers to display their advertisements on the said hoarding at agreed rate and agreed terms and conditions. Defendants are a Company incorporated under the provisions of the Companies Act and they are manufacturers of cranes, steel plant equipments and material handling plants. 3. Plaintiffs have filed this suit seeking the following reliefs:- “(a) That the Defendants be ordered and decreed to pay to Plaintiffs the sum of Rs 26,87,340/- as per particulars of claim Exhibit ‘G’ hereto; (b) That the Defendants be ordered and decreed to pay to Plaintiffs Rs 17,000/- per month for each of the said hoardings as compensation and 3 as also the licence fees payable in respect of the said hoardings from the date of he suit till they discontinue the displaying of their advertisements on the hoarding sites of the Plaintiffs at Industry Manor Manor Building, Prabhadevi, Bombay – 400 025 or damages and/or compensation for wrongful use of the said site; (c) pending the hearing and final disposal of the Suit the Defendants be directed to pay to Plaintiffs the licence fees in respect of the said two hoarding boards; (d) That the Defendants be ordered and decreed to pay to Plaintiffs the costs of the suit; (e) For such further and other reliefs as the nature and circumstances of the case may require.” 4. In the plaint, it is averred by plaintiffs that sometime in the beginning of the year 1977, Defendants approached Plaintiffs to permit them to display their advertisement on the two hoardings of Plaintiffs in the compound of the building 4 known as Industry Menor, Prabhadevi, Bombay. Accordingly, after negotiations between the parties an arrangement was arrived at between the parties on 15/3/1977 and it was agreed that Plaintiffs would allow Defendants to display their advertisement for a period of three years and Defendants agreed to pay Rs 1,250/- per month for each board inclusive of municipal taxes. The said agreement was reduced into writing on the said date. It was signed by Publicity Officer of Defendants and by the partner of Plaintiffs. 5. According to Plaintiffs, after expiry of period of three years in 1980, there were differences and disputes between Plaintiffs and Defendants and a new agreement was arrived at between the parties on 11/08/1980. The said agreement was also executed for a period of three years and Defendants agreed to pay to Plaintiffs Rs 600/- per month for each board for displaying the advertisement. By the said agreement, 5 Defendants agreed to bear the cost of painting and maintenance of the said boards and they further agreed to pay directly to M/s Bandukwala & Moonim, the landlords of the site, rent of each board on behalf of Plaintiffs. According to Plaintiffs, they also agreed to pay municipal taxes on behalf of Plaintiffs in respect of two boards. According to plaintiffs, defendants agreed to pay Rs 30,000/- on behalf of Plaintiffs to the landlords on/or about 31/08/1980 and further sum of Rs 15,000/- was due by Defendants to Plaintiffs in respect of service rendered by them for various periods from 15/12/1978 to 30/06/1979 and out of the said sum of Rs 30,000/-, Rs 15,000/- was to be adjusted against the sum payable by Defendants to Plaintiffs and the balance amount of Rs 15,000/- was to be adjusted by deducting Rs 400/- per month from Plaintiffs’ Bills. According to Plaintiffs, this agreement was also reduced into writing and signed by both parties. 6 6. According to Plaintiffs, one of the boards was damaged in November, 1992 and it was repaired by Plaintiffs though defendants had agreed to carry out maintenance and, as such, the said amount of Rs 15,000/- was due and payable by Defendants to Plaintiffs. 7. According to Plaintiffs, arrangement between the parties came to an end after completion of three years on 11/08/1980 and Defendants requested Plaintiffs by letter dated 09/08/1983 to renew the said agreement for further period of three years. According to Plaintiffs, since under clause 8 of the arrangement dated 11/8/1980 the option to renew was with Plaintiffs, Plaintiffs declined to renew the said agreement. According to Plaintiffs, they, however, expressed their willingness to display their advertisement on fresh terms on payment of Rs 5000/- per month for each of the hoardings as compensation being the prevailing market rate. According to 7 Plaintiffs, therefore, since the said offer was not accepted, the arrangement was not renewed and came to an end. It is the case of Plaintiffs that, therefore, Defendants had no right to use the said hoardings thereafter. 8. Plaintiffs’ case is that though the arrangement had come to an end, Defendants continued to display their hoardings and used to send their cheques to Plaintiffs as compensation at the rate stipulated in the arrangement dated 11/08/1980 and that the said cheques were received by Plaintiffs under protest and not receipt was issued for the payment received. Defendants by their letter dated 11/11/1987 informed Plaintiffs that they are ready and willing to pay compensation at the old rate upon Plaintiffs issuing the Bills in their favour and also issuing acknowledgment of payment received. Alongwith the said letter, Defendants forwarded cheque of Rs 7424/- being the license fees for the period from 1 st August, 1986 to 30 th 8 November, 1987. This amount was not accepted by Plaintiffs. According to Plaintiffs, in spite of this, Defendants continued to illegally display their hoardings in collusion with landlords without making any payment to Plaintiffs. According to Plaintiffs, the license in respect of the two hoardings was issued by Municipal Corporation in their favour and the said license was not revoked and/or transferred and/or withdrawn and, therefore, according to Plaintiffs, neither the landlords nor Defendants could display advertisement in any manner without their permission. Plaintiffs initially filed suit against landlords and Defendants in the Bombay City Civil Court at Bombay being Suit No.2289 of 1988 for a declaration that the said two hoarding boards are the properties and right of Plaintiffs alone and for permanent injunction restraining landlords and Defendants from using the said hoarding site or displaying any advertisement on the said hoardings. At the time of filing of this suit, the said suit was pending. According to Plaintiffs, 9 therefore, Defendants were illegally using the said hoarding site and they were entitled to recover Rs 17,000/- per month for each hoarding as compensation and damages for wrongful use of the hoarding site. Plaintiffs’ further case is that Plaintiffs are entitled to recover license fees paid by Plaintiffs to the Municipal Corporation from 01/08/1983. The case of Plaintiffs is that they had paid an amount of Rs 47,500/- at the old rate to the Corporation and they are entitled to recover the said amount from Defendants. According to Plaintiffs, Defendants made certain payment to Plaintiffs from time to time upto 1987 which was accepted under protest as part payment on account of Plaintiffs’ claim with Defendants in respect of the said hoardings. Plaintiffs, therefore, on these grounds filed a suit for recovery of the said amount. 9. Defendants file their Written Statement and denied the averments made in the plaint. According to defendants, the 10 suit was barred by law of limitation since Plaintiffs had approached this Court after expiry of atleast five years from the alleged expiry of the agreement. It is further contended that Defendants had been displaying their hoardings at the suit site. According to Defendants, Plaintiffs had received payment by way of compensation in respect of the hoardings which were displayed by Defendants even after August, 1983. It is further contended that Defendants had regularly paid ground rent to the landlords as also property taxes to the Corporation and they had offered payment of ground rent to the landlords for the period until March, 2006. It is, therefore, contended that Defendants were legally displaying their advertisements at the suit site. It is further contended that notice was sent by Municipal Corporation to Plaintiffs directing them to pay advertisement fees to the tune of Rs 2,06,263/- for the period from 01/06/1988 to 31/08/1999. It is contended that Plaintiffs failed to pay the said amount and Defendants had to pay the said charges till the 11 end of September, 2006 in order to prevent the Municipal Corporation from cancelling license/permit which was given to Plaintiffs and from preventing Municipal Corporation from removing the hoardings. It is further contended that Defendants had paid the said fees to the Municipal Corporation which was within the knowledge of Plaintiffs and that Plaintiffs never objected to Defendants making payment of license fees on behalf of Plaintiffs. It is, therefore, contended that Plaintiffs had acknowledged Defendants’ right to display their advertisements on the suit hoardings. 10. On the basis of pleadings between the parties, following issues were framed:- (1)Whether the plaint does not disclose any cause of action against the defendants as stated in para 1 of the written statement? 12 (2)Whether the claim in the suit is barred by Law of Limitation as stated in paragraph 1 of the written statement? (3)Whether the Plaintiffs are partnership firm duly registered under the provisions of the Indian Partnership Act, as stated in paragraph No.1 of the plaint? (4)Whether the Plaintiffs are entitled to recover Rs 15,000/- from the defendants for the repairs to the hoarding board carried out in November, 1982, as stated in paragraph 4 of the plaint? (5)Whether the Plaintiffs prove that the Agreement, dated 1 st August, 1980 came to an end by efflux of time as stated in paragraph 5 of the plaint? (6)Whether the Plaintiffs prove that the Defendants in collusion with M/s. Bandukwala and Munim wrongfully ad without permission of the Plaintiffs displayed their advertisement on the two hoarding board as stated in paragraphs 5, 6 and 8 of the plaint? 13 (7)Whether the Defendants prove that they regularly paid the rent to Bandukwala and Munim and property taxes to Municipal Corporation of Greater Mumbai, as stated in paragraph 8 of the written statement? (8)Whether the Plaintiffs are entitled to recover from the defendants Rs 17,000/- per month for each of the hoarding board as compensation for wrongful use of the hoarding board? (9)Whether the Plaintiffs are entitled to receive from the Defendants Rs 47,500/- being the license fee paid by the plaintiffs as stated in paragraph No.1 of the plaint? (10) Whether the Defendants prove that they have with the knowledge of the Plaintiffs paid Rs 2,06,263/- to Municipal Corporation of Greater Mumbai as advertisement fees in respect of said two hoarding board as stated in paragraph No.10 of the written statement? 14 (11) If answer to issue No.10 is in the affirmative, whether the defendants prove that the plaintiffs have by their conduct, acknowledged the defendants right to display on the suit hoarding board as stated in paragraph 10 of the written statement? (12) Whether the Plaintiffs are entitled to recover from defendants Rs 26,87,340/- as stated in paragraphs No.11 and 12 of the plaint? (13) Whether the defendants are liable to pay to the Plaintiffs Rs 17,000/- per hoarding board per month from the date of the suit till they discontinue the use of the hoarding board as stated in paragraph 12 of the plaint? (14) What relief and order? FINDING ON ISSUE NO.3 : Whether the Plaintiffs are partnership firm duly registered under the provisions of the Indian Partnership Act, as stated in paragraph No.1 of the plaint? 11 So far as this issue is concerned, in view of the 15 amendment to section 69 of the Indian Partnership Act wherein it has now been provided that even in respect of unregistered Partnership Firm, the partners can file suit against the partners and third parties. The dispute raised by Plaintiffs, therefore, would survive and the suit would still be maintainable. FINDING ON ISSUE NO.2 : Whether the claim in the suit is barred by Law of Limitation as stated in paragraph 1 of the written statement? and on ISSUE NO.4: Whether the Plaintiffs are entitled to recover Rs 15,000/- from the defendants for the repairs to the hoarding board carried out in November, 1982, as stated in paragraph 4 of the plaint? 12. In the present case, Plaintiffs have filed suit and are seeking a decree for an amount of Rs 26,87,340/- as per particulars of claim. Plaintiff have claimed damages / compensation as per particulars of claim at Exhibit-F to the Plaint which is a compensation for the use of two hoardings for the period from 01/08/1983 till 28/02/1990 @ Rs 17,000/- per month per hoarding and have, therefore, claimed an amount of 16 Rs 26,86,000/-. They have also claimed further compensation @ Rs 17,000/- per month per hoarding from the month of March, 1990 till the Defendants discontinue the use of the said two hoardings. Plaintiffs have then claimed license fees payable by Defendants to Plaintiffs as per particulars of claim at Exhibit- G. In Exhibit-G, Plaintiffs have claimed license fees payable by Defendants to Plaintiffs for a period from 01/08/1983 to 30/03/1985 for the two hoardings @ Rs 232/- per month per hoarding. Plaintiffs have then claimed license fees for a period from 01/04/1985 to 30/05/1985. Lastly, Plaintiffs have claimed the amount paid by6 them for repairing the hoardings as per Bill dated 22/11/1982. 13. In the Written Statement filed by Defendants it is contended that the suit is barred by law of limitation. It is claimed that Plaintiffs have approached this Court after expiry of atleast five years from the alleged expiry of the agreement. 17 14. The present suit is filed by Plaintiffs on 13/03/1990. In my view, so far as claim of Rs 15,000/- which is towards repairing hoardings as per bill dated 22/11/1982 is concerned, it is clearly barred by law of limitation. Plaintiffs have received this Bill in the year 1982. The present suit has been filed in 1990. This claim, therefore, in my view, is clearly beyond the period of three years. 15. So far as claim in respect of license fees is concerned, particulars of which have been given by Plaintiffs in Exhibit-D to the Plaint. The said claim also, in so far as it relates to license fees payable for the period from 01/08/1983 to 30/03/1985 and for the period from 01/04/1985 to 30/05/1985 is concerned, it is clearly barred by law of limitation. 16. So far as difference in license fees for a period from 18 01/04/1985 to 30/01/1988 is concerned, the said aspect would be considered when other issues pertaining to the payment of license fees by Defendants are taken in to consideration. 17. So far as particulars of claim in Exhibit-F is concerned, Plaintiffs have claimed damages or compensation for the used of the said hoardings for the period from 01/08/1983 till 28/02/1990 @ Rs 17,000/- per month. So far as the claim of Plaintiffs from 01/08/1983 upto 1986 is concerned the said claim is clearly barred by law of limitation. 18. So far as rest of the claim is concerned, Counsel for Defendants vehemently urged that since claim of Plaintiffs is essentially a money claim, after expiry of the agreement between the parties, at the highest, plaintiffs would have claim upto 1989 which amount also, according to Counsel for Defendants, Plaintiffs would not be entitled to claim. He 19 submitted that rest of the claim of Plaintiffs was not maintainable since the suit was essential filed for money claim and the Plaintiffs ought to have filed suit every three years. 19. On the other hand, the learned Counsel appearing on behalf of Plaintiffs contended that in view of prayer clause (b), Plaintiffs are entitled to make this claim, particularly when the issue was covered by Section 22 of the Limitation Act. It is further submitted that section 22 of the Limitation Act will apply as damages/breach is continued and every single continuing breach/damages gives fresh cause of action. It is submitted that plaintiffs, therefore, are entitled to the decree as claimed till such time defendants continue to wrongfully use the plaintiffs’ hoardings. It is then contended by the learned Counsel appearing on behalf of plaintiffs that the plaintiffs had filed a suit in the City Civil Court at Bombay in the year 1989 against the defendants herein and also against the landlord for 20 injunction and declaration that the plaintiffs are tenants of M/s Bandookwala & Moonim in respect of a strip of land upon which two hoarding boards of plaintiffs are erected. He submitted that the suit is now transferred to the Small Causes Court and the said suit is still pending. It is, therefore, submitted that the submission of defendants that the plaintiffs permitted defendants to display the hoardings on the same terms and conditions as in the earlier agreement dated 11/8/1980 is false. 20. The learned Counsel appearing on behalf of plaintiffs then submitted that defendants witness Suresh Gopichand Narang has admitted that they were making payments of the license fee from 1983 till 1999 and that in view of the said admission, the claim of plaintiffs for compensation from 1993 is not barred by limitation since the suit was filed in 1990. It is then submitted that from the evidence of defendants’ witness 21 and the admission which was given by the said witness, collusion between the landlord and defendants had been proved by plaintiffs. It is, therefore, submitted that plaintiffs are entitled to claim compensation @ Rs 17,000/- per month. It is, therefore, submitted that the plaintiffs have established and proved that defendants were wrongly continuing to display the hoardings at the plaintiffs’ site and the license still stands in the name of plaintiffs. It is submitted that plaintiffs have established that the prevailing market rate was Rs 17,000/- per month at the time of filing of suit in 1990. 21. The submissions made by the learned Counsel appearing on behalf of plaintiffs that section 22 of the Limitation Act would apply in the present case cannot be accepted. It cannot be said that the act of displaying hoardings on the two sites is a continued wrong. Firstly, so far as prayer clause (a) of the suit is concerned, claim upto January, 1987 is 22 clearly barred by limitation since, admittedly, after 1987, no further payments have been made to plaintiffs in respect of compensation. Plaintiffs have admitted in para 11 of the plaint that the payments were made by defendants only upto the year 1987. Defendants in their letter dated 11/11/1987 clearly stated that the compensation for the period from January 1987 to 31/11/1987 would only be sent when bills are drawn and stamp receipts are issued by plaintiffs. Therefore, no payments were made thereafter and the plaintiffs’ witness has admitted in the cross-examination that defendants have not made any payment after 01/01/1987. The present suit has been filed on 12/3/1990 which is beyond the period of three years from January 1987 and, therefore, even assuming that defendants had paid the compensation for displaying of hoardings at the old rates from 1983 to 1987 and they were accepted under protest as part payment even then the plaintiffs cannot claim any compensation for the period from 1983 to January, 1987 as the suit is filed 23 beyond three years i.e in January 1987. The second question which, therefore, falls for consideration is : whether the claim of plaintiffs for the period from March 1987 to March, 1990 and the subsequent period during pendency of suit for compensation @ Rs 17,000/- per month for each hoarding would survive? 22. So far as the period from the date of filing of the suit is concerned, admittedly, the present suit is not filed for possession and for mesne profit under Order XX Rule 12 of the Civil Procedure Code. In such a suit, a preliminary decree may be passed for possession and, thereafter, profit can be ascertained for wrongful possession by defendants in an inquiry under Order XX Rule 12. In the present case, so far as prayer clause (a) is concerned, it is a suit for recovery of money and, therefore, no decree can be passed for recovery of compensation after the date of the suit upto the date of the decree or after the 24 date of the decree until recovery of possession. 23. The next submission made by the learned Counsel appearing on behalf of plaintiffs is that the present suit is covered by provisions of section 22 of the Limitation Act. The learned Counsel for plaintiffs in support of the said submission has relied upon the judgment of the Apex Court in Balakrishna v. Saree D.M. Sansthan 1. He has also relied upon the judgment of the Nagpur High Court in Firm Sitaram Bindraban v. Governor-General in Council representing G.I.P. Rly. 2 He has also relied upon the judgment of the Madras High Court in Bharatmatha Desiya Sangam v. Roja Sundaram and others. 3 He has also relied upon the judgment of the Apex Court in M/s. Bengal Waterproof Limited v. M/s Bombay Waterproof Manufacturing Company and another. 4 1 1959 SC 799 2 AIR (34) 1947 Nagpur 224 [C.N.63.] 3 AIR 1987 MADRAS 183 4 AIR 1997 SC 1398 25 24. On the other hand, Mr. Shroff, the learned Counsel appearing on behalf of defendants has submitted that the provisions of section 22 of the Limitation Act will not apply in the present case. He submitted that the ratio of the judgments on which reliance has been placed by the Counsel for plaintiffs would not apply to the facts of the present case. He, on the other hand, relied on the Full Bench Judgment of the Travacore, Cochin High Court in Ittipennu Amma Devaki Amma v. Krishna Kammathi Ramachandra Kammathi. 1 25. In my view, submissions made by the learned Counsel appearing on behalf of plaintiffs that the present case would be covered by the provisions of section 22 of the Limitation Act, cannot be accepted. Section 22 of the Limitation Act reads as under:- 1 AIR 1955 TC 146 (Vol.42, C.N.54) 26 “22. Continuing breaches of torts.- In the case of continuing breach of contract or in the case of continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. 26. In the present case, plaintiffs have already filed a suit which is now pending in the Small Causes Court for a declaration that they are tenants against the present defendants as well as landlord of the property. Secondly, the contract which was executed between plaintiffs and defendants has already expired in 1983 and the plaintiffs have not renewed the said contract but continued to accept the rent at the old rate upto January, 2007. From the evidence which is on record, it is evident that plaintiffs were aware that defendants were paying license fees to the Municipal Corporation. Admittedly, license stood in the name of plaintiffs. At the highest, therefore, it can be said that defendants are tenants holding over after expiry of the lease and, in such a case, limitation for recovery