IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 AS.No. 994 of 1998(C) --------------------- OS.578/1994 of .SUB COURT,KOZHIKODE .................... APPELLANTS: DEFENDANTS IN THE TRIAL COURT ----------------------------------------------------------------------- 1. CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY (COMMISSIONER) CALICUT. 2. MAYOR, CORPORATION OF CALICUT CALICUT BY ADV. SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP SRI.P.V.KUNHIKRISHNAN,SC,KOZHIKODE CORP SRI.K.D.BABU,SC,KOZHIKODE CORPORATION RESPONDENTS: PLAINTIFFS IN THE TRIAL COURT --------------------------------------------------------------------------- 1. ART INDIA, REPRESENTED BY ITS PROPRIETOR P.GIRIJA, ROOM NO.21, MAHARAJA PALACE SREEKANDESWARA TEMPLE ROAD, KOZHIKODE. 2. SANTHOSH KUMAR, MANAGER, ART INDIA ROOM NO. 21, MAHARAJA PALACE SREEKANDESWARA TEMPLE ROAD ,KOZHIKODE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON 01/10/2009 DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 994 of 1998 ---------------------------------------- Dated this the 1st day of October, 2009 JUDGMENT The defendants in O.S. No. 578/1994 on the file of the Sub court, Kozhikode are the appellants The respondents herein as plaintiffs filed the suit for recovery of Rs. 60,420/- with 12% interest claiming that they have sustained loss due to the acts of the officials of the 1st defendant Corporation. The trial court partly decreed the suit directing the 1st defendant-Corporation to pay a sum of Rs. 16,000/- with 6% interest per annum from the date of suit till date of payment Aggrieved by the said decree and judgment passed by the trial court the defendants in the suit have filed the above appeal. The parties hereinafter referred to as plaintiffs and defendants. 2. The facts of the case in brief are as follows: The plaintiffs were given permission by the 1st defendant-Corporation to erect 4 advertisement hoardings in different parts of the Kozhikode city as per Ext.A1 letter of permission dated 29.5.1993. The 1st plaintiff is an advertising agency. After getting licence from the 1st defendant Corporation the plaintiffs erected 4 hoardings by spending Rs. 48,000/- The period of licence is two year . The 1st defendant corporation also collected Rs.20,100/- as the fee for the grant of such licence. The date of expiry of the licence period is 28.5.1994 While so the District Collector A.S. No. 994 of 1998 -2- took over charge of the Corporation Council and as a part of cleaning programme of the Kozhikode City the hoardings including that of the plaintiffs were removed on 5.2.1994 pursuant to the resolution dated 3.2.1994 of the Kozhikode Corporation Council. It is the case of the plaintiffs that the above said 4 hoardings are put up on the basis of the licence obtained and as per Ext.A1 permission letter dated 29.5.1993 and that the hoardings were removed by the officials of the 1st defendant Corporation without issuing notice to the plaintiffs and without their knowledge. Therefore according to the plaintiffs they suffered a loss of Rs. 48,000/-towards cost of the erection and preparation of advertisement hoardings and Rs. 9,000/- towards compensation which they paid to their clients for the unutilized period of the advertisements. According to the plaintiffs when they issued notice to the defendants claiming the above said amounts as compensation the defendants paid only Rs.6,700/- as licence fee for the remaining period of the contract. 3. The 2nd plaintiff was examined in the case as PW1 and according to him he is the manager of the plaintiff firm which is an advertising agency and the hoardings were erected at a cost of Rs.48,000/- and further he claims that he had to pay Rs. 9,000/- as compensation to the customers of the plaintiffs who exhibited advertisements in the hoardings. The copy of the notice sent to the 1st defendant corporation claiming compensation was marked as Ext.A3 and Ext.A4 is the reply received for the same. Before the advocate notice the plaintiffs had A.S. No. 994 of 1998 -3- requested the 1st defendant Corporation for return of the proportionate licence fee and the letter copy is produced as Ext.A2. Ext.A5 series and A6 series are the bills and vouchers in connection with the construction of the hoardings. Ext.A7 is a letter issued by one of the customer of the plaintiffs demanding compensation and according to the plaintiff Rs. 9,000/- was paid to that customer in settlement of his claim The defendants produced Ext.B1 file in connection with the erection of hoardings and grant of permission to the plaintiffs and later demolition of the hoardings. 4. According to the defendants, the hoardings were removed by themselves and kept in the office of the 1st defendant Corporation. After some time the defendants put on auction the hoardings and sold. According to the defendants when the plaintiffs have not taken any steps to get back the hoardings which were removed and kept in the office of the 1st defendant corporation till the date of the auction that is on 5.9.1994, the plaintiffs cannot get the value of the articles as compensation, that the plaintiffs are entitled to a sum of Rs.7,000/- alone, which the amount obtained as sale proceeds in auction. 5. The trial court partly allowed the suit directing the 1st defendant to pay a sum of Rs. 16,000/- with interest at the rate of Rs.6% per annum. I find there is no reason to interfere with the findings entered by the court below at the same time this Court find that for the unutilised period of the advertisement hoardings i.e about 3 months, admittedly, the A.S. No. 994 of 1998 -4- 1st defendant Corporation refunded an amount of Rs. 6,700/- The claim of the plaintiff that he sustained a loss of Rs. 9,000/- in that head. After deducting Rs.6,700 the plaintiffs are entitled to only Rs. 2,300/- under the said head. The plaintiffs are also entitled to Rs. 7,000/- which was the amount obtained by the 1st defendant corporation as the sale proceeds in auction. So altogether the plaintiff is entitled to Rs.9,300/- at the same rate of interest granted by the trial court from the date of suit till payment. In the result, the appeal is partly allowed The decree and judgment is modified to the above extent. The 1st defendant-Corporation is directed to pay a sum of Rs. 9,300/- with interest at the same rate granted by the trial court from the date of suit till payment. No order as to costs. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- A.S. No. 994 of 1998 ---------------------------- JUDGMENT 1st October, 2009