IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.1001/1985 M/s Anurag Sites, a partnership Firm ,carrying on business at 10,Raj Hans,6,Doongersi Road, Malbar Hill, Bombay 400 006 PLAINTIFF VS. 1-a]H.P.Mehta, 402,Shilpa Building, Ramkishan Mishan Road, Santacruz (West), Mumbai-400 054 DEFENDANT Mr.Tanvir Shaikh for the plaintiffs Mr.Pramesh Vaikil for the defendant CORAM : SMT.ROSHAN DALVI,J. DATE : 20/10/2008 ORAL JUDGMENT 1] The suit has been filed interalia for recovery of rent in respect of one hoarding on Paresh Building called Dr.Vora's property at Bhulabhai Desai Road ,Haji Ali ,Mumbai and for damages towards loss of property in respect of another hoarding at Shivtirth Co.op. Housing Society ,Bhulabhai Desai Road,Haji Ali,Mumbai .The suit is also for recovery of mesne profits from the date of filing of the suit in respect of the hoarding at Dr.Vora's property at Haji Ali under prayer clauses b,c,d. Prayer clause (a) is not pressed. 2] The defendant has disputed the compensation claimed.It is the the case 2 of the defendant that the agreement between the parties came to an end and the defendant used the hoarding sites under a direct agreement with the owners of the property . The defendant also claimed to have a license in respect of the hoardings.The defendant claims that the suit is barred by the Law of Limitation. 3] Based upon these pleadings following issues are framed by Mr.Justice A.S.Oka which are answered as follows: ISSUES FINDINGS [i] Does the plaintiff prove that the plaintiff had subsisting right in respect of two hoarding sites at Dr.Vora's property at Paresh Building ? YES [ii] Does the plaintiff prove that the Defendant was given permission to conduct Plaintiff's business of display of Advertisement on the two hoarding sites on the Defendant paying compensation of Rs.1750/- p.m. to be paid to the Plaintiff from 18/1/1977 ? YES [iii] Does the plaintiff prove that the Defendant committed breach of agreement and did not pay amount of compensation regularly and therefore plaintiff by letter dated 4/7/1979 terminated the arrangement between 3 ISSUES FINDINGS [iii]continued... the Plaintiff and Defendant in respect of two hoarding sites ? YES [iv] Does the plaintiff prove that one of the Hoardings at Shivtirth Co-operative Housing Society Premises was demolished by B.M.C.on account of defendant displaying advertisement at a much higher level than what was permitted and therefore the plaintiff suffered damage to the tune of Rs.1 lac being loss of profit which Plaintiff could have made on said hoarding site ? NO [v] Does the Defendant prove that Dr.Vora directly permitted the defendant to use the hoarding after getting license from B.M.C. in his name in the year September,1979? NO [vi] Whether the Suit is within limitation ? YES(only for the claim of compensa- tion for 3 years prior to the suit & mesne profits) [vii] Whether the Plaintiff is entitled to YES mesne profits from Defendant for wrongful use and occupation of the hoarding site at Dr.Vora's property at the rate of Rs.200/-per day till the date of the Defendant hands over possession of said site ? [viii] Is the plaintiff entitled to decree as prayed ? AS PER FINAL ORDER [ix] What order ? AS PER FINAL ORDER 4 R E A S O N S 4] The plaintiff has filed his evidence of examination-in-chief by affidavit dated 21.7.2006 of Sajjan Kothari, the partner of the plaintiff. The plaintiff relied upon several documents which came to be considered by Justice Mr.Oka in the affidavit of examination -in-chief received in evidence on 10.10.2007. The plaintiff's documents have been marked in that evidence. The defendant has cross examined the plaintiff on commission. Both the parties have closed their case after the evidence of first witness of the plaintiff was recorded. The defendant has not examined any witness. 5] The plaintiff has produced the license obtained by it from the B.M.C.in respect of suit hoardings. The plaintiff has also produced written contract between the parties with regard to the payment of compensation in respect of two hoardings. The plaintiff has produced certain correspondence between the parties showing the latest letter and the notices issued upon the defendant and the defendant's reply thereto . 6] The plaintiff has,however,not produced any evidence with regard to the damages in respect of the hoarding which was stated to have been demolished by the B.M.C.. The advocate of the plaintiff states that after the demolition there has been only one hoarding at the suit site . Consequently the plaintiff has claimed damages in 5 respect of one of the hoardings as per the particulars of claim, Exh.H to the plaint and compensation in respect of other hoarding as per the particulars of claim , Exh.I , to the plaint. 7] The defendant having led no evidence ,the onus of proving the license for the hoardings which lies upon the defendant, is not seen to have been discharged. ISSUE NO.1,2,& 3: 8] The plaintiff has been given the site for one of the suit hoardings by Dr.Vora at Paresh Building on 14-9-1972 . The document has been marked E-3 in the evidence. Though the truth of the contents of the document cannot be taken to be proved since the plaintiff has not examined the author of the document, the document has not been disputed by the defendant. 9] Having been permitted to use the suit sites for hoardings, the plaintiff was required to obtain municipal license in respect of those sites .The documentary evidence produced by the plaintiff is required to see the plaintiff's initial right in the suit hoarding by way of license of the municipality and the written contract between the parties. The document B-4 in the evidence shows license dated 28- 12-1972 issued in favour of the plaintiff for two hoardings at Bhulabhai Desai Road under application no.575 and 576 dated 21.9.1972. The original licenses have been produced .The terms and conditions of the licenses for the two hoardings are the same. 10] The contract between the parties with regard to the 6 payment for the suit hoardings dated 18-1-1977 has been proved by direct evidence . The contract is signed by the representative of the plaintiff as well as the defendant . It shows the compensation of Rs.1,750/- payable for both the hoardings per month in evidence. It is marked Exh.P-7. 11] The defendant failed to make payment of the compensation for both the hoardings after June,1979 . The plaintiff by its letter dated 4.7.1979 addressed to the defendant terminated the agreement between the parties . The receipt of the letter of termination is not denied. The plaintiff has not been seriously cross examined on that issue. 12] The plaintiff wrote another letter to the defendant on 14.7.1979 . Xerox copy of it is produced in evidence and marked Exh.E-11. The defendant has replied to that letter through his advocate's letter dated 25-7-1979. These two letters form a chain of correspondence between the parties .The claim of the defendant on merits is contended in that letter . The defendant has denied the liability for payment of compensation . It is claimed by the defendant that one of members of Shivtirth co-operative housing society Ltd. objected for putting up the hoarding on the said site .The defendant has also contended that hoardings in the property of Dr.Vora cannot be put up after December,1976 because permission granted by Dr.Vora had expired.It appears that the defendant had paid compensation 7 despite that fact. Hence he claimed refund of such compensation. The defendant further claimed that he was putting up the hoardings on the suit site upon obtaining direct permission from Dr.Vora. Hence the fact of the defendant using the hoarding site on Dr.Vora's premises is not denied. The defendant has not produced any separate license issued by the B.M.C.in his name for that hoarding. 13] The license was granted in favour of the plaintiff by the B.M.C.. Written agreement between the parties to the suit was executed. Consequently the plaintiff has proved its right in respect of hoardings at Dr.Vora's property . The plaintiff is entitled to claim compensation in respect of that hoarding site which is admittedly availed of by the defendant. The extent of the compensation is mentioned in the written contract between the parties dated 18-1- 1977 . That contract shows payment of Rs.1750/- for both the hoardings. The plaintiff is entitled to the payment of half of that amount for that hoarding on the premises of Dr.Vora. The non payment of compensation by the defendant despite the admission that the hoarding site is utilised by him without showing any independent contract or license of the municipality shows the breach of the defendant in payment of compensation. Hence issue no.1,2,and 3 are answered in the affirmative. ISSUE NO.4 14] The plaintiff has claimed damages in respect of hoarding site at Shivtirth Co-operative Housing Society Ltd..The hoarding site is stated to have been demolished by the B.M.C.as the display was 8 contrary to the terms of the license in respect of the said hoarding.The plaintiffff's advocate concedes that after the demolition no hoarding has been displayed at that site.The defendant's reply to the plaintiff's notice dated 25.7.1979 shows the objection raised by the said society. Hence the plaintiff is not entitled to and has not pressed for compensation in respect of that hoarding. The damages suffered by the plaintiff are not proved at all. Hence issue no.4 is answered in the negative. ISSUE NO.5 15] The onus lies upon the defendant to prove the direct contract between the owner of the premises where the hoarding is exhibited being Dr.Vora's premises at Haji Ali .The defendant has not produced any license issued by the B.M.C. in his favour.The defendant has also not shown any agreement entered into by the defendant with Dr.Vora. The defendant has not examined any witness to lead any oral evidence. Hence issue no.5 is answered in the negative. ISSUE NO.6 16] The termination of the contract is shown to be under letter dated 4.7.1979 i.e.about six years prior to the filing of the suit . The defendant's advocate contends that the suit is barred by the Law of Limitation.Any declaration with regard to that contract would be barred by law of Limitation. However, the plaintiff has pressed only for the relief of recovery of compensation for the last three years prior 9 to the filing of the suit. Though the claim made by the plaintiff in the particulars of claim Exh.H shows compensation claimed at Rs.5,000/- p.m.the claim to that extent is not seriously pressed. The plaintiff's advocate has fairly conceded that the claim of compensation is only based upon the initial contract entered into as far back as on 18-1- 1977 . Compensation cannot be claimed on any arbitrary figure considering the appreciation in the value of the hoardings. The plaintiff becomes entitled to compensation as per the written contract between the parties only for the period of three years prior to the filing of the suit,since the claim of compensation would be a continuing cause of action as the defendant is seen to continue to display the hoardings at the suit site.The plaintiff would also be entitled to mesne profits for continued user pending the suit. The suit is, therefore,not barred by the Law of Limitation only to that extent. Issue no.6 is answered in the affirmative to that extent. ISSUE NO.7 16] The defendant has continued to display the hoardings at the suit site in Dr.Vora's property pending the suit without payment of any compensation to the plaintiff . The advocate on behalf of the plaintiff makes a statement that the display by the defendant is made even today . The defendant has not shown the right of the plaintiff having ceased or right under any other independent contract or any other independent license of the municipality. The defendant is therefore, bound and liable to pay mesne profits for the use of the hoarding site. The plaintiff has claimed mesne profits at Rs.200/- per day . The 10 plaintiff has stated in para 9 of the affidavit of examination in chief about the claim of Rs.200/- per day. Such a claim is made in the prayer clause 'd' of the plaint. The plaintiff's advocate makes a statement that there is absolutely no cross examination by the defendant on this aspect . The amount of Rs.200/- per day for the use of suit hoarding site as claimed in prayer clause 'd' from the date of filing of the suit appears to be reasonable and in absence of any contest thereto is required to be granted. Hence issue no.7 is also answered in the affirmative. ISSUE NO.8 & 9 : 17] The plaintiff is entitled to the decree as per following order. O R D E R The suit is decreed for compensation @ Rs.875/- per month for 36 months prior to the filing of the suit. The suit is also decreed for mesne profits @ Rs.200/-per day from the date of filing of the suit until the suit hoarding on Dr.Vora's property is removed. No order as to costs. (SMT.ROSHAN DALVI,J.)