-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.8206 of 2007 with Civil Revision Application no.533 of 2007 Municipal Corporatioln for the city of Kalyan and Dombivli ..Petitioner vs. Leo Advertissing and Marketing Co. ..Respondent Shri A.A.Kumbhakoni i/b Shri A.S.Rao and Shri H.K.Chouble for petitioner in W.P. and for respondent in C.R.A. Shri V.A.Thorat, Sr.Advocate with Shri Y.A.Sakhare i/b Shri P.J.Thorat for respondent in W. P. and petitioner in C.R.A. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 30th January, 2008 th January, 2008 th January, 2008 P.C. P.C. P.C. 1. This writ petition and connected Civil Revision Application were heard at length and ultimately time was sought to exchange certain "without prejudice proposal". 2. "Without prejudice proposal/terms" have been exchanged and now it is agreed between the parties as under;- 3. The suit which is pending in the Trial Court is already being heard in as much as evidence is -2- being recorded. The said suit being suit no.405 of 2005 shall be heard and disposed of as expeditiously as possible and on or before 31st July, 2008. The petitioner Corporation and the respondent Contractor have also agreed that the report of one Shri Taishetye who was appointed as a Court Commissioner by the learned Civil Judge, Jr.Dn., Kalyan shall form the basis in so far as the calculations of the areas which are covered by the contract for display of advertisements, hoardings etc. In other words, the agreement dated 15th May, 2003 which is in force for a period of five years is with regard to the total area stipulated in the Commissioner’s report. Further, both sides, without prejudice to their rights and contentions, do not dispute that certain areas could not be utilised for display of advertisements and hoardings. That area in so far as hoardings and kiskos is concerned is 7331 sq.ft. and 30979 sq.ft respectively. 4. Both sides agree that the learned Civil Judge, Jr.Dn., Kalyan shall appoint either the officer attached to the Court or Advocate or any Architect as the Court Commissioner to identify the balance areas of Hoardings (7331 sq.ft.), -3- kiskos (30979 sq.ft.) and adpoles admeasuring 5580 sq.ft.and submit areport to the Trial Court. The Court Commissioner to be appointed within a period of one week from the date of receipt of copy of this order. The Court Commissioner shall complete the assignment and submit his report within a period of two weeks from the date of his appointment subject to his remuneration being determined by the Trial Court. Both sides agree that as per the report of the Court Commissioner, the area shall be made available to the contractor who shall deposit further sums for such areas at the contractual rate with the Corporation. 5. Upon deposit being made within a period of two weeks from the date of acceptance of the Court Commissioner’s report by the Trial Court, the Contractor shall be allowed to display advertisements, adpoles, kiosk and poles as identified till 14th May, 2008. 6. Needless to clarify that if after the entire exercise as above is complete, the contractor fails to pay the sums as stipulated hereinabove, then, the petitioner Corporation is at liberty to issue a Public Advertisement/Tender and -4- invite bids for the portion which is identified in the Commissioner’s report referred to in clause 3 above. In such an event, the respondent contractor shall not be permitted to display any advertisement or erect any hoardings on this portion. 7. All actions of the Corporation and contractor as stipulated above, shall be without prejudice to their rights in the pending suit so also the counter claim of the Corporation therein. All contentions of both sides in that behalf are expressly kept open. Further, needless to add that the existing area in possession of the contractor for erection of hoarding and display of advertisements shall continue to be retained subject to outcome of the suit but only till 14th May, 2008. The petitioner Corporation can invite bids for the area/portion already in possession of the contractor in the event of default of the obligation as per Clause 5 above. 8. It is clarified that the Corporation in no event shall hand over possession of the areas already in possession of the respondent till 14th May, 2008, even if it initiates and -5- commences the tendering process. Similarly, for the remaining portion to be identified by the Court Commissioner as per clause 3 hereinabove, the Corporation may initiate the process for bidding/tendering but if the contractor complies with the stipulations recorded in these terms then even that area shall not be handed over or made available by the Corporation till 14th May, 2008. 9. This arrangement is evolved and shall continue subject to the outcome of the suit and without prejudice to the rights and contentions of both sides. All claims and defences are expressly kept open. 10. The deposit/payments would be from the date the area is made available for erection of hoarding and display of advertisement and payment would be for the period till 14th May, 2008. 11. In so far as deposit of Rs.15,00,000/- in this Court is concerned, the petitioner Corporation is allowed to withdraw the same with accrued interest but subject to undertaking to be furnished to this Court that in case the -6- Trial Court orders the Corporation to make any payment, then, subject to its rights and contentions, the Corporation will make such payment with interest, if any, as awarded by the Trial Court. Such undertaking to be filed within a period of one week from today and subject to the same being filed, the amount will be allowed to be withdrawn. 12. In the light of these without prejudice proposals and arrangement arrived at by the parties, it would be fit proper and in the interest of justice if proceedings in criminal complaint bearing complaint no.487 of 2007 pending in the Court of Judicial Magistrate, First Class, Kalyan against the officers of the petitioner Corporation are stayed until the above civil suit is disposed of. 13. Petition is disposed of. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)