Dismissed

Prachar Communications Ltd. v. the General Manager, Brihanmumbai Electric Supply and Transport Undertaking

Bombay HC2 Sept 2009NMS/2333/2009

Case brief

AI extract

What is this about?

Motor truck owner sought quashing of termination notice and injunction to complete advertisement contract for bus shelters. Single judge dismissed notice of motion, held applicant failed to show notice was invalid, found damages adequate, but permitted continued display of existing ads on 714 shelters till end of 2010.

What did the court decide?

Disallowed quashing of termination notice. Granted permission to continue displaying advertisements on 714 erected bus shelters until 31 March 2010.

Prachar Communications Ltd. Vs the General… — Contract and Commercial Disputes | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO. 2333 OF 2009 IN

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SUIT NO. 1407 OF 2009

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Prachar Communications Limited.

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... Plaintiff.

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V/s.

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The General Manager, Brihanmumbai Electric Supply and Transport Undertaking & Anr.

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... Defendants.

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Mr. Virag Tulzapurkar, Sr. Counsel a/w. Chetan Kapadia i/b. Munir Merchant for the Plaintiff.

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Mr. Darius Khambata, Sr. Counsel a/w. Harinder Toor and S.K. Chari, Dipankar Das i/b. M.V. Kini & Co. for the Defendant.

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CORAM : S.C. DHARMADHIKARI,J.

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DATED : 2ND SEPTEMBER 2009.

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P.C. :-

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This matter was argued yesterday and at the conclusion of arguments it was informed that the orders would be dictated in Court.

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The Plaintiff has filed this Suit for the principal relief that the communications/letters dated 21^st October 2008, 29^th December 2008, 15^th January 2009 and 21^st January 2009 are bad in law, illegal, non est, void ab-initio and be quashed and set aside. In furtherance of this, a declaration is claimed that the contract which is subject matter of this Suit (Annexure ‘D’)

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is valid, subsisting and binding and the First Defendant is bound and liable to perform the same.

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In furtherance of prayer clause ‘D’ which is a relief of permanent injunction restraining the Defendants from in any manner acting upon and/or implementing the aforesaid letters that an interim injunction has been claimed and this Notice of Motion is principally moved for that relief so also the other prayers viz. the Defendants shall not in any manner obstruct the completion of the pending advertising contracts and therefore, they should apply to the Municipal Corporation of Greater Bombay (Defendant No.2) for No Objection Certificate in respect of the locations more particularly referred to in the contract Annexure ‘D’ to the plaint.

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The First Defendant is Bombay Electric Supply and Transport Undertaking which is an Undertaking incorporated and established under the Bombay Municipal Corporation Act, 1888. Defendant No.2 is the Municipal Corporation of Greater Bombay, a Municipal Corporation for the City of Mumbai and Suburbs also established under the same Act.

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The First Defendant is providing electric supply and transport services to the residents of Mumbai. While providing such services, the First Defendant has purchased buses/vehicles which ply within the Municipal limits and even further. For these buses/vehicles, there are Bus Stops erected. These Bus Stops denote the stoppages stage wise.

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The bus routes are demarcated in such a manner that the entire area of operation is covered. However, it was noticed that these Bus Stops are not in a proper condition and expose the passengers to sun and the rains more particularly as there is no proper cover or shelter. In such circumstances, the Bus Queue Shelters were proposed to be set up. The existing Bus Stops were also to be upgraded. Since the First Defendant desired private participation in these works, it invited interested parties to place their bids and proposals. It is not in dispute that certain comprehensive proposals and bids were invited but on account of the peculiar locations, the response thereto was minimum. There was increasing response to certain bids with regard to erection of Bus Queue Shelter on certain busy roads. Therefore, it was decided that there should be a proper blend and the expenses necessary for construction and maintenance of Bus Queue Shelters and Bus Stops on busy roads being recovered by display of Advertisements thereon and with the income generated from such advertisements, the construction of Bus Queue Shelters and Bus Stops for other internal and arterial roads would be completed. With this in mind, it is stated that the First Defendant issued an offer document dated 11^th December 2006 expressing desire to have Bus Queue Shelter (for short BQSs) and for erecting the Bus Stop Poles on first finder basis at various places at the operational areas of Defendant No.1. The Plaintiff offered to erect 450 BQSs as detailed in Annexure ‘A’ of their bid submitted to Defendant No.1. By a Resolution dated 27^th December 2006, the Plaintiff was awarded contract

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to erect 128 BQSs. The Plaintiff was thus permitted to construct 128 BQSs and display advertisement for a period of 10 years.

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It was thereafter noticed that the First Defendant did not receive any response from several BQSs/Bus Stop Poles within the operational area as they are located at distant places where the frequency of buses was very less. These Bus Stop Poles have no commercial value to the advertisers. In the light of this, a letter was address on 8^th May 2007. The Plaintiff offered that 500 BQSs of size 18’ and 814 BQSs of size 12’ would be constructed at the rate of Rs.700/- per 18’ size BQS and Rs. 400/- per 12’ size BQS. 477 Designer Bus Stop Poles were also offered to be constructed. This letter was duly received and on 7^th June 2007, the First Defendant communicated that the Plaintiff should enhance its offer. The counter offer was made. The said counter offer was accepted by the Plaintiff by their letter dated 7^th June 2007. Copies of these letters are at Annexures ‘A’ and ‘B’ to the plaint. Thereupon, a letter of acceptance dated 27^th July 2007 came to be issued and a copy thereof is annexed as Annexure ‘C’.

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The Plaintiff placed the initial sum and security deposit at the disposal of the First Defendant and thereafter was awarded the formal contract. The formal contract was executed on 28^th September 2007.

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It is stated that the Bus Queue Shelters were to be

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erected as per Drawing, Designs and specification of the shelter, which will be available with the Assistant Manager (Civil) of Defendant No.1. The construction was to be made in accordance with the drawing and as per the specification of the First Defendant. It is stated that periodical allotment letters were issued and the Plaintiff was alloted a total 1863 Bus Stop Poles for erection of BQSs and Designer Bus Stops.

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The other obligations of the parties have been referred to in the plaint and it is then alleged in paragraph 8 that all the Bus Stop Poles were not offered and some 89 Bus Stop Poles were offered to another agency. This is in breach of the Agreement and more particularly clause 8 of the agreement/contract.

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The further allegations and primarily, breach of which is alleged pertain to the designs and specifications of the BQSs. It is alleged that the designs and specifications of the Designer Poles were already submitted with the letter of offer and in fact the Plaintiff were ready and wiling to commence the work. As per approved drawing and specifications, the Plaintiff erected about 100 BQSs. They completed fabrication of 300 BQSs which were lying with the suppliers, by March 2008.

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As per the agreed details and figures, it is stated that the Plaintiffs have put up some 714 BQSs and Bus Stop Poles whereas the Plaintiff asserts that the number is 984 and all

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payments with regard to this construction is forwarded as per the terms and conditions of the contract.

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The Plaintiff has alleged delay on the part of the First Defendant in approving the designs and specifications so also the drawing. In paragraph 8(c) of the plaint, it is alleged that there were changes suggested from time to time in the drawing and the finalization could not take place till 25^th July 2008. The First Defendant called upon the Plaintiff by their letter dated 21^st August 2008 to furnish a structural stability certificate and perspective view to enable the First Defendant to obtain approval of the user department to the said design. While it is alleged by the Plaintiff that several alternatives were suggested but on account of revisions and modifications so also changes, the designs themselves under-went modification. The inordinate delay in approval of the designs of BQSs is alleged and that is how the letter dated 13^th October 2008 placing on record the steps taken was addressed by the Plaintiff to the First Defendant. The letters are annexed as Annexures G-1 to G-4.

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Thereafter, it is alleged that by letters dated 17^th November 2008 and 22^nd November 2008, details and drawing along with photographs of sample Bus Stop Poles for approval of the First Defendant came to be forwarded. Defendant No.1 much after the expiry of 12 months period prescribed under the LOI and only by their letter dated 18^th December 2008, granted approval. A copy of this letter is annexed as

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Annexure H-1 to the plaint.

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In paragraph 9 of the plaint, the Plaintiff alleges as under :-

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“9. Under the contract between the Plaintiff and Defendant No.1, it is mentioned that the Plaintiff would obtain statutory approval for BQS and Designer BSP and would erect the BQS and the Designer BSP only after statutory approvals have been obtained and the Assistant General Manager (Civil) of Defendant No.1 gives written intimation to the Plaintiff to commence the work. However, Defendant No.2 never entertain the Plaintiff for grant of any approval in respect of erection of BQS and/or designer BSP. Under the Development Control Regulations for Greater Bombay 1991 (DCR), it is provided under Regulation 9 Table 4 at Sr. No.IV(d) that Development of Bus Station can be approved on an application by Defendant No.1. It is as a result of the above legal position that Defendant No.2 had from the very beginning refused to entertain and/or grant approvals to the Plaintiff. Thus, Clause 2 of the Contract which imposed an obligation on the Plaintiff to do an act, which is impossible for the Plaintiff to do under law, is accordingly void.

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(a) The Plaintiff used to submit the drawings

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to Defendant No.1 from time to time. By 27^th February 2008, the Plaintiff has submitted 975 location plans. Thereafter, from time to time under cover of seven letters dated 27^th February 2008, 4^th April 2008, 19^th April 2008, 29^th April 2008, 4^th June 2008, 3^rd July 2008, 21^st July 2008 and 4^th August 2008, the Plaintiff submitted additional numbers of location plans for construction of BQS. The total number of location plans submitted by the Plaintiff aggregated to 1,563 by then. The Plaintiff awaited intimation from the Assistant General Manager (Civil) to commence the work of erection of BQS and BSP.

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(c) The Plaintiff understands that Defendant No.2 had issued one Central NOC to Defendant No.1 vide its letter dated 17^th January 2008, approving the design of BQS, which would b e erected in place of existing BSPs. However, an NOC for every separate location may be required under the requisition to be issued. On receipt of an NOC in respect of a location, Defendant No.1 would call upon the Plaintiff to commence the work of erection. Defendant No.1 has communicated a receipt of a total of 175 location NOCs to the Plaintiff till date. Hereto annexed and marked Exhibit ‘H2’ is the letter granting Central NOC dated 17^th January 2008, Exhibit ‘H3’ is a specimen copy of separate location

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NOC issued by Defendant No.2 to Defendant No.1 and Exhibit ‘H4’ is a specimen copy of communication of receipt of location NOC from Defendant No.1 to the Plaintiff.”

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It is in these circumstances, that the Plaintiff states that it faced various problems which created innumerable hurdles in the completion of the construction of remaining BQS and Designer Bus Stop Poles. The 12 months’ period stipulated in the contract could not be abided by but there is absolutely no fault of the Plaintiff in that behalf. The reasons for the same are set out in the letters which are annexed as Annexures L-1 to L-11.

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Reliance is also placed upon the direction of the First Defendant with regard to removal of certain BQSs and that correspondence is also referred in paragraph 10(c) with copies of relevant letters annexed to the plaint.

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Despite all this, it is stated in the plaint that the Plaintiffs have made periodical payments and reliance in that behalf is placed on paragraph 11 of the plaint. Thus, it is alleged that the Plaintiff has paid the display charges for 1863 BQSs and Designer BSPs.

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It is in this context that the plaint alleges illegal, unlawful, unreasonable and arbitrary acts of Defendant No.1 in issuing notice of termination. It is stated that non-

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performance alleged in the notice has no basis because the contract was threatened to be terminated although there were no breaches on the part of the Plaintiff. The reasons for the delay are directly attributable to the First Defendant as they were to grant necessary approvals. Further, as far as their action of directing the Plaintiff to move the Bombay Municipal Corporation for necessary approvals resulted in the Plaintiff having to abide by the further directions of that authority and considerable time took place in obtaining the same. For all these reasons, the letter threatening termination and the notice are all bad in law. This is a clear case wherein the First Defendant, as a statutory body, invited the Plaintiff to participate in the process wherein on behalf of the First Defendant, the BQSs and BSPs were constructed and maintained. The display of advertisement was the only mode by which the costs could have been recovered. Having delayed the project and works, the Plaintiff cannot be blamed and the First Defendant have, therefore, acted unlawfully and contrary to the terms of the contract between parties. For all these reasons, it is claimed that the declaration be granted so also the interim reliefs.

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Mr. Tulzapurkar, learned Senior Counsel appearing on behalf of the Plaintiff has taken me through the plaint averments and relevant Annexures including the terms and conditions of the contract and reiterated that it is not open to the First Defendant to allege breach of the terms and conditions of the contract by the Plaintiff. In fact, when they

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address a letter dated 21^st October 2008 and there was a reply given by the Plaintiff to the same, by a further letter dated 29^th December 2008, Defendant No.1 communicated that the anomalies were brought to the Plaintiff’s notice which were to be corrected and modified. However, despite such notice which was issued in the month of October 2008, the First Defendant had informed the Plaintiff that the contract can be performed by the Plaintiff. In such circumstances, the stand taken in the notice/letter dated 21^st October 2008 is waived. If the letter of 21^st October 2008 is not capable of being implemented on account of the Defendant No. 1’s response dated 18^th December 2008 approving the drawing of the Designer Bus Stop Poles, then, according to Mr. Tulzapurkar, the termination notice cannot be said to be valid and binding. The Plaintiff has pointed out that it is the Defendants who have delayed approvals and permissions. It is they who are responsible for the Plaintiff not being able to complete the works within the stipulated period. If this is the position, then, clause 24 could not have been invoked. Mr. Tulzapurkar has laid great emphasis on the clauses of the contract and more particularly, the requirements therein of approval and permission. He submits that the Plaintiff was not allowed to erect BQSs and Designer type of Bus Stop Poles so as to display advertisements unless and until permission from the M.C.G.M. and other statutory authorities are obtained. That was the obligation of Defendant No.1. Mr. Tulzapurkar submits that while relevant applications were duly forwarded, the same were not processed and the permission

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and approvals were not granted by the statutory authorities. The Contractor cannot therefore be blamed in such circumstances. Mr. Tulzapurkar submits that at the ad-interim stage, this Court was satisfied that the Plaintiff had completed substantial part of the contract and therefore, allowed the Plaintiff to have the advertisements displayed. The ad-interim order sufficiently protects the parties. He submits that no useful purpose would be served by now upholding the actions of the First Defendant. More so, when a strong prima-facie case is made out, balance of convenience is in favour of the Plaintiff and there is no question of any irreparable harm and injury to the First Defendant. Instead the Plaintiff having invested huge sums and making periodical payments, they should be allowed to complete the contractual obligations. Mr. Tulzapurkar submits that this contract is specifically enforceable inasmuch as the damages/compensation can not be said to be adequate relief. These are matters where advertisements were to be displayed on the BQSs and Designer Bus Stop Poles. The advertising revenue is based upon the advertising agency approaching the Plaintiff and placing their offers. The advertising agencies in turn are depending upon their own clients. Therefore, it is not possible to ascertain the damages under the contracts with these advertising agencies. The period under the same is between minimum of 4 to 5 years upto 15 years. There is no formula or basis upon which the actual damages could be computed and therefore, this is not a contract which cannot be held to be not specifically enforceable. For all these reasons, the

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interim reliefs be granted.

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On the other hand, Mr. Khambata, learned Additional Solicitor General appearing on behalf of the First Defendant submitted that the Plaintiffs have conveniently omitted to point out the breaches on their part. It is the Plaintiff’s own doing and acts for the BQSs and Designer Bus Stop Poles not being constructed and functional fully. There is no question as both sides have understood the terms and conditions of the contract in a commercial and business sense. They were fully aware that the Designer Bus Stop Poles and the Bus Queue Shelters were to be erected and constructed by the Plaintiff within the time stipulated in the contract. The Plaintiff has conveniently omitted to point out this aspect of the matter in the plaint. The plaint proceeds on the basis that the First Defendant was obliged under the contract to obtain approvals and permissions and No Objection Certificate from even B.M.C. However, it was the obligation of the Plaintiff to do so. The Plaintiff has approached the M.C.G.M. but the M.C.G.M. could not grant necessary approvals/N.O.C. as the Plaintiff failed to pay the excavation charges. There was a dispute with regard to the excavation charges and a representation was made by the Plaintiff to the M.C.G.M. which representation has been rejected. This is all to the knowledge of the Plaintiff and it has suppressed this vital aspect from this Court and obtained ad-interim order. Mr. Khambata has taken me through the contract terms and conditions so also the correspondence. He submits that there

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is nothing on record to demonstrate that the termination of the contract has been waived by Defendant No.1. The contract is terminable admittedly. The contract envisages that before termination is effected, notice would have to be issued and the period of same is also provided in the contract. All letters commencing from October 2008 to December 2008 culminating in the termination may be seen in the back-drop of the contractual terms. There is no question of any waiver of the termination. The correspondence must be seen as a whole and not in bits and pieces. It is seen as a whole, then, merely because a letter was issued on 18^th December 2008 with regard to specifications and designs of some of the BQS and Designer Bus Stop Poles does not mean that the contract work was not to commence much less completed in the 12 months period. It was not for the First Defendant to have approved every single design and specification as the broad terms and specifications were agreed between parties. In these circumstances, there is no substance in the contention that the termination of the contract is bad in law. It is ultimately a contract for carrying out some works, such contract does not create any right in any of the properties. It is the transport undertakings obligation to provide the essential services. For the same, the properties both movable and immovable, vest in the undertaking. It is only to enable the undertakings to fulfill the public duty and service that participation was invited from private parties. Such a contract by its very nature cannot be specifically enforced. The damages/compensation is an adequate relief. More so, when

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it is for the Plaintiff to prove their case. Presently, in the light of the clear clauses in the contract, no interim reliefs can be granted and even ad-interim orders should be vacated.

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Mr. Khambata has placed reliance upon the decision of the Supreme Court reported in AIR 1968 S.C. 522 (The Naihati Jute Mills V/s. Khyaliram Jagannath) . He has also relied upon the Judgment of the Madhya Pradesh High Court reported in AIR 1988 M.P. 46 (M/s. Sagar Art Service, New Delhi V/s. Municipal Corporation, Gwalior & Anr.). He has also handed over a copy of the letter dated 3rd January 2009 addressed to the Additional Municipal Commissioner (City) of the Municipal Corporation. Mr. Khambata emphasizes that it is as late in January 2009 that all the steps to obtain approvals and N.O.C. were commenced and there was no explanation for the inaction from July 2008 till this period. Therefore, neither prima-facie case is made out nor balance of convenience is in favour of the Plaintiff. Considering that the BQSs and Designer Bus Stop Poles are for public convenience and is a public utility, today, the undertaking cannot be prevented from acting upon its termination notice and complete the works either by itself or through other agencies. There is an element of public interest in the matter and the ad-interim order be vacated forthwith.

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Having considered the rival contentions, the only point that arises for my determination is whether the Plaintiff makes out a prima-facie case, in whose favour the balance of

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convenience lies and whether any irreparable harm or injury would be caused and to whom.

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The undisputed facts are that the the First Defendant and the Plaintiff had executed a contract. The proposal for construction of BQSs and Designer Bus Stop Poles under first finder scheme came to be forwarded by the Plaintiff on 8^th May 2007. The offer made in that behalf was placed before the First Defendant and on 7^th June 2007 it made a counter offer as is evident from the plaint allegations. Thereafter, a further letter of 27^th July 2007 came to be forwarded and the First Defendant intimated and informed the Plaintiff that the proposals/offer for 1791 Bus Stop Poles made vide letter dated 8^th May 2007 at a total consideration of Rs.16,65,36,000/- is accepted on the terms and conditions stipulated in this letter.

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The letter forwarded the terms and conditions of contract, the letter itself intimated that the Plaintiff must submit the detailed drawing of Designer Bus Stop for scrutiny and approval of the Undertaking immediately. The letter itself points out that the Plaintiff must obtain all approvals required for erection of modern type BQS and Designer Bus Stop Poles from the statutory authorities concerned within a period of one year from the date of acceptance letter.

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Thereafter, the contract, copy of which is annexed as Annexure ‘D’ came to be executed. The contract itself recites that the Undertaking has agreed to award the contract for

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erection of modern type BQSs and Designer type Bus Stop Poles in place of Bus Stop Poles existing and display of advertisements thereon. It is not as if the Bus Stops are not demarcated and earmarked. The Bus routes are already notified. The Bus Stops and stages are known and that is how the public utility service is being operated. It is only to modernize the Bus Queue Shelter and to have a proper Bus Stop Pole that the existing locations were notified in the contract. The contract may be for 15 years but the date of commencement shall be one (1) year from the issue of acceptance/work order while the contract may provide that the agency shall not allowed to erect the BQS or Designer type Bus Stop Poles or also display advertisement thereon unless and until permission/N.O.C. from the M.C.G.M. and concerned statutory authority is obtained but it is the Agency which must seek the approvals. It is they who have to obtain them as is clear from clauses 3 and 4 of the contract. Further, clause 4(a) provides that the work should be completed inasmuch as the shelters and the poles shall be erected within a period of one year from the date of the acceptance of the letter. Prima-facie, therefore, it is clear that this one year period could not be abided by the Plaintiff. Now, the question is only whether the Plaintiff is responsible for the project and works being delayed. The Plaintiff alleges breaches on the part of the First Defendant, principally of not giving approvals to the designs and specifications and N.O.C. in time. However, it is not as if the general specifications for BQS and advertisement boards were not stipulated in the contract. The

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Plaintiff itself on its own is referring to clause 14 of the contract which is entitled specification for Bus Queue Shelters and Advertisement Board. These specifications are stipulated in the contract and they are termed as standard specifications. They are annexed as Annexure ‘A’ to the contract. The proposed designer type Bus Stop Poles shall be erected by the First Defendant Undertaking. However, it is not as if this is a reason which would hold good even for the Bus Queue Shelters. That apart, compliance of contract is provided in clause 15 and there is some substance in the contentions of Mr. Khambata that parties have understood that time was of same essence. There was some urgency inasmuch as the Bus Queue Shelters were to be modernized on immediate basis. This is for the convenience of public. The services of public transport are rendered to the First Defendant. The clauses of the contract are worded accordingly. It is not as if the Plaintiff was not aware of this obligation. If it was unaware, there was no question of the Plaintiff commencing the advance payment in terms of clause 18. If despite the alleged delay in approval of the drawing and specifications, the Plaintiff could make payment in advance with regard to each of the shelters and poles, then, one fails to understand as to how it could be alleged by the Plaintiff that the delay is attributable solely to the First Defendant. Further, there is substance in the contention of Mr. Khambata that the N.O.C. from the statutory authority was to be obtained by the Plaintiff and that obligation can not be pushed on to the First Defendant. That is apparent from the

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fact that the Plaintiff addressed a letter independently to the M.C.G.M. Prima-facie, the issue with regard to the excavation charges appears to be the reason for the delay in the N.O.C. Therefore, whether the delay is on account of the inaction or lapse on the part of the First Defendant is something which will have to be proved by the Plaintiff. It cannot be presumed at this prima-facie stage. From the plaint allegations more particularly those reproduced above and the documents annexed it cannot be held that the First Defendant is responsible for the alleged delay and therefore, it was not entitled to terminate the contract and forfeit the security deposit.

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Admittedly, clause 24 provides for termination of the contract. The contract stipulation is worded in terms as enabling the General Manager to issue a notice in writing calling upon the Plaintiff to remove the cause of dissatisfaction with the execution of the contract and/or performance of the work. If the agency fails within a period of 15 days after receipt of such notice to remove the cause of dis-satisfaction, then, 7 days further notice to the agency is provided. Even within the 7 days further period, the cause of dis-satisfaction could not be removed, then, contract can be terminated by giving 48 hours prior notice. Therefore, it is not as if the causes of dissatisfaction were not allowed to be removed from time to time and all of a sudden the termination was effected. Prima-facie, the notice indicates that Defendant No.1 was dis-satisfied with the progress of the work. The

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violation of clause 4(a) of the agreement has been specifically referred to. It is not as if one can assume at this juncture that the right of termination has been waived. It is rightly urged by Mr. Khambata that by letter dated 27^th October 2008, the Plaintiff themselves referred to a single N.O.C. for all shelters being given by the Fist Defendant and M.C.G.M. would have to act on the basis of this single N.O.C. The N.O.C. Is understood as enabling the Plaintiff to commence and complete the construction. It is they who seek extension to complete the contract. It is they who provide details of 704 shelters erected till date and point out on 10^th December 2008 that remaining shelters will be re-installed by them. The list referred to in the letter dated 10^th December 2008 refers to only 75 shelters. The Parties are requesting for joint inspection. It is in such circumstances and when for the first time on 29^th December 2008 the Plaintiff relies upon the alleged final approval of Designer Poles and states that till 5^th January 2009, the difficulties pointed out in their letter was the reason for the subject work not being complete in the time schedule, then, I fail to understand as to how the notice of termination can be said to be unlawful, invalid, void ab-initio and not binding at this stage.

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Under these circumstances, I am of the opinion that the Plaintiff has failed to make out a prima facie case for the declaration as claimed with regard to the notices referred to in para (a) of the plaint. Once this is that conclusion that I reach and finding that the project work is for public convenience and

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utility so also in furtherance of the transport services rendered by the First Defendant, then, I do not see any reason to grant any interim relief much less of the nature claimed by the Plaintiff. From the reading of the contract and the nature of the obligations thereunder, I am also of the prima facie opinion that compensation/damages would be an adequate relief. The contract by its very nature involves supervision and administration of day today activities and works. It is not possible to straightway assume that it is specifically enforceable and would not fall within the exceptions in law. It is not as if the monetary sums paid were not in furtherance of a certain liability. The obligations being of the nature set out in the contract so also the facility to display advertisement based on monetary terms, I am of the opinion that even the damages can be ascertained and it cannot be assumed at this prima-facie stage that they are not so determinable. For all these reasons, there is no necessity to enter into any larger controversy. In the peculiar facts of this case, the decisions brought to my notice need not be referred to in further details. Suffice it to state that the well settled principles have been reiterated therein.

¶85

In the circumstances, the Notice of Motion is dismissed but without any order as to costs.

¶86

At this stage, it is brought to my notice that in furtherance of the ad-interim orders and even prior thereto, the Plaintiff has put up 714 BQSs on the own showing of the

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First Defendant. Further, it is stated by Mr. Kapadia, after obtaining instructions, that advertising agencies have approached the Plaintiff and there is a contractual obligation undertaken for the period ranging from 5 to 15 years. In these circumstances, the Plaintiff submits that when the contract was initially for a period of 15 years and when the BQSs were to be put up and made functional within one year, it will not be possible to refuse interim relief for the aforesaid periods.

¶89

In my view, since some of the BQSs have been put up so also the Designer Bus Stop Poles and advertisements displayed thereon, it would be fair, just and prior if the Plaintiff is permitted to display the advertisement on Bus Queue Shelters/Designer Bus Stop Poles on which their advertisements are presently displayed up to 31s March 2010. While denying interim reliefs and refusing to continue the adinterim order, it is directed that the First Defendant shall not remove or disturb the existing advertisements displayed by the Plaintiff on the 714 Bus Queue Shelters and Designer Bus Stop Poles which have been already identified by parties. This is, however, without prejudice to the rights and contentions of both sides and merely because this facility is granted does not mean that the First Defendant has given up any of its rights under the contract or otherwise nor this Court has accepted that the Plaintiff has made out a prima-facie case. Order accordingly. Needless to state that the advertisements are allowed to be displayed on the condition that all statutory

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rules and regulations so also payment of charges which are levied by statutory authority, have to be complied with by the Plaintiff.

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At this stage, Mr. Kapadia states on instructions that the figure of 714 referred to herein above is not the admitted figure. To the knowledge of the First Defendant, 984 Bus Queue Shelters and Designer Bus Stop Poles have been constructed and advertisements thereon displayed. Even payment in that regard is made regularly to the First Defendant under the contract by the Plaintiff. However, Mr. Khambata states that he has no such instructions. In my view, if the Plaintiff has indeed put up Bus Queue Shelters and Designer Bus Stop Poles and which number 714 as stipulated in the affidavit of Defendant No.1, then, it would be open for the Plaintiff to approach the First Defendant by a without prejudice proposal to allow them to use additional shelters and poles for display of advertisement till the aforesaid stipulated period of 31^st March 2010 and if such a proposal is forwarded, the shelters and poles identified, the First Defendant to allow display of advertisements thereon till 31^st March 2010 on payment of the charges that are provided in the contract. Needless to state that even with regard to these poles and shelters, the Plaintiff will have to abide by the rules and regulations of statutory authorities and pay the requisite charges.

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(S.C. DHARMADHIKARI,J.)

Prachar Communications Ltd. v. the General Manager, Brihanmumbai Electric Supply and Transport Undertaking

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Prachar Communications Ltd. v. the General Manager, Brihanmumbai Electric Supply and Transport Undertaking

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