Partly allowed

Bharat Advertising and Marketing Associates (Baama), v. Greater Cochin Development Authority (Gcda)

Kerala HC9 Mar 2022WP(C)/5601/2021

Case brief

AI extract

What is this about?

A writ petition seeking quashing of an order canceling an agreement for beautification due to non-payment of electricity charges. The court quashed the order and directed the petitioner to pay a fixed sum while directing authorities to consider representations for installment facilities and agreement extension.

What did the court decide?

Exhibits order quashed; petitioner directed to pay Rs. 3 lakhs; authorities directed to consider representations for installments and agreement extension.

Bharat Advertising and Marketing Associates… — Contract and Commercial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 9^TH DAY OF MARCH 2022 / 18TH PHALGUNA, 1943

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WP(C) NO. 5601 OF 2021

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PETITIONER:

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BHARAT ADVERTISING AND MARKETING ASSOCIATES (BAAMA), FIRST FLOOR, CITY PLAZA, WEST NADA, GURUVAYUR, REPRESENTED BY ITS PROPRIETOR, K. RAMACHANDRAN, RESIDING AT FLAT NO. 404, SHIVAM ENCLAVE, MAHAKAVI G. ROAD, KARIKKAMURI, KOCHI.

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BY ADVS. PIRAPPANCODE V.S.SUDHIR SHRI. AKASH S. SMT.A.MEGHA

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RESPONDENTS:

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1 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) POST BOX NO. 2012, KOCHI 682 020, REPRESENTED BY ITS SECRETARY

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2 THE SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), POST BOX NO. 2012, KOCHI:682 020

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3 ESTATE OFFICER, GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) POST BOX NO. 2012, KOCHI:682 020 BY ADV SMT.MINI.V.A., SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5601 OF 2021

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P.V.KUNHIKRISHNAN, J

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-------------------------------

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W.P.(C)No. 5601 of 2021

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--------------------------------

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Dated this the 9^th day of March, 2022

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JUDGMENT

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The above writ petition is filed with the following prayers:

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“(i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Ext.P20 and quash the same.

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(ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to permit the petitioner to beatify, maintain and clean the Marine Drive Walkway in terms of the conditions and the undertaking given by him in Ext.P1 agreement, irrespective of the issuance of Ext.P20 order.

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(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to permit the petitioner to pay Rs.12,99,858/- towards electricity charges for the period from 27.01.2009 to 25.11.2017, remitted by the respondents 1 and 2, in 10 equal monthly instalments.

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and

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(iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.”[SIC]

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WP(C) NO. 5601 OF 2021

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The petitioner was awarded the work of

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beautification, maintenance and cleaning of Marine Drive Walkway, by the respondents 1 and 2. The agreement was entered on 04.11.2008. The same was expired in February, 2011. Subsequently, the same was extended for 36 months from 28.03.2013 by Ext.P2 supplementary agreement and thereafter by Ext.P3 agreement, the contract was extended for a further period of six years from 27.03.2016. Hence the existing agreement will be in force till 27.03.2022. As per the agreement, the petitioner is bound to pay the electricity charges for the lighting facility in the walk way. According to the petitioner, respondents 2 and 3 did not insist on the payment of the current charges and they continue to pay the same whenever there was demand.

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Even though notice was issued by the GCDA subsequently, the petitioner was not able to pay the amount because of the financial difficulties in connection with the pandemic situation. When Ext.P20 was issued,

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WP(C) NO. 5601 OF 2021

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this writ petition was filed.

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Heard the learned counsel for the petitioner and the learned Standing counsel appearing for the respondents.

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The counsel for the petitioner reiterated his contentions based on the averments in the writ petition. The learned Standing counsel on the other hand submitted that from 2010 onwards the respondents were issuing notice to the petitioner to clear the electricity charges. The Standing counsel submitted that, admittedly, as per the agreement, the petitioner has to pay the electricity charge and it is now violated and hence there is nothing to interfere with Ext.P20. The Standing counsel also submitted that the amount due as on 2/8/2017 is Rs.15,25,155/-. This is disputed by the counsel for the petitioner.

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Whatever that may be, it is a fact that the petitioner is bound to pay the electricity charge. It is also an admitted fact that the petitioner failed to pay the electricity charges and that is why Ext.P20 was issued.

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WP(C) NO. 5601 OF 2021

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When this writ petition came up for consideration on 22.03.2021, this Court passed the following order:

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“The learned Standing Counsel to file counter affidavit.

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Post on 05.04.2021.

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In the meanwhile, there will be an interim stay on Ext.P20 on condition that the petitioner remits an amount of _3 lakhs on or before 31.03.2021 and another_ 3 lakhs on or before 30.04.2021.”

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As directed by this Court, ` 6 lakhs is already paid. Even now there is a huge balance. The counsel for the petitioner submitted that because of the financial difficulties, the petitioner was not able to pay the amount and he even approached the respondents for getting an instalment facility, which is refused by them because of the pendency of this writ petition. The counsel also submitted that an extension of the agreement is necessary in the facts and circumstances of the case. These are matters to be decided by the respondents. The petitioner is free to approach the respondents with a representation and if such a representation is received, the respondents will consider

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WP(C) NO. 5601 OF 2021

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the same in accordance to law. But a perusal of Ext.P20 will show that the agreement is canceled only because of the non payment of the electricity charges. Ext.P20 was stayed by this court on 22.03.2021 and that order is in force even now. Moreover the agreement period itself will expire on 27.03.2022. The learned Standing counsel submitted that the premises is now already handed over to Cochin Smart Mission Limited (CSML) for renovation work. In such circumstances, Ext.P20 need not stand further. The respondents can consider the request of the petitioner for giving an instalment facility for paying the balance amount. The petitioner is free to approach the respondents for extension of the agreement also. If such a representation is received, the respondents will consider the same, in accordance to law.

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Therefore, this writ petition is disposed of in the following manner:

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i. Ext.P20 is quashed.

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ii. The petitioner will pay an amount of Rs.3,00,000/(Rupees Three lakhs only) to the respondents within

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WP(C) NO. 5601 OF 2021

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one month from today.

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iii. The petitioner is free to approach the respondents with

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a representation for payment of the balance amount, if any, within a period of two weeks from the date of receipt of a copy of this judgment.

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iv. Once such a representation is received, the respondents will consider the same and pass appropriate orders in it, in accordance to law.

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v. The petitioner is also free to approach the respondents with a representation for extension of the agreement and if such a representation is received, the respondents will consider the same in accordance to law.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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WP(C) NO. 5601 OF 2021

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APPENDIX OF WP(C) 5601/2021

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PETITIONER EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE	AGREEMENT EXECUTED
	ON 04-11-2008 RESPONDENT AND THE	BETWEEN THE 1ST PETITIONER
EXHIBIT P2	TRUE COPY OF	THE SUPPLEMENTARY
	AGREEMENT EXECUT	ED ON 19-02-2011
	BETWEEN THE 1ST PETITIONER.	RESPONDENT AND THE
EXHIBIT P3	TRUE COPY OF THE	AGREEMENT DATED 22-
	09-2015 EXECUTED RESPONDENT AND THE	BETWEEN THE 1ST PETITIONER.
EXHIBIT P4	TRUE COPY OF	THE LETTER NO.
	5659/ESTATE.A3/201 2017 OF THE 2ND RE	1/GCDA DATED 02-06- SPONDENT.
EXHIBIT P5	TRUE COPY OF THE 22-06-2017 SUB PETITIONER BEFORE	REPRESENTATION DATED MITTED BY THE THE CHAIRMAN, GCDA
EXHIBIT P6	TRUE COPY OF	THE LETTTER NO.
	15165/E2/1993/GCDA OF THE 2ND RESPOND	DATED 03-01-2018 ENT
EXHIBIT P7	TRUE COPY OF	THE REPRESENTATION
	SUBMITTED BY THE THE CHAIRMAN, GCDA	PETITIONER BEFORE
EXHIBIT P8	TRUE COPY OF THE	LETTER RECEIVED BY
	THE PETITIONER ON 2ND RESPONDENT	05-02-2018 FROM THE
EXHIBIT P9	TRUE COPY OF	THE LETTER NO.
	E2/15165/93/GCDA D THE 2ND RESPONDENT	ATED 09-03-2018, OF
EXHIBIT P10	TRUE COPY OF THE 2018 OF THE PETIT THE CHAIRMAN, GCDA	LETTER DATED 17-03- IONER, ADDRESSED TO
EXHIBIT P11	TRUE COPY OF	THE LETTER NO.
	15165/E2/93/GCDA	DATED 21-08-2020

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WP(C) NO. 5601 OF 2021

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	RECEI SUPER	VED BY THE PETITIO INTENDING ENGINEER,	NER GCDA	FROM	THE
EXHIBIT P12	TRUE 5659/ 2020	COPY OF THE ESTATE.A3/2011/GCDA OF THE 3RD RESPONDEN	LETT DATE T	ER D 23	NO. -03-
EXHIBIT P13	TRUE 2020 RESPO	COPY OF THE LETTER OF THE PETITION NDENTS 2AND 3	DATE ER	D 10 TO	-07- THE
EXHIBIT P14	TRUE	COPY OF THE	LETT	ER	NO.
	5659/ 2020	ESTATE.A3/2011/GCDA OF THE 3RD RESPONDEN	DATE T	D 17	-07-
EXHIBIT P15	TRUE	COPY OF T	HE	LE	TTER
	NO.56	59/ESTATE/A3/2011/GC	DA	(	PART
	FILE) RESPO	DATED 17-08-2020 NDENT	OF	THE	3RD
EXHIBIT P16	TRUE	COPY OF THE E-MAIL	DATE	D 25	-08-
	2020 RESPO	OF THE PETITIONER NDENT	TO	THE	2ND
EXHIBIT P17	TRUE	COPY OF THE LETTER	DATE	D 10	-09-
	2020 RESPO	OF THE PETITIOENR NDENT	TO	THE	2ND
EXHIBIT P18	TRUE	COPY OF THE LETTER	DATE	D 17	-09-
	2020 RESPO	OF THE PETITIONER NDENT	TO	THE	2ND
EXHIBIT P19	TRUE	COPY OF THE LETTER	DATE	D 30	-11-
	2020 RESPO	OF THE PETITIONER NDENT	TO	THE	2ND
EXHIBIT P20	TRUE	COPY OF THE	ORD	ER	NO.
	5659/ 01-20 RESPO	A3/ESTATE./2011/GCDA 21 OF THE 2ND RESPON NDENTS EXHIBITS	DA DENT	TED .	06-
EXHIBIT R2(A)	TRUE	COPY OF THE NOTICE	DATE	D 19	-08-
	2010 PETIT	ISSUED BY THE RESPO IONER DEMANDING THE	NDENT EL	S TO ECTRI	THE CITY

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WP(C) NO. 5601 OF 2021

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CHARGES.

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EXHIBIT R2(B) TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE RESPONDENT.

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//TRUE COPY//

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PA TO JUDGE

Bharat Advertising and Marketing Associates (Baama), v. Greater Cochin Development Authority (Gcda)

Case brief

What is this about?

What did the court decide?

Bharat Advertising and Marketing Associates (Baama), v. Greater Cochin Development Authority (Gcda)

Case brief

What is this about?

What did the court decide?

What the court decided

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