This is a complaint made by Sri Debajyoti Banerjee & Sri Debashish Banerjee against M/s Shiv Advertising, represented by its Proprietor, Sri Shiv Kumar Roy and The Chief Manager, Advertising Department, Kolkata Municipal Corporation, praying for a direction upon the OP to pay Rs. 21,667/- per month as arrear license fee due from the month of June, 2014 till the date of order and further order for compensation and litigation cost for a sum of Rs. 3,00,000/- and Rs. 50,000/-, respectively. 

Facts, in brief, are that, Complainants entered into a License Agreement with the OP No. 1 on 01-03-2014 to put up a hoarding at the residence of the Complainants under certain terms and conditions.  It is further stated that in term of the said Agreement, the license period was supposed to start after completion of the construction of the hoarding structure or 3 months, whichever was earlier.  It was settled between the parties that, OP No. 1 would pay fixed annual fee of Rs. 2,60,000/- to the Complainants and necessary payment was supposed to be paid half yearly in advance.  Further, in terms of the said agreement, an amount of Rs. 3,00,000/- was supposed to be paid as refundable interest free security deposit post completion of the hoarding structure and it was decided in between the parties that the said amount would be refunded and/or adjusted with the license fee at the end of the license period.  It is stated that as per terms and conditions of the Agreement, the Complainants gave due consent to applications, such as, application for sanction plan from the Corporation for setting up of the boards and for display of advertisements.  Allegedly, the OP No. 1 did not take any effort whatsoever to obtain necessary permission from the OP No. 2.  On enquiry, the Complainants came to know from the office of the OP No. 2 that several disputes cropped up in between the Corporation and the OP No. 1 for which, the Corporation did not give its nod in favour of the OP No. 1.  So, the Complainant served a notice upon the OP No. 1 on 05-08-2014 to cancel the agreement.  However, in turn, the OP No. 1 prayed for further time to obtain necessary permission from the authority concerned.  It is further stated that on 05-11-2015, the OP No. 1 called on the house of the Complainants and informed that they have obtained necessary permission from the OP No. 2 and expressed their intention to erect hoarding.  However, they also asked for waiver of the outstanding dues which was not acceptable to the Complainants.  So, another notice was issued on the OP No. 1 on 11-01-2016 for cancelling the license agreement and also for clearance of outstanding dues up to December, 2015.  However, the OP No. 1 has neither accepted the notice nor paid the outstanding dues.  Finding no other alternative, Complainants filed this case.

OP No. 1 contested the case by filing WV wherein OP No. 1 denied all the allegations of the complaint.  In its defence, it is stated by the OP No. 1 that the Agreement in question makes it clear that till the hoarding is erected and/or constructed, the licensor shall not charge any license fee and in the event the licensee fails to obtain necessary permission for erection of hoardings from the concerned Government authorities, then the Licensor would be liable to return the amount taken as advance to the Licensee without any interest.  So, it prayed for dismissal of this case.

Decision with reasons

Complainants filed Affidavit-in-Chief.  Against this, OP No. 1 filed questionnaire and Complainants replied to the same by filing Affidavit-in-Reply.  Similar cycle followed in respect of OP No. 1 as well.  

The pivot surrounds over the fact whether the Complainants are entitled to the reliefs prayed for, or not.

On a cursory eye view of the photocopy of License Agreement dated 01-03-2014, executed in between the Complainant duo and OP No. 1, following intriguing facts emerge.

Clause 2 of the Agreement runs as under, “The License period shall commence after the completion of the construction of the Hoarding structure or 3 (three) months, whichever is earlier..... “.

Clause 5 of the Agreement goes, “If the Licensee fails to obtain necessary permission for erection of hoardings from the concerned Govt. Authorities, then the Licensor is liable to return back the amount taken as token advance to the Licensor without any interest and this Agreement would be treated as null & void”.

A plain reading of the aforesaid clauses make no bones about the fact that in case the Licensee fails to obtain necessary permission for erection of hoardings from the concerned Govt. Authorities, then the Agreement would be treated as null and void. 

Although the OP No. 1 sought to escape payment of license fee citing relevant clauses of the Agreement in question, a plain reading of the Agreement makes it abundantly clear that the Agreement in question would turn non-est in case the Licensee fails to obtain necessary permission for erection of hoardings from the concerned Govt. Authorities, which is not the case here.  It is admitted by the OP No. 1 in paragraph 6 of the Affidavit-in-Opposition filed by it that it has obtained requisite permission from the Kolkata Municipal Corporation in November, 2015. As the OP No. 1 has obtained requisite clearance from the licensing authority concerned, albeit belatedly, and given the fact that no specific time frame has been set out in the Agreement in question for obtaining the same, the agreement concerned cannot be treated as null and void.  There being no such inherent clause in the Agreement concerned that would otherwise indemnify the OP No. 1 from payment of outstanding licensee fees predated issuance of stamp of approval by the Govt. Authorities/Kolkata Municipal Corporation, in our considered view, the OP No. 1 cannot escape its liability to pay outstanding license fee from June, 2014 onwards. 

No doubt, by denying the justified claim of the Complainants, OP No. 1 caused great mental stress, agony and hardship to the Complainants.  As such, in the interests of fair justice, we award compensation and litigation cost in favour of the Complainants.

Hence,

O R D E R E D

that CC/83/2016 be and the same is allowed on contest against the OP No. 1 and dismissed ex parte against the OP No. 2.  OP No. 1 is directed to clear all outstanding licensee fee w.e.f. June, 2014 to the Complainants within two months of this order, i.d., it shall be liable to pay interest @ 10% p.a. over the total outstanding licensee fee after expiry of two months hence till full and final payment is made.  Besides, the OP No. 1 shall pay compensation and litigation cost to the tune of Rs. 40,000/- and Rs. 10,000/-, respectively, within the aforesaid stipulated time frame.