ay inL E G A L O P I N I O N
Date:-
QUERIST:MAHANAGAR TELEPHONE NIGAM LIMITED
SUBJECT: LEGAL OPINION REGARDING ORDER DATED 24.05.2018 PASSED BY THE LD. ADJ, SH. PRAVEEN KUMAR IN THE MATTER OF M/S MAHANAGAR TELEPHONE NIGAM LIMITED VS. RELIANCE COMMUNICATIONS (M/S NETWARE INFOSYS PVT. LTD)
We have asked by the above named Querist- Mahanagar Telephone Nigam Limited (hereinafter referred to as MTNL) to give our opinion with respect to order-dated 09.05.2018 passed by the Ld. Additional Session Judge – Sh. Praveen Kumar.
Ld. ADJ, vide its order dated 09.05.2018 decreed the suit in favor of plaintiff for the sum of Rs.15,00,000/- (Rupees Fifteen Lakhs) along with interest @ 9% per annum till its realization with proportionate costs. For the ready reference the relevant portion of the order is reproduced herein below:-
“ RELIEF
25. As I have decided all the issues in favour of plaintiff and against the defendant, the suit of plaintiff is liable to be decreed. Hence, the suit of plaintiff is decreed for sum of Rs.15 Lakhs. The plaintiff shall also be entitled to interest from the date of judgment @ 9 % per annum till its realization with proportionate costs. Decree sheet be prepared accordingly. File be consigned to record room.”
Before rendering our Legal Opinion, it is relevant to note the brief facts of the case, the same are stated herein below:-
1. Mahanagar Telephone Nigam Limited (hereinafter referred to as Plaintiff), a Govt. of India Undertaking and is registered under the Indian Companies Act, 1956 and is a Licencee of the Central Government in exercise of the powers of the Central Government under the Indian Telegraph Act. By virtue of the said licence dated 27.03.1986, the plaintiff is authorized and/or responsible to establish, maintain and work telephone/telegraph lines within the Metropolitan Cities of Delhi/New Delhi and Mumbai w.e.f. 01.04.1986. Reliance Communication, earlier known as M/s Netware Infosys Pvt. Ltd.(hereinafter referred to as “Defendant”) is a company incorporated under the Companies Act, 1956.
2. The defendant appointed various contractors for digging in different areas. The defendant had the Road Cutting Permission from NDMC only upto 25th June, 2001. Defendant while carrying out the work at Tolstoy Marg, New Delhi had damaged the underground cables of the plaintiff on 26th June, 2001 late night and 27th June early morning. The damage has been caused to cables affecting large number of subscribers of the plaintiff in and due to this damage approximately 5400 pairs were completely affected and remained out of service causing tremendous hardship to the customers/subscribers of plaintiff and loss of profit and loss of goodwill to the plaintiff. Due to negligent and careless digging work carried out by the defendant, the plaintiff has suffered monitory loss besides loss of goodwill. The plaintiff has prayed that the suit of the plaintiff be decreed for sum of Rs. 33 Lakhs towards damages against the defendant.
3. The defendant filed the written statement and has contested the suit had taken preliminary objections and prayed for dismissal of the said suit. While contesting on merits, it was averred that the defendant did not carry out any work of digging after 25.06.2001. The defendant has denied that it damaged the cables of the plaintiff as alleged. It is averred that the defendant had informed the plaintiff of its intention to carryout road cutting work and in this regard had sought information from J. C. Upadhya, Engineer of the plaintiff who personally visited the site on 20.06.2001 and identified the area and depth where the cables of the plaintiff were laid. It is averred that defendant laid down its cables well below 4.5 feet and were also using GPRS. It is averred that the defendant laid down the cables as per the instructions of Mr. J. C. Upadhya. It is averred that the defendant did not cause any damage either to the properties/cables belonging to the plaintiff. It is averred that the alleged damage, if any, might have been caused by its own negligence/lack of maintenance etc. It was averred that the defendant had at all times prior to commencing of digging work intimated to all utilities including plaintiff whose pipes/cables pass through the area requesting them to intimate where their cables were laid. Defendant has denied that due to the negligent and careless digging work carried out by it, the plaintiff has suffered monitory loss much less the loss of goodwill. The defendant has prayed that the suit of the plaintiff be dismissed with costs.
4. The plaintiff in its replication has denied the averments made by defendant in its written statement and has reiterated the contents of the plaint. It was further denied that Mr. J.C. Upadhyay ever shown any copy of sketch of the cables to be laid down by Defendant and Mr. J.C. Upadhyay was ever requested to give sketch of the cables laid down by Plaintiff. It was further denied that the defendant was verbally given the permission to carry out the work by Mr. J.C. Upadhyay, J.E. of MTNL or that any intimation was served upon by MTNL by defendant prior to start of the work.
5. On the basis of the above pleadings, following issues were framed:
I. Whether the plaint is instituted, signed and verified by a duly authorized person? OPP.
II. Whether the suit discloses any cause of action against the defendant no.1? OPP.
III. Whether the suit has been properly filed for the purpose of court fees? OPD.
IV. Whether the suit is bad for misjoinder of parties? OPD.
V. Whether the plaintiff is entitled to damages, if so, for what amount? OPP.
VI. Relief.
While deciding ISSUE NO.1, the court was of the opinion that the suit was filed by competent person. Hence, this issue was decided in favour of plaintiff and against the defendant.
While deciding ISSUE NO. 3, the court was of the opinion that since the defendant has not examined any witness to prove this issue. Hence, this issue is decided against the defendant and in favour of plaintiff.
While deciding ISSUE NO. 4, the court was of the opinion that defendant has not examined any witness to prove this issue. Hence, this issue is decided against the defendant and in favour of plaintiff.
While deciding ISSUE NO. 2 & 5, the court was of the opinion that perusal of the plaint shows that loss caused to the plaintiff has not been specifically denied by the defendant in its written statement. Defendant has admitted the fact that the plaintiff's cables were damaged and the defendant company provided the plaintiff well assistance even though they were not obliged to do so in law or otherwise. Thus, it stands proved that the plaintiff's cables were damaged as claimed in the plaint.
The defendant in its entire written statement has not denied that it had to undertake the following duties viz;
• Did not carry out digging/trenching work beyond permitted date;
• Used GPRS Technique and;
• Informed Mr. J.C. Upadhyay, concerned official of MTNL
In Support of plaintiff, following decisions/judgment were relied upon:-
1. Ripen Kumar vs. Department of Customs reported as (2001) Criminal Law Journal 1288
2. Vohra sadikbhai v. State of Gujarat reported as (2016) 12 SCC 1
3. Jay Lakshmi Salt Work (P) ltd vs. State of Gujarat reported as JT 1994 (3) SCC 492
4. Saisuhdir Energy Ltd v. NTPC reported as (2016) 235 DLT (CN) 5
The Plaintiff has led its evidence in affirmative to prove that the defendant failed to undertake the statutory obligations/duties and consequently, caused loss to MTNL. The onus, thereupon, shifted to the defendant to prove its defence. As per defendant, It had indeed undertaken the obligation, however, failed to lead any evidence in support of its defence.
Accordingly, Ld. ADJ, vide its order dated 09.05.2018 decreed the suit in favor of plaintiff for the sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs) [hereinafter referred to as “Decretal amount” ]along with interest @ 9 % per annum from the date of the judgment till its realisation. (Rs.10 Lakhs for loss of goodwill and Rs.5 Lakhs for inconvenience).
In the above-referred circumstances, the Querist – MTNL has sought our Legal Opinion, on certain specific query as to whether they should prefer an appeal against the decree.
L E G A L O P I N I O N:
1. A Perusal of the order would show that the same is well reasoned and detailed order passed by the Ld. ADJ. Since the order is passed in the light of the judicial decisions and law on the subject.
2. The plaintiff has not led any evidence to show the actual cost incurred by it for proving the loss suffered, in order to arrive at the precise quantum of damages. No bills/invoices have been proved by the plaintiff to prove the loss of Rs. 33 Lakhs. However, even in the absence of such an evidence showing exact loss suffered, the court awarded Rs. 15,00,000/-
3. However, an appeal against the decretal amount subjected to the fact that if MTNL is able to produce evidence pertaining to loss of Rs. 33,00,000/- (Rs.33 Lacs) and also after taking leave/permission from the court by moving an application Under Order 41 Rule 27 of the Code of Civil Procedure, 1908.
4. It is pertinent to mention that Hon’ble Supreme Court in case of
5. in a recent judgment has held that contesting parties are not entitled to produce additional evidence, whether oral or documentary, in the appellate court. However, the same can be done subjected to three situations contemplated in Order 41 Rule 27 of CPC r/w Section 107 (1) (d).
6. First Appellate Court has got power to judge the correctness of findings of facts as well as of law recorded by the Trial Court.
7. Relevant Section and order is produced as under:-
Section 107 C.P.C. provides as under:
"107. Powers of Appellate Court-
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
a. to determine a case finally;
b. to remand a case;
c. to frame issues and refer them for trial;
d. to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.”
Or.41 R.27 reads as follows:
Production of additional evidence in Appellate Court. –
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if
(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission
8. Against decree, as defined under Section 2(2) and judgment, under 2(9) of C.P.C., provision of Regular First Appeal is provided under Section 96, C.P.C. Combined reading of both the above provisions, under following cases, Regular First Appeal is maintainable Appeal maintainable
i. Against a decree
ii. Against preliminary decree
iii. Against final decree
iv. Rejection of plaint under Order 7 Rule 11 C.P.C.
v. Determination of any question withinSection 144 (restitution)
vi. Original decree passed ex-parte.
In view of the above, it is accordingly opined that a chance can be taken by filing an appeal. For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.For appeal to the high Court, in case of a decree passed by lower court in civil suit, the limitation is 90 days from the date of decree or order.
Opined Accordingly!
For Sikri& Co.,
Advocates
here…