IMPRESSIONS ADERTISING AGENCY Vs. HYDERABAD METROPOLITAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This Civil Miscellaneous Appeal arises out of the order dtd. 7/1/2020 passed in Arbitration OP No.88 of 2019 by the III-Additional Chief Judge, City Civil Court, Hyderabad in dismissing the petition filed by the petitioner seeking interim measures under Sec. 9 (ii) (b), (c) (e) of the Arbitration and Conciliation Act, 1996 (for short 'the Act').

(2.) For the sake of convenience, the parties are hereinafter referred as arrayed before the trial Court.

(3.) The petition was filed seeking temporary injunction against the respondents and its officials claiming through them, restraining from interfering, dispossessing, causing obstruction in any way whatsoever in the maintenance of the Lake View Park, pending constitution of Arbitral Tribunal and to restrain the respondents from entering into any contract or agencies with third parties. The case of the petitioner was that the petitioner was a well reputed and well known advertising company in the field of advertising and maintenance of parks etc. The respondent issued a tender notice dtd. 14/2/2009 for providing LED based lighting solutions and their maintenance, providing water effects like fountains, cascades, their maintenance and amenities for citizens in the settling ponds, park in Khairtabad on DBOT basis. The petitioner was the highest bidder for development of the Lakeview Park in Khairtabad opposite I-Max theatre over an area of Acs.17.5 gts., of land. An agreement was executed by the respondent in favour of the petitioner on 1/9/2009 styling as "Design, Build, operate and transfer" (DBOT) for a period of 10 years commencing from 1/9/2009. The petitioner invested huge amounts for maintenance of the park. The respondent failed to disclose that by the date of entering into agreement, they had already entered into an agreement with M/s.Ramesh Ads, Advertising Agency, for erecting mini uni poles in the park for a period of three years with effect from 1/8/2009 to 31/7/2012. The petitioner approached the respondent for removal of the advertisement boards put up by Ramesh Ads by way of an application dtd. 3/11/2010 stating that he was sustaining loss @ Rs.6,50,000.00 per month. He also gave another representation dtd. 24/12/2010. Thereafter, the respondent issued a final notice on 12/1/2011 to Ramesh Ads for removal of the hoardings. When the petitioner brought the same to the knowledge of the respondent, the respondent assured that they would consider the loss by extending the period of agreement. On such assurance given by the respondent, the petitioner continued the maintenance of the Lake View Park. After beautification of the park by the petitioner, the officials of the GHMC had demolished the compound wall which was constructed by the petitioner for laying of pipelines. The Executive Engineer of the respondent addressed a letter to the petitioner on 9/12/2014 expressing inconvenience caused during the course of laying of pipelines. The respondent and the officials of the respondent had dug huge pits and trench in the middle of the park and also damaged the walking strips laid by the petitioner. When the same was brought to the notice of the respondent, the respondent regretted for inconvenience. In view of the acts done by the respondent from time to time, the petitioner sustained huge loss. The petitioner addressed a letter to the respondent on 2/11/2016 expressing the difficulties faced by him in maintenance of the park and the loss sustained by him. The Government of Andhra Pradesh proposed a plan to set up a memorial in the name of late Dr. Y.S. Rajasekhar Reddy in the Lakeview Park and also gave contract for the proposed construction to the Agencies. During the said relevant period also the petitioner sustained huge loss in business. Time and again, the officials of GHMC caused loss to the petitioner. The petitioner invested crores of rupees for the maintenance of the Lakeview Park. The petitioner deposited a sum of Rs.5.00 crores as per Clause-17 towards the security deposit. As per Clause-15, the respondent was entitled for 75% of the income derived from the visitors and the petitioner was entitled to 25%. The gate fee was maintained by the respondent only. No charges were to be recovered from the morning walkers as per Clause-11. As per Clause-7 of the agreement, the entire advertisement rights were given to the petitioner which was the only major source of income. The same was also deprived by the respondent by entering into agreement with M/s. Ramesh Ads. As per Clause-32 of the DBOT Agreement dtd. 1/9/2009, "If any disputes or differences are raised by either party in any matter arising out of the agreement, the aggrieved party may refer such disputes within a period of 7 days to the Metropolitan Commissioner, HMDA. The decision of the Metropolitan Commissioner, HMDA shall be final and binding." The petitioner approached the respondent by submitting a representation/claim on 22/8/2019 expressing his difficulties and loss sustained by him and requested to consider his representation for extension of the period of agreement so as to meet out the loss caused to him since inception of the agreement. The same was pending for consideration. The respondent was taking hectic steps to take the maintenance from the petitioner since the terms of agreement were going to expire by 31/8/2019. Without addressing the loss caused to him, the respondent and its officials were threatening to vacate the Park premises. There was every likelihood of forcibly taking the maintenance of the Lakeview Park from him. If the respondent succeeds in his attempt, the petitioner would be put to irreparable loss and hardship and prayed to grant injunction restraining the respondent from taking forcible possession and maintenance of the Lakeview Park from him without due process of law.