KASTURI AND SONS LIMITED KASTURI BUILDINGS CHENNAI Vs. V KRISHNAMURTHI SOLE PROPRIETOR AND CHIEF EXECUTIVE MEENA ADVERTISERS CHENNAI

JUDGEMENT

(1.) THE suit is for recovery of a sum of Rs. 72,61,780/75. THE plaintiff is the publisher of the English Newspaper ?THE Hindu? and other sister publications. According to the plaint averments, in connection with the advertisements for the VII South Asian Federation Games, 1995, the defendant was granted advertisement rights by the Government of Tamil Nadu videLetter No. 5187-A/Advt/96-l dated 20.2.1996, Information and Tourism Department, Fort St. George,Chennai-9. Pursuant to the said appointment, the defendant had issued release orders of the plaintiff on various dates, i. e., 12.12.1995, 14.12.1995, 15.12.1995, 17.12.1995, 18.12.1995, 19.12.1995, 22.12.1995, 23.12.1995, 24.12.1995 and 26.12.1995. In accordance with the said release orders, advertisements were also published by the plaintiff as per the defendant's specifications. THE agreement between the plaintiff and the defendant provides for 60 days credit from the date of publication to pay the publication charges. On failure, to pay. the charges within the 60 days? period, interest at 24% per annum is liable to be paid. THE defendant failed and neglected to pay the publication charges and an amount of Rs. 46,31,237/75 is due from the defendant towards publication charges. THE plaintiff sent repeated reminders videletters dated 7.3.1996, 25.3.1996, 17.4.1996, 10.5.1996, 27.7.1996, 13.8.1996 and 17.9.1996. THEse reminders were acknowledged by the defendant, but the defendant failed and neglected to pay the amounts due towards the publication charges. THE defendant, however, had sent letters dated 29.2.1996, 10.6.1996 and 3.10.1996 admitting and acknowledging the liability and sought time for repayment of the charges. Since the defendant failed to pay the amount, legal notice was issued by the plaintiff on 5.11.1996. THE defendant acknowledged receipt of the said notice, but did not respond and therefore, the suit was filed.

(2.) IN the written statement, the defendant raised, two objections to the maintainability of the suit : (i) the rules governing accreditation provides for resolution of disputes by arbitration and therefore, the suit is not maintainable; and (ii) the suit is not maintainable for non-joinder of the State of Tamil Nadu, which is the advertiser and on whose behalf the advertisements were, issued by the defendant. Without prejudice to these two objections regarding maintainability, the defendant raised, the following defences: all the advertisements were released by the plaintiff through the defendant only for the State of Tamil Nadu; the State of Tamil Nadu for extraneous considerations had not released the money due to the defendant; in these circumstances, the plaintiff cannot institute the suit only impleading the defendant; the liability to pay the plaintiff was denied; the liability to pay the interest was also denied; the plaintiff was fully aware that the publication of the advertisements was carried on behalf of the State of Tamil Nadu and the State of Tamil Nadu has not released payment to the defendant; the defendant is entitled to a 15% commission on the monies received; the actual liability to pay the amount rests with the State of Tamil Nadu and not the defendant; there is no acknowledgment of personal liability to pay the amount; all that was stated by the defendant is that the money will be paid after the money is released by the State of Tamil Nadu; the defendant moved Writ Petition No. 5251 of 1997 for a mandamusto the State of Tamil Nadu to release the payment; against that, Writ Appeal No. 669 of 1997 has been filed and it is pending on the file of this Court; therefore, the defendant has taken all possible steps to get the money from the State of Tamil Nadu, which the State has neglected to pay; the plaintiff has not followed Rule 56-A of the I.N.S. Rules; it was open to the plaintiff to stop all the advertisements of the concerned advertiser; if the plaintiff had resorted to this action, the entire money would have been paid by the Government of Tamil Nadu, but the plaintiff has not done so; therefore, the suit deserves to be dismissed.

(3.) WHAT relief the plaintiff is entitled in the above suite? 4. On the side of the plaintiff, P.W.I, the Assistant Advertisement Accounts Manager was examined and Exhibits P.l to P.8 were marked. On the side of the defendant, the Accountant of the defendant/Company was examined as D.W.1 and Exhibits D-1 to D-10 were marked.