NEMICHAND JAIN Vs. VODAFONE ESSAR LTD

JUDGEMENT

(1.) The Plaintiff has taken out the Summons for Judgment in Summary Suit based upon a licence agreement dated 16 April 2006 (the agreement) whereby the Defendants were permitted on the building owned by the Plaintiff, to install a Cellular Antenna for three years minimum. The agreement was for the period commencing from 1 January 2006 upto 31 January 2008. The fixed licence fee of '4,88,750/ per year. payable on or before 15 January of every year. It was paid for two years accordingly. There were renewal as well as termination clauses in the agreement.

(2.) An Assistant Commissioner of Municipal Corporation under the Mumbai Municipal Corporation Act on the basis of the complaint received from the tenants of the building issued a specific notice to the Defendants and directed to remove an erected cabin and the Antenna. The Antenna was demolished on 6 September 2007 by the Corporation. That resulted into termination/cancellation of the agreement in advance. The Defendants, therefore, by notice dated 7 September 2007, even demanded the refund of the licence fee which was paid in advance for the remaining period with effect from 7 September 2007 to 31 December 2007 since they were unable to operate their cell site from the building in question.

(3.) The agreement nowhere provides that the irrespective of breach of termination of contract, the Plaintiff is entitled to claim the balance amount/ licence fee in advance till December 2008. The usual clause of termination, in fact permits the parties to terminate the contract after due notice. Therefore, in the present case, the circumstances so referred above, compelled the parties to terminate the contract. Such situation was not specifically contemplated and/or dealt with in the agreement. The Plaintiff s entitlement of update licence up to December 2008 in spite of above circumstances, therefore, just cannot be accepted as a foundation to grant Summons for Judgment as prayed, though there is a written agreement between the parties in question. It all depends upon contents, nature and purpose of such agreement. Who has committed the breach of clauses of the agreement and the consequences of the same including the damages/compensation if any, is again a matter of trial and just cannot be considered merely on the basis of affidavit filed by the parties.