Bombay High Court
Essel Infraprojects Ltd vs Devendra Prakash Mishra And 7 Ors on 1 December, 2014
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1086 OF 2014
IN
SUIT NO. 645 OF 2014
ESSEL INFRAPROJECTS LIMITED )
A Company incorporated under the )
Companies Act, 1956, having its registered)
office at 135, Continental Building, )
Dr.Annie Besant Road, Worli, Mumbai - )
400 018 ) ..... Applicants/
ig (Org.Plaintiffs)
IN THE MATTER BETWEEN
ESSEL INFRAPROJECTS LIMITED )
A Company incorporated under the )
Companies Act, 1956, having its registered)
office at 135, Continental Building, )
Dr.Annie Besant Road, Worli, Mumbai - )
400 018 ) ..... Plaintiffs
VERSUS
1. Devendra Prakash Mishra, )
of Bhopal, Indian Inhabitant, residing at )
E-8/146, Bharat Nagar, Shahpura, Bhopal)
M.P. - 462 039 )
2. Jan Adhikar Manch, )
an Organisation formed through )
Devendra Prakash Mishra Defendant No.1)
hereinabove, having its office at )
E-8/146, Bharat Nagar, Shahpura, )
Bhopal, M.P. - 462 039 )
3. Positiv Television (P) Ltd., )
a Company incorporated under the )
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Companies Act, 1956, having its office at )
A 29 and 30, Sector 4, Noida (U.P.) )
4. Matang Sinh, s/o. Late S.P.Sinh, )
of New Delhi, Indian Inhabitant )
the Chairman & Director, )
Positiv Television (P) Ltd. having his )
office at 7B, Doctors Lane, Gole Market, )
New Delhi - 1. )
5. Rupendra Nath Singh, )
s/o. Late Sh.Y.P.Singh )
having his office at 7C, Doctors Lane, )
Gole Market, New Delhi - 1. )
6. Pawan Kumar Singh,
ig )
s/o. Late Sh.P.N.Singh )
7B, Doctors Lane, Gole Market, )
New Delhi - 1. )
7. Sanjeev Srivastava, )
Group Editor in Chief of Focus News )
Channel, Positiv Television (P) Ltd. )
having his office at A 29 & 30, Sector 4, )
Noida )
8. Abhimanyu )
Reporter, Focus News Channel )
having his office at A 29 & 30, Sector 4, )
Noida. ) ..... Defendants
Mr.Girish Godbole, a/w. Mr.S.K.Srivastav, Ms.Manorama Mohanty, Ms.Kavita
Srivastav, i/b. S.K.Srivastav & Co. for the Plaintiffs.
Mr.Kirit Hakani, a/w. Mr.Rahul Hakani, Niyazi Hakani, Ms.Sonali Patil for
Defendant nos. 1 and 2.
Mr.Aspi Chinoy, Senior Advocate, a/w. Ms.Manjiri Shah, Ms.Mandakini Singh for
Defendant nos. 3 to 8.
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CORAM : R.D. DHANUKA, J.
RESERVED ON : OCTOBER 31, 2014
PRONOUNCED ON : DECEMBER 1, 2014
JUDGMENT
By this notice of motion plaintiffs seek temporary injunction restraining the
defendants and their servants and agents from further
uttering/repeating/writing/publishing/telecasting any programme or news item
thereby making defamatory allegations against the plaintiffs or tending to defame
or harm the plaintiffs' business and its reputation in any manner whatsoever and
also seeks a mandatory order and injunction against defendant no.1 and 2 to
remove the Press Release or any other information/messages/articles relating to the
plaintiffs and its Non-executive chairman/directors or any other officers of their
website or any other Website or media of defendant no.1 and 2 and seeks
injunction from displaying the Press release or any defamatory
information/message/articles relating to the plaintiffs and their non-executive
chairman/directors or any other officers in their website. Some of the relevant facts
for the purpose of deciding this notice of motion are as under :
2. The plaintiffs have filed the suit for damages in the sum of Rs.200 Crores
with interest against all the defendants and seeks permanent order and injunction
from writing/publishing/telecasting/airing any program of news items thereby
making defamatory allegations against the plaintiffs or tending to defend or harm
the plaintiffs' business and its reputation.
3. It is the case of the plaintiffs that defendant no. 1 is an RTI activist.
Defendant no.2 is an organization formed and run by defendant no. 1. Defendant
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no. 3 is engaged in the business of broadcasting news channel in Hindi and
regional languages who has alleged to have produced the programme "Azab MP
Gazab Ghotala" telecasted on its 'Focus News Channel'. Defendant no. 4 is the
Chairman and Managing Director and defendant no. 5 and 6 are the directors of the
defendant no. 3. Defendant no. 7 and 8 are Group Editor in Chief of 'Focus News
channel' and a reporter of the said channel respectively. It is the case of the
plaintiffs that the plaintiffs have undertaken large number of road development
projects, power projects, urban infrastructure projects. The net worth of the
plaintiffs for the year 2014-2015 was Rs.3251.62 crores. The turn over of the
plaintiffs for the said period is Rs.192.40 crores. The plaintiffs have work force of
about 8000 employees. It is the case of the plaintiffs that Essel Group is in
diversified business which include media/technology /entertainment
packaging/infrastructure /education etc and has pioneered in number of businesses.
It is the case of the plaintiffs that defendant no. 1 in connivance of defendant no. 2
to 9 hatched a criminal conspiracy and in furtherance thereof the defendant no. 1
was called to New Delhi to make false imputations against the plaintiffs, its
officials and promoters by holding a Press Conference which was arranged by
active involvement of defendant no.2 to 9 on 9th May 2014 at Press Club of India,
New Delhi.
4. It is averred by the plaintiffs that on 9 th May, 2014 before the scheduled
Press Conference, a Press Release which was already typed in English was
released by defendant no. 1 in connivance and collusion with defendant nos. 2 to 9
with an information that the defendant no.1 would address the press conference on
9th May, 2014 at 3.30 pm. It is averred by the plaintiffs that defendant no. 1 does
not know English and can only speak and write in Hindi. It is averred that the
defendant no. 3 to 8 appears to have drafted the Press Release and were the
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persons behind organizing the press conference. It is averred by the plaintiffs that
in the said Press Release, defendant no. 1 and 2 made very false imputations and
defamatory allegations which are mentioned in paragraph 18 of the plaint. The said
press conference was attended by journalists of various Print and Electronic Media
including the correspondents of Zee News and Zee Business (Essel Group
Entities).
5. It is averred by the plaintiffs that in connivance and in collusion with
defendant no.1 defendant no. 3 to 9 with a criminal intent and in order to achieve
Ghotala" on Focus TV channel
their illegal motive, on 13th May, 2014 telecasted a programme "Azab MP Gazab
which contained false, baseless and highly
defamatory contents to defame and cause injury to the reputation and goodwill of
the plaintiffs, its officials and its promoters. It is the case of the plaintiffs that the
allegations made in the said program were similar to defamatory allegations made
in the press release and press conference held on 9th May, 2014 at Press Club of
India New Delhi. It is the case of the plaintiffs that during the conclusion of the
press conference held by the defendant no. 1, the plaintiffs and its officials started
receiving calls from other media and public at large enquiring as to why the
plaintiffs were engaged in such kind of illegal activities and making unwarranted
gains at the cost of the public. The staffs and officials of the plaintiffs were
embarrassed. The morale and confidence of the employees of the group companies
including that of the plaintiffs were diminished.
6. It is the case of the plaintiffs that during the period between 9 th May, 2014
and 13th May, 2014 the said Focus TV Channel time and again telecasted the
clippings of the press conference which was held by defendant no. 1 and projected
the plaintiffs company as well as its promoters to be land grabbers and scammers
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which caused immense damage about the image or reputation of the plaintiffs, its
promoters and non executive chairman Dr. Subhash Chandra in the eyes of the
public at large.
7. Some time in the year 2014 plaintiffs filed a Criminal Complaint bearing
No. 176/01 of 2014 against the defendants in the court of the Chief Metropolitan
Magistrate, Patiala House, New Delhi for the offence alleged to have been
committed under section 420, 499, 500 read with section 120(B) and 34 of the
Indian Penal Code. The said complaint is pending for hearing and final disposal.
8. On 18th July, 2014 the plaintiffs filed the suit. The plaintiffs have annexed a
copy of the Press Release dated 9th May, 2014 to the plaint. In para 25 of the
plaint the plaintiffs have tabulated the allegations made in the Press Release and
the factual position according to the plaintiffs which are alleged to be false and
defamatory allegations leveled against them. Plaintiffs have also annexed copy of
the CD which according to the plaintiffs contains the recording of the press
conference dated 9th May, 2014 and also annexed copies of the transcript of the
press conference in Hindi along with English translations. Plaintiffs have also
annexed copy of the CD which according to the plaintiffs is CD of the programme
telecast on Focus TV Channel along with transcript of the said programme in Hindi
and its English translation.
9. Along with the summary of the allegations and the alleged correct factual
position referred in paragraph 25 of the plaint the plaintiffs have also annexed
some of the photographs of the building in support of the alleged factual position
that the building on the plot which was not a school but a training centre
belonging to the developer was in a dilapidated condition and the same was
renovated by the plaintiffs. The plaintiffs have also annexed photographs showing
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the alleged present situation of the Kerwa Road in support of the plea that the same
was very much in operation and still used by public even today.
10. Mr. Godbole learned counsel for the plaintiffs invited my attention to
various allegations made in the press release and from the transcript of the
programme in Hindi and English translations telecast on Focus TV Channel and
would submit that the Focus TV News Channel has violated the established norms
and also various provisions of the Cable Televisions Network Regulations Act
1995 as prescribed by the Ministry of Information and Broadcasting, Government
of India
as a part of broadcast permission granted to the channel under
uplinking/downlinking guidelines. Learned counsel placed reliance on sub clause
(d) which provides that no programme should be carried on the channel which
contains any thing obscene, defamatory, deliberate, false and suggestive innuendos
and half truths. It is submitted that such Press Release and telecast on the Focus
TV News was in connivance, collusion and conspiracy between defendant no.1
and 2 and defendant no. 3 to 8 with an intention to cause harm, damages and injury
to the reputation and goodwill of the business of plaintiffs and its officials. It is
submitted that the said publication and telecast was without verifying the
correctness of the allegations and knowing fully well that the same were false and
were ex facie defamatory and illegal.
11. It is submitted by the learned counsel that each of the allegations made by
the defendants were totally baseless and without proof. The learned counsel invited
my attention to various clarifications averred in the plaint on each of the
allegations made by the defendants and would submit that the same were false and
defamatory. Learned counsel submits that the M.P. High Court has already fined
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the first defendant to the tune of Rs.5 lacs by order dated 28 th Nov. 2013 in WP No.
1967 of 2006 in the writ petition filed by him against the State of MP and Ors in
view of his habit of raising false accusations on corporate houses.
12. Learned counsel invited my attention to the material on the website of
defendant no. 2 under heading "Lands Scam by Government in Corporate House".
One of the item mentioned therein is about 'Assem Infra Project'. It is submitted
that defendant no. 2 has downloaded the photographs of the board of directors of
the plaintiffs and the profile of the plaintiffs' company from their website and
along with such defamatory material has placed the same on the website of
defendant no. 2. It is submitted that if the website of defendant no. 2 is opened, it
reflects the defamatory allegations made by defendant nos. 1 and 2 on the said
website against the plaintiffs and their board of directors. Defendant no. 2 has also
downloaded two pages from the Website of Ministry of Corporate Affairs giving
the Master details of the plaintiffs' company. It is submitted by the learned counsel
that Plaintiffs have sufficiently described the defamatory allegations in the plaint.
The documents which contain such defamatory allegations are already on record
and forms part of the plaint which are not disputed by the defendants. Since the
telecast has taken place all over India, even this court has territorial jurisdiction to
entertain and try the suit. It is submitted that there is no delay in filing the suit.
13. Learned counsel submits that the defendant nos. 3 to 9 have not denied the
telecast of programme on the Focus News Channel, though those defendants have
only denied that the telecast was with an intention to defame the plaintiffs.
Defendants nos. 3 to 8 have confirmed the allegations of the defendant no.1 and 2
as correct. It is submitted that though the reporters of the plaintiffs were also
questioned, that part was not telecasted by defendant nos. 3 to 8. It is submitted
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that various allegations are made against the present Chief Minister of Madhya
Pradesh who was not even the Minister when the land was allotted to the plaintiffs.
He became Chief Minister only in the month of November 2005. It is submitted
that there was no proof of any favour shown to the plaintiffs by the government.
The government had as a matter of fact rejected the allotment granted in favour of
the plaintiffs. The committee appointed by the government after considering all
the aspects in the matter had thereafter approved the said allotment.
14. In so far as various documents referred to and relied upon by defendant nos.
3 to 8 in their affidavit in reply is concerned, it is submitted that it was not the case
of the defendants that those documents were obtained by them and scrutinized
before telecasting the defamatory material on Focus News Channel. It is submitted
that the material brought on record is ex-facie defamatory. The publisher has to
make proper enquiry before publishing any material against a party. Defendant
nos. 3 to 8 have not disclosed any source or income in the affidavit in reply as to
when such information was received and from whom. It is submitted by the
learned counsel that the telecast by the defendant nos. 3 to 8 and publication of the
press release by the defendant nos. 1 and 2 was not bonafide and was without care
and caution. The defendant no.1 had already had in his possession the alleged
information before publication and ought to have taken care and ought to have
been cautious to find out whether such alleged information was prima facie correct
before publication and/or telecast.
15. Learned counsel placed reliance on the judgment of this court in case of
Shree Maheshwar Hydel Power Corporation Ltd. vs. Chitroopa Palit & Anr.
(2004) 2 BCR 137 and in particular paragraph 49, 50, 55 and 56 in support of the
submission that the court has power to grant injunction in case of a defamatory
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material published by any party against the party seeking injunction. Paragraphs
49, 50, 55 and 56 read thus :-
49. After having heard the learned Counsel for both the parties
at length and after perusal of the impugned judgment and order
and also the various judgments cited by both the parties, it is
clear that in any event, the principles of law in England and in
India with regard to grant of interlocutory reliefs in a "civil
action for Libel are different. In England, the principle of law
is that in case of an action for defamation, once the defendants
raise the plea of justification at the interim stage, the plaintiff
will not be entitled to an interlocutory injunction. To put in
other words, in England, a mere plea of justification by the
defendant would be sufficient to deny the plaintiff any interim
relief. As far as India is concerned, as has been clearly held by
this Court in the judgments referred to hereinabove, specially
the judgment of this Court in the case of Dr. Yashwant Trivedi
v. Indian Express Newspapers (Bombay) Private Ltd. dated
21st March, 1989 and the judgment of appellate Bench dated
29th June, 1989 with regard to the same matter in appeal, the
judgment of this Court in Purshottam Odhnvji Solanki v.
Sheela Bhatta dated 3rd December, 1990, judgment of this
Court in the case of Mrs. Betty Kapadia v. Magna Publishing
Co. Ltd. dated 22nd July, 1991, and the judgment in the case of
Indian Express Newspapers (Bombay) Ltd. v. M/s. Magna
Publishing Co. Ltd., dated 21st July, 1995, it is clear that in
India, a mere plea of justification would not be sufficient for
denial of interim relief. The defendants, apart from taking a
plea of justification will have to show that the statements were
made bona fide and were in public interest, and that the
defendants had taken reasonable precaution to ascertain the
truth, and that the statements were based on sufficient material
which could be tested for its veracity. Therefore, in India, the
Court is very much entitled to scrutinise the material tendered
by the defendants so as to test its veracity and to find out
whether the said statements were made bona fide and that
whether they were in public interest. Therefore, in India, even
at the interlocutory stage, the Court is very much entitled to
look into the material produced by the defendants for the plea
of justification, so as to test its veracity with regard to the
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allegations, alleged to be defamatory.
50. In the instant case, as has been pointed out by the learned
Counsel for the Appellant Company, the Defendants have used
five highly defamatory expressions in their Press-Note viz.
connivance, conspiracy, loot of public money, syphoning off
funds and unleashing senseless terror etc. The above
expressions would totally damage the credibility and
reputation of the Appellant Company and in fact would
jeopardise the entire Maheshwar Hydro-Electric Project and
would in fact prevent the financial institutions from further
advancing any loan or even granting any facility to the
Appellant Company, whereby if the said project does not take
off, the same will be very much against public interests,
affecting the people of Madhya Pradesh, who are in the dire
need of power. Because of such defamatory statements of the
Defendants, not only the Appellant Company but also the very
project which has been conceived for the benefit of the people
of the Madhya Pradesh would get completely affected. The
material sought to be relied upon by Mr. Desai (the learned
Counsel for the Respondents) would, at the most, indicate that
the Appellant Company has committed certain defaults in
repayment of loans in time and/or there is delay on the part of
the Appellant Company in recovering certain amounts given to
other parties, but that cannot justify the use of defamatory
statements.
55. As pointed out hereinabove, the learned Judge of the
Bombay City Civil Court has ignored the settled principle of
law in India, mis-applied the principle of law in the sense,
merely on the basis of a plea of justification taken by the
Defendants, the Plaintiffs ought to be denied the interim
injunction. The position of law as per the above principle is
prevalent in England. However, in India, the settled principle
of law is that a mere plea of justification by itself would not be
adequate, but it should be supported by sufficient material
subject to scrutiny by the Court for its veracity, and that the
statement made should be bona fide and should be made in the
larger public interest and that the Defendants had taken
reasonable precaution of ascertaining the truth.
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56. In fact, the learned Judge of the Bombay City Civil Court,
while declining the interim relief has observed that the
Defendants have prima facie shown justification though not of
each colourable term in their publication. The learned Judge
has also observed that the facts of their publication may smack
of distaste and prejudice, which it would do well for an
organisation of repute to refrain from. That is to say the
learned Judge has held that the Defendants have made a
statement which cannot be fully justified and they ought to
have refrained from making such a statement. If that be so, the
learned Judge of the Bombay City Civil Court ought to have
granted injunction in favour of the Appellant Company, and by
not granting the said injunction, after the above conclusions,
the learned Judge of the Bombay City Civil Court has acted
rather arbitrarily and capriciously.
16. Mr.Chinoy learned senior counsel for defendant nos. 3 to 8 invited my
attention to various paragraphs of the plaint and in particular paragraphs 1 to 25 of
the plaint and submits that except alleging the defamatory material in the tabular
statement prepared in paragraph 25 of the plaint, plaintiffs have not averred and/or
disclosed which part of the telecast or statement was defamatory. It is submitted
that a party who files a suit for defamation has to give details and particulars of
such defamatory articles and which part and in what manner the same would be
defamatory to the plaintiffs. It is submitted that the plaintiffs have made their
allegations under different topics in the tabulated form but not particularized any of
the defamatory allegations.
17. Learned senior counsel submits that though this issue is specifically raised
by defendant nos. 3 to 8 in the affidavit in reply, the plaintiffs have not chosen to
seek amendment to the plaint and to give details and particulars of the defamatory
allegations. It is submitted by the learned senior counsel that even otherwise each
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and every allegations tabulated in paragraph 25 of the plaint are false. It is
submitted that since no details and particulars are furnished in the suit for
defamation, suit does not disclose any cause of action. No reliefs of any nature
whatsoever can be granted by this court at this stage.
18. Learned senior counsel placed reliance on the judgment of Supreme Court in
case of M.J.Zakharia Sait vs. T.M.Mohammed and others (1990) 3 SCC 396 and
in particular paragraphs 30 and 31 and also paragraph 172 of the Halsbury's Laws
of England, Vol. 28 which read thus :-
30. In W. Hay and Ors. v. Aswini Kumar Samanta
MANU/WB/0067/1958 : AIR1958Cal269 a Division Bench of
the Calcutta High Court held that it is well-settled that in a
"libel action" the ordinary defamatory words must be set out in
the plaint. Where the words are per se or prima facie
defamatory only the words need be set out. Wherever the
defamatory sense is not apparent on the face of the words, the
defamatory meaning or as it is technically known in law, the
innuendo must also be set out and stated in clear and specific
terms. Where again the offending words would be defamatory
only in the particular context in which they were used, uttered
or published, it is necessary also to set out except where as in
England, the law is or has been made expressly otherwise, the
offending context (colloquium) in the plaint, and to state or
ever further that this context or the circumstances constituting
the same, were known to the persons to whom the words were
published, or, at least, that they understood the words in the
defamatory sense. In the absence of these necessary averments,
the plaint would be liable to be rejected on the ground that it
does not disclose any cause of action.
31. What exactly should be pleaded in an action for
defamation has been stated also in Halsbury's Laws of England
[Vol. 28 - 4th ed.], In paragraphs 174, 175, 176, 177 and 178
of the said Volume, we have discussion with regard to natural
and ordinary meaning of the words complained of, and about
the innuendo and the facts and matters supporting innuendo
which should be pleaded and proved. It is stated there that in
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drafting a statement of claim in libel or slander, it is necessary
to distinguish between cases in which the words complained of
are alleged to be defamatory in their natural and ordinary
meaning, whether the literal or the inferential meaning, and
those in which the defamatory meaning is a secondary
meaning derived from extrinsic or special facts or matters, so
that a legal or true innuendo must be pleaded. If it is claimed
that the words are defamatory in their natural and ordinary
meaning and the words bear only one literal meaning, which is
clear and explicit, it is not necessary to plead the meaning in
the statement of claim. However, if the words are reasonably
capable of bearing more than one literal meaning or if the
defamatory meaning relied on is inferential (a "false or
popular" innuendo), it is desirable and may even be necessary
to plead the defamatory meaning or meanings. Where the
plaintiff wishes to claim that the words complained of were
understood to be defamatory in a secondary or extended
meaning by those persons having knowledge of some special
facts or matters, such a meaning constitutes a separate cause of
action and the same should be pleaded expressly in a separate
paragraph in the statement of claim (emphasis supplied).
Particulars must be given of the facts and matters on which the
plaintiff relies in support of any secondary or extended
defamatory meaning which it is decided to plead. These
special facts or matters may be extrinsic to the words used or
there may be some special meaning of the words themselves.
The plaintiff should plead that particular words bore the
innuendo meaning.
Paragraph 172 of the Halsbury's Laws of England, Vol-28. Paragraph 172
is extracted as under :-
"172. Pleading and proof of words - In an action for defamation,
the actual words complained of, and not merely their substance, must
be set out verbatim in the statement of claim. A libel action cannot be
brought in respect of a document the contents of which the plaintiff
is unaware; but in a slander action interrogatories may, in an
exceptional case, be permitted, prior to the statement of claim, to
ascertain the precise words spoken. It is no longer necessary to
prove at trial the precise words pleaded; it will suffice to prove words
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substantially the same and the jury should be invited to consider
whether the words are defamatory in the version it has accepted.
Where the plaintiff complains of a book or long article, he must
specify the passages which he alleges to be defamatory rather than
merely plead the whole book or article."
19. Learned senior counsel also placed reliance on the judgment of Calcutta high
Court in case of W.Hay and others vs. Aswini Kumar Samanta AIR 1958
Calcutta 269 and in particular paragraphs 11 and submits that since no details and
particulars of the alleged defamatory material is furnished by the plaintiffs in the
plaint, it does not disclose any cause of action and thus plaint itself is liable to be
rejected. Paragraphs 11 of the said judgment read thus :-
11. It is well settled that, in a libel action, the defamatory
words must be set out" in the plaint. Where the words are per
se or prima facie defamatory only the words need be set out.
Where, however, the defamatory sense is not apparent on the
face of the words, the defamatory meaning, or as it is
technically known in law, the "innuendo" must also be set out
and set out in clear and specific terms. These are universally
accepted propositions. Where again the offending words would
be defamatory only in the particular context, in which they
were used, uttered or published, it seems to us that it is
necessary also to set out, except where, as in England, the law
is or has been made expressly otherwise, the offending context
(Colloquium) in the plaint and to state or aver further that this
context or the circumstances, constituting the same, were
known to the persons, to whom the words were published, or,
at least, that they understood the words in the defamatory
sense. In the absence of these necessary averments, the plaint
would be liable to be rejected on the ground that it does not
disclose any cause of action.
20. Mr.Chinoy learned senior counsel also placed reliance on a paragraph from
the Halsbury on 'Libel and Slander' and in particular paragraph 172 in support of
the submission that if the plaintiffs have alleged that the defendants have published
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and/or telecasted any defamatory article, it is duty of the plaintiffs to be very
specific in his allegations to enable the defendants to give response to such
allegations which would be in compliance with principles of natural justice. It is
submitted that material germane to the issue has to be considered. If the material is
totally irrelevant, it can be ignored. The detailed investigation and scrutiny of such
material can be carried out at the stage of trial. It is submitted that the topics
tabulated in paragraph 25 of the plaint are not such defamatory statements which
would disclose any cause of action against the defendants. It is submitted that if
there is any justification available on record to decide prima facie that the articles
and/or telecast was justified, no injunction can be granted against the defendants.
It is submitted that there cannot be any trial at the interim stage.
21. Mr.Chinoy learned senior counsel submits that the material on record
produced by the defendants even otherwise would indicate that in so far as
allotment of land at Bhopal is concerned, the said allotment was made to the
plaintiffs at thrown away price. The said allotment was cancelled and was
surprisingly restored subsequently with waiver of interest. Though under the terms
of allotment, the plaintiffs were supposed to complete the work within two years
from 29th September, 2008, the work has not been started at all. My attention is
invited to the averments made at page 11 of the plaint which discloses that the said
project is closed due to financial reasons.
22. Learned senior counsel submits that the defendant nos. 3 to 8 have verified
and scrutinized the material from the website of defendant nos. 1 and 2. None of
the documents placed on the website of defendant nos. 1 and 2 have been disputed
by the plaintiffs.
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23. Learned senior counsel invited my attention to e-mail dated 2 nd May 2014
from defendant no.3 to the plaintiffs summarizing the allegations made by the
residents of Madhya Pradesh against the plaintiffs and required the version of the
plaintiffs over those allegations made by the residents of the Madhya Pradesh. The
defendant no.3 requested the plaintiffs to give them time for television interview
over those allegations as early as it could be. It is submitted that there was no
denial to the contents of the said e-mail. The plaintiffs also did not come forward
to give their version over the allegations made by the residents of the Madhya
Pradesh and though invited to spare some time for television interview over those
allegations, plaintiffs did not bother to reply to the said e-mail or to agree for
television interview for expressing their version over the allegations made by the
residents of Madhya Pradesh.
24. It is submitted by the learned senior counsel that the defendants nos. 3 to 8
have not only denied the allegations of the plaintiffs that the telecast on Foucs
News Channel by defendants nos. 3 to 8 against the plaintiffs were defamatory in
any manner whatsoever but have justified the same which justification is shown
more than prima facie and the material produced is more than adequate.
25. In so far as the loan applied by the plaintiffs on the plot of land allotted to the
plaintiffs at the thrown away price is concerned, it is submitted that whether such
loan was ultimately received or not by the plaintiffs is not relevant. The plaintiffs
have not denied that the plot of land which was obtained by the plaintiffs from the
government for the sum of Rs.3.49 crores, on that plot of land, the plaintiffs have
applied for loan of Rs.17 crores. It is submitted that the plaintiffs have not
explained in rejoinder as to why the plaintiffs did not avail of the opportunity to
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offer their version over the allegations made by the residents of Madhya Pradesh
though defendant no.3 had called upon the plaintiffs to do so.
26. Mr.Chinoy learned senior counsel distinguished the judgment of the Learned
Single Judge of this court in case of Shree Maheshwar Hydel Power Corporation
Ltd. (supra) and submits that the judgment of Division Bench of this court in case
of Dr.Yashwant Trivedi (supra) was though referred in the said judgment of the
Learned Single Judge, the views taken by the Learned Single Judge are contrary to
the views taken by the Division Bench. The said judgment of the Division Bench
is not binding on this court. Paragraph (2) of the said judgment reads thus :-
At page 1950 of the judgment in the case of Harakas and
others vs. Baltic Mercantile and Shipping Exchange Ltd. and
Another reported in 1982 (1) weekly Law Reports, page 958
Lord Denning M.R. has observed thus :
This case raises a matter of principle which must be
observed. This court never grants an injunction in respect
of libel when it is said by the defendant that the words are
true and that he is going to justify them. So also when an
occasion is protected by qualified privilege this court never
grants an injunction to restrain a slander or libel - to
prevent a person from exercising that privilege - unless it is
shown that what the defendant proposes to say is known by
him to be untrue so that it is clearly malicious. So long as
he proposes to say what he honestly believes to be true, no
injunction should be granted against him. That was made
clear in Quartz Hill Consolidated Gold Mining Co. vs.
Beall (1882) 20 Ch.D.501.
27. It is submitted by the learned senior counsel that once the defendants have
justified or seek to justify the allegations made by them against the plaintiffs which
according to the plaintiffs are defamatory, this court cannot grant injunction unless
court comes to the conclusion that the allegations are per se defamatory and are
required to be stopped from further publication.
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28. Mr.Hakani learned counsel for the defendant nos.1 and 2 submits that the
defendant nos. 1 and 2 had obtained copies of various documents from various
departments of the government under the provisions of Right to Information Act
and scrutinized and verified the same. The press release was based on the facts
verified from the documents obtained under the provisions of the Right to
Information Act. Mr.Hakani learned counsel adopted the submission made by
Mr.Chinoy, learned senior counsel appearing for defendant nos. 3 to 8. It is
submitted that no part of the press release published by the defendant nos. 1 to 2 or
no part of the material on the website of defendants no.2 is defamatory as alleged
by the plaintiffs. No injunction thus shall be granted by this court against those
defendants.
29. Mr.Hakani, learned counsel placed reliance on judgment of this court in case
Abdul Waheb Galahdri vs. Indian Express Newspaper (Bombay) Limited (1994)
BCR 1(41) and submits that in view of the justification sought to be given by the
defendants, no injunction can be granted by this court. It is submitted that the
earlier Bench of the division bench in case of Dr.Yashwant Trivedi (supra) has
been relied upon and followed by the Single Judge in the case of Abdul Waheb
Galahdri (supra). Reliance is placed on paragraphs 23 and 24 of the said
judgment which read thus :-
23. The above referred judicial pronouncements and the
passage from treatises of Gately very clearly set the legal
position and the principle underlined therein in the matter of
such nature needing no further elaborations.
24. In the circumstances I do not find any merits in the
application herein. Notice of Motion is dismissed. Plaintiff to
pay costs to the defendants of this application. The application
is made on behalf of the plaintiff for the stay of this order.
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However, it needs to be clarified that the Court as such has not
granted any ad-interim relief, but certain statement was made
on behalf of the defendants themselves before the Court that
they will not publish any articles concerning the plaintiff in
their newspaper. However today the learned counsel for the
defendants is totally unwilling and in opposition in making
such statement. In view of this, there is no question of granting
any stay to the order hereinabove. At the request of plaintiff's
advocate issuance of certified copy is expedited.
30. Mr.Godbole, learned counsel for the plaintiffs in rejoinder submits that the
defendants nos. 1 and 2 have admitted that a press conference was held on 9 th May
2014. Defendant no.3 has not denied that there was telecast of program on Focus
News Channel as its own programme. The defendant no.3 has not produced the
correct CD for perusal of this court. It is submitted that it was not the case of the
defendant no.3 that prior to the 3 rd August, 2014, defendant no.2 had provided any
information to the defendants no.3 nor has stated that such information and/or
documents were downloaded from the website of defendant no.2.
31. It is submitted by the learned counsel that what has been pleaded in the
plaint is more than sufficient. Reliance is placed on Order 7 rule 14 of the Code of
Civil Procedure, order 6 rules 2, 4 and 10 and it is submitted that after 2002
amendment in the Civil Procedure Code, 1908, there was drastic amendment in the
provisions for filing documents and pleadings. Plaintiffs are required to file all the
documents. It is submitted that the entire press report and transcript with CD has
been annexed. The pleadings clearly indicate that the contents of the press release
and the telecast by defendant no.3 was per se defamatory which can be made out
from the plain reading of the document itself. The defendants were not taken by
surprise nor any such element of alleged surprise has been taken as a defence. It is
submitted that each and every argument of the defendants is hyper technical and
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not the argument of substance. On the issue as to what should be nature of
leadings in this type of suits, learned counsel placed reliance on the judgment of
Supreme Court in case of M/s.Ganesh Trading Co. vs. Moji Ram (1978) 2 SCC
91 (paragraphs 2, 5 and 10) and in case of Virendra Kashinath Ravat and another
vs. Vinayak N.Joshi and others (1999) 1 SCC 47 (paragraphs 15 to 19). It is
submitted that the plaint filled by the plaintiffs contents concise facts.
32. Learned counsel also placed reliance on the judgment of Supreme court in
case of Ram Sarup Gupta vs. Bishun Narain Inter College and others (1987) 2
SCC 555 (paragraph 6) and would submit that the defendants knew the case of the
plaintiffs and allowed the publication of the press release. The defendant nos. 1
and 2 has access to the website of the plaintiffs and had copied the profile, history
from the website of plaintiffs as part of the website of defendant no.2
33. Learned counsel placed reliance on the judgment of Supreme Court in case
of Kumara Nand vs. Brijmohan Lal Sharma, AIR 1967 SCC 808 (paragraphs 12,
13, 15 to 18). Learned counsel also placed reliance on the judgment of Supreme
Court in case of M.J.Zakharia Sait vs. T.M.Mohammed and others (1990 ) 3 SCC
396 (paragraphs 5, 6 11 to 15, 18 to 21, 23, 25, 26 and 30 to 33) in support of the
submission that if the full text of the article is annexed to the plaint, it is not
necessary to furnish particulars of each and every defamatory allegations out of the
said full text in the plaint. It is submitted that in this case there was a direct
defamation on the part of the defendants and there was no innuendo. It is
submitted that the allegations of defamation made against the plaintiffs, directors
of the plaintiffs are part of the transcript annexed to the plaint to the knowledge of
the defendants and which are pleaded and highlighted.
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34. In so far as justification sought to be given by the defendant nos.3 to 8
relying upon e-mail dated 2nd May, 2014 is concerned, it is submitted that the
defendant nos. 3 to 8 have failed to show that they had any material in hand against
the plaintiffs when the said e-mail was sent. It is submitted that the judgment of
the learned single Judge in case of Shree Maheshwar Hydel Power Corporation
Ltd. (supra) is not contrary to the judgment of the Division Bench in case of
Dr.Yashwant Trivedi vs. Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors.
35. Mr.Chinoy learned senior counsel submits that since the action initiated by
the plaintiffs is in tort, allegations of defamation has to be specified. My attention
is invited to paragraphs 30 to 32 of the plaint.
REASONS AND CONCLUSIONS :-
36. The Supreme Court in the case of M.J. Zakharia Sait (supra) has
approved the judgment of the division bench of the Calcutta High Court in the
case of W. Hay and Ors. Vs. Aswini Kumar Samanta, reported in AIR 1958
Calcutta 269 and has also quoted the Halsbury's Laws of England, Vol-28, 4 th
edition with approval on the topic of "an action for defamation."
37. Mr.Godbole, learned counsel for the plaintiffs placed reliance on
paragraphs 6, 11, 13, 15, 18, 21 and 25 of the said judgment and submits that
the said judgment of the Supreme Court would assist the case of the plaintiffs and
not the defendants. A perusal of the judgment of the Supreme Court in the
aforementioned judgment indicates that the Supreme Court has considered an
appeal arising out of an order passed by the High Court of Kerala in an Election
Petition. The Supreme Court also considered the mandatory provisions of Section
83(1) of the Representation of the People Act, 1951. The Supreme Court has also
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adverted to various earlier judgments of the Supreme Court in the said
judgment.
38. In Halsbury's Laws of England, emphasis is laid that in an action for
defamation, the actual words complained of and not merely their substance, must
be set out verbatim in the statement of claim. Where the plaintiffs complain of a
book or a long article, he must specify the passages which he alleges to be
defamatory rather than merely pleading the whole book or article. Calcutta High
Court in the case of W. Hay and Ors. (supra) has held that in a libel action, the
defamatory words must be set out in the plaint. Where the words are per se or
prima facie defamatory, only the words need to be set out. Where, however, the
defamatory sense was not apparent on the face of the words, the defamatory
meaning, or the "innuendo" must also be set out in clear and specific terms.
39. A question that arises for consideration of this Court at this stage is
whether the press release published by defendant nos.1 and 2 and a telecast by
the defendant nos.3 to 8 on the 'Focus News Channel' were per se or prima
facie defamatory and if so, whether in the plaint, the plaintiffs have set out
such defamatory words or not. A question also arises for consideration of this
Court is whether the Court may grant an injunction in favour of the plaintiffs or
may restrain further publication in libel, though at the interlocutory stage, the
defendants raise a plea of justification and has relied upon the evidence by which
they might substantiate their case.
40. It is the case of the plaintiffs that the press release published by defendant
nos.1 and 2 was false and defamatory and was published without verifying the
truth and correctness of such allegations by the defendant nos.1 and 2 before
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publication. The allegations against defendant nos.3 to 8 are that those
defendants also did not bother to verify the truth and correctness of such
allegations before its telecast on the 'Focus News Channel.'
41. According to the plaintiffs, in paragraph 18, the plaintiffs have
summarized the imputations and the allegations made in the press release by
defendant nos.1 and 2 which are defamatory allegations. The allegations are
summarized in paragraphs (A) to (M) in the plaint.
42. In paragraph 23 of the plaint, the plaintiffs have summarized allegations
against defendant nos.3 to 8. In paragraph 25 of the plaint, the plaintiffs have
tabulated the nature of allegations made by the defendants which were
defamatory according to the plaintiffs and also summarized the factual position
as against each of the allegations in the said table.
43. Supreme Court in case of M.J.Zakharia Sait (supra) has referred to the
treatise of Halsbury's Laws of England on the topic 'Libel and Slander' and has
held that if it is claimed that the words are defamatory in their natural and ordinary
meaning and the words bear only one literal meaning which is clear and explicit, it
is not necessary to plead the meaning in the statement of claim. However, if the
words are reasonably capable of bearing more than one literal meaning or if the
defamatory meaning relied on is inferential, it is desirable and may even be
necessary to plead the defamatory meaning or meanings. Where the plaintiffs wish
to claim that the words complained of were understood to be defamatory in a
secondary or extended meaning by those persons having knowledge of some
special facts or matters, such a meaning constitutes a separate cause of action and
the same should be pleaded expressly in a separate paragraph in the statement of
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claim. Particulars must be given of the facts and matters on which the plaintiffs
rely in support of any secondary or extended defamatory meaning which is decided
to plead.
44. Supreme court in the said judgment has also referred to the judgment of
Division Bench of Calcutta High Court in case of W.Hay vs.Aswini Kumar
Samanta (supra). The Calcutta High Court in the said judgment held that in a libel
action, the ordinary defamatory words must be setout in a plaint. Where the words
are per se prima facie defamatory only the words need be setout.
45.
Division Bench of this court in case of Dr.Yashwant Trivedi (supra) has
held that the position of law on the law of injunction in support of libel is not
different in India then what is prevailing in England. It is held that in the matter of
granting or refusing temporary injunction it is not material that in India the judge
has to decide both questions of law and fact unlike in England where question of
law were left to the jury. It is held that the crux of the matter is that when in a
liable action at the interlocutory stage, the defendants raises a plea of justification
and mentions evidence by which he might substantiate his case, the court is
unlikely to grant an interlocutory injunction in favour of the plaintiffs to restrain
further publication of the alleged libel.
46. This Court in case of Abdul Waheb Galahdri vs. Indian Express
Newspaper (Bombay) Limited (1994) 1 BCR 41 has followed the judgment of
Division Bench in case of Dr.Yashwant Trivedi (supra) and has refused to grant
injunction from further publication of any article concerning the plaintiffs in the
newspaper of the defendants in that case.
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47. In so far as judgment of learned single Judge in case of Shree Maheshwar
Hydel Power Corporation Ltd. (supra) relied upon by Mr.Godbole, learned
counsel for the plaintiffs is concerned, the learned single Judge of this court in the
said judgment has though referred to the judgment of the Division Bench in case of
Dr.Yashwant Trivedi (supra) has held that in India a mere plea of justification
would not be sufficient for denial of interim relief. The defendants apart from
taking a plea of justification will have to show that the statements were made
bonafide and were in public interest and that the statements were based on
sufficient material which can be tested from its veracity. The court is entitled to
scrutinize the material tendered by the defendants so as to test its veracity and to
find out whether the said statements were made bonafide and that they were in
public interest. Even at the interlocutory stage the court is entitled to look into the
material produced by the defendants for the plea of justification so as to test its
veracity with regard to the allegations alleged to be defamatory.
48. Keeping in mind the aforesaid statement of law declared by the Supreme
Court and this court, I will now consider whether in the facts of this case how far
both the parties have satisfied the criteria laid down by the Supreme Court and this
court on the requirement of pleading in a suit based on tort and the effect on
justification with material sought to be pleaded by the defendants in opposition to
the grant of relief for injunction.
49. A perusal of the averments made in the plaint indicates that the plaintiffs
have not particularized the alleged defamatory portion from the press release and
also the telecast. The plaintiffs have generalized the allegations of defamation in
the plaint and has basically relied upon the entire press report and the telecast on
the news channel. In my view in the case of the suit for libel which is in tort,
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plaintiffs have to specify the defamatory words from the entire article and/or press
release and telecast with details and as to how such words from the material
published/telecast, the plaintiffs were defamed. The plaintiffs cannot make any
vague plea without particularizing and specifying the defamatory words out of the
entire publication unless the words are per se or prima facie defamatory. In my
view the plaintiffs have not been able to satisfy from the averments made in the
plaint that any of the topics tabularized in the plaint would be per se or prima facie
defamatory. A perusal of paragraph 25 of the plaint in which the plaintiffs have
tabulated some of such topics do not even refer to any specific allegations against
the defendant nos. 3 to 8.
50. A perusal of the affidavit in reply filed by the defendant nos. 3 to 8 indicates
that those defendants have raised a specific plea that alleged defamatory
words/sentences were required to be setout verbatim in the plaint failing which the
plaint is liable to be rejected as not disclosing a cause of action. A perusal of the
rejoinder and in particular paragraph 4 indicates that the only answer of the
plaintiffs is that the suit discloses the cause of action and that the plaintiffs have
setout the grounds of defamation and the defamatory sensity. The plaintiffs have
not bothered to apply for amendment of the plaint to setout verbatim the alleged
defamatory words in the plaint though such opportunity the plaintiffs had before
proceeding with hearing of this notice of motion.
51. A perusal of the affidavit in reply filed by the defendant no.1 and also the
press release published by the defendant nos. 1 and 2 indicates that in the said
press release the defendant nos. 1 and 2 have relied upon various documents
obtained by the defendant nos. 1 and 2 under the provisions of Right to
Information Act in support of what is published against the plaintiffs and their
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office bearers. At the bottom of the said press release a note is provided by the
defendant nos. 1 and 2 stating that 'all documents received under RTI on the above
expose can be accessed on www.janadhikarmunch.com.' It is also mentioned that
the 'White Paper on the serial breaches had been attached with media release'.
Even in the 'white paper' it is specifically provided that all the supporting
documents could be accessed on the website of the defendant no.2. It is also
mentioned that the request for additional information could be made to the
defendant no.1 at his office address mentioned therein and at mobile number or
office number including e-mail at the e-mail ID mentioned therein.
52.
It is the case of the defendant nos. 1 and 2 in the affidavit in reply that each
and every statement made in the press release is based on their honest belief and on
the facts verified from the documents which they had received under the provisions
of Right to Information Act. The defendant no.1 had approached various
government bodies and agencies and prima facie violations were emerging on the
basis of the findings from documents procured under RTI. It is also the case of the
defendant no.1 that there were about 8 journalist from different channel of Zee
Media present in the said press conference to counter and embarrass the defendant
no.1 and has repeatedly made attempts not to allow other media persons to ask him
questions. The officials of the plaintiffs were also present at the press conference
venue and distributed their statement to the attending journalists from various
media houses. A perusal of the rejoinder on this issue indicates that except bare
denial, the plaintiffs have not raised any specific plea. The defendant no.1 also has
averred that copy of the website at Ex.F is the copy of the introduction of the
plaintiffs from its website and copies of other documents at page 130 and 131 are
the copies of the website of Ministry of Corporate Affairs which information is in
public domain and cannot be defamatory. It is also the case of the defendant no.1
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that he had approached the media house including Zee TV prior to holding press
conference in respect of the said issue amongst other issues. Reporter of the
plaintiffs also was present and participated.
53. A perusal of the text of the news telecast on the Focus News Channel by the
defendant no. 3 which is annexed by the plaintiffs to the plaint itself indicates that
various professionals were interviewed by defendant no. 3 on 13.5.2014 such as
Mr. Buch, an Environment Expert, Mr. Ajay Dubey, Activist/Lawyer, Mr.Babulal
Gaur Ex Chief Minister of Madhya Pradesh, Mr. Manak Agarwal, Vice President,
Madhya Pradesh Congress. A perusal of the email annexed to the affidavit in reply
of defendant no. 3 indicates that defendant no. 3 had brought to the knowledge of
the plaintiffs about the allegations made by residents of Madhya Pradesh alleging
violation of basic land allotment norms/rules against the plaintiffs company and
more particularly Essel Infraaproject. It was also brought to the notice of the
plaintiffs that the allegation of the residents was that the land allotment to the
plaintiffs company in different areas of Madhya Pradesh was major threat to wild
life and water resources of country and those who were raising voice against the
plaintiffs regarding their upcoming projects, were being threatened by the officials
of Zee and Essel. By the said email the defendant no. 3 informed the plaintiffs
that as a responsible news network Focus TV required the version of the plaintiffs
over allegations made by the residents of Madhya Pradesh and requested the
plaintiffs to give them time for television interview over those allegations as early
as the plaintiffs could. The plaintiffs however, did not come for television
interview nor made any comments over those allegations. A perusal of the
rejoinder on this issue indicates that except bare denial, there is no positive
explanation of the plaintiffs on this issue.
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54. In the affidavit in reply, defendant no. 3 to 8 and in particular in paragraph
15, the defendant no. 3 has contended that the allegations made in column 2 of the
tabular statement in para 25 of the plaint, does not record any words/statements
made in the telecast or programme, the plaintiffs have not placed the facts in their
correct perspective and have suppressed material facts and documents. A perusal of
the said paragraph indicates that defendant no.3 has relied upon several documents
which are annexed as Exh. 2 to Exh. 26A and has highlighted the documents which
are mentioned as RTI documents and has contended that on the bare perusal of the
said documents, it was clear that it was the duty of defendant no. 3 to report the
news in the public interest with the object/intent of informing the general public at
large about the process of land allotment and also to create a public opinion for
adoption of a fair and transparent process in allotment of land by the Government
and was protected by qualified privilege. Defendant no. 3 summarized the main
features of the programme telecasted in the said paragraph. It is also the case of
the defendant no. 3 that they made several attempts to obtain the response of the
plaintiffs with regard to the subject matter of news report so as to ensure
objectivity but plaintiffs did not respond to the request of defendant no. 3. The
defendant no. 3 also included the contents of the response of the plaintiffs while
broadcasting the news report/programme which was distributed/circulated by the
plaintiffs at the press conference. It is submitted by the defendant no. 3 that in the
said TV news programme the facts stated were accurate and true and were clearly
borne out by the documents and facts set out therein. It is contended that the
comments made in the said TV programme were fair comments on the matter of
public interest.
55. It is submitted by the defendant no. 3 that the news report was in the form of
questionnaire/opinion and was based inter alia on the press release of defendant no.
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1 and 2 which was substantially verified by the documents annexed to the affidavit
in reply, opinions, and interviews of eminent persons and also by independent
research carried out by defendant no. 3. The defendant no.3 had taken steps to
verify the authenticity of the facts stated in the news report and only thereafter had
telecasted the same on the Focus News Channel.
56. A perusal of the rejoinder filed by plaintiffs in reply to the defendant no. 3 to
8, clearly indicates that the plaintiffs have not disputed any of the documents which
were obtained by the defendant no. 1 and 2 under the provisions of Right to
Information Act. Those documents were comprising of correspondence exchanged
between the plaintiffs and various Government departments, the allotments made
in favour of the plaintiffs etc. In the rejoinder, the plaintiffs have also not denied
the allotment of various plots to the plaintiffs by the Government, except vaguely
denying the allegations made by the defendant no. 3. Based on such documents,
the plaintiffs have not made any positive statements or have not tendered any
explanation in respect of such documents. Mr. Chinoy learned senior counsel
appearing for the defendant no. 3 to 8 submits that the defendant no. 3 can even at
this stage prima facie prove the correctness of the contents of the news telecast on
the basis of the documents annexed to the affidavit in reply which were verified by
the defendant no. 3 before telecast. At this stage the court can consider the
substance in those allegations based on one of the ex facie case of favour alleged
to have been shown by the Madhya Pradesh Government to the plaintiffs. In
support of this submission, learned senior counsel invited my attention to some of
the documents annexed to the affidavit in reply filed by defendant no. 3 which
documents are not disputed by the plaintiffs highlighted hereinafter.
57. Some time in the year 2005, M/s. PAN India Paryatan Limited (Original
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name of the plaintiff) had approached the Chief Minister of the Madhya Pradesh
and had sought allotment of 60 acres of Government land for establishment of a
water park/amusement park. At a meeting of the Reservation Committee held on
16th June, 2005, it was decided to reserve 58.23 lake front land registered in the
name of State Dairy Veterinary Department. It was provided that the reservation
order would be issued on payment of 10% of the value of the land to the Collector.
The said meeting was held on 16th June, 2005. On 6th September, 2005, the
Chairman of the Essel Group had a meeting with the Chief Minister of Madhya
Pradesh regarding the allotment and sought a 90 years lease at 50% of the market
value. In the month of October, 2005, the Madhya Pradesh Government issued a
reservation/allotment order for the said land and provided that the work shall be
started within one year of getting possession of the land.
58. On 11th November, 2005, the Collector informed the Principal Secretary that
the Director, Veterinary Services had objected to the allotment on the ground that if
the land was taken away, then there would be a shortage of suitable land for the
production of dry green fodder and would have an adverse impact on the health of
animals. It was mentioned that the premium/value of the land at the rate of 112 per
sq. ft. was at Rs.24.73 Crores and annual rent @ 7.5% would be Rs.1.86 Crores. It
was also mentioned that at the minimum rent of Rs.60/- per sq. ft., the value of the
land would be at Rs.13.25 Crores and the annual rent at the rate of 7.5% thereof
would be at Rs.99.38 lacs. If he value was taken as 3.89 Crores, the annual rent at
7.5% would be Rs.29.24 lacs.
59. On 28th March, 2006, the said land was allotted at Rs.3.89 Crores with the
annual rental at 7.5% of Rs.29.24 lacs to the plaintiffs. The plaintiffs were
required to deposit the premium amount and annual lease rent within six months.
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On 7th September, 2007, the plaintiffs deposited Rs.40 lacs only and did not deposit
the balance amount. The Revenue department of the Madhya Pradesh Government
informed the Collector that as the amount had not been deposited as required, the
allocation order dated 28th March, 2006 stood automatically cancelled. On 26 th
October, 2007, the plaintiffs forwarded cheque for Rs.3,49,85,870/- towards the
balance premium amount to the Government. The said cheque however, was
returned by the Government to the plaintiffs on 26 th November, 2007. In the
meeting of the Project Clearance and Implementation Board under the
Chairmanship of Chief Secretary on 14th December, 2007, it was decided to
continue /reallot the said land to the plaintiffs and to accept the balance premium
amount of Rs.3,49,85,780/-. On 3rd January, 2008 the Madhya Pradesh Government
decided to extend time for deposit of amount till 31 st January, 2008 and directed
that interest at the rate of 15% should not be charged to the plaintiffs.
60. On 29th September, 2008, the agreement for transfer of the land at the
premium of Rs.3.90 Crores and annual lease rental of Rs.29.25 lacs. for 30 years,
with a right of renewal for a further period of 30 years was executed between
plaintiffs and MP Government. In the said agreement it was provided that plaintiffs
shall start the work within six months and shall complete the same within two
years. It is the case of defendant no. 3 that till today no work has commenced on
the said plot which allegations are not disputed by the plaintiffs. It is the case of
the plaintiffs that on 8th July, 2009 the plaintiffs had created an equitable mortgage
with the State Bank of India by deposit of title deeds of the said land allotted to the
plaintiffs by the MP Government bearing Khasra Nos. 8, 11 to 19, 22, 23 and 33,
area 50.70 acres as a security of grant of loan of Rs.17.34 Crores. The plaintiffs
also executed a declaration to that effect. On 12 th December, 2013 the plaintiffs
had applied to the Collector, Bhopal for permission to take loan against mortgage
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of the said land allotted by the Government.
61. A perusal of the rejoinder filed by the plaintiffs in so far as allotment of the
land and the mortgage alleged to have been created in respect of the said land by
the plaintiffs for obtaining loan of Rs.17.34 Crores is concerned, the plaintiffs
have annexed a copy of the letter addressed by State Bank of India dated 8 th July,
2014 in support of their submission that no loan was disbursed to the plaintiffs. A
perusal of the record prima facie indicates that (i) the plaintiffs have not denied
about the contents of all these documents showing the application for allotment of
land by the plaintiffs, (ii) objection raised by the Director, Veterinary Services to
the allotment of land to the plaintiffs, (iii) though the valuation of the plot was at
much higher amount determined by the officers of the Government, allotment of
the land to the plaintiffs at a cheaper rate, (iv) non payment of the premium within
time, (v) cancellation of allotment by the Government, re-allotment of the land
without charging any interest, (vi) application made by the plaintiffs for
mortgaging the said property allotted at the rate of Rs.3.90 Crores for loan amount
of Rs.17.34 Crores and sanction of loan for Rs.17.34 crores (vii) though work
required to be commenced within one year of the date of the allotment which was
in the year 2006-07, work had not even commenced till today.
62. A perusal of the letter dated 8th July, 2014 which is annexed by the plaintiffs
to rejoinder dated 16th October, 2014 itself indicates that the plaintiffs were
sanctioned term loan of Rs.17.34 Crores as far back as on 27 th February, 2009 for
setting up a family recreation center on the said plot of land. The said term loan
however, was not disbursed as NOC from Collector of Bhopal to mortgage of the
lease land was not obtained by the plaintiffs company. No charge on the land was
created by way of mortgage. In the meanwhile the sanction lapsed and the charge
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created with ROC was satisfied on 4 th October, 2011. A perusal of the said letter
indicates that the said letter is now obtained in the month of July, 2014 after
publication of the Press release and telecast of the alleged defamatory material on
the news channel against the plaintiffs. It is thus not in dispute that the land which
is allotted to the plaintiffs at the premium of Rs.3.90 Crores in the year 2008-09,
the plaintiffs had been sanctioned loan of Rs.17.34 Crores as far back as on 27 th
February, 2009 against equitable mortgage. The plaintiffs have not denied all these
documents or the contents thereof.
63. Defendant no. 3 has also placed reliance on MOU dated 22 nd December,
2012 between the MP Trade and Investment Facilitation Corporation and the
plaintiffs for allotment of 5000 acres of land at Morena Gwalior District for setting
up a Knowledge based Industry (Knowledge City). Based on the above referred
documents, which are not disputed by the plaintiffs, learned senior counsel submits
that even if this court takes these documents into consideration at this stage,
defendant no. 3 has made out a prima facie case that the defendant no. 3 had
verified these facts before telecast of interview/news on Focus News Channel. It is
submitted that he defendant no. 3 has justified the correctness of their publication
with the documents in hand.
64. This court in case of Indian Express Newspapers and another Vs. M/s.
Magna Publishing Company Limited and Ors. in Notice of Motion No. 1995 of
1995 in suit no. 2525 of 1995 delivered on 21st July, 1995 has held that the
defamatory article can be justified provided it is in the public interest and
defendant has taken reasonable precaution of ascertaining the truth. The defendants
must therefore, show on material available that a reasonable person could come to
the conclusion that the comments were not mala fide. After considering the
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aforesaid judgment of this court in case of Indian Express Newspapers and
another (supra) the learned single Judge of this court in case of Shree Maheshwar
Hydel Power Corporation Limited has held that the defendants apart from taking
a plea of justification will have to show that the statements were made bonafide
and were in public interest and that the defendants had taken reasonable precaution
to ascertain the truth and that the statements were based on sufficient material
which could be tested for its veracity. In India the court is entitled to scrutinize
the material tendered by the defendants so as to test its veracity and to find out
whether the said statements were made bona fide and that whether they were in
public interest.
65. The Division Bench of this court in the case of Dr. Jaswant Trivedi (supra),
has held that in a libel action at the interlocutory stage if the defendant raises a plea
of justification and mentions evidence by which he might substantiate his case, the
court is unlikely to grant any interlocutory injunction in favour of the plaintiffs to
restrain further publication of the alleged libel. The said judgment of the Division
Bench of this court is binding on this court and is squarely applicable to the facts
of this case. On the basis of documents produced on record which are not
disputed by the plaintiffs, in my prima facie view, the submissions of the
defendants that the publication and telecast respectively was issued after verifying
the documents and that the same was bona fide and in public interest cannot be
brushed aside and deserves acceptance.
66. In so far as reliance on the judgment of the Supreme Court in case of M.J.
Zakharaia Sait (supra) by Mr. Godbole learned counsel for the plaintiffs is
concerned, the same would assist the defendants and not the plaintiffs. In so far as
judgments relied upon by Mr. Godbole on the issue of pleadings under the
provision of Code of Civil Procedure, 1908 are concerned, even those judgments
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would not assist the plaintiffs. Though the plaintiffs had an opportunity to seek
amendment to the plaint and to particularize the defamatory words, if any, from
the press release and from the telecast, plaintiffs did not choose to seek
amendment to the plaint.
67. Perusal of the record indicates that though the plaintiffs were given an
opportunity by the defendants to express their views and/or fix time for interview,
the plaintiffs did not avail of that opportunity. Whatever objections/views of the
plaintiffs were placed during the time of press release, the same were prima facie
considered by the defendant nos. 3 to 8 at the time of telecast on the Focus News
Channel. In so far as submission of Godbole, learned counsel for plaintiffs that
defendant nos.1 and 2 are in habit of making false allegations, or filing false
proceedings and as a result thereof were directed to pay cost of Rs. 5 lacs by the
MP High Court is concerned, it is the case of the defendant nos. 1 and 2 that they
have already explained in the affidavit in reply as to why the said cost was imposed
upon the defendant no. 1 by the MP High Court. Be that as it may, merely on the
basis of the said order passed by MP High Court in the said public interest
litigation filed by the defendant no. 1, it cannot be concluded in this proceedings
that the press release issued by defendant nos. 1 and 2 cannot be considered to
have been issued bona fide or that the same was not in public interest.
68. In my view the Notice of Motion is devoid of merits and is accordingly
dismissed. No order as to costs.
[R.D. DHANUKA, J.]
