Calcutta High Court

Nandlal Rathi vs Kamalalaya Centre & Ors on 1 October, 2024

Author: Sugato Majumdar

Bench: Sugato Majumdar

                      IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                                  ORIGINAL SIDE


Present:
The Hon'ble Justice Sugato Majumdar


                                        CS/174/2002

                                  NANDLAL RATHI
                                            VS
                           KAMALALAYA CENTRE & ORS.

For the Petitioner                 :        Mr. S.R. Saha, Adv.


Hearing concluded on                :       26/09/2024

Judgment on                         :       01/10/2024


Sugato Majumdar, J.:

This instant suit is filed claiming inter alia damages for defamation,

declaration, permanent injunction along with other reliefs.

The Plaint case may be summarized as follows:

a) The Defendant No. 1 is a society registered under the West

Bengal Societies Registrations Act, 1961 having its office at 156A,

Lenin Sarani, Kolkata - 700013 within jurisdiction of this Court.

The Defendant No. 2 was the Secretary and the Defendant No. 3

was the President of the Defendant No. 1.

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b) The Plaintiff was a founder member, being Executive Member of

the Defendant No. 1, on being duly elected in the election held

for the year 2000-2001.

c) After the election was over for the year 2000-2001, a meeting

was called by the outgoing Secretary of the Defendant No. 1

Association. In the said meeting some more members were co-

opted illegally. This process was done by the outgoing Secretary

of the Association in spite of objections of the Plaintiff. Office

bearers were appointed from the co-opted members against the

rules and bye-laws. Thus one Swarna Kamal Roy Chowdhury

was a co-opted member and became the President of the

Defendant No. 1 Association. One Uday Shankar Saha was

selected as Secretary of the Association.

d) The new office bearers were at loggerhead with the

promoter/lesser of the building Kamalalaya Centre Pvt. Ltd. on

the issues of car parking space, use of common space

maintenance of the building. These proved to be detrimental to

the existence of the Defendant No. 1. The Plaintiff pleaded that

the later was collecting car parking fees from the vehicle parked

inside the building from the owners of the vehicles except those

who had purchased exclusive parking lots. The Plaintiff was

assigned car parking space by the promoter of Kamalalaya

Centre Pvt. Ltd. for valuable consideration. The Plaintiff had

been paying the promoters hiring charges and used to collect

parking fee from the vehicle owners, namely, unit holders and

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visitors. But the Defendant No. 1 and 2 caused disturbance in

such collection resulting in financial losses to the Plaintiff.

e) There was litigation between the Defendant No. 1 and the

promoters. Kamalaya Centre Shop and Office Owners'

Association instituted a suit in the City Civil Court of Calcutta

against Kamalaya Centre Pvt. Ltd. which was registered as Title

Suit No. 1620 of 2000.

f) On 03/02/2001, the other unit holders showed the Plaintiff a

notice parted on the outer-wall of his shop-room issued by the

Defendant No. 1, signed by the Secretary Uday Shankar Saha.

The said notice stated that the Plaintiff's membership from the

Executive Committee had been ceased to exist and he was

debarred from representing the ground floor members in a

conspicuous position deliberately so that the other members of

the public including the persons of the Plaintiff's acquaintances

read the contents of the notice. This, according to the Plaintiff

lowered his esteem in the eyes of people, exposed him to hatred,

contempt and ridicule. There was no explanation why the

Plaintiff's membership ceased to exist. It is a case of the Plaintiff

that the Defendants contrived to injure the Plaintiff and its

business falsely and maliciously and they terminated the

membership of the Plaintiff. It is contended that Plaintiff has

been removed from the membership of the Executive Committee

of the Defendant without assigning any good valid reason for

such removal and without giving any opportunity to the Plaintiff

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to show cause or to represent his cause before the Defendant No.

1, violating thereby the principal of natural justice. The notice

dated 03/02/2001, is, therefore, bad in law and is liable to be set

aside. This is why the Plaintiff seeks for declaration and

permanent mandatory injunction in this suit against the

Defendants.

g) The notice dated 03/02/2001 was replied by the Plaintiff's

Learned Lawyer refuting the allegations and demanding

Rs.10,00,000/- as damages, in terms of the letter dated

15/02/2001. The Plaintiff also faced financial loss to the tune of

Rs.5,00,000/- on account of disturbances created by the

Defendant no. 1 & 2 in collection of car parking fees.

h) The Plaintiff instituted, therefore, the instant suit praying for

damages of Rs.15,00,000/- for defamation; declaration that the

letter dated 03.02.2001 is illegal and bad; permanent injunction

restraining the Defendants from giving effect to the said letter

along with other prayers.

The Defendants contested the suit by filing written statement. Contentions of

the written statement are that the suit is barred by the principle of res judicata, law of

limitation; the suit is bad for non-joinder and mis-joinder of parties. The Defendants

also took the plea that the suit is hit by law relating to payment of court fees. All

other allegations are denied by the Defendant save and except what are the matters

of record.

On the basis of the rival pleadings, the following issues were framed:

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1. Whether the suit is maintainable?

2. Whether the suit is barred by law of limitation?

3. Whether the suit is bad for non-joinder or mis-joinder of party

or parties?

4. Whether the Plaintiffs' membership was illegally terminated by

Defendant no. 1 without any show-cause notice?

5. Whether the Defendant nos. 1, 2 and 3 defamed the Plaintiff

and whether the Plaintiff was defamed by any act or omission

of the Defendant? If so who is liable for the defamation.

6. Whether the Plaintiff is entitled to any relief as prayed for? If

7. so who is liable to pay damages/compensation to the Plaintiff.

8. Whether any other relief or relieves the Plaintiff is entitled to?

Plaintiff adduced oral as well as documentary evidences. Documentary

evidences were exhibited and marked. The defendant, in course of cross-

examination, produced documents which were also marked and exhibited.

Issue Nos. 1, 2 and 3 are taken up together.

The instant suit is filed with several prayers. Prayers (a) and (b) are damages

for defamation, Prayer (c) is enquiry into damages and compensation suffered by the

Plaintiff, Prayer (d) is declaration that the letter dated 3rd February, 2001 is illegal

and bad, Prayer (e) is permanent injunction restraining the Defendants from giving

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any effect or further effect to the letter dated 3rd February, 2001 and from taking any

steps pursuant thereto.

Prayers (a) and (b) relate to damages on account of defamation. Details of

defamation are given in para 10 to 15. Genesis of defamation is the letter dated

03/02/2001 which was affixed on the outer wall of the Plaintiff's shop room. Thus,

publication of the alleged notice took place on 03/02/2001. Under Article 75 of the

Limitation Act, 1963, period of limitation for filing suit for compensation for libel is

one year from the date when libel was published. It is neither in pleading nor in

evidence that the alleged defamatory notice dated 03/02/2001 was republished.

Every publication gives rise to fresh starting point of limitation. It is not a case

herein.

Mr. Saha, the Learned Counsel for the Plaintiff argued that cause of action of

the suit are continuing, arising day to day. Mr. Saha also referred to the Order of the

Division Bench dated 14/07/2014. The Defendant filed an application under Order

VII Rule 11 of the Code of Civil Procedure, 1908 praying for rejection of plaint on the

ground that the suit is barred by limitation. Single Judge rejected the contention. The

Defendant preferred an appeal in the Division Bench. According to Mr. Saha, the

Division Bench finally decided the issue of limitation and dismissed the appeal.

Therefore, the issue of limitation no longer exists being barred by the principle of res

judicata, according to Mr. Saha.

On perusal of the Order passed by the Division Bench, as aforesaid, it is

manifest that the Division Bench did not finally decide the issue. It was observed:

"The suit was for special damage as well as injunction. Whether it was

barred by law of limitation or not, could be tried as preliminary issue. The

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stage has not come to consider such application particularly when the

appellant waited for 11 long years to make such application."

It is, therefore, clear that the Division Bench kept the question of limitation open

without deciding the same finally, attracting any way, the principle of res judicata.

The instant suit was presented on 08/04/2002 after lapse of the period of

limitation. In course of cross examination questions were put to the Plaintiff whether

the suit was barred by limitation. The Plaintiff denied the same and stated that

correspondences followed after publication of the alleged defamatory notice. Mere

correspondences do not extend the period of limitation. Nothing is there in evidence

that there was any acknowledgement or other factor extending the period of

limitation. Argument of continuity of cause of action hold no good ground.

Observation of the Supreme Court of India in N. Balakrishnan v. M.

Krishnamurthy, (1998) 7 SCC 123 may be referred to:

"11. Rules of limitation are not meant to destroy the rights of parties.

They are meant to see that parties do not resort to dilatory tactics, but

seek their remedy promptly. The object of providing a legal remedy is

to repair the damage caused by reason of legal injury. The law of

limitation fixes a lifespan for such legal remedy for the redress of the

legal injury so suffered. Time is precious and wasted time would never

revisit. During the efflux of time, newer causes would sprout up

necessitating newer persons to seek legal remedy by approaching the

courts. So a lifespan must be fixed for each remedy. Unending period

for launching the remedy may lead to unending uncertainty and

consequential anarchy. The law of limitation is thus founded on

public policy. It is enshrined in the maxim interest reipublicae up sit

finis litium (it is for the general welfare that a period be put to

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litigation). Rules of limitation are not meant to destroy the rights of

the parties. They are meant to see that parties do not resort to dilatory

tactics but seek their remedy promptly. The idea is that every legal

remedy must be kept alive for a legislatively fixed period of time."

Therefore, so far as the prayer for compensation on account of libel is concerned, the

suit is clearly barred by limitation. However, other prayers cannot be said to be

barred by limitation since period of limitation is three years for declaratory decree or

permanent injunction. Therefore, the suit is barred by limitation so far as the prayers

(a), (b) and (c) are concerned related to publication of alleged libel or defamation.

There is no argument on whether the suit is bad for non-joinder or misjoinder

of party or parties. There is no specific averment in the written statement as to who

should be joined as a necessary party. In absence of any specific plea, the same need

not be considered any further.

Issue Nos. 4 to 7 all these issues are taken up together.

Plea taken by the Plaintiff is that membership was illegally terminated by the

Defendant No. 1 without show-cause notice. It is also averred in the plaint that the

notice dated 03/02/2001 is defamatory, lowering the esteem of the Plaintiff in the

eyes of others and should not be given effect thereto. In course of evidence, the

Plaintiff reiterated the same thing.

Ext. No.-C is a letter dated 15th December, 2000 issued by the Honorary

General Secretary, namely, Mr. U.S. Saha of Kamalalaya Center Shop and Office

Owners Association. The letter contains draft minutes of the Executive Committee

meeting held on 10th November, 2000. The said draft minute was circulated among

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the members of the Executive Committee in terms of letter dated 15th December,

2000. Para "G" runs as follow:

"Most of the members put on record some activities done by Sri N.L.

Rathi which are detremental to the interest of the Association. The

house discussed the matter regarding his activities and decided to

issue so-cause notice to Sri N.L. Rathi mentioning his attempt to

hamper the image and function of the Association which is undesired

and uncalled for. Further to this his behavior makes him liable for

explanation to the committee as per provisions of the Articles of

Associations. The members took a serious view of the matter and it

was decided that the secretary shall call for an explanation from him

about the matter."

It is manifest that the Executive Committee in its meeting considered allegations

against the Plaintiff and resolved to issue show-cause notice. This decision was

circulated among the members of the Executive Committee. This resolution was not

under challenge. The Plaintiff received the said draft minutes and objected to the

same in terms of Ext. D being a letter dated 20/12/2000. By the time the notice

dated 03/02/2001 being Ext. G was published by way of pasting in some conspicuous

part of the shop room of the Plaintiff, he was aware of the allegations labeled against

him and also got opportunity to refute the allegation and in fact, he did so. All these

are documents produced by the Plaintiff. In the conspectus of facts, it cannot be said

that Plaintiff was denied any opportunity to represent his case before the Defendant.

This argument and case of the Defendant stands demolished therefore, on the basis of

the documents adduced by the Plaintiff himself.

10 | P a g e

Ext. G, namely, the notice dated 03/02/2001 is the product of a resolution

taken in the meeting of a constituted body. This decision to issue show-cause notice

was taken in the usual course of business. There is no allegation of any irregularity in

the conduct of the proceeding of the meeting. In terms of decision, the committee

communicated the Plaintiff its decision by registered post as well as by affixation.

Affixation is usual mode of communication action taken or decision taken by a

constituted body in regular course of business against a member after giving

opportunity to the Plaintiff. It is neither unfair nor opposed to the principle of natural

justice. Communication by affixation of the notice dated 03/02/2001 itself is not

defamatory, cannot be said to be defamatory, calculated to lower esteemed by the

Plaintiff. Such communication is an official mode. It comes within the ambit of

qualified privilege and communication was made in course of legal duty for common

interest. In one case the defendants had posted circulars in such of their office

premises as would be frequented by their employees, stating that a former employee,

the claimant, had been dismissed for neglect of duty. In that case it was held that the

privilege of common interest extends to such communication [Hunt vs Great

Northern Rly Co. (1891) 2 QB 189].

"When an occasion of qualified privilege exists a person (provided he is

not actuated by malice) is entitled to make defamatory statements

about another. The right of freedom of speech prevails over the right of

reputation, but only to a limited extent. The statement must be made

honestly and without any indirect or improper motive" (Salmond &

Heuston, Law of Torts, 21st Edition)

According to the authors the statements must be made in performance of a duty, in

the protection of an interest. In the case of Pandey Surendra Nath

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Sinha v. Bageshwari Pd. (AIR 1961 Patna 164), it was held that if the person

who makes the statement has an interest or duty legal, social or moral to make it to

the person to whom it is made, and the person to whom it is so made has a

corresponding interest or duty to receive it such statement commands a privilege and

cannot be made the basis of an action for defamation. In the case of Stuart v. Bell,

(1891) 2 Q.B. 354 and Smythson v. Cramp, (1943) 1 All E.R. 326 (C.A.) it

was held that the occasion is privileged where the defendant has an interest in

making the communication to the third person, and the third person has

corresponding interest in receiving it. Reciprocity of interest is essential.

In the case in hand, there is no evidence of malice. Rather evidence proves that

decisions were taken in course of a meeting of a constituted body. For reasons, as