Bansi Lal Agarwal vs Kewal Krishan Kumar And Ors.
2004 Latest Caselaw 771 Del

JUDGMENT

Mukul Mudgal, J.

IA 4860-61/2004

Allowed subject to all just exceptions.

IA stands disposed of.

IA 4859/2004

1. This is an application seeking an ad-interim injunction restraining all the defendants from publishing or distributing any notice, caution notices or any other publication in any newspaper as per annexures P-t collectively or in the same/similar nature thereto. This IA is filed in the present suit which is for permanent injunction and damages. The suit is primarily founded on the defamatory statements alleged to have been made by the defendant by such publications in respect of which the injunction has been sought. The facts of the case are that Shakti Bhog Label is a product of the plaintiff in respect of which a Suit No. 8/2002 is pending before the learned Additional District Judge filed by the defendant against the plaintiff. The plaintiff who is the present defendant) avers in that suit that he is a since 1975 a manufacturer of food products by the well known name of Shakti Bhog and the adoption of trademark Shakti Bhog Label in relation to Pure Ghee by the plaintiff herein was objected to. The grievance in the present suit arises on account of certain publications resorted to the defendant. He states that there was a news item of about spurious Desi Ghee published on 18th June, 2004 which was in fact Palm Oil. The news item mentioned inter alia the name of Shakti Bhog in relation to such products. Consequently a caution notice was issued by the defendant on 23rd June, 2004 which read as follows.

CAUTION NOTICE

SHAKTI BHOG

"THE NEWS OF "FOREIGN MADE PALM OIL BEING PASSED OFF PURE GHEE' IN THE NAVBHARAT TIMES. DELHI OF 18TH JUNE, 2004 WAS RECEIVED WITH SHOCK BY THE PUBLIC AS WELL AS OF CLIENT :

KEWAL KRISHAN KUMAR, PROPRIEtor OF M/S KUMAR DAL MILLS, 112-A. SAMAY PUT, DELHI-110042 & M/S SHAKTI BHOG FOOD LIMITED, 24, S.S.I. G.T. KARNAL ROAD, DELHI-110033. OUR CLIENTS HAVE BEEN PRODUCING AND MARKETING SUPERIOR QUALITY PRODUCTS, WHICH HAVE BEEN APPRECIATED BY THE PUBLIC FOR THE PAST 29 YEARS. IT APPEARS THAT SOME UNSCRUPULOUS PARTIES HAVE INDULGED IN SUCH NEFARIOU ACTIVITIES WITH A VIEW TO CHEAT THE CUSTOMERS AS ALSO TO MALIGN THE OUTSTANDING GOODWILL OF OUR CLIENT TRADEMARK "SHAKTI BHOG".

OUR CLIENT HAD COME ACROSS PURE GHEE UNDER THE TRADE MARK "SHAKTI BHOG" BY MANORAMA FOODS, 57/6, A.B. ROAD, MAKSL, DISTT. SHAJAPUR (M.P.) AND OUR CLIENTS HAVE INITIATED LEGAL ACTION, WHICH IS PENDING IN COURT AT DELHI.

THIS IS TO INFORM AND PUT ON NOTICE ONE AND ALL THAT OUR CLIENTS ARE IN NO WAY CONNECTED WITH THE OF SALE OF SUCH PRODUCTS "SHAKTI BHOG PURE GHEE" AND ANY PERSON DEALING WITH SUCH PRODUCTS SHALL DO SO AT HIS OWN RISK. OUR CLIENTS SHALL NOT BE RESPONSIBLE TO ANYONE AND FOR ANYTHING IN THIS CONNECTION."

2. The further publication of such notices is sought to be injuncted by the present suit and this interim relief application by the plaintiff Manorama Foods. In the present application Mr. Bansal has relied upon the notice found objectionable by the plaintiff to contend that the plaintiff's reputation has been harmed by the publication of such caution notices, and while it is open to the defendant to issue a caution notice for clearing its own name but since reference has been to the plaintiff's name such publication seeks to bring down the plaintiff's reputation and accordingly even though the notice may have been published earlier no further publication of the said notice are warranted. In reply to the pleas of the plaintiff the learned counsel for the defendant Mr. Nayyar submitted the position of law on pre-publication of defamatory reference where truth have been raised as defense laid down by the Division Bench of this Court in Khushwant Singh v. Maneka Gandhi. In particular he has relied upon para 69 & 70 of the said judgment which read as follows:

"69. People have a right to hold a particular New and express freely on the matter of public interest. There is no doubt that even what may be the private lives of public figures become matters of public interest. This is the reason that when the controversy had erupted there was such wide publicity to the same including in the two editions of India today. As observed in Silkin v. Beaverbrook Newspapers Ltd. (supra), the test to be applied in respect of public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits in a jury.

70. It is interesting to note that in Fraser's case (supra) while considering the proposed publication of Sunday Times, Lord Denning had noted that the Sunday Times had been frank enough to admit that the article would be defamatory of the plaintiff yet Sunday Times claimed that the defense would be that the facts are true. In the present case the first plea is that the statement is not defamatory apart from the fact that it has been published and commented upon in the past. The second plea is that the appellants will prove the truth of the said statements. Lord Denning had observed that the courts will not restrain the publication of an article even where they are defamatory once the defendants expressed its intention to justify it or make a fair comment on the matter of public interest."

3. He has further submitted that there is no difference in principle between a pre-publication or republication of the allegedly offending caution notice and on the contrary when the matter alleged to be defamatory is already in the public domain there is all the more reason why its republication should not be injuncted. He has further submitted that in respect of such articles he is pleading truth as defense and the only remedy of the plaintiff is to seek damages. Mr. Bansal has sought to distinguish the Division Bench judgment of Khushwant Singh (supra) mainly on two grounds. Firstly the said dispute in the aforesaid judgment relied to Khushwant Singh and Maneka Gandhi both public figures and the plaintiff was not a public figure and his affairs do not evoke any public interest. He further submits that the subject matter of the dispute already having been published, the further publication of such offending article is not covered by the aforesaid judgment. Insofar as the facts of the present case are concerned in my view at this stage it may not be necessary to determine whether the position of law laid down by the Division Bench applies, because the defendant's counsel brought to my notice the fact that in the pending suit before the Additional District Judge the same relief inter alia had been claimed in an interim application and notice was issued by the teamed District Judge but no interim order was passed which led to filing of CM (M) 848/2004 in this Court. The interim application before the learned Single Judge similar relief was sought again but the order dated 14.7.2004 merely directed the ADJ to dispose of the interim application but did not grant the interim relief sought. The learned Single Judge only directed the disposal of the application filed by the plaintiff for interim relief by the District Judge. I am informed that the said application is now listed on 6th September, 2004. Mr. Bansal submitted that the application before the ADJ was both on the grounds of restraint on publication as well as interference with the course of Justice. I am of the view that since the matter has already been raised before the Additional District Judge by the plaintiff in his pleading application listed on 6th December, at this stage no worthwhile purpose will be served by granting the injunction in these proceedings collaterally. I cannot lose sight of the fact that another Single Judge had declined to grant the interim relief to the plaintiff on 14.7.04 in CM(M) 848/2004. Accordingly, while leaving the question open whether Khushwant Singh's judgment (supra) applies in the present case I am inclined to dismiss the application.

4. Hence there is no merit in this application and the same is accordingly dismissed and disposed of.

CS (OS) 829/2004

Issue notice.

Written statement be filed within four weeks. Replication be filed within four weeks thereafter.

List on 9th December 2004.