Fiitjee Limited vs Nitin Jain & Ors.
2010 Latest Caselaw 2812 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+      F.A.O. (OS) No. 294/2010

%                             Reserved on: 4th May, 2010
                              Decided on: 28th May, 2010

FIITJEE LIMITED                                ..... Appellant

                        Through:   Mr. Anil K. Khaware, Adv.

                    Versus

NITIN JAIN & ORS.                             .... Respondents

                        Through:   None.


CORAM:
HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE A.K. PATHAK

       1.Whether the Reporters of local papers Not necessary
         may be allowed to see the judgment?

       2.To be referred to Reporter or not?   Not necessary

       3.Whether the judgment should be       Yes
        reported in the Digest?



A.K. PATHAK, J.

1. Appellant (Plaintiff) filed a Suit for permanent and

mandatory injunction, inter alia, praying therein that the

Respondents (Defendants) be restrained from publishing and

distributing the offensive and defamatory portion of the book

as detailed in the Plaint, particularly at page No. 45 and 186-

191 of the book, and also to remove such negative

imputations pertaining to the Appellant. An application

under Order 39 Rule 1 and 2 of Code of Civil Procedure (CPC)

was filed, inter alia, seeking ex-parte ad-interim injunction in

the above terms. Vide order dated 13th April, 2010 learned

Single Judge, while issuing summons in the Suit and notice

of the Application to the Respondents, declined to grant ad-

interim ex-parte injunction as prayed for. Aggrieved by non

grant of ex-parte injunction Plaintiff has preferred this

Appeal.

2. Brief background of the case is that the Respondent No.

1 enrolled himself with the Appellant Company, a coaching

institute, sometime in June, 2007 for preparation of IIT-JEE

(Indian Institute of Technology - Joint Entrance Examination)

proposed to be held in May, 2009. The Respondent No. 1

appeared in the said examination and topped. On the eve of

result of IIT-JEE Respondent No. 1 and his parents

(Respondent Nos. 2 and 3) participated in a press conference

and gave credit to the appellant and its faculty for the success

of the Respondent No. 1. Respondent No. 1 also wrote a letter

of appreciation in this regard. It appears that subsequently,

Respondent No. 1 penned down a book titled "The Secret of

My Success" detailing therein efforts made by him as also

paying tribute to the persons who had contributed to his

success. The book contained a chapter „Role of Parents‟

authored by Respondent No. 2 (father of Respondent No. 1.).

Book was published by the Respondent Nos. 4 to 6.

3. Grievance of the Appellant, as canvassed by the learned

counsel, is that the book contained certain remarks

pertaining to the Appellant were offensive, fallacious

defamatory, inasmuch as, same were contrary to the own

statement of the Respondents made on the eve of declaration

of results. Wherein Respondent Nos. 1 to 3, while talking to

the journalists, gave full credit to the Appellant. At that stage

Respondent Nos. 1 and 2 had proclaimed that Appellant was

the best institute having branches all over India and was their

first choice. In the letter also Respondent No.1 had lauded

the efforts of FIIT-JEE and its faculty for providing proper

coaching to him resulting in his success. Contrary to this, in

the book, it was stated that „Vidya Mandir Classes‟ situated at

Punjabi Bagh was their first choice but due to the distance

factor the said idea was dropped and Appellant was joined

sometime in June, 2007; that the contents of letter released

in National Daily were 70 per cent wrong, inasmuch as,

Respondent No. 1 was cajoled by the Appellant to write the

same in the manner it had been written; that the Respondent

No. 1 would first acknowledge hard work and contribution of

his parents and teachers of his schools and the coaching

institute comes last in that regard. It was also stated in the

book that as against the declared price money of

Rs.1,00,000/- to the Topper, Appellant paid only Rs.75,000/,

that too was released after Respondents took several rounds

of their office. These excerpts, according to the Appellant,

were inserted in the book in order to tarnish the image of

Appellant and were defamatory per se. These defamatory

remarks and aspersions made in the book were liable to be

removed by the Respondents before publishing the same.

Thus, injunction against publication and distribution of the

book was prayed besides deletion of offending passages.

4. Learned Single Judge considered the above facts and

arrived at a conclusion that no prima facie case was made out

by the Appellant to seek a gag order against the publication of

the book nor was there any balance of convenience in its

favour. That the Appellant was yet to establish that the

alleged remarks were defamatory in nature and as such pre-

censorship was not permissible, therefore, question of

irreparable loss or injury to the Appellant was also not there.

Learned Single Judge also placed reliance on Khushwant

Singh and Anr. vs. Maneka Gandhi reported in AIR 2002

DEL 58.

5. We find that in this case Application under Order 39 of

the CPC has yet to be disposed of and only ex-parte ad-

interim injunction has been declined. In the similar

circumstances a Division Bench of this Court in Super

Cassettes Industries Ltd. vs. Punit Goenka and Anr.

reported in 2009(40) PTC622(Del) observed that such an

Appeal was pre mature. However, since arguments have been

heard at length we venture to delve on other aspect involved

in the Appeal.

6. We do not find the view expressed by learned Single

Judge to be erroneous, capricious or perverse, necessitating

any interference in the Appeal. In Wander Ltd. & Anr. Vs.

Antox India Pvt. Ltd. reported in 1990 Suppl. (1) SCC 727,

Supreme Court held that Appellate Court will not interfere

with the exercise of discretion of the court of first instance

and substitute its own discretion except where the discretion

has been shown to have been exercised arbitrarily or

capriciously or perversely or where the court had ignored the

settled principles of law regulating grant or refusal of

interlocutory injunction. Appellate Court will not reassess

the material and seek to reach a conclusion different from the

one reached by the court below if the one reached by the

court was reasonably possible on the material.

7. In the facts of this case, we are of the considered view

that the injunction against publication and distribution is not

warranted more so when Appellant can claim damages by

leading evidence that the statements made in the book are

untrue and defamatory. Author has narrated the efforts put

in by him in achieving the success as well as the contribution

made by several persons in that direction. All these facts are

within the personal knowledge of the author and his parents.

In case the Appellant disputes the same it has to prove to the

contrary, for which it has to lead evidence discrediting the

version of the author and his parents. In case Appellant

succeeds in doing so it may be entitled to damages for which

appropriate remedy has to be availed. For the forgoing reason

we do not find a prima facie case in favour of the Appellant

nor is there any balance of convenience in favour of the

Appellant. Since remedy of claiming damages is there it

cannot be said that Appellant shall suffer irreparable loss and

injury. We concur with the learned Single Judge on this

point.

8. In Seagram India Pvt. Ltd. (now known as Pernod

Ricard India Pvt. Ltd.) vs. Vipin Sohanlal Sharma

reported in MANU/DE/0761/2010, this Court was held that

unless a compelling state interest or imminent likelihood of

breach of confidentiality which would injure the plaintiff

gravely are established, pre-publication injunction, where

damages can be claimed, is not available.

9. In Khuswant Singh's case (Supra) the author

proposed to bring out his autobiography in a book "Truth,

Love and Little Malice", which contained a chapter under the

heading "Gandhi and Anands". According to the Respondent

certain extracts of that chapter were defamatory. A Division

Bench of this Court declined to grant pre-publication

injunction by observing that the Respondent cannot make a

grievance when the remedy is available to him by way of

damages.

10. Learned Senior Counsel for the Appellant has placed

reliance on Maheshwar Hydel Power Corpn. Ltd. vs.

Chitroopa Palit and Anr. reported in AIR 2004 Bombay

143, Sonakka vs. U.R. Anantha Murthy & Ors. reported in

AIR 1988 Karnataka 255 and Magna Publishers Co. Ltd.

& Ors. vs. Shilpa S. Shetty reported in (2007) 12 SCC 792.

We have perused these judgments and find that the same are

in different context. In Maheshwar (supra) a press note was

issued by Narmada Yuva Shakti and was widely published in

various newspapers containing objectionable and defamatory

expression to the effect that officers of the Indian Public

Financial Institutions and Industrialists such as S.Kumars

have connived to siphon off and loot hundreds of crores of

rupees of public money - money that was the lifetime saving

of common Indian citizens. Respondents also warned the

Institutions and the Project Promoters of this privatized

Project - the S. Kumars that the youth of the area would not

stand for the unleashing of senseless terror by the S. Kumars

and that it is the time for the S. Kumars to withdraw from the

Project. Appellant took objection to the use of words

„connivance‟, „conspiracy‟, „siphoning‟, „loot‟, „unleashing

senseless terror‟/or such similar expressions and sought

injunction against the Respondents from publishing such

defamatory statements. In these facts it was observed that

such a press-note could not have been published without

taking reasonable precaution to ascertain the truth and that

the statements were based on sufficient material, which could

be tested for its veracity. In Sonakka's case (Supra) the

characters depicted in the book "Avesthe" resembled one Late

Sh. Gopalagowda, who was a man of repute holding high

position in the society and led a clean public life, during his

life time. In these circumstances, Respondents were

restrained from re-publishing the book and exhibiting the film

based on the book.

11. Keeping in mind totality of circumstances, we find no

merit in this Appeal.

12. Appeal is dismissed. All pending Applications also

stand dismissed.

A.K. PATHAK, J.

VIKRAMAJIT SEN, J.

May 28, 2010 ga