Rajeev Aggarwal vs Vijay Kumar Diwakar & Anr.
2011 Latest Caselaw 5076 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment reserved on:    28.09.2011
                                Judgment delivered on:   14.10.2011

                       C.S. (OS). No.47 of 2009

Rajeev Aggarwal                                      .......Plaintiff
                       Through: Mr. Sanjoy Ghosh, Adv.

                       Versus

Vijay Kumar Diwakar & Anr.                       .....Defendants
                    Through: The defendants are ex-parte

CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH

     1.   Whether Reporters of local papers may be allowed to
          see the judgment ?                                  Yes

     2.   To be referred to the Reporter or not ?             Yes

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

MANMOHAN SINGH, J.

1. The defendants are ex-parte. The instant suit for

compensation/damages for defamation and permanent injunction has

been filed by the plaintiff seeking damages and compensation for the

disrepute caused to the plaintiff on account of publication of two

defamatory articles dated 11.09.2008 (Exhibit PW-1/1) and

16.11.2008 (Exhibit PW-1/2).

2. Brief factual matrix of the case is that the Plaintiff has

been working in the real estate sector and textile industry for the last

several years having a net worth of Rs.700,00,000/-. He owns several

properties and is the managing director of M/s Exclusive Overseas

Pvt. Ltd. a company engaged in manufacturing and processing of

textiles with an annual turnover of Rs.200,00,000/-.

3. It is averred in the plaint that on 25.08.2008 the plaintiff

had made a complaint (Ex. PW-1/3) against Mr. Raj Kumar

Bhandana and Mr. Anil Arora for unauthorizedly occupying Khasra

No.239/1/1, 239/1/2, 239/2/2 and 239/3/1 in village Pul Pehladpur,

Tehsil Kalkaji, New Delhi. On 07.09.2008, the plaintiff was

summoned by the Police Officials of Chowki Pul Pehladpur, Police

Station Sangam Vihar for investigating into a complaint made by Mr.

Anil Arora.

4. Thereafter, on 10.09.2008 the plaintiff received a phone

call from defendant No.1, who introduced himself as a "reporter" and

asked the plaintiff to give him Rs.5,00,00,000/- and threatened the

plaintiff that if he didn't pay the money he would publish a

defamatory article against the plaintiff that would damage the

credibility and reputation of the plaintiff. The plaintiff refused to pay

him any money and immediately filed a complaint (Ex. PW-1/4)

against defendant No.1 in Sanagam Vihar Police Station. On the very

next day, i.e. 11.09.2008, the defendant No.1 published article (Ex.

PW-1/1) titled "Kale Karnamo Ke Vyavasai Bana Rajeev Aggarwal"

(Rajeev Aggarwal becomes businessman of black marketing) on the

front page of defendant No.2's news paper "Vijay News" which had

allegedly been filed by the "Crime Reporter" due to this the police

officials summoned the plaintiff once again. The plaintiff issued legal

notice dated 10.10.2008 (Ex. PW-1/6) to the defendants asking them

to publish an unconditional apology in their news paper "Vijay

News".

5. On 21.10.2008 the defendants sent a reply (Ex. PW-1/7)

to the plaintiff's legal notice dated 10.10.2008 (Ex. PW-1/6) wherein

it was stated that the news was based on "documentary evidence and

receipts executed in favour of Shri Anil Arora" and that the plaintiff

had committed fraud by dealing with DDA land.

6. Thereafter, on 12.11.2008 the police lodged an F.I.R

against the plaintiff under Section 420 and 406 read with Section 34

of I.P.C. thereafter, on 16.11.2008 the defendants published another

defamatory article (Ex. PW-1/2) wherein it was stated that the F.I.R

had been lodged against the plaintiff on account of the defendants

article dated 11.09.2008 (Ex. PW-1/1).

7. Being aggrieved by the acts of defendants the plaintiff

filed the instant suit on 09.01.2009 claiming damages to the tune of

Rs.25,00,000/- and demanding that an unconditional apology

published by the defendants in their news paper. The defendants were

served but, as no one appeared on their behalf therefore, vide order

dated 17.07.2009 the defendant Nos. 1, 2, 4, and 5 were proceeded

ex-parte and on 11.12.2009 the counsel for the plaintiff made a

statement in court that he wants to drop the name of defendant No.3

i.e. Tayal Offset Printing from the array of defendants thus, in view

of this statement the name of defendant No. 3 was deleted from the

array of defendants. None of the defendants has filed the written

statement and contested the matter.

8. The plaintiff filed the ex-parte evidence by way of

affidavits of PW-1 the plaintiff himself and the same is Ex. PW-1/A,

PW-2 Mr. P.D. Sharma which is Ex. PW-2/A and PW-3 Mr. Bhushan

Kumar Narang which is Ex. PW-3/A. Both PW-1 and PW-2 have

stated in their respective affidavits that the plaintiff has suffered loss

of reputation and business due to the defamatory articles published

by the defendants.

9. It is stated by the plaintiff that in a suit for damages, it is

presumed that the defamatory words are false and the burden to prove

that they are not false is upon the defendant (Radheshyam Tiwari v.

Eknath Dinaji Bhiwapurkar and Ors. AIR 1985 Bom 285).

However, in the present case, the burden has not discharged by the

defendants and therefore, the case of the plaintiff stands proved. In

the case of S.N. M. Abdi v. Prafulla Kr. Mahanta and Ors. AIR

2002 Gauhati 75, the High Court of Gauhati had upheld the

judgment and decree and awarded Rs. 5,00,000/- to the plaintiff

holding that in the absence of any written statement filed by the

defendants to prove the articles published as true, the case of the

plaintiff stands proved.

10. Further, it is stated by the plaintiff, that even the defense

taken by the defendants in their reply to legal notice on 21.10.2008

(Exhibit PW-1/7) that the articles (Exhibit PW-1/1 and Exhibit PW-

1/2) were based on documents supplied to them by Mr. Anil Arora

and that, publications were carried out in public interest would not

discharge the burden from the defendants because the publications

were malafide and the defendants had consciously made an attempt to

malign the plaintiff without any caveats or clarifications. Therefore,

the defense of fair comment in public interest is not available to the

defendants. As per the law as reiterated in the case of Radheshyam

Tiwari v. Eknath Dinaji Bhiwapurkar and Ors. (Supra), the defense

of fair comment only protects the statement of opinions and not

defamatory allegations of facts. It is one thing to comment upon or

criticize even with severity the proved facts and another to assert that

one is guilty of a particular act.

11. It is further stated by the plaintiff that even if it is

assumed, that the defamatory articles were based on the information

supplied by Mr. Anil Arora, the defendants would still be liable to

pay the damages sought by the plaintiff, as the defendants failed to

seek any clarifications from the plaintiff to verify the information the

information supplied by Mr. Anil Arora. It is also stated that in the

similar case titled as Sodhi Gurbachan Singh Koshan v. Babu Ram

and Anr., AIR 1969 Punjab 201, the High Court of Punjab and

Haryana while decreeing a suit for damages on account of defamation

had held, that it is the duty of an Editor of a newspaper to check up

the news or the information that is supplied to him, before publishing

the same in his newspaper, especially when the news might be of a

defamatory nature, because ultimately it is the Editor who would be

held responsible for publishing any defamatory material in his paper.

If he does not do so, then he has to suffer the consequences for his

neglect and remissness.

12. Further, the case of the plaintiff that the imputations made

in the defamatory articles were baseless and were published

maliciously, stands vindicated by the order dated 22.02.2010 passed

by the Press Council of India (Exhibit PW-1/9) and order dated

26.02.2010 passed by the Id. MM in criminal proceedings initiated

by the plaintiff against defendants for defamation (Exhibit PW-1/10).

Therefore, as held in the case titled as D.P. Chaudhary v. Manjulata

AIR 1997 Raj. 170, the articles are actionable if false and defamatory

even if published inadvertently.

13. The plaintiff is seeking damages for defamation to the

tune of Rs. 25,00,000/- along with costs of legal proceedings etc. The

plaintiff has adduced evidence by way of his affidavit which has

gone unrebutted. No written statement was filed by any of the

defendants. Thus, the allegation made by the plaintiff stand proved.

The plaintiff has referred to the case of S.N. M. Abdi v. Prafulla Kr.

Mahanta (Supra) wherein the High Court of Gauhati had held that

while deciding the compensation the court must take into

consideration (a.) the conduct of the plaintiff, (b.) his position and

standing, (c.) the nature of the libel, (d.) the refusal of retraction or

apology and (e.) the whole conduct of the defendant from the date of

the libel to the date of the decree.

14. In the present case, the plaintiff is a man of repute and the

defendants on the other hand are undeterred and have repeatedly

defamed the plaintiff therefore, according to the plaintiff, the

damages must be exemplary and punitive and in this regard, the

plaintiff has also referred to case titled as Rook v. Fairrie (1941)

1KB 507(CA) wherein the case was held one of punitive damages as

the cables in question therein were written and published maliciously.

15. The Court was of the view that while dealing with the

damages in a libel case one is endeavouring to express in terms of

money several different things which are not really susceptible of

money valuation. It is further stated that in case of libel, damages can

be awarded under four heads:- (1) injury to reputation (2) Injury to

feelings- the natural grief and distress which he may have felt at

having being spoken of in defamatory terms, and if there has been

any kind of high handed, oppressive, insulting or contumelious

behaviour by the defendant which increases the mental pain and

suffering caused by the defamation and may constitute injury to the

plaintiff's pride and self confidence. (3) Injury to health and (4)

Pecuniary loss.

16. According to the plaintiff, he is entitled to compensation

under all the four heads as the news reports did not only defamed the

plaintiff hurting his pride and self confidence and affected his

business potentials, but the plaintiff was also put in a stressful

situation injurious for his health. Therefore it is submitted that the

plaintiff may be damages as claimed by him.

17. I have heard the learned counsel for the plaintiff at great

length and also perused the various judgments referred by him as

well as documents placed on record. The evidence produced by the

plaintiff has gone unrebutted as the defendants did not chose to

appear in the court nor any written statement was filed by the

defendants. Therefore, the plaintiff is entitled for the relief claimed

against defendants No.1 and 2 to the extent that the plaintiff would

be entitled to a sum of Rs.5 lac as compensation/damages for the

defamation caused to the plaintiff on account of the publication of a

news items in its edition of "Vijay News" published on 11.09.2008

as well as on 16.11.2008. The plaintiff is also entitled for cost.

18. The decree be drawn accordingly. The suit stands

disposed of accordingly.

MANMOHAN SINGH, J.

OCTOBER 14, 2011