Dow Jones & Company vs M/S Indiabulls Housing Finance ...
2015 Latest Caselaw 5906 Del

    * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment Reserved on: 07th August, 2015
                                      Judgment Delivered on: 13th August, 2015

+                 CM NO. 11313/2015 in FAO(OS) 327/2015


DOW JONES & COMPANY                                                               .....Appellant
                                               Versus

M/S INDIABULLS HOUSING FINANCE LTD & ORS...Respondents

Advocates who appeared in this case:
For the Appellants: Mr Arvind Nigam, Senior Advocate with Mr Sulabh
                    Rewari and Ms Nayantara Narayan, Advocates.

For Respondent       :     Mr Chetan Sharma, Senior Advocate with Ms Mamta
                           Tiwari and Mr Rajat Jain, Advocates for R-1.
                           Mr Dayan Krishnan, Sr Advocate with Ms Jasleen Oberoi
                           and Ms Surbhi Mehta, Advocates for R-5.

                                               AND

+                 CM NO. 11321/2015 in FAO(OS) 329/2015

DOW JONES & COMPANY                                                               .....Appellant
                versus
M/S INDIABULLS REAL ESTATE LTD & ORS.                                       .....Respondents


For the Appellants:        Mr Arvind Nigam, Senior Advocate with Mr Sulabh
                           Rewari and Ms Nayantara Narayan, Advocates.

For Respondent       :     Mr Dayan Krishnan, Sr Advocate, Ms Jasleen Oberoi and
                           Ms Surbhi Mehta, Advocates for R-2.




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CM NO. 11313/2015 in FAO (OS) 327/2015 & CM NO. 11321/2015 in FAO (OS) 329/2015            Page 1 of 15
                            Mr Rajiv Nayyar, Senior Advocate with Mr Rishi
                           Agarwal, Mr Anuj Malhotra and Mr Karan Luthra,
                           Advocates for R-1.

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                        JUDGMENT

SANJEEV SACHDEVA, J

CM NO. 11313/2015 in FAO (OS) 327/2015 and CM NO. 11321/2015 in FAO (OS) 329/2015

1. By these applications, the appellant (Defendant No. 2 in the suit) is seeking condonation of delay of 14 days in filing these appeals impugning order dated 16th April 2005, whereby an ex-parte ad- interim injunction has been granted against the appellant in a suit for permanent injunction filed by the Respondent No. 1 (Plaintiff) .

2. The applications are similar and plead identical cause for the delay. The facts enumerated in FAO (OS) 329/2015 are as under:

"3. It is respectfully submitted that the Appellant is an American news and information company and a division of News Corp. Appellant is a corporation incorporated in the State of Delaware, having its principal office at 1211 Avenue of Americas, New York, NY 10036.

4. It is respectfully submitted that the CEO of the Appellant on 16 April 2015 received an email communication from the lawyers of Respondent No 1, intimating him of the passing of the Impugned Order. However, the said email did not attach a complete set of papers in CS (OS) No 1016/2015. The Appellant understands that a similar

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communication was also received by Ms. Geeta Anand, who is an editor with The Wall Street Journal, which is a publication of the Appellant.

5. It is submitted that the Appellant is a US based large corporation having various businesses being handled by different divisions /departments.

6. The Appellant took some time to examine its legal options in respect of the proceedings initiated against it and further engage a local counsel to act for it in the said proceedings. Additionally, delay in filing of the appeal was occasioned as the Appellant had to arrange for an authorised representative/power of attorney to act for it in proceeding before Indian Courts. This process, due to Appellant's corporate structure and internal mechanisms, took some time. Further time was also taken in having the appeal papers, including the supporting affidavits, notarized and apostilled as per procedure, which can be a time consuming process. This further delayed the filing of the appeal. In view of the above facts and circumstances, the present Appeal could not be finalized and filed within 30 days of the Appellant's CEO receiving intimation of passing of the Impugned Order vide mail of Respondent No l's lawyers.

7. The time taken in filing of the appeal, and delay in this respect was neither deliberate nor willful and was occasioned on account of bona fide reasons. It may be mentioned that in the meanwhile Ms. Geeta Anand had independently filed an appeal against the Impugned Order and received relief from this 'Hon'ble Court in the same.

8. In these circumstances the present is a fit case for this Hon'ble Court to consider the Appellant's present application and hear its appeal.

9. At this stage it is relevant to mention that the Appellant understands that the order dated 16 April 2015 passed by the Learned Single Judge did not contemplate service through email and the said email was not proper service of the Impugned Order and Suit, particularly as the email did not attach the complete set of papers. Till date, the

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Appellant has not been served with the complete set of suit papers in its principal address at New York, which incidentally is also the address set out in the plaint.

On 20 May 2015, a copy of the Impugned Order and suit papers were served via courier on the registered address of an affiliate company of the Appellant namely, M/s Wall Street Journal India Publishing Pvt. Limited and the Appellant understands that service was sought to have been made earlier as well. It is respectfully submitted that these are relevant factors for consideration in the present application and the Appellant seeks this Hon'ble Court's indulgence in respect of the same. The present application is being filed without prejudice to the above facts."

3. The cause pleaded by the appellant in not filing the appeal within time is that the appellant is a company based in the United States and though a copy of the impugned order was received by the CEO of the appellants by way of an email on 16.04.2015, but the same was not accompanied with the complete set of papers in the suit and till the filing of the appeal, the papers had not been received in the principal office of the appellant in the United States.

4. It is contended that the appellant is a US based large corporation having various businesses being handled by different divisions/departments. It took some time to examine its legal options in respect of the proceedings initiated against it and further to engage a local counsel to act for it in the said proceedings. Additionally delay is stated to have occurred, as it had to arrange for an authorised representative/power of attorney to act for it in the proceedings before Indian Courts. This process, it is contended, due to its corporate

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structure and internal mechanism, took some time and further time was taken in having the appeal papers, including the supporting affidavits, notarised and apostilled as per procedure, which is time consuming.

5. It is contended that on 20th May 2015, a copy of the impugned order and suit papers were served via courier on the registered address of an affiliate company of the appellant, namely, M/s Wall Street Journal India Publishing Pvt. Ltd.

6. It is contended that the appeal has been filed on 22.06.2015 and that the court was closed for summer vacation from 01.06.2015 till 28.06.2015 and the registry was closed for the purpose of limitation with effect from 01.06.2015 till 28.06.2015 and the normal filing was closed in the registry with effect from 01.06.2015 till 22.06.2015 and during this period the registry was only accepting urgent filing for listing before the vacation bench. It is contended that there is no delay in filing the appeal from the service of the notices through the court process and if the service of email enclosing the copy of the impugned order without the complete papers was to be taken as sufficient service, there was a delay of only 14 days and the same was on account of the reasons as stated above.

7. The respondent no. 1 has vehemently opposed the applications seeking condonation of delay. The respondent No. 1 in its reply to the application in FAO (OS) 329/2015 has contended as under:

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A. The Appellant is a company incorporated under the United States of America. It has shown its registered address at "New York, NY Dow Jones & Co. 1155, Avenue of the Americas 7 th floor New York, NY 10036 ". The Appellant also maintains a website named being "new.dowjones.com". On the click of "contact us" button on the said website, one of the addresses in India is shown to be Mumbai, India - Dow Jones & Co., Unit 93, 9 th Floor, 2 North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra (East), Mumbai, 400-051 India. The printout of the said addresses from the website of the company have been filed along with this application as Annexure-A.

B. The Respondent plaintiff filed the suit before this Hon'ble Court on 16.04.2015, being CS (OS) No. 1016/2015 titled Indiabulls Real Estate Ltd. Vs. Geeta Anand and the address for service was shown in the suit to be at both the above addresses in respect of the Appellant.

C. This Hon'ble Court passed an order and issued summons on the suit on 16.04.2015. The said order already forms part of the record in the present Appeal as Annexure A-1.

D. On 18.04.2015, the plaintiff filed its process fees and also sent the entire court papers, order dated 16-04-2015 alongwith the Application in compliance of the order 39 Rule 3 of CPC. A copy of the process fee from, affidavit filed in compliance dated 29-07-2015 with order 39 Rule 3 alongwith postal receipts is annexed hereto as Annexure-B (Colly).

E. The Appellant in the application for condonation of delay has taken a false plea that it had not received the notice on the American address till date and has also received the notice at the Mumbai Address on 20.05.2015. This averment is in the following terms in the application for condonation of delay.

"9. At this stage it is relevant to mention that the Appellant understands that the order dated 16 April 2015 passed by the Learned Single Judge did not contemplate service through email and the said

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email was not proper service of the Impugned Order and Suit, particularly as the email did not attach the complete set of suit papers in its principal address at New York, which incidentally is also the address set out in the plaint.

On 20 May 2015, a copy of the Impugned Order and suit papers were served via courier on the registered address of an affiliate company of the Appellant namely, M/s Wall Street Journal India Publishing Pvt. Ltd. and the Appellant understands that service was sought to have been made earlier as well. It is respectfully submitted that these are relevant factors for consideration in the present application and the Appellant seeks this Hon'ble Court's indulgence in respect of the same. The present application is being filed without prejudice to the above facts."

         F.       The above statement is false because:

                  (i)      Appellant had refused the service of the documents

on 20-04-2015 and 21-04-2015. The said report has been annexed as Annexure-C (Colly).

(ii) Appellant was served on 28-04-2015 on the U.S.

Address. The copies of Postal receipts alongwith track reports are annexed as Annexure-D (Colly).

(iii) Ms. Geeta Anand who is admittedly the editor of the Appellant company has her office at Unit 93, 9th Floor, 2 North Ave. Maker Maxity, Bandra Kurla Complex, Bandra (East), Mumbai, 400-051 India (Same as the Appellant's address in India).

(iv) Geeta Anand received the papers on 20-04-2015 on the Mumbai address and shown in the list of addresses filed with this application. Copy of postal receipts of 20-04-2015 and track reports are annexed herewith as Annexure-E (CoIly).

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(v) Geeta Anand filed her Appeal being FAO (OS) No. 248/2015, titled Geeta Anand Vs. Indiabulls Real Estate on 01-05-2015.

G. The Respondent Plaintiff submits that the appellant has deliberately suppressed from this Hon'ble Court that the service at the Mumbai Address of the Appellant was received on 20-04-2015 which under Section. 27 of the General Clauses Act is a deemed service .and accordingly the suppression of this very fact shows that the entire affidavit filed by the Appellant for condonation of delay is false.

H. The Respondent Plaintiff submits that the filing of the present appeal by the Appellant is clearly an afterthought, after the proceedings had been filed by their own editor, Ms. Geeta Anand and the orders passed in her favour, but not effective in respect ,of the Appellant though oral prayers were made for it to be made applicable to the Appellant. The Appellant was very well aware of the proceedings before the High Court of Delhi and Ms. Geeta Anand made efforts to obtain an order in favour of the Appellant through her own appeal in her capacity of being an editor of the Appellant. However, after this Hon'ble Court disregarded the status of Ms. Geeta Anand as an editor of Dow Jones and construed only her status as journalist and passed an order, having not obtained the prayer for relief, the Appellant as an afterthought has filed the present appeal directly before this Hon'ble Court instead of filing proceedings before Ld. Single Judge. The Respondent Plaintiff submits that in paragraph XIX and Ground NN of the present Appeal despite praying for reliefs similar to Ms. Geeta Anand, in FAO(OS) No. No.248/ 2015, the Appellants have refused to accept the jurisdiction of this Hon'ble Court. The particular paragraphs in this regard are as follows:

"NN. FOR THAT The Appellant respectfully submits that the impugned Order passed by the Learned Single Judge does not and cannot be deemed to enjoin publication outside the jurisdiction of this Hon'ble High Court, in as much as courts in India would not have the requisite

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jurisdiction qua publication of a story outside India by, an entity which is incorporated and based outside India. This is particularly so as certain editions of The Wall Street Journal are not circulated in India and any attempt by Respondent No.1 to seek such relief would be patently misconceived."

Thus, the Appellants are abusing the process of law to somehow mislead this Hon'ble Court and to obtain an order so that a contemptuous and defamatory article proposed to be published is released in the public domain on the click of a button universally affecting the rights of the Respondent Plaintiff as also the Authorities in India while the Appellant purported itself to be not controlled or governed by Indian laws. The effect of the devastating article by Ms. Geeta Anand and the Appellant is entirely upon the Respondent Plaintiff and the Indian authorities have nothing to do with either America or its citizens. Thus, dishonestly of not being subjected to the Indian Courts while claiming relief from Indian Court to somehow release an Article against Indian authorities is a plea which must be stated to be rejected. The Respondent Plaintiff submits that the present application under Section 5 of the Limitation Act deserves to be dismissed with exemplary cost and the present appeal filed by the Appellant also deserves to be dismissed.

8. The Respondents have vehemently opposed the applications seeking condonation of delay. It is contended that though the appellant has shown its registered office at US but it maintains a website wherein in the "Contact us" one of the addresses in India is shown to be a Mumbai address. In the suit, both the addresses of Mumbai and US have been shown as the addresses of the Appellant. It is contended that on 18.04.2015, the process fee was filed and the entire set of court papers were sent by the advocates of the ===============================================================

Respondent No. 1 in compliance of order 39 rule 3 of the Code of Civil Procedure (CPC for short).

9. It is contended that the appellant had refused the service of the documents on 20.04.2015 and 21.04.2015 at its Mumbai address, however it was served on 28.04.2015 at the U.S. Address. It is contended that the other defendant in the suit, Ms Geeta Anand, the editor of the appellant was served at the Mumbai address on 20.04.2015 and she filed her appeal on 01.05.2015. It is contended that on account of the refusal, the appellant is deemed to have been served on 20.04.2015 at the Mumbai Address. It is further contended that the appellant has refused to submit to the jurisdiction of this court and as such the application should be dismissed.

10. We have examined the records of the Suit with regard to the service of summons. The process fee for service of notices was filed on 20.04.2015. The date of issuance of notices is mentioned on the summons as 30.04.2015, but the same have been signed by the Administrative officer on 01.05.2015 and have been dispatched by post on 07.05.2015. An affidavit of service has been filed on behalf of the Respondent No. 1 (plaintiff) dated 29.06.2015 contending that the notices issued by the court have been dispatched through speed post on 15.05.2015 and have been received by the Appellant (Defendant No. 2) on 20.05.2015.

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11. The present appeal has been filed on 22.06.2015. The court was closed for summer vacation from 01.06.2015 till 28.06.2015 and the registry was closed for the purpose of limitation with effect from 01.06.2015 till 28.06.2015. Normal filing resumed on 22.06.2015 and the appeal has been filed on the said date.

12. The period of limitation prescribed under article 117 of the Limitation Act, 1963, for filing an intra-court appeal is thirty days from the date of the order. However, the date of passing of an order, passed ex-parte prior to issuance of the notices, cannot be taken as the date of commencement of limitation as the order has to be brought to the notice of the concerned party for the limitation to commence.

13. The impugned order has been passed on 16.04.2015. It was an ex-parte ad-interim order passed prior to the issuance of notice in the suit. If the period is reckoned from the date of the order itself, then the appeal could have been filed till 16.05.2015. The registry closed for summer vacation on Monday 01.06.2015, 31.05.2015 being a Sunday and the registry was closed in any case. So technically the filing closed on Saturday 30.05.2015 i.e. 14 days after the period computed in the above fashion. The appeal has been filed on 22.06.2015.

14. If the date of service of the order is taken to be the date on which notices issued by the court process have been received by the affiliate company of the appellant i.e. on 20.05.2015, then the appeals are not delayed and are within time.

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15. If the period is computed from 28.04.2015, i.e. the date on which the complete papers alongwith a copy of the order allegedly sent by the advocates for the Respondent No. 1 was served on the appellant at the US address, then the appeal is delayed by 02 days. If the period is computed from 20.04.2015, i.e. the date on which date the appellant is alleged to have refused to accept the notices sent by the advocates for the respondent No. 1 at its Mumbai address, then the appeal is delayed by 10 days and if the period is computed from 16.04.2015, i.e. the date the order is communicated to the CEO of the appellant by the advocates for respondent No. 1 by email, then the appeal is delayed by 14 days.

16. The explanation given for the above said period of 14 days is that the appellant being a large corporation based in United States and having various businesses being handled by different divisions/departments, took some time to examine its legal options in respect of the proceedings initiated against it and further took some time to engage a local counsel to act for it in the said proceedings and additionally time was taken as it had to arrange for an authorised representative/power of attorney to act for it in proceedings before Indian Courts. Further time was taken in having the appeal papers, including the supporting affidavits, notarised and apostilled as per procedure.

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17. We are of the view that the explanation given for the said period is reasonable and sufficient for condoning the delay, if any. The Appellant is a large corporation based abroad and it is not unreasonable for large corporation to take some reasonable time in exploring its legal options. Some time certainly would have been consumed in preparation of the appeal papers and having the same notarised and apostilled. The alleged delay of 14 days is not so unreasonable and gross so as to shut out the legal remedies of the appellant on technical ground. We are of the opinion that the period of 14 days is sufficiently explained. We are saying 'delay if any' for the reason that the notices have been dispatched by the registry only on 07.05.2015 and even if the same are deemed to have been served on the date of dispatch, the appeal is within time.

18. Since the period of alleged delay is only 14 days and we have held that the explanation rendered for the 14 days period constitutes sufficient cause, the question whether the service of the email and notices sent by the advocates of the Respondent No. 1, without summons / notices from court, would constitute sufficient service for the purposes of commencement of limitation is left open and is not gone into.

19. The submission of the Learned Senior Counsel for the Respondent No. 1 that the application should be dismissed as the appellant, by contending that the courts in India would not have the

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requisite jurisdiction, has not submitted itself to the jurisdiction of this court, is without any merit. Firstly, the appellant by filing the appeal has subjected itself to the jurisdiction of the courts in India and secondly, the contention of the appellant is that the courts in India would not have the requisite jurisdiction, which is on the account of the plea that as per the appellant, the cause of action to confer jurisdiction has not arisen within the territorial limits of the courts of India.

20. Learned Senior Counsel for the Respondent No. 1, relied upon paragraph 12 of the Judgment of the Supreme Court of India in the case of Pundlik Jalam Patil Versus Jalgaon Medium Project (2008) 17 SCC 448 to contend that incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application.

21. The judgment in the case of Pundlik Jalam Patil (Supra) is not applicable in the facts of the present case. In the said case, there was a delay of 1724 days in filing of the appeal and the appellant therein had made an incorrect statement. The Supreme Court held that a party taking a false stand to get rid of limitation should not be encouraged to get any premium on falsehood on its part by condoning delay. In the present case, the alleged delay is only of 14 days for which also sufficient cause has been shown and the alleged false statements

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imputed to the appellant have also been duly explained and considered by us.

22. Another aspect of the matter is that the editor of the Appellant, Ms. Geeta Anand has already filed appeals, (being FAO(OS) 248/2015 & FAO(OS) 249/2015), impugning the order dated 16.04.2015 on which we have already issued notice and passed interim directions.

23. In view of the above, we are of the view that the period of alleged delay of 14 days in filing the appeals is sufficiently explained and as such the applications seeking condonation of delay are allowed.

SANJEEV SACHDEVA, J.

August 13, 2015                                      BADAR DURREZ AHMED, J.
'hmj/sk'

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