Energy Efficiency Services Ltd & ... vs Shaktisinh Gohil
2017 Latest Caselaw 6996 Del

$~38
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 202/2017
     ENERGY EFFICIENCY SERVICES LTD & ANR .... Plaintiffs
                   Through: Mr. Manik Dogra, Mr. Nitya
Sharma,
                            Advocates
         Versus

       SHAKTISINH GOHIL                                  ..... Defendant
                    Through:            Mr. Anip Sachthey, Ms. Ria
                                        Sachthey, Advocates
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                        ORDER

% 05.12.2017 IA 14410/2017 (of the defendant under Order XXXIX Rule 4 CPC)

1. The defendant seeks vacation of the ex parte ad interim order dated 12th May, 2017 restraining the defendant from publishing, broadcasting or telecasting in any manner or communicating to the public the content contained in defendant's statements dated 27th March, 2017 and 28th March, 2017.

2. The counsel for the plaintiffs appears on advance notice and states that the defendant has filed FAO(OS) No.255/2017 and of which notice has been issued and which is listed next on 15th January, 2018 and in which no stay of the ex parte ad interim order has been granted.

3. I have enquired from the counsel for the plaintiffs, whether there is any stay of proceedings in this Suit by the Division Bench.

4. The answer is in the negative.

5. Once that is so, then mere pendency of a First Appeal against the ex parte ad interim order and issuance of notice therein would not require the Suit Court to restrain itself from proceeding with the Suit and which would include consideration of an application under Order XXXIX Rule 4 of the CPC.

6. The counsel for the plaintiffs has also contended that the matter be kept after a few days for hearing of this application.

7. The party which obtains an ex parte order should be prepared, when an application for vacation of the same comes up, to justify the ex parte order or continuation thereof or for confirmation thereof.

8. Finding, that the ex parte order is in the nature of a restraint against exercise of fundamental right of speech, I have enquired about the controversy from the counsel for the plaintiffs.

9. The counsel for the plaintiffs states that the plaintiffs have instituted this Suit for recovery of damages for defamation and for permanent injunction restraining the defendant from further defaming the plaintiffs and/or from further circulating or publishing the statements made by the defendant on 27th March, 2017 and 28th March, 2017. It is explained, that the plaintiff No.1 is a company which floats tenders for purchase of LED bulbs and effects the said purchase from the tenderer whose tender is the lowest. On enquiry as to what does the plaintiff do with the said bulbs and whether the said bulbs are for own consumption of the plaintiffs, the counsel for the plaintiffs states that the said bulbs are for the lighting of the various Nagar Palika roads and streets.

10. I have enquired from the counsel for the plaintiffs, why the Nagar Palikas, which require the said LED bulbs, cannot invite tenders therefor themselves and what is the role of the plaintiffs in such acquisition and how the Nagar Palikas benefit with the plaintiffs as an intermediary.

11. The counsel for the plaintiffs states that owing to centralized purchase by the plaintiff, for all Nagar Palikas throughout the country, there is 80% reduction in the cost than if the Nagar Palikas were to individually purchase. It is further stated that the defendant is a political figure and has issued the Press Release dated 27th March, 2017 and 28th March, 2017 with the intention to gain political advantage.

12. A perusal of the Press Release dated 27th March, 2017 shows the defendant to have published that there is a massive fraud and irregularity in the tendering process of LED items by the plaintiffs and the said purchase is a negation of the 'Make In India' programme of the Government of India inasmuch as the LED bulbs being procured are of Chinese or Taiwanese make. It is further published that the same has resulted in the Nagar Palikas losing over Rs.20,000 Crores.

13. The counsel for the plaintiffs states that it is the case of the defendant that the tendering process has resulted in a loss of Rs.20,000 Crores.

14. The counsel for the defendant states that the Central Vigilance Commission (CVC) is already seized of the matter and the matter is thus in public domain.

15. The counsel for the plaintiffs states that he is not aware whether the CVC is seized of the matter.

16. Though the plaintiff No.1 is a company but promoted by the Public Sector Undertakings and thus, it cannot be said that the affairs of the plaintiff No.1 are in private domain. Further, the acquisition by the plaintiff being for public purposes, has to be necessarily under the public scanner and the plaintiffs cannot scuttle the allegations sought to be made against them and which allegations would certainly be decided and if the defendant is found to be liable therefor, he will be proceeded against therefor. However, it is felt that scuttling of such allegations at the threshold only is not in public interest and may deter other public spirited persons from highlighting before the public the maladministration, if any, in public affairs, causing loss to the public.

17. I have enquired from the counsel for the plaintiff, the loss if any, suffered by the plaintiffs owing to the publications effected by the defendant and whether any of the Nagar Palikas have cancelled any contracts with the plaintiff No.1 or rejected any goods of the plaintiff No.1.

18. The counsel for the plaintiffs has drawn attention to para 23 of the application of the defendant under Order XXXIX Rule 4 CPC and has contended that the defendant has himself therein toned down the allegations and described the same as mere possibility and not supported the same.

19. That rather shows that the Suit has had the desired result and if the defendant proceeds to still make any publications, the plaintiffs would be entitled to claim damages from the defendant therefor. However, I am of the view that no prohibition in the nature of Press censorship can be allowed in the aforesaid facts.

20. The counsel for the plaintiffs then has drawn attention to para 20 of the application under Order XXXIX Rule 4 CPC and has contended that the defendant therein also has admitted that the bulbs procured by the plaintiffs were manufactured in India though by a company which was not an Indian company. The counsel for the plaintiffs has argued that the requirement in the tender of the plaintiffs being 'manufactured in India', the said bulbs satisfy the said criteria.

21. The same may be a ground for the plaintiffs to claim that the defendant has admitted falsity of his statements earlier made but still in my view cannot entitle the plaintiffs to scuttling the defendant from making any statements with respect to public procurement in which plaintiff is engaged. Needless to state that further publication will be at the risk of the defendant to suffer damages for defamation.

22. The ex parte order dated 12th May, 2017 is thus vacated.

23. IA No. 14410/2017 as well as IA No.5589/2017 (of the plaintiff under Order XXXIX Rules 1 and 2 CPC) are disposed of. CS(OS) 202/2017

24. List the Suit for framing of issues, if any, on 5th April, 2018.

RAJIV SAHAI ENDLAW, J.

DECEMBER 05, 2017 pk..