Madras High Court
Amala Xavier vs A.Swaminathan on 16 June, 2021
S.A.(MD)No.863 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.863 of 2014
Amala Xavier ... Appellant
Vs.
A.Swaminathan ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the decree and judgment passed in A.S.No.30 of 2011 dated 29.11.2013,
on the file of the District Court, Sivagangai, reversing the decree and judgment
passed in O.S.No.57 of 2007 dated 10.01.2011 on the file of the Sub Court,
Devakottai.
For Appellant : Mr.C.Vakeeswaran
For Respondent : Mr.V.Meenakshisundaram
For Mr.D.Nallathampi
JUDGEMENT
The plaintiff in O.S.No.57 of 2007 on the file of the Sub Court,
Devakottai is the appellant in this second appeal. The case of the plaintiff is
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S.A.(MD)No.863 of 2014
that he was working as lecturer in Sree Sevugan Annamalai College,
Devakottai and that his reputation was ruined by the respondent herein by
writing several complaint letters to various authorities describing the plaintiff
as a “ cheat”. The plaintiff sought payment of a sum of Rs.5 Lakhs as damages
from the defendant.
2.The plaintiff examined himself as P.W.1 and seven others as P.W.2 to
P.W.8. Exs.A1 and A16 were marked. The defendant examined himself as
D.W.1 and one Michael Raj as D.W.2 and marked Exs.B1 to B7. Exs.C1 to C26
were also marked.
3.The learned trial judge by judgment and decree dated 10.01.2011 partly
decreed the suit and directed the defendant to pay a sum of Rs.10,000/- to the
plaintiff. The trial court gave a finding that the defendant had defamed the
plaintiff and that therefore, he was bound to pay damages to the plaintiff.
Aggrieved by the same, the defendant filed A.S.No.30 of 2011 before the
District Court, Sivagangai. The plaintiff also filed cross-appeal. The first
appellate court by judgment and decree dated 29.11.2013, allowed the appeal
filed by the defendant and dismissed the cross appeal. Challenging the same,
this second appeal came to be filed.
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S.A.(MD)No.863 of 2014
4.The second appeal was admitted on the following substantial question
of law:-
“Whether the lower appellate court was right in allowing
the appeal, when the respondent herein admitted having sent
Ex.A4, Ex.X19 and Ex.X20 which defame the appellant herein ?”
5.Heard the learned counsel on either side.
5.The learned counsel appearing for the appellant submitted that it has
been established beyond dispute that Ex.A4, Exs.C19 and C20 were sent by the
defendant to various authorities and that those notices contained defamatory
words against the appellant herein. He would also point out that O.S.No.69 of
2005 on the file of the Sub Court, Devakottai filed by the defendant on the
strength of pro-note said to have been executed by the appellant herein was
dismissed and the District Court, Sivagangai confirmed the same in A.S No.1
of 2007. Thus, the civil proceedings instituted by the respondent against the
appellant ended against him. Only after instituting the civil proceedings, the
offending notices were sent. Since the civil proceedings instituted by the
defendant failed, it is clear that there was no truth in his complaints. In any
event, after the dismissal of his first appeal, the defendant ought not to have
sent the offending complaints. He therefore submitted that the first appellate
court clearly went wrong in holding that the act committed by the defendant
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S.A.(MD)No.863 of 2014
will not amount to defamation. He called upon this Court to answer the
substantial question of law in favour of the appellant and reverse the decision
of the first appellate court and decree the suit as prayed for.
6.Per contra, the learned counsel appearing for the respondent submitted
that the impugned judgment passed by the first appellate court does not call for
any interference.
7.I carefully considered the rival contentions and went through the
evidence on record. The appellant was working as lecturer in a college. There
is no dispute that the offending complaints were sent by the defendant only to
certain statutory authorities who had disciplinary jurisdiction over the appellant
herein. The defendant had not caused publication in any other manner. In
other words, the defendant did not circulate any defamatory material against
the appellant. It is true that the appellant had been described as a “cheat” in the
said complaints.
8.The question is whether this can furnish cause of action for
maintaining the suit in question ? A civil action for defamation will not lie if
the person who is sued has sent the complaints only to the authorities and if his
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S.A.(MD)No.863 of 2014
action is bonafide. The learned counsel for the respondent draws my attention
to the decision rendered in Application No.98 of 2019 in C.S.No.870 of 2017
dated 08.09.2017. A learned Judge of this Court held as follows:-
“39. Complaints have been lodged only to the statutory
Authorities who have an obligation under law to ensure proper and
smooth functioning of the Company. Even in the judgment relied
upon by Mr.P.H.Arvind Pandiyan in Raj Nath Khosla Vs. Acharya
Dr John R Biswas and others reported in 197 (2013) DLT 728, the
Delhi High Court had extracted the observations of the Patna High
Court in Pandey Surendra Nath Sinha Vs. Bageshwari Pd. reported
in AIR 1961 Patna 164 which reads as follows:-
''If a person who makes the statements has an interest or
duty, legal, social or moral to make it to the person to
whom it is made, and the person to whom it is so made
has as corresponding interest or duty to receive it such
statement commands a privilege and cannot be made
basis of an action for defamation.''”
9.There is no dispute that the complaints were sent only to statutory
authorities. I will of course have to see if that respondent was bonefide in his
conduct. The allegation of the respondent is that the appellant had cheated him
by not refunding the sums received from him. Originally the learned counsel
appearing for the appellant submitted that the family of the appellant was
running a financial establishment and that the appellant was not actually
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S.A.(MD)No.863 of 2014
running the finance business. This stand of the appellant is not in consonance
with the stand taken in Ex.B2/reply notice issued to the defendant on
24.02.2005. In the said reply notice, in paragraph No.3, the appellant had
admitted that he was running a financial establishment and that the defendant's
family had invested to the tune of Rs.3,60,000/- in it. The appellant claims that
the persons to whom, he had lent money had cheated him and as a result, the
financial establishment had suffered a huge loss. Yet the appellant had
negotiated with his investors and paid a substantial sum towards full and final
settlement of their claims. The respondent was paid a sum of Rs.3,00,000/-
towards full and final settlement on 29.05.2001. The allegation of the appellant
is that after receiving the said amount, without returning the original
promissory note, the defendant/respondent herein filed a civil suit. From the
reply notice given by the appellant, it can be seen that even though the
respondent's family had invested a sum of Rs.3,60,000/-, what they eventually
got was only a sum of Rs.3,00,000/-. Thus, the defendant was put to loss on
account of appellant. Therefore, the defendant did have a serious grouse
against the appellant. That apart, the appellant as a serving lecturer in a college
was not supposed to be engaged in financing business. That was clearly
contrary to service rules. The defendant having lost the civil proceedings felt it
necessary to bring this to the notice of the higher authority. This action by the
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S.A.(MD)No.863 of 2014
respondent can by no stretch of imagination be said to constitute an act of
defamation. The respondent had complained only to the statutory authorities,
who had some kind of jurisdiction or control over the appellant herein. They
had a duty to receive the complaint submitted by the respondent. Whether to
initiate action or not was left to their discretion. The respondent definitely had
a right to bring it to their notice that the appellant was indulging in an act not
in consonance with his conduct rules. Looked at from any angle, the
conclusion of the first appellate court that the action of the respondent does not
amount to defamation does not warrant interference. The substantial question
of law is answered against the appellant and the second appeal is dismissed.
No costs.
16.06.2021
Index : Yes / No
Internet : Yes/ No
ias/skm
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The District Judge, Sivagangai.
2.The Sub Judge, Devakottai.
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S.A.(MD)No.863 of 2014
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.863 of 2014
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.863 of 2014
16.06.2021
https://www.mhc.tn.gov.in/judis/
