Delhi High Court
Asish Mohapatra & Ors. vs Slowform Media Pvt. Ltd. & Ors. on 15 October, 2024
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 15.10.2024
+ CS(OS) 825/2024
ASISH MOHAPATRA & ORS. .....Plaintiffs
Through: Ms Bansuri Swaraj, Sr. Advocate
with Mr Sanyam Khetarpal, Mr
Nitesh Goyal, Ms Prakriti Anand, Ms.
Arya Suresh, Ms Lisa Sankrit, Ms
Lekha, Mr. Nitai Agarwal and Ms
Tejasvi Gupta, Advocates.
versus
SLOWFORM MEDIA PVT. LTD. & ORS. .....Defendants
Through: Mr Vivek Chib, Sr. Advocate with Mr
Kushal Gupta, Ms Deepshikha
Sarkar, Ms Unnati, Ms Mansi Gupta
and Ms Bijaharini G., Advocates for
D-1 to D-5.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J. (ORAL) I.A. 42204/2024 (by the plaintiffs under Section 151 CPC)
1. Allowed, subject to all just exceptions.
I.A. 42205/2024 (by the plaintiffs under Section 80 read with Section 151 CPC)
2. By way of present application, the plaintiffs seek exemption from serving notice in terms of Section 80 CPC on the defendant no.6.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 1 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:513. Learned senior counsel for the plaintiffs submits that since an urgent ad interim relief has been sought in the present matter, the present application may be allowed.
4. Considering the submissions made by the learned senior counsel, as well as regard being had to the averments made in the application, the same is allowed.
5. The application stands disposed of.
CS(OS) 825/2024
6. The plaint be registered as a suit.
7. Issue summons. Learned counsel appearing on advance service accepts summons on behalf of the defendant nos.1 to 5 and waives the formal service of summons. He submits that a copy of the plaint, applications and documents have been received by the defendant nos.1 to 5. Let written statement be filed by defendant nos.1 to 5 within thirty days from today.
8. On filing of process fee, summons be issued to the defendant no.6 by all permissible modes. The summons shall indicate that written statement must be filed within thirty days from the date of receipt of summons.
9. The defendants shall also file an affidavit of admission/denial of the documents filed by the plaintiffs, failing which the written statements shall not be taken on record.
10. The plaintiffs are at liberty to file replication thereto within thirty days after filing of the written statements. The replication shall be accompanied by affidavit of admission/denial in respect of the documents filed by the defendants, failing which the replication shall not be taken on record.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 2 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5111. It is made clear that any unjustified denial of documents may lead to an order of costs against the concerned party.
12. Any party seeking inspection of documents may do so in accordance with the Delhi High Court (Original Side) Rules, 2018.
13. List before the learned Joint Registrar for completion of service, pleadings, admission/denial of documents and marking of exhibits on 13.01.2025.
14. List before Court on 12.02.2025.
I.A. 42203/2024 (by the plaintiffs under Order XXXIX Rules 1 and 2 read with Section 151 CPC)
15. This is an application filed by the plaintiffs seeking grant of ad- interim ex parte injunction.
16. Issue notice. Learned counsel for the defendant nos.1 to 5 accepts notice.
17. On plaintiffs taking steps, notice be issued to the defendant no.6 by all permissible modes.
18. The present suit has been filed by the plaintiffs seeking declaration, permanent and mandatory injunction and damages in their favour and against the defendant nos. 1 to 5 for defaming the plaintiffs.
19. The facts which are borne out from the plaint are that the plaintiff no.1, i.e., Mr. Asish Mohapatra is a Co-Founder and CEO of the plaintiff no.6 company i.e., OFB Tech Private Limited (hereinafter referred to as "OFB"), a company registered under the Companies Act, 2013.
20. It is averred in the plaint that under the guidance of the plaintiff no.1, OFB has received investments from marquee investors and became a Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 3 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 unicorn in 2021, and its valuation quickly surpassed the $5 billion mark. In the fiscal year 2021-22, its revenue sky rocketed by 400% to reach Rs 7,269 Crores up from Rs 1,757 Crores in the previous year. The company presently has a valuation of Rs. 44,000 Crores.
21. The plaintiff no.2 is also a Co-Founder of OFB. She is also one of the co-founders of Oxyzo, a unicorn company which is a Non- Banking Financial Institution ("NBFC") wholly owned by OFB.
22. The plaintiff no.3 is also one of the co-founders of OFB. He is currently the CBO ("Chief Business Officer") of OFB. The plaintiff no.4 is the Head of the Agri Division of OFB and the plaintiff no.5 is the Director, Finance at OFB.
23. It has also been averred that OFB has a current group net worth of Rs. 8,084 crores and market cap of Rs.35,000 crores. The OFB did a revenue of Rs. 15000+ crores and a Profit after Tax ("PAT") of Rs. 460+ crores in financial year (FY) 2023 and is on track to do a business of Rs. 20,000+ crores with a PAT of Rs. 700+crores in FY 24.
24. Whereas, the defendant no.1 i.e., Slowform Media Pvt. Ltd. is a private limited company. The defendant nos. 2 and 3 are the Editor-in-Chief and Editor, Investigations, respectively, of "the Morning Context", which is owned by the defendant no. 1 and is a research and media company.
25. The defendant no.2 claims to be a business journalist and founded "the Morning Context" for critical thinking professionals seeking detailed stories on startups, large businesses and economic and current affairs. The defendant no.3 is the author of the impugned defamatory news Article. The Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 4 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 defendant nos. 4 and 5 have been arrayed in the present suit being the directors of the defendant no.1.
26. The defendant no.6 is Ministry of Electronics and Information Technology (Grievance Cell) and the defendant no.7 is John Doe.
27. In a nutshell, the plaintiffs have filed the present suit being aggrieved by the publication of a news Article with the title "Of Business co-founders and management allegedly assaulted an employee, says FIR" which according to the plaintiffs contains defamatory insinuations and imputations against them by the defendant nos. 1 to 5 (hereinafter jointly referred to as the 'defendants')
28. As per the plaintiffs, the impugned Article apart from mentioning the details of the FIR, goes beyond the actual false and frivolous allegations mentioned in the FIR and passes stray remarks on the conduct and functioning of the OFB. It is their case that the remarks made against the OFB were neither verified nor a fact check had been conducted by the defendants before publishing the impugned Article which is nothing but filled with malice and vengeance against the plaintiffs.
SUBMISSIONS ON BEHALF OF THE PLAINTIFFS
29. Ms. Bansuri Swaraj, learned senior counsel appearing for the plaintiffs submits that the present controversy pertains to a defamatory Article dated 07.10.2024 published by 'the Morning Context' in relation to FIR dated 17.08.2024 registered by an erstwhile employee of the OFB namely Mr. Vaibhav Jain against the plaintiffs for simple hurt, rioting, unlawful assembly and wrongful confinement allegedly committed in the office of OFB having at least 200 employees working in a corporate office.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 5 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5130. It is her submission that the aforesaid news Article is lopsided, incorrect and acts as a mouthpiece of the complainant in the FIR as the heading of the Article and the sub headings have gone way beyond just reporting about the FIR by passing stray remarks on the company's functioning which were not verified or checked.
31. She submits that the 'the Morning Context' deliberately used certain damaging keywords/headings/sub-headings such as 'kidnapping' in the heading itself to defame OFB and their directors even though the plaintiffs have not even been charged for 'kidnapping' in the FIR.
32. She further submits that by no stretch of imagination can the impugned Article, which is 18 minutes read and approximately having 3084 words, be considered as a fair reporting of an alleged FIR. The impugned news Article has been uploaded in such a manner and has been covered at such timing when the plaintiffs are legally pursuing to launch IPO of OFB in 2025.
33. It is her submission that the Article is self-contradictory as in the garb of fair reporting of the FIR, it only vilifies the OFB which is not even an accused in the FIR. It has been claimed in the impugned Article that the defendants have not investigated all the alleged crimes detailed in the FIR but at the same time the Article talks about the complainant suffering from ruptured eardrums following the alleged assault. This fact is completely incorrect as there is no mention of any such fact either in the complaint or in the FIR.
34. She submits that the plaintiffs are public figures with net worth of crores of rupees. The impugned Article dated 07.10.2024 is being circulated Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 6 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 on WhatsApp groups, social media platforms etc. and also being covered by other media houses, which is completely destroying the image of the plaintiffs.
35. She substantiates her aforesaid submissions by submitting that on 17.08.2024, on the basis of a complaint lodged by one Mr. Vaibhav Jain related to an alleged incident dated 14.08.2024, an FIR was registered for hurt, wrongful confinement, unlawful assembly and rioting. The plaintiffs have been falsely implicated in offences such as unlawful assembly and rioting as even the ingredients required for proving the aforesaid offences of unlawful assembly and rioting are not met as the plaintiffs were present in their own office in furtherance of their employment at the time of alleged incident.
36. It is her submission that after two months of the registration of FIR, the impugned news Article was published by 'the Morning Context' on its website. According to Ms. Swaraj, the impugned Article has gone beyond the scope of the FIR by passing stray remarks on the conduct and functioning of the company. The impugned Article out of nowhere also contains description about the plaintiffs' upcoming IPO which is not in any manner related to the contents of the FIR.
37. She submits that after the publication of the impugned Article, the employees of the defendant no.1 began sharing it across multiple social media platforms with the clear intention of spreading false information.
38. It is her submission that while reporting on the FIR is one thing, the actions of the defendants show that the impugned Article goes beyond the facts of the case by making broad and unsubstantiated claims.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 7 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5139. To buttress her submissions, Ms. Swaraj has relied upon the following decisions of this Court as well as the High Court of Bombay:
(a) Nirmaljit Singh Narula vs. Yashwant Singh and
Others, 2012 SCC OnLine Del 4844;
(b) XXX vs. The India Today Group and Others, CS(OS)
560/2024 decided on 22.07.2024;
(c) Shri Venumbaka Vijaya Sai Reddy vs. Aamoda
Publications Pvt. Ltd., CS(OS) 623/2024 decided on 08.08.2024;
(d) Anjali Birla D/o Shri Om Birla vs. X Corp. and Others CS(OS) 573/2024 decided on 23.07.2024, and
(e) Khanjan Jagdishkumar Thakkar vs. Waahiid Ali Khan and Others, 2024 SCC OnLine Bom 1079.
SUBMISSIONS ON BEHALF OF THE DEFENDANTS
40. Per contra, Mr. Vivek Chib, the learned senior counsel appearing for the defendants submits that no document or evidence has been placed on record by the plaintiffs to demonstrate the loss of goodwill and reputation of the plaintiffs.
41. He submits that the alleged defamatory words or paragraphs in the impugned Article themselves have not been pleaded or identified in the plaint or IA. The suit, therefore, does not disclose any cause of action and is bereft of necessary pleadings.
42. He further submits that the Hon'ble Supreme Court in M.J. Zakharia vs. T.M. Mohammed and Others, (1990) 3 SCC 396 while referring to the decision of the High Court of Calcutta in W. Hay vs. Aswini Kumar Samanta AIR 1958 Cal 269 has held that in a libel action the ordinary Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 8 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 defamatory words must be set out in the plaint. Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or the innuendo needs to be set out and stated in clear and specific terms. In the absence of necessary averments, the plaint will be liable for rejection on the ground that it does not disclose any cause of action. He adds that in the present case the plaintiffs have not made any specific averments as to what part of the impugned Article is defamatory.
43. He further submits that the averments in the plaint have also failed to establish 'malice in law' by way of alleged defamatory imputations. In the present case, there is no allegation that the defendants have acted in dishonest belief of the truth or with reckless regard of its truth or falsity. There is no specific statement in the impugned Article which has been alleged to be per se false in the plaint.
44. It is his submission that it is a settled law that an FIR is a public document and its contents can be published as a news report. The impugned Article is nothing but an encapsulation of the contents of FIR by the author in his own words. Besides, the impugned Article has also mentioned appropriate disclaimers.
45. He submits that the heading of the impugned Article is itself borne out from the contents of FIR. The use of expression 'kidnapping' in the heading must be judged on the basis of common parlance and day-to-day meaning of the word 'kidnapped'.
46. Mr. Chib further submits that some of the portions in the impugned Article are noted in the FIR. The rest of the contents come within the ambit of fair reporting and are not defamatory in any sense. The language Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 9 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 employed in the impugned Article is protected by the Right to Freedom of Speech and Expression as provided under Article 19(1) (a) of the Constitution of India. It is also not the case of the plaintiffs that the said contents, which are allegedly beyond the FIR, are false. Hence, the plaintiffs cannot claim such statements to be defamatory.
47. He submits that the impugned Article is also protected under the three defences viz., truth, fair comment and privilege as all the aspects of the impugned Article contain true and accurate facts. He adds that for determining the standard of proof of truth, the Courts have to apply the test of 'substantially correct' as laid down in the decision of this Court in Ram Jethmalani vs. Subramanium Swamy, 2006 SCC OnLine Del 14. As the defendants have reproduced the responses of the plaintiffs as well, the impugned Article is a fair and balance reporting which provides the views of both the sides. Further, the affairs and conduct of a company are also a matter of public interest, therefore, the impugned Article is also protected on account of qualified privilege. He submits that the Indian Courts have recognized 'source protection' as a privilege available to a journalist, if the information published is of public importance1.
48. He further submits that there is no co-relation between the impugned Article and plaintiffs' plan to launch an IPO as the IPO was first announced on their website on 13.04.2022, however, the impugned Article was published on 07.10.2024 based on the FIR dated 17.08.2024. Thus, it cannot be said that the impugned Article has been published with an oblique motive of prejudicing the upcoming IPO of the plaintiffs / OFB.
1{Ref. Nishi Prem vs. Javed Akhtar and Ors., AIR 1988 Bom 222 and Javed Akhtar vs. Lana Publishing Company and Ors., AIR 1987 Bom 339}.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 10 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5149. He submits that in the present case, not a single statement in the impugned Article is made without any source or background verification of facts. He relies on the decision of the Hon'ble Supreme Court in R. Rajgopal @ R.R. Gopal & Anr. vs. State of Tamil Naddu and Ors. (1994) 6 SCC 632 to submit that it has been held that a press or media is not expected to prove that what it had written is true but merely that it acted after a reasonable verification of facts.
50. He also relies on the decision of the Hon'ble Supreme Court in Bloomberg Television Production Services India Private Limited & Ors. vs. Zee Entertainment Enterprises Limited, 2024 SCC OnLine SC 426, to contend that interim injunction at the pre-trial stage can be granted only in clearest cases and requires exceptional caution by the Courts. FINDINGS
51. I have heard the learned senior counsel for the plaintiffs, as well as, learned senior counsel for the defendants.
52. The subject matter of the present suit is only one Article dated 07.10.2024 which has been published by the defendants on a media platform viz., 'the Morning Context'.
53. The sum and substance of submissions advanced by Mr. Chib on behalf of the defendants is that - (i) the Article is protected under the three defences viz., (a) truth, (b) fair comment and (c) privilege available to the defendants; (ii) the Article is nothing but an encapsulation of the contents of FIR by the author in his own words, no misleading statement has been made and nothing extraneous has been added, which would qualify as defamatory;
(iii) not a case of the plaintiffs that the contents which are allegedly beyond Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 11 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 the FIR are false, hence, plaintiffs cannot claim such statements to be defamatory; (iv) ad interim injunction at pre-trial stage can be granted only in clearest cases and require exceptional caution by the Courts, as the right to free speech which individuals possess is in the public interest and they should be able to exercise it without impediment.
54. Before proceeding to deal the respective submissions of the parties, apt would it be to refer to the decision of this Court in Ram Jethmalani (Supra), wherein defences to an action for defamation have been noted and compartmentalized in the following terms:
"95. Traditional defences to an action for defamation have now become fairly crystallized and can be compartmentalized in 3 compartments: truth, fair comment and privilege. Truth, or justification, is a complete defence. The standard of proof of truth is not absolute but is limited to establishing that what was spoken was 'substantially correct'. Fair comment offers protection for the expression of opinions. Standard of proof is not that the Court has to agree with the opinion, but is limited to determine whether the views could honestly have been held by a fair-minded person on facts known at the time. Unlike defence of truth, defence based on fair comment can be defeated if the plaintiff proves that the defamer acted with malice. Similar is the situation where the defence is of qualified privilege. Privilege is designed to protect expression made for the public good. Protection of qualified privilege is lost if actual malice is established. In public interest, absolute privilege is a complete defence. Rationale of absolute privilege being restricted to Court proceedings or proceedings before Tribunals which have all the trappings of a Civil Court and Parliamentary proceedings is that if threat of defamation suits loom large over the heads of lawyers, litigants, witnesses, Judges and Parliamentarians it would prohibit them from speaking freely and public interest would suffer."Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 12 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51
55. As Mr. Chib has claimed protection for the Article on account of 'qualified privilege', therefore, it will have to be borne in mind that qualified privilege is designed to protect expression made in the public good. For taking a view as to whether the impugned Article would fall within the four corners of the defence of 'qualified privilege', advantageous would it be to refer to the distinction noted by the High Court of Patna between 'absolute privilege' and 'qualified privilege' in Pandey Surendra Nath Sinha vs. Bageshwari Pd. AIR 1961 Patna 164, in the following terms:
"(i) In absolute privilege, it is the occasion which is privileged and when once the nature of the occasion is shown, it follows, as a necessary inference, that every communication on that occasion is protected; in qualified privilege, the occasion is not privileged, until the defendant has shown how that occasion was used. It is not enough to have an interest or a duty in making a statement the necessity of the existence of an interest of duty in making the statement complained of, must also be shown.
(ii) In absolute privilege, the defendant gets absolute exemption from liability; in a qualified privilege, the defendant gets a conditional exemption from liability.
(iii) In absolute privilege, the defendant is exempted from liability even when there is malice on his part; in qualified privilege, the defendant is exempted from liability only when there is no malice on his part.
(iv) In absolute privilege, statements are protected in all circumstances, irrespective of the presence of good or bad motives; in qualified privilege, even after a case of qualified privilege has been established by the defendant, it may be met by the plaintiff proving in reply improper or evil motive on the part of the defendant, in which case defence of qualified privilege vanishes and the plaintiff succeeds; and Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 13 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51
(v) In absolute privilege as well as in qualified privilege, the defendant has to prove his plea of privilege, but with this difference that in absolute privilege the defence is absolute and irrefutable by plaintiff, whereas in qualified privilege the defence is not absolute but reputable by the plaintiff."
(emphasis supplied)
56. A coordinate Bench of this Court in Mahaveer Singhvi vs. Hindustan Times Limited and Others., 2024 SCC OnLine Del 4409, after referring to various decisions of the Hon'ble Supreme Court as well as of other High Courts, culled out the following principal ingredients of the civil law of defamation: -
(i) Publication of a statement (concerning the aggrieved plaintiff) exposing the plaintiff to hatred, ridicule, or contempt or which causes him to be shunned or avoided or which has a tendency to injure him in his office, profession or calling;
(ii) Harm caused to the plaintiffs' reputation and not the intention of the defendant is material; that the defendant had no intention to defame the plaintiff, is irrelevant;
(iii) The statement must be published by the defendant to a third person; and
(iv) The statement must be false. The defences available especially in the context of newspaper publications are a truthful statement, fair comment for public good and privileged statements cannot attract civil liability.
57. Now coming to the impugned Article, a perusal of the same clearly shows that it goes beyond the allegations made in the FIR. The excerpts from the impugned Article which are not part of the FIR are reproduced herein below for ready reference:
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 14 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51"However, our reporting has revealed several cracks in OfBusiness's story. We have written about the company's harsh work culture, unusual business model and how the firm may be inflating its revenue. While its valuation is like that of a tech company, our reporting has found that most of its business is not generated by its technology, and that it may be double counting its sales by allegedly selling material back and forth between its declared subsidiaries and companies run by its employees. The present allegations of assault, then, only add to the growing list of challenges the company is facing.
xxx xxx xxx According to this person, things soured between Jain and his employer in early August, after some of these buyers for whom Jain was the relationship manager were unable to pay their dues for purchases of sugar they had conducted on the platform, using credit lines they had received from OfBusiness. These OfBusiness buyers--who are traders--were unable to sell the supply they had received from OfBusiness to their own buyers and thus had fallen behind on payments, says this person, adding that Jain's father, too, was one of the buyers in debt. Jain's employers, claims this person, held him responsible for the full amount all the buyers owed OfBusiness, with penalties and interest, and demanded that he make the company whole.
xxx xxx xxx According to this person, Jain did not have the authority to either approve the lines of credit to the buyers or to approve the sales to them. Even though the buyers were from Jain's region--and one was his father--he also was not required to, or able to, guarantee their debts to OfBusiness, claims this person. OfBusiness's due diligence, credit underwriting, risk evaluation, and sales and operations teams were involved in approving and executing the transactions for which Jain was being held solely responsible, claims this person.
xxx xxx xxx Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 15 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 We sent a follow-up questionnaire to the seven on 4 October, asking specifically what "misconduct" they were alleging, what kind of investigation is ongoing, and what they say the dues to OfBusinessare from Vaibhav and his father.
xxx xxx xxx While the management do not have their own offices, which is what they mean when they say they have an open-plan, the headquarters is across two floors, and has multiple meeting rooms which have frosted glass and you can't see what is going on inside." claims this person, requesting anonymity. "There is a closed room where the finance guys sit, and they handle large amounts of cash in this room. No one can see inside this room, and cash is brought in and out of the room without others in the office getting to know.
At the OfBusiness office at Vipul Agora mall, meanwhile, "there are meeting rooms that are at a different place from the rest of the office, which are completely hidden away from public view. It is separated from the main part of the mall. You have to go through a hallway that has washrooms and a pantry to get to these meeting rooms," says this person.
xxx xxx xxx Going by the account that the person close to Jain gave us, this started as a case where OfBusiness's buyers ended up with an oversupply that they couldn't sell. Now, this is an inherent risk for a trading business like OfBusiness. It can be a collective failure in terms of planning and risk management, and it can also be an outcome entirely outside the control of the company. A company is, of course, free to pursue disciplinary action and even initiate legal proceedings against an employee in the context of a dispute, or alleged "misconduct". A company is also entitled to pursue legal avenues to collect its debts, or seek to seize other assets in their stead following legal processes. Banks and NBFCs do so all the time--notices of defaulters are posted Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 16 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 on their premises, published in newspapers, and their assets are seized and auctioned following due legal procedures. However, what Jain's FIR suggests--how OfBusiness allegedly went about collecting its debt from his father and sought to hold him responsible for the debts of his other clients--is far removed from any such legal process. The question is: can an employee be held responsible for a client's failure to pay? Now, our earlier reporting has detailed multiple examples where OfBusiness employees were held responsible for payments from clients that didn't come through. In those cases, the company would allegedly withhold the employees' full and final settlement when they tried to leave, saying they couldn't settle until the due payments were cleared.
None of this looks good for a company that is headed for an IPO next year. With its 2023-24 revenue at Rs 19,528 crore, the Rs 22 crore that it may have to write off from these failures to pay may hurt it a lot less than the fallout of these allegations. Investors will be keenly watching how things unfold in the coming days."
(emphasis supplied)
58. The title of the Article -"OfBusiness co-founders and management allegedly assaulted an employee, says FIR", gives an impression that it covers a story with regard to an incident of assault in respect of which some FIR has been registered against the co-founders and management of OFB by its employee. However, a striking feature which is noticeable upon reading of the entire impugned Article is that, though it begins with the coverage of an incident in which an employee of OFB was allegedly assaulted by its co- founders and management, that led to the registration of an FIR involving offences of voluntarily causing hurt, wrongful confinement, unlawful assembly, criminal intimidation etc., but in the midway it digresses from its Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 17 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 main focus of reporting on the FIR and goes on to make comments about the nature of business of the OFB is into, the other companies which are funding the plaintiff company, an announcement that OFB is planning to launch an IPO in second half of next year, the manipulations being done by OFB to inflate its sales by double counting its sales by allegedly selling material back and forth between its declared subsidiaries and companies run by its employees etc.
59. Then certain imputations have been made which gives an impression that large amount of cash is handled by the finance employees of OFB in an illegal and clandestine manner in the office premises of OFB. It is also stated that there are meetings rooms in the OFB's business premises which are being used for the aforesaid purpose and the same have frosted glass and are completely hidden away from the public view.
60. The Article also goes on to impute that OFB would withhold its employees' full and final settlement when they would try to leave OFB, on the pretext that their dues could not be settled until the due payment from the OFB's clients has been cleared. Then in the concluding part it alleges that 'with its 2023-24 revenue at Rs 19,528 crore, the Rs 22 crore that it may have to write off from these failures to pay may hurt it a lot less than the fallout of these allegations', which prima facie shows that the Article is espousing the cause of some disgruntled employees of OFB and is warning the OFB of adverse consequences if some recoverable amount of Rs 22 crore is not written off by it.
61. The impugned Article purported to be a fare reporting of an FIR prima facie gives an impression that it aims to vilify OFB who is not even Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 18 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 an accused in the FIR. Incidentally, there is no allegation against OFB in the FIR. In fact, a company being a juristic entity cannot be accused of the offences invoked in the FIR which are in the nature of bodily restraint or bodily injury. Even the doctrine of vicarious liability cannot be invoked to fasten any such criminal liability upon OFB qua the offences allegedly committed by its founders or employees. It is not to be forgotten that a corporate entity also has a business reputation and can sue for defamation in respect of a publication calculated to injure its reputation in the way of its business2. Therefore, the submission of Mr. Chib is misconceived that the Article is nothing but encapsulation of the contents of FIR by the author in his own words and nothing extraneous has been added which would qualify as defamatory.
62. The defendants cannot claim the protection for the Article under the defences of truth, fair comment and privilege, inasmuch as the imputations viz., 'sales inflation' and 'clandestine cash handling against OFB' have been made without disclosing the source thereof, rather anonymity of the source has been claimed. It is the submission of Mr. Chib that the Courts have recognized 'source protection' as a privilege available to a journalist, if the information published is of public importance. The law is well settled that the press does not have an absolute privilege not to disclose the source of information on the basis of which the news item has been published.3 The disclosure of source can be compelled in the interest of justice. The liability of the media and of journalists to disclose their sources of information in the 2 Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. vs. Dr. Jagmohan Mundhara and another., AIR 1985 Bom 229; Expersion Developers Private Limited vs. UP Television Network Private Limited, 2020:
DHC: 1975.3
Jai Prakash Aggarwal vs. Vishambhar Dutt Sharma and ohters, 1986 11 DRJ 121.Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 19 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51
interests of justice is itself a valuable sanction which will encourage the media to exercise with due responsibility its great powers which are capable of being abused to the detriment of the individual. The recognition of an immunity from disclosure of sources of information would enable irresponsible persons to shelter behind anonymous, or even fictitious, sources.4
63. At this stage apt would it be to refer to the decision of the High Court of Bombay in Khanjan Jagdishkumar Thakkar (supra) relied upon by Ms. Swaraj, wherein it was observed that the truth of defamatory words is a complete defence to an action of libel and slander, but a Journalist or Reporter is not expected to transgress the limits of his right of speech and expression and cannot claim protection by simply stating that the information, was provided to him by someone and it is in public interest to divulge the same, on the pretext that duty lies in giving out that information to the public. Investigative Journalism definitely does not enjoy any special protection and the umbrage of public interest definitely do not permit a publication, which would amount to lowering down the reputation of any person, in any manner particularly without justifying the publication on the basis of its truthfulness.
64. Incidentally in the impugned Article nothing is revealed on the basis of which it can be ascertained that the above noticed imputations against OFB are premised on credible and reliable sources. Thus, prima facie no case is made out that the imputations against OFB are true and based on facts. Further, public good is served only when there is integrity in the 4 John Fairfax & Sons Ltd. vs. Cojuangco ("Newspaper Rule case"), [1988] HCA 54.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 20 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51information and investigation, which does not appear to be the position in the present case as the veracity of the imputations against OFB is under cloud, therefore, the imputations and the opinion in the Article premised on such imputations cannot be said to be a fair comment, rather the manner in which the same have been reported, obliquely linking it to the OFB's IPO, prima facie creates an impression that the author is trying to embed an element of apprehension in the minds of the general public to deter them to invest in OFB's IPO scheduled next year by portraying OFB as a company involved in financial mismanagement, which gives reason to observe that the defendants have acted with malice. Furthermore, the kind of imputations made against OFB also tend to lower the business reputation and image of OFB in the market in general, and in the eyes of prospective investors of the upcoming IPO next year, in particular.
65. There is also no substance in Mr. Chib's submission that since the plaint lacks allegations that the defendants have acted in dishonest belief of the truth or reckless regard to the truth of the imputations, therefore, there is no presumption of malice in law. To be noted that in the plaint, more particularly in para 18 thereof, the plaintiffs have averred that the impugned Article is lopsided, incorrect and inaccurate as the narration of the Article acts as mouthpiece of the complainant. Thereafter, in para 19 of the plaint the plaintiffs have quoted a whole excerpt from the impugned Article, wherein the imputations pertaining to 'sales manipulation' have been made against OFB. Even in para 20 of the plaint, it has been specifically pleaded that the impugned Article has gone beyond the allegations made in the FIR and passes stray remarks on the conduct and functioning of OFB which is Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 21 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51 neither verified nor fact check has been conducted by the defendants. Even otherwise, since this court has prima facie come to the conclusion that imputations are defamatory and there is no material to suggest that the same are premised on any credible information, therefore, 'malice in law' can be presumed.
66. In the present case, the defendants cannot even claim the defence of 'qualified privilege' on the pretext that the Article has been written for the public interest. The law is well settled that journalists have the right to make fair comments over any controversy that concerns the 'public interest'. However, it is their duty to ensure that the facts asserted are accurate and truthful regardless of how defamatory they may seem. Given the consequences of such an act by a journalist, the person or organisation conducting the investigation must ensure that they are in a position to prove the facts if the same is challenged. Public interest is served only when there is integrity in the investigation.5 As noted above, the element of accuracy and truthfulness is conspicuously missing in the present case insofar as imputations against OFB are concerned.
67. The submission made by Mr Chib placing reliance on Bloomberg Television (supra) that at pre-trial stage grant of interim injunction requires exceptional caution as the individual possesses right to free speech which in the public interest they should be able to exercise without impediment, is also not sustainable in the facts and circumstances of the present case. It has to be borne in mind that the freedom of speech is not an unfettered right and 5 Rustom K. Karanjia vs. Krishnaraj M.D. Thackersey, AIR 1970 Bom 424.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 22 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51in case, the libel concerned is prima facie untrue, the ad interim injunction may be granted (Ref. Bonnard vs. Perryman6).
68. As regards Mr. Chib's submission that the impugned Article is a fair and balanced reporting as the responses of the plaintiffs were sought and reproduced in the Article, suffice it to note that the responses sought by the defendants from the plaintiffs were confined to the allegations contained in the FIR, but no response, whatsoever, was sought from the plaintiffs in respect of the imputations made against OFB. Therefore, the defendants cannot use the facade of balanced reporting to shield defamatory imputations made against OFB.
69. There is also some substance in Ms. Swaraj's submission that the defendants have deliberately used word like 'kidnapping' in the heading / sub-heading / deck of the impugned Article itself to defame the plaintiffs even though the plaintiffs have not been charged with kidnapping. The justification given by the defendants is that use of expression 'kidnapping' in the heading / sub-heading / deck must be judged on the basis of common parlance. Such justification put forth by the defendants does not stand to reason, more so, since it is discernible from the reading of the impugned Article that it has been curated with professional inputs.
70. Having regard to the above discussion, since prima facie this Court has come to the conclusion that the impugned Article cannot be protected under the defences of truth, fair comment and privilege, the decisions relied upon by the defendants do not advance their case.
6[1891] 2 Ch 269.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 23 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5171. At this juncture, apt would it be to refer to a decision of a coordinate bench of this Court in Gaurav Bhatia vs. Naveen Kumar7 wherein in the context of balancing the right of freedom of speech and expression viz-a-viz right to have dignity and reputation, it has been held as under:
"42. ...... As has been discussed in the aforementioned judgments, while the threshold of public criticism and alleged defamatory X posts/Tweets on social media platforms is much higher, but the individual dignity and honour of a person cannot be allowed to be defamed or disrepute brought to him on the ground of Right of Free Speech and Expression. A thin line of distinction exists between defamation and public criticism and an onerous task lies with the Courts to maintain this delicate balance between the competing claims and rights."
(emphasis supplied)
72. On a conspectus of the above noted factors, I am satisfied that the plaintiffs have made out a case for grant of ad interim relief. The balance of convenience also lies in favour of the plaintiffs. I am also satisfied that grave and irreparable loss and injury will be caused to the plaintiffs, if ad interim injunctive orders are not passed in their favour.
73. Under the circumstances, the defendant nos.1-5 are directed to take down / remove / restrict access / block the below mentioned URL of the impugned Article dated 07.10.2024 uploaded on their media platform viz. 'the Morning Context', which contains defamatory statements against the plaintiffs within a period of three weeks: -
72024 SCC OnLine Del 2704.Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 24 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51
https://themorningcontext.com/internet/ofbusiness-co-founders-and- management-allegedly-assaulted-an-employee-says-fir
74. The defendant nos. 1-5 are further directed to take down / remove / delete / block the posts / publications / articles, whereby, the impugned Article or any content / material containing the defamatory imputations made in the impugned Article, is shared / re-shared / circulated or issued, by them within a period of three weeks.
75. The defendant nos. 1-5 are also restrained from, in any manner, directly or indirectly, publishing, posting, communicating, circulating the impugned Article or any material containing the defamatory imputations made in the impugned Article, till further orders.
76. In the event the defendant nos.1-5 fails, to take down / remove / restrict access / block the aforementioned URL or comply with the directions as given in para 74 above, within a period of three weeks, the plaintiffs shall be at liberty to approach and request the defendant no.6 / 'Ministry of Electronics and Information and Technology', and the latter, in that eventuality, as per the 'Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021' shall ensure the removal of the said URL or compliance of the directions given in para 74 above, within a period of 36 hours of such request.
77. It is clarified that the defendant nos. 1-5, in no manner whatsoever, are restricted to fairly report about the allegations contained in the FIR.
78. Compliance of Order XXXIX Rule 3 CPC qua defendant no. 6 be made within three weeks. An affidavit of compliance may be filed within three days thereafter.
Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 25 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:5179. Needless to say, that the observations made herein are prima facie for the consideration of ad-interim relief under Order XXXIX Rules 1 & 2 CPC by the plaintiffs.
80. List before the learned Joint Registrar for completion of service and pleadings on 13.01.2025.
81. List before the Court on 12.02.2025.
VIKAS MAHAJAN, J OCTOBER 15, 2024 MK/N.S. ASWAL Signature Not Verified Digitally Signed CS(OS) 825/2024 Page 26 of 26 By:NARENDRA SINGH ASWAL Signing Date:29.10.2024 18:29:51