Calcutta High Court
M/S. Karma Lakelands Pvt. Ltd vs Ravi Goel & Others on 11 December, 2009
Equivalent citations: 2010 A I H C 1229, (2010) 2 ICC 797 (2010) 1 CAL HN 191, (2010) 1 CAL HN 191
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 3048 of 2007 GA No. 247 of 2008 GA No. 248 of 2008 GA No. 249 of 2008 CS No. 198 of 2007 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION M/S. KARMA LAKELANDS PVT. LTD.
-Versus-
RAVI GOEL & OTHERS
For the Plaintiff: Mr Krishnendu Gooptu, Adv.,
Mr C.K. Saha, Adv.
For the Defendants: Mr Ranjan Bachawat, Adv.
Hearing concluded on: December 10, 2009.
BEFORE
The Hon'ble Justice
SANJIB BANERJEE
Date: December 11, 2009.
SANJIB BANERJEE, J. : -
The three applications, GA No. 247 of 2008, GA No. 248 of 2008 and GA No. 249 of 2008, are by the three defendants seeking revocation of leave granted under clause 12 of the Letters Patent or rejection of the plaint. The grounds urged are identical. The defendants claim that no part of the plaintiff's alleged cause of action has arisen within jurisdiction. In the alternative, they contend that even if a small part of the plaintiff's alleged cause of action appears to have arisen within jurisdiction, the balance of convenience demands that the suit should not be continued before this Court. The defendants claim that the plaintiff does not have any cause of action for initiating this action for libel and the plaint does not disclose any cause of action.
The other application, GA No. 3048 of 2007, is the plaintiff's interlocutory application for injunction restraining similar publication as the one complained of being made.
The first ground urged by the defendants that no part of the plaintiff's alleged cause of action has arisen within jurisdiction, does not appeal. The plaintiff has pleaded that the impugned publication was contained in newspapers which have been circulated and read within jurisdiction. This plaintiff has done slightly more than making a mere averment in such regard, though even that would have sufficed for this stage. The plaintiff has relied on a certificate that the newspapers which carried the impugned public notice are circulated in the city. Since the averments in the plaint have to be accepted in a demurer application, one has only to look to the plaint as to whether there is any statement that would authorise the Court to receive the action.
The second aspect of the defendants' plea for revocation of the leave granted under clause 12 of the Letters Patent, is an entirely different matter. The defendants say that it would be overwhelmingly inconvenient for them to contest this suit. They suggest that this is not the natural forum. They insinuate that they have been dragged to this Court to be unnecessarily harassed. Several grounds have been urged in support of their contention that the balance of convenience would require that the plaint relating to the suit be returned for the plaintiff to institute the action in Delhi which would be the natural forum.
It would be necessary to address the defendants' contention as to balance of convenience only if it is found that the plaint discloses a cause of action; for, if it does not then it would be meaningless to permit it to be carried elsewhere and a fresh round being started. The impugned publication is a public notice that appeared in the New Delhi editions of The Hindustan Times and The Economic Times newspapers on October 4, 2006 and in the New Delhi edition of The Times of India on October 5, 2006. The substance of the notice is reproduced:
"By this public notice, ... general public is hereby informed that Sh. Ashwani Khurana S/o. Sh. I.C. Khurana, R/o. 5, Green Avenue, Vasant Kunj, New Delhi is planning to sell/transfer/create third party rights in the properties lands owned by M/s. Karma Lake Land (Pvt.) Ltd., M/s Spiritual Farm (Pvt.) Ltd., M/s. Aryadev Farms (Pvt.) Ltd., M/s. Manvi Farms (Pvt.) Ltd., M/s. Fidility Farms (Pvt.) Ltd., M/s. Aashna Farms (Pvt.) Ltd., M/s. Bali Hirise (Pvt.) Ltd., M/s. Kanchenjunga Advertisement (Pvt.) Ltd., M/s. Adworld India (Pvt.) Ltd., M/s. Dior Import & Export (Pvt.) Ltd., M/s. Pease Farms (Pvt.) Ltd., M/s. Serenity Farms (Pvt.) Ltd. & M/s. Gurmat Construction (Pvt.) Ltd., the Companies in which aforesaid Mr. Ashwani Khurana and/or his family members has approx. 99% share holding located in village Naurangpur and village Nakhrola District Gurgaon, Haryana, and also lands owned by M/s. Gurmat Construction (Pvt.) Ltd. at Kishangarh/Mehrauli, M/s. Kanchenjunga Advertising (Pvt.) Ltd. at Rajokri and Mr. Ashwani Khurana at Kishangarh & Rajokri himself, through advertising in various web sites/internet/privately titling as "Karma Lake Lands for Gold Courses, Villas etc., at NH-8, Gurgaon" despite the "Status Quo" order dated 23.06.2003 passed by Hon'ble Justice S.B. Wad (Retd.), the then sole arbitrator appointed by Hon'ble Delhi High Court on 07.03.2003 in Suit No. 1641/2001 titled as "Ashwani Khurana Vs. Inder Kumar Chawla & Co." which is order still subsisting.
The public at large / the prospective buyers in particular are hereby informed that in case they enter into any arrangement/agreement/ transactions to purchase and/or deal in any manner, whatsoever with any of above lands with Mr. Ashwani Khurana individually or through their authorized representative/associates or through their above companies, will be doing so at their own risk, cost and consequences."
The notice was issued by advocates representing the defendants herein. It is not necessary to go into the propriety of the notice or the basis therefor but it may be mentioned that the plaint does not deny that the order referred to in the notice had been passed by the arbitrator named therein. The notice referred to several companies and claimed that one Ashwani Khurana and/or his family members had approximately 99 per cent share holding therein. The plaintiff is one of the companies named. The notice warned the public at large and prospective buyers of the lands owned by the companies referred to therein that in the event they entered into any arrangement or agreement or transaction to purchase or deal in any of the lands with Ashwani Khurana "individually or through their authorized representative/associates or through their above companies" they would be doing so at their risk, cost and consequences.
Paragraphs 1 and 2 of the plaint describe the parties. The third paragraph speaks of the plaintiff company's reputation and goodwill and is a eulogy on the plaintiff's achievements. The fourth paragraph speaks of the plaintiff, its board members and employees being distressed by the impugned publication and facing a flood of cancellation of deals relating to the plaintiff's lands. The plaintiff claims that its clients expressed their loss of confidence in the plaintiff following the publication. The fifth and sixth paragraphs refer to "letters of cancellation, withdrawal, dissatisfaction and disenchantment" received from the plaintiff's clients on account of the impugned publication and the plaintiff suffering serious prejudice. Some of the complaining clients' letters and reactions are detailed in the various sub-paragraphs under paragraph 6.
At paragraph 7 the plaintiff has claimed that the contents of the notice were "highly defamatory" and was detrimental to the plaintiff's interests. Paragraphs 8 and 9 speak of the three newspapers being circulated in West Bengal and in Calcutta. At paragraph 10 the plaintiff has referred to a notice issued to the defendants to tender an apology and withdraw the "defamatory notices."
The basis for the plaintiff's grievance and the innuendo has been pleaded at paragraph 11 of the plaint. Since this is the principal matter for consideration, the plaintiff's exact cause for complaint has to be seen as expressed in the plaint:
"11. The plaintiff states that by publishing the said defamatory public notices to the world at large, both within the jurisdiction and outside the jurisdiction which included, in the instant case, the members of the staff and employees of the plaintiff as well, the defendants falsely and maliciously defamed the plaintiff by stating, meaning or intending to mean:
a) That the defendants have falsely represented that the plaintiff is engaged in and/or engaging in and/or is capable of engaging in illegal and unauthorized transfer or transfers of land which the plaintiff is not otherwise authorized to do.
b) That the plaintiff have engaged in and/or engaging and/or is capable of engaging in transfers of land in violation of and despite a purported and so called status quo order dated 23rd August, 2003 allegedly operating and/or covering the plaintiff.
c) That the plaintiff has got no regard for due process of law and that inspite of various orders of Courts or of Arbitrator, is including in various nefarious and illegal land deals or transfers.
d) That the plaintiff is a habitual offender, particularly in land deals and transactions and deals with prospective buyers as well as the public at large in a most dubious manner and in fact hoodwinks the public at large and/or prospective buyers for the unlawful gain of the plaintiff. The defendant made such allegations without taking recourse to the proper procedure and/or the provisions of law available to all the Citizens, particularly in the purportedly pending proceedings that the defendants themselves have mentioned, and has chosen to make bare and bald allegations in a reckless, arrogant and most irresponsible manner without caring about the actual harms/hurts or potential harms/hurts that has in facts been caused to the plaintiff.
e) That the plaintiff's obduracy was such that the defendants had been faced with no alternative but to publish the said defamatory notices for the purposes, acts and conduct as alleged in the said defamatory public notices.
f) The plaintiff has premeditated and predetermined illegal intentions and objects which the plaintiff puts into use to lure prospective buyers and the public at large into parting with their hard earned assets which in turn unlawfully results in the plaintiff's personal gain and that the plaintiff wrongfully allows Mr. Ashwani Khurana personally to meddle and deal with the properties of the plaintiff including lands belonging to the plaintiff."
The entirety of the notice is quoted at paragraph 12. At paragraph 13 the plaintiff insists that the impugned notice was "grossly incorrect, malicious and fully manufactured story which bears, even remotely, no relation with the plaintiff, as ... the plaintiff was never ever a party to the said suit No. 1641/2001 ... or never been a party to any arbitration proceeding with or against the defendants ..." At paragraph 14 the plaintiff has criticised the contents of the impugned notice as being "outrageously malevolent, blatantly false, mala fide and mischievous in nature." At the following paragraph the concluding portion of the notice has been set out a second time. The usual allegations as to the plaintiff being brought into obloquy, contempt and ridicule find mentioned at paragraph
16. Paragraphs 17 and 18 refer to criminal proceedings launched by the plaintiff relating to the notices. Paragraph 19 repeats that the impugned notice was made to injure the plaintiff in its business and its operation. At paragraphs 20 and 21 the plaintiff has quantified the loss that it has allegedly suffered at Rs.200 crore. At paragraph 22 it has complained of the defendants' failure to compensate the plaintiff despite demand. Paragraphs 23, 24 and 25 are the formal paragraphs relating to jurisdiction and court fees.
In a suit for defamation, unless the words complained of are per se defamatory, it is for the plaintiff to assert as a fact as to how the words complained of had been used to insinuate something sinister of the plaintiff. The natural and ordinary meaning of the words may or may not make the words complained of defamatory. If the words speak for themselves, it would suffice for the plaintiff to merely quote the words. If the plaintiff is aggrieved by the suggestion carried in the words complained of, which may not be apparent from the natural and ordinary meaning of such words, it is a question of fact which has to be pleaded and pleaded with clarity. If the plaintiff ascribes indirect meanings to the words complained of which would be actionable not by reason of their natural meaning but by the special implication that they carry, particulars need to be furnished of the underlying meaning that the plaintiff attaches to the words complained of.
A perfectly civil and polite comment may have an undertone of contempt or ridicule and carry a special meaning in the context of the person commented on, unbeknown to most others. If the person commented on were to take umbrage at the comment, it would be actionable only if any secondary meaning is ascribed to the words complained of. Just as a spoken word can be complimentary or derogatory depending on the manner in which it is uttered, an ostensibly refined written comment is capable of bearing a secondary or vilifying meaning. If the written word is not per se actionable, it is for the plaintiff to assert in an action as to how it is capable of being understood by persons associated with the plaintiff. This is a question of fact that has to be averred first for the defendants in a defamation action to be required to address it before the issue is tried.
The notice impugned here mentions the plaintiff by name, but the imputation of impropriety apparent therefrom is directed against a member of the plaintiff company. There is no direct charge of any wrongdoing by the plaintiff that would make the notice actionable per se. The plaintiff's cause of action here is of defamation, not of any other form of injury. The suit is not by the member named in the notice but by the corporate entity of which he is a member. The notice does not directly imply that the plaintiff was guilty of any wrongdoing or that the plaintiff had acted in derogation of any order. The notice does not impute that the plaintiff was a party to the order that is referred to therein or of the order being binding on the plaintiff. The notice may be construed as one to scare prospective clients of the plaintiff or prospective purchasers of land sought to be sold by the plaintiff, but that may have given rise to a different form of action; not of defamation.
The natural and ordinary meaning of the words used in the notice is incapable of implying anything defamatory of the plaintiff. It is thus the innuendo pleaded at paragraph 11 of the plaint that has to be assessed. The first sub- paragraph is carelessly presented. It does not really make any sense if read with the hanging opening sentence of the paragraph which governs all the sub- paragraphs. With some imagination it can be gauged that the plaintiff claims that the defendants meant or intended to mean that the plaintiff was engaged in illegal or unauthorised transfer of land which the plaintiff was not otherwise authorised to do. The unjustified imputation of illegal conduct would be actionable. This is not the stage to adjudicate whether the words are capable of the meaning attributed thereto by the plaintiff, it would do for the plaintiff if an imputation of improper conduct is averred. If generously read, the first ground discloses a cause of action, however thin. There is, thus, no need to look into the other grounds.
On the aspect of balance of convenience, the defendants claim that the registered office of the plaintiff is in Delhi and its managing director Khurana, who controls the overwhelming majority shareholding in the company, is a resident of Delhi. The defendants point out that the power of attorney executed for instituting the suit had been made in Delhi and all the defendants are residents of Delhi, two of them being senior citizens. The defendants say that the subject matter of the notice is an order passed in arbitration proceedings being conducted in Delhi where the defendants and the said Khurana are parties. There are several other related legal proceedings pending in Delhi. They contend that since the notices were published in Delhi newspapers and the plaintiff's demand for apology and the defendants' reply thereto were also exchanged in Delhi, the allegation that a few copies of the newspapers are ordinarily circulated in this State and this city should not be considered good enough to retain this action in the present unnatural forum. The defendants suggest that the suit has been instituted here only to harass them. The defendants claim that since the order referred to in the notice impeded Khurana in his bid to dispose of lands ostensibly owned by companies under his apparent control, Khurana had caused the plaintiff to come to faraway Calcutta to launch this action with improper motive.
The first four grounds on balance of convenience found in the identical petitions filed by the defendants have been glossed over by the plaintiff and described as "immaterial and irrelevant and devoid of any substance." The plaintiff has also chosen to ignore the fact that the notice was published in Delhi newspapers and that the demand for apology and retraction had also been issued there. There is no denial by the plaintiff to the assertions made in the defendants' petitions on such score. The substance of the defendants' assertion in their petitions was that this was not the natural forum for the action.
It is quite evident that this Court has very little nexus with the plaintiff's cause of action in the suit. Territorial jurisdiction can easily be invoked in a defamation action merely by alleging publication or circulation of the defamatory matter within jurisdiction. Since the plaintiff has its principal place of business in Delhi and the notices were published in Delhi papers, it would either need the defendants' acquiescence for the action to be continued in this unnatural forum or a special case being made out by the plaintiff upon the jurisdiction being challenged on the ground of balance of convenience.
A plaintiff has a right to choose his forum. Equally, the chosen forum has to assess whether its jurisdiction had been invoked to harass or inconvenience the defendants. Ordinarily, such a charge of malafides is assessed at the trial. But when the defendants have made out the grounds and the plaintiff has ignored them as irrelevant without denying them, the Court may draw an adverse inference on the pleadings. The trial of a suit begins nowadays several years after its institution. It would be harsh on a defendant citing inconvenience and pleading harassment to be asked to suffer interlocutory proceedings and await the trial before the unrebutted grounds of inconvenience are taken up for consideration. When the forum is seemingly unnatural, it is for the plaintiff to cite and juridical or pecuniary advantage to continue the action in such forum. This plaintiff makes out no such case. Notwithstanding this action being launched by a company, it is evident that this is a part of the larger conflict between the human agency in control of the plaintiff and the defendants. And, the situs of the conflict is elsewhere.
The plaintiff says that the defendants had applied to the Supreme Court for transfer of the related criminal defamation proceedings from Calcutta. The defendants rely on the dismissal of the transfer petition by the Supreme Court on May 11, 2007. Such order has no bearing on the present case. Apart from the fact that the order of dismissal does not carry any reasons, the considerations in a petition relating to transfer of criminal proceedings and one for return of the plaint for the action to be continued in a more convenient forum are altogether different.
The plaintiff has relied on a judgment reported at AIR 1999 Cal 112 (Romi Jaiswal v. Satya Bhama Jaiswal) where it was held that the principle of forum conveniens was irrelevant in assessing an application for revocation of leave granted under clause 12 of the Letters Patent. The judgment was carried on appeal and though the appeal was disallowed, the reasons for dismissing the revocation application were altogether different. In any event, balance of convenience has always been taken into account in an application for revocation of leave under clause 12 of the Letters Patent and the Division Bench judgment reported at AIR 1964 Cal 418 (State of Punjab v. A.K. Raha (Engineers) Ltd.) and the oft-cited judgment reported at AIR 1970 Cal 394 (Rekhab Chand Jain v. Paras Das Bhartiya), to cite but a few, render the observation in the Single Bench judgment brought by the plaintiff per incurium.
On the ground of balance of convenience and the serious embarrassment and hardship that the defendants are likely to face if this action continues in this unnatural forum, the leave granted under clause 12 of the Letters Patent is revoked and the plaint is directed to be returned to the plaintiff for being carried to a more appropriate, convenient forum. The plaintiff may obtain return of the plaint upon leaving a photostat copy thereof, duly certified by advocate-on- record, for the purposes of record.
GA No. 247 of 2008, GA No. 248 of 2008 and GA No. 249 of 2008 succeed. The plaintiff's injunction application being GA No. 3048 of 2007 is dismissed, but with leave to renew the prayers therein before the appropriate forum. There will be no order as to costs.
Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)