Delhi District Court
Sh. Pradeep Anand vs City Bank on 31 March, 2011
:1:
IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 140/10
Unique Case ID No.02403C0254522009
Sh. Pradeep Anand
S/o Sh. P.N. Anand
R/o Flat No. F-38, 10th Floor
Brahma Apartments, Sector 7
Plot No. 7, Dwarka, New Delhi. ... Plaintiff
Versus
1. City Bank
Through its Managing Director
124, Jeevan Bharti Building
Connaught Place, New Delhi
2. Sh. I.M.S Bhatia
Authorised Representative
124, Jeevan Bharti Building
Connaught Place, New Delhi. ... Defendants
SUIT FOR RECOVERY OF RS. 2,50,000/- (RUPEES
TWO LACS FIFTY THOUSAND ONLY)
DATE OF INSTITUTION :17.07.2009
DATE OF ARGUMENTS : 29.03.2011
DATE OF DECISION : 31.03..2011
JUDGMENT
1. The plaintiff has filed the present suit against the defendants for recovery of Rs. 2,50,000/- along with costs.
2. The facts that have been brought to the notice of this Court, by both the parties are as follows:
Civil Suit No.140/10 :2:Date Fact
2005-2006 The plaintiff took a credit card, 4564070100930000
from the defendant no.1.
08.07.08 With respect to the money due towards the
defendant no.1, the plaintiff and the defendant no.1 entered into a settlement, whereby the parties agreed that the plaintiff would pay Rs. 80,000/- in three installments to the defendant no.1.
08.08.08 The defendant no.1, wrote a letter to the plaintiff stating that it has received Rs. 8,000/- and the balance of Rs. 72,000/- is to be paid as per the settlement schedule.
18.11.08 The plaintiff issued a cheque("290506") of Rs.
13,200/-, dated 18.11.08 drawn on Bank of
Maharashtra, Dwarka, Delhi.
21.11.08 The aforesaid cheque issued by the plaintiff was
dishonoured by the banker of the plaintiff.
13.12.08 The defendant no.1 wrote a letter to the plaintiff
stating that out of the settlement amount of Rs. 80,000/-, it has received Rs. 33,500/- and in respect of the balance amount of Rs. 46,500/-, the plaintiff is required to give Rs. 25,000/- by cash on or before 16.12.08 and Rs. 21,500/- by cheque, dated 05.01.09. The said letter stipulated that in the event of any of the instrument, issued by the plaintiff, being returned unpaid by the banker of the plaintiff, the settlement plan shall stand null and void.
Civil Suit No.140/10 :3:16.12.08 The plaintiff paid Rs. 13,200/- to the defendant no.1 in lieu of cheque ("290506") of Rs. 13,200/-, dated 18.11.08. Also, the plaintiff paid Rs. 11,200/- by cash to the defendant no.1 and handed over a post-dated cheque ("470954") of Rs. 21,500/-
dated 05.01.09 drawn on Bank of Maharashtra, Dwarka, Delhi, in pursuance of the settlement dated 08.07.08.
23.12.08 Allegedly, the officials of the defendant no.1 visited the office of the plaintiff and defamed, insulted and threatened the plaintiff in front of his staff.
26.12.08 Allegedly, the officials of the defendant no.1 visited the office of the plaintiff and defamed, insulted and threatened the plaintiff in front of Sh. Anil Kapur and Sh. Prakash Kohli as well as the employees of the plaintiff.
12.01.09 Allegedly, the official of the defendant no.1 visited the residence of the plaintiff and defamed, insulted and threatened the plaintiff in front of Sh. Sanjay Ahuja, a friend of the plaintiff.
05.02.09 The defendant no.1, through defendant no.2, filed a complaint case, under Section 138 of the Negotiable Instruments Act, 1881 against the plaintiff with respect to the cheque("290506") of Rs. 13,200/-, dated 18.11.08 drawn on Bank of Maharashtra, Dwarka, Delhi.
07.05.09 The plaintiff received an SMS from the defendant no.1, stating that he is liable to pay Rs. 1,40,470.13.
Civil Suit No.140/10 :4:19.05.09 The plaintiff received an SMS from the defendant no.1, stating that he is liable to pay Rs. 1,40,470.13. 29.05.09 The aforesaid complaint was dismissed as withdrawn by the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi. A cost of Rs. 1,000/- was imposed on the complainant/defendant no.1, in view of the submission made by the Ld. defence counsel that the accused should be compensated for unnecessary harassment.
09.06.09 The plaintiff received an SMS from the defendant no.1 stating that he is liable to pay Rs. 1,40,470.13. 10.06.09 The cheque ("470954") of Rs. 21,500/- dated 05.01.09 drawn on Bank of Maharashtra, Dwarka, Delhi, was dishonoured by the banker of the plaintiff.
17.06.09 The parties entered into a fresh settlement, where by it was agreed that the plaintiff would pay Rs. 21,500/- as full and final settlement of his dues towards the defendant no.1. The plaintiff immediately paid Rs. 21,500/- to the defendant no.1.
18.06.09 The plaintiff received an SMS from the defendant no. 1 stating that he is liable to pay Rs. 1,20,420.13. 07.07.09 The plaintiff received an SMS from the defendant no.1 stating that he is liable to pay Rs. 1,20,420.13.
3. On the aforesaid facts, the plaintiff has claimed that he is entitled to receive Rs. 2,50,000/- from the defendants because the Civil Suit No.140/10 :5: defendants had maliciously prosecuted him by filing the complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi and because the plaintiff suffered defamation, harassment and mental torture on account of the aforesaid conduct of the defendants.
4. Upon service of summons, the defendants have contested this suit. In the joint written statement filed on behalf of the defendants, the only relevant preliminary objection taken is that defendant no. 2 is not a necessary party to the present suit. In reply on merits, the defendants have stated that they are not liable to pay any amount to the plaintiff as they have already paid Rs. 1,000/- to the plaintiff as per the Order passed by the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi. The defendants have clarified that at the time of filing of the complaint case no.2053/09, the defendant no.2 had no knowledge of the payment made by the plaintiff to the defendant no.1. The defendants have categorically denied that their conduct has resulted in defamation, malicious prosecution, mental agony, harassment or torture to the plaintiff. Finally, the defendants have stated that the account of the plaintiff was closed on 19.08.2009.
5. In the replication, the plaintiff has traversed the contents of the written statement, denied the assertions made therein and reiterated and reaffirmed the contents of the plaint.
6. On the pleadings of the parties, the following issues were framed by the Ld. Predecessor Court on 07.12.2009 :-
"1) Whether, plaintiff has been defend (sic), harass Civil Suit No.140/10 :6: or made to suffer mentally tortured agony etc and maliciously prosecuted on account of filing complaint under section 138 NI Act by the defendant/or letter dated 11.05.2009 having being issued to him by the defendant/or an account of threatening calls/uncalled for letters etc. OPP
2) If issue No. 1 is proved in affirmative to what amounts plaintiff is entitled to receive from defendant as compensation? OPP
3) What is the effect of plaintiff receiving cost of Rs.1000/- from defendant herein vide order dated 29.05.2009 passed by Ms. Anu Grover Baliga, Ld. SCJ/RC/New Delhi? OPD.
4) Relief.
7. In support of the plaintiff's case, the plaintiff examined himself as PW1, Sh. Prakash Kohli as PW2, Sh. Anil Kapoor as PW3 and Sh. Sanjay Ahuja as PW 4. During examination in chief, the plaintiff deposed substantially, in line with the plaint and tendered in evidence, the following documents:
(i) Receipt of payment dated 16.12.08 (EX.PW 1/1)
(ii) Income Tax Return of the plaintiff for the assessment year 2008-09 (EX.PW1/2)
(iii) Print Out of SMS's (EX.PW 1/3)
(iv) Letter of the defendant no.1, dated 11.05.09 (EX.PW 1/4)
(v) Notice under Negotiable Act, 1881 (EX.PW 1/5)
8. In the cross examination, the plaintiff stated that he had Civil Suit No.140/10 :7: contacted his relatives to stand as surety before the Court of Ld. MM, Dwarka. However, the plaintiff did not disclose the name of any person, who he had contacted to stand as surety. Voluntarily, the plaintiff stated that he had got prepared an FDR in the name of his wife and she was to stand as surety for him in the Court of Ld. MM, Dwarka. The plaintiff further stated that during the pendency of the complaint case, he was to travel to Bombay, Hyderabad, Bangalore etc. for business and had to cancel his visits on account of the complaint case. However, the plaintiff did not place on record or mention about any ticket/written communication to show that he was due to travel. Also, the plaintiff stated that he had received the statutory demand notice issued by the defendant bank, after the payment of Rs. 13,200/- had been made to the defendant bank on 16.12.2008. With respect to the identity of the persons, who had approached the plaintiff, the plaintiff stated that he had not seen the identity cards of the said persons. However, the plaintiff clarified that he had seen that the said persons used to carry list of debtors, cash receipt book bearing the name/ details of the Citi Bank.
9. In examination in chief, PW-2 Sh. Prakash Kohli stated he is working as an employee of the plaintiff. On 23.12.2008 and 26.12.2008, the officials of the defendant bank had visited the office of the plaintiff and defamed and insulted the plaintiff. During cross examination, PW-2 Sh. Prakash Kohli stated that he cannot explain the contents of paragraph 5 of the affidavit EX.PW 2/A as they have been written in English and denied the suggestion that he has sworn a false affidavit to support the case of the plaintiff.
10. In examination in chief, PW-3 Sh. Anil Kapoor stated that Civil Suit No.140/10 :8: he is a business associate of the plaintiff and had visited the office of the plaintiff on 26.12.2008, when the employees of the defendant bank had appeared at the office of the plaintiff and made undue demands, called the plaintiff a defaulter and declared him to be black listed in the credit bureau of banking. PW-3 Sh. Anil Kapoor also stated that on account of the conduct of the officials of the defendants, the plaintiff suffered dis-reputation in the market. During cross examination, PW-3 Sh. Anil Kapoor admitted that he had no personal knowledge whether the demand made by the employees of the defendant no.1, was undue or not. Upon being asked Court questions, PW-3 Sh. Anil Kapoor admitted that he had not ascertained the identity of the persons, who had allegedly appeared on behalf of the defendant no.1.
11. In examination in chief, PW-4 Sh. Sanjay Ahuja stated that he is a family friend of the plaintiff and had visited the house of the plaintiff on 12.1.2009, when the officials of the defendant bank had appeared at the residence of the plaintiff and made undue demands, called the plaintiff a defaulter and declared him to be black listed in the credit bureau of banking. PW-4 Sh. Sanjay Ahuja also stated that on account of the conduct of the officials of the defendants, the plaintiff suffered dis-reputation in the eyes of his relatives. During cross examination, PW-4 Sh. Sanjay Ahuja admitted that he had no personal knowledge whether the demand made by the employees of the defendant was undue or not. Also, PW-4 Sh. Sanjay Ahuja admitted that he had not ascertained the identity of the persons, who had allegedly appeared on behalf of the defendant no.1.
Civil Suit No.140/10 :9:12. After the cross examination of PW-4 Sh. Sanjay Ahuja, the plaintiff evidence was closed.
13. In support of their case, the defendants examined, DW-1 Sh. Shakti Srivastava, who deposed in line to the written statement and tendered in evidence, the following documents:
(i) Copy of Power of Attorney (EX.DW1/1) (Original seen and returned)
(ii) Copy of Statement of Account (Ex DW1/2)
14. During cross examination, DW-1 Sh. Shakti Srivastava admitted the following documents :
(i) Receipt dated 21.7.2006, EX.DW1/P1
(ii) Receipt dated 18.8.2008, EX.DW1/P2
(iii) Receipt no. 53035, EX.DW1/P3
(iv) Receipt no. 52346, EX.DW1/P4
(v) Receipt no. 56355, EX.DW1/P5
(vi) Receipt no.207 dated 16.12.2008, EX.DW1/P6
(vii) Receipt no. 208 dated 16.12.2008, EX.DW1/P7
(viii) Receipt no. 209 dated 16.12.2008, EX.DW1/P8
(ix) Receipt no. 15253 dated 17.6.2009, EX.DW1/P9
(x) Letter dated 13.12.2008, EX.DW1/P10
(xi) Letter dated 17.6.2009, EX.DW1/P11
(xii) Letter dated 8.8.2008, EX.DW1/P12
15. Further, during cross examination DW-1 Sh. Shakti Srivastava, denied that the conduct of the employees of the defendant bank had caused mental agony, torture and harassment to the plaintiff or that the defendant bank had maliciously Civil Suit No.140/10 :10: prosecuted the plaintiff. DW-1 Sh. Shakti Srivastava pointed out that on 5.2.2009, the plaintiff was liable to pay Rs. 1,38,670.13 to the defendant bank. Out of which, the amount of Rs. 41,205.83 was immediately payable by the plaintiff. With respect to letters dated 8.8.2008 and 13.12.2008, DW-1 Sh. Shakti Srivastava stated that the plaintiff had failed to abide by the settlement and as such, the settlement had become void. With respect to the letter dated 17.6.2008, DW-1 Sh. Shakti Srivastava stated that it incorporates a fresh settlement between the parties, which was duly complied by the plaintiff.
16. In examination in chief, DW-2 Sh. IMS Bhatia stated that due to inadvertence, the complaint case was filed against the plaintiff and that the plaintiff has already received Rs. 1000/- as compensation for the wrong done by the defendant bank. During cross examination, DW-2 Sh. IMS Bhatia denied that on account of the conduct of the defendant bank, the plaintiff had suffered undue harassment, defamation etc.
17. After cross examination of DW-2 Sh. IMS Bhatia, the defendant evidence was closed.
18. I had heard Ms. Komal, Ld. Advocate for the plaintiff and Ms. Megha Arora and Sh. Z.A. Siddiqui, Ld. Advocates for the defendants on 25.2.2011, 23.3.2011 and 29.3.2011. The issue wise findings in this case, are as follows:
Issue No. 119. In respect of this issue, the plaintiff's case is that the Civil Suit No.140/10 :11: conduct of the defendants has resulted in the defamation, malicious prosecution and harassment of the plaintiff. Per contra, the case of the defendants is that they have not caused defamation, malicious prosecution and harassment of the plaintiff qua the plaintiff.
20. In order to ensure clarity, the decision on this issue, it is divided into three heads:
a) Tort of Malicious Prosecution b) Tort of Defamation c) Tort of Harassment, Mental Torture etc. b) Tort of Malicious Prosecution
21. In respect of the allegation regarding tort of malicious prosecution, the Ld. Advocate for the plaintiff had submitted that defendants had no foundation for filing the complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi. In order to buttress the submission, Ld. Advocate had drawn reference to letter dated 13.12.2008, Ex. DW1/P10 and receipts, Ex. DW1/P6, Ex. DW1/P7 and Ex. DW1/P8 dated 16.12.2008 and submitted that as on 05.02.2009, the plaintiff had complied with the settlement agreed between the parties and had caused no wrong to the defendants.
22. In order to controvert the submissions made by the Ld. Advocate for the plaintiff, the Ld. Advocate for the defendants had drawn reference to the testimony of DW-1, Sh. Shakti Srivastava and account statement, Ex. DW1/2 and submitted that because the account statement, Ex. DW1/2 was showing an outstanding balance of Rs. 1,38,670.13 against the plaintiff on 05.02.2009, the defendants Civil Suit No.140/10 :12: had some foundation to file the complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi. Further, the Ld. Advocate had drawn reference to the testimony of DW-2, Sh. IMS Bhatia and submitted that the defendants did not bear any ill-will against the plaintiff, on account of bonafide error/negligence, the defendants had filed the complaint case no. 2053/09 and at the time of filing the complaint case no. 2053/09, the defendant no.2 was under the genuine belief that the plaintiff had committed an offence under Section 138 of the Negotiable Instruments Act, 1881.
23. Before adjudicating on the rival submissions made by the parties, I find it appropriate to discuss the law regarding tort of malicious prosecution, which has recently been dealt with, by the Hon'ble Supreme Court of India in West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976. In the said case, the Hon'ble Supreme Court has quoted with approval, the following observation:
"Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:- Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite or ill-will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution Civil Suit No.140/10 :13: no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
The Supreme Court has also quoted with approval the following definitions of malicious prosecution:
"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."
"A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure."
"A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause."
"MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy. The Court has also quoted with approval, the following observations:
"In malicious prosecution there are two essential elements, namely, that no probable cause existed for Civil Suit No.140/10 :14: instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause.
2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favour, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999)"
24. Upon examining the facts and circumstances of the present case, in light of the aforesaid observations, I find that by filing the complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi on 05.02.2009, the defendants had maliciously prosecuted the plaintiff. In my view, on 05.02.2009, the defendants had no probable cause to file the criminal complaint case 2053/09 regarding cheque ("290506") of Rs. 13,200/- dated 18.11.2008, drawn on Bank of Maharashtra, Delhi as the plaintiff had paid Rs. 13,200/- in lieu of the said cheque on 16.12.2008.
25. The Ld. Advocate for the defendants had submitted that the defendants had some foundation to file the complaint case no. 2053/09 because the accounts statement EX.DW1/2 was showing an outstanding balance of Rs. 1,38,670.13 against the plaintiff on 5.2.2009. In my view, the said submission is ill-founded because by 5.2.2009, the plaintiff had completely complied with the agreement Civil Suit No.140/10 :15: reflected in the letter dated 13.12.2008, Ex. DW1/P10, by paying Rs. 13,200/- and Rs. 11,800/- in cash and handing over a post-dated cheque of Rs.21,500/- on 16.12.2008 to the defendants.
26. Further, the Ld. Advocate for the defendants had attempted to draw a thin line of difference between the tort of malicious prosecution and the tort of negligence and submitted that in the facts and circumstances of the present case, the conduct of the defendants can only be said to have resulted in tort of negligence qua the plaintiff and not the tort of malicious prosecution. In order to explain the point, the Ld. Advocate had submitted that 'ill-will' is a sine qua non for the tort of malicious prosecution and in the present case, neither of the defendants had any ill will against the plaintiff. Upon careful perusal of the definitions of malicious prosecution given in the judgment of West Bengal State Electricity Board v. Dilip Kumar Ray (supra), I find that 'ill-will' is not a sine qua non for the tort of malicious prosecution and even in respect of a prosecution, filed 'without probable cause', an aggrieved party can file a suit for malicious prosecution.
27. Further, in my view, even if 'ill-will' is accepted to be a sine qua non for the tort of malicious prosecution, then in the facts and circumstances of this case, such ill-will/indirect motive can be presumed to have existed on behalf of the defendants because they had no foundation, whatsoever to file the complaint case no. 2053/09 against the plaintiff. Therefore, in my view, even if, there was negligence on the part of the defendants, it had taken the colour of malicious prosecution.
Civil Suit No.140/10 :16:28. Thus, I find that by filing complaint case no. 2053/09 in the Court of Ms. Anu Baliga, Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi, the defendants had subjected the plaintiff to malicious prosecution.
b) Tort of Defamation
29. In respect of the allegation regarding tort of defamation, the Ld. Advocate for the plaintiff had submitted that by filing the complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi, and on account of the incidents dated 23.12.2008, 26.12.2008 and 09.01.2009, the defendants defamed the plaintiff in the eyes of the general public, including its business associates, friends and family. In support of the submission, the Ld. Advocate had drawn reference to copy of the complaint and order-sheets of the complaint case no. 2053/09 and pointed out that the said complaint case had been filed by the defendant no.2, as the authorized representative of the defendant no. 1 and that the complaint case had been withdrawn by the defendants on account of production of receipt, Ex. DW1/P5 by the plaintiff. Further, the Ld. Advocate had drawn reference to testimony of the plaintiff, PW2 Sh. Prakash Kohi, PW3 Anil Kapoor and PW4 Sh. Sanjay Ahuja and submitted that their combined testimony proves that the plaintiff has decent reputation in the society and the incidents dated 23.12.2008, 26.12.2008 and 09.01.2009 had taken place, whereby the plaintiff was defamed by the employees of the defendant no. 1.
30. In order to controvert the submissions made by the Ld. Advocate for the plaintiff, the Ld. Advocate for the defendants had Civil Suit No.140/10 :17: drawn reference to the testimony of DW-2, Sh. IMS Mehta and reiterated the stand of the defendants that the defendants did not have any ill-will against the plaintiff and at the time of filing of the complaint case no. 2053/09, the defendants were under a genuine belief that the plaintiff had committed an offence under Section 138 of the Negotiable Instruments Act.
31. With respect to the incidents dated 23.12.2008, 26.12.2008 and 09.01.2009, the Ld. Advocate for the defendants had submitted that the incidents have not been pleaded in the plaint and as such, the testimony of PW2 Sh. Prakash Kohi, PW3 Anil Kapoor and PW4 Sh. Sanjay Ahuja, qua the said incidents cannot be considered by this Court. Further, the Ld. Advocate had submitted that even if this Court considers the evidence led by the plaintiff regarding the alleged incidents dated 23.12.2008, 26.12.2008 and 09.01.2009, the said evidence viz. the testimony of the plaintiff, PW2 Sh. Prakash Kohi, PW3 Anil Kapoor and PW4 Sh. Sanjay Ahuja, fails to establish that the persons who had visited the plaintiff were employees of the defendant bank.
32. After hearing the Ld. Advocates for the parties and perusing the record of the Court file, I find that the incidents dated 23.12.2008, 26.12.2008 and 09.01.2009 have not been pleaded in the plaint. Thus, the evidence led by the plaintiff regarding the said incidents, being at variance with the pleadings, cannot be looked into, by this Court. In taking this view, I find support from the judgments of the Privy Council in Siddik Mahomed Shah v Mst. Saran, AIR 1930 PC 57 1 and Kanda v Waghu, AIR 1950 PC 68.
Civil Suit No.140/10 :18:33. In Siddik Mahomed Shah's case (supra), the Privy Council had held that defendant is not entitled to lead evidence in support of a case not set up, in his written statement. Likewise in Kanda's case (supra), the Privy Council had held that it is an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made.
34. With regard to the defamation of the plaintiff, caused on account of filing of the complaint case no. 2053/09, I find that the principle of res ipsa loquitor applies. In my view, the filing of an unjustified criminal case is per se defamatory and results in loss of reputation of the person, who is arrayed as an accused. In the present case, the plaintiff has proved himself to be a businessman/trader. Therefore filing of a case under Section 138, Negotiable Instruments Act, 1881 can safely be presumed to have hampered his financial credibility in the market.1
35. The Ld. Advocate for the defendant had sought to jusitfy the conduct of the defendants by stating the complaint case was filed on account of a bona-fide error/negligence and without any ill- will against the plaintiff. In my view, the said justification offered by the defendants, is of no value as in a suit for damages based upon defamation, bona-fide error and lack of ill-will do not constitute any valid defence.
36. Thus, I find that the defendants had defamed the plaintiff 1 The concept of defamation by conduct has been enunciated by the Hon'ble High Court of Madhya Pradesh in Noor Mohammed v Mohammed Jiajdin, AIR 1992 MP 244.
Civil Suit No.140/10 :19:by arraying him as an accused in complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi.
c) Tort of Harassment, Mental Torture etc.
37. In respect of the allegation regarding tort of harassment, mental torture etc., the Ld. Advocate for the plaintiff had submitted that the defendants had caused cause harassment, mental torture etc. to the plaintiff by filing criminal case no. 2053/09, sending the letter dated 11.05.2009 and sms's dated 7.5.2009, 19.5.2009, 9.6.2009, 18.6.2009 and 7.7.2009, despite the fact that throughout the period of the transaction, the plaintiff had complied with the settlement agreements executed between the parties.
38. In order to controvert the submission, the Ld. Advocate for the defendants had submitted that the print out of sms's, placed on record by the plaintiff are inadmissible in evidence as the plaintiff has not filed an affidavit/certificate under Section 65-B of the Evidence Act, 1872. With respect to the letter dated 11.05.2009, the Ld. Advocate had submitted that it had been issued inadvertently by the defendant no.1.
39. After hearing the Ld. Advocates for the parties, I find that the gripe of the plaintiff regarding harassment on account of filing of complaint case no. 2053/09 is covered by the allegations of tort of malicious prosecution and defamation. Further, I find that the case of the plaintiff qua the harassment caused by sms's does not merit adjudication as the non-filing of affidavit/certificate under Section 65-B of the Evidence Act, 1872, has rendered the said sms's Civil Suit No.140/10 :20: inadmissible in evidence. Finally, with respect to the letter dated 11.05.2009, I find that mere issuance of a letter by defendant no. 1 cannot be said to have resulted in harassment of the plaintiff.
40. Thus, as a net result of the aforesaid discussion, I find that the conduct of the defendants had only resulted in malicious prosecution and defamation of the plaintiff.
Issue No. 241. In respect of this issue, not much assistance was rendered by the Ld. Advocates for the parties. Despite repeated requests, the Ld. Advocate for the plaintiff had not explained the basis for arriving at a figure of Rs. 2,50,000/-.
42. Per contra, the Ld. Advocate for the defendants had submitted that in the prayer clause of the plaint, the plaintiff has claimed Rs. 2,50,000/- as damages, only for defamation and not for malicious prosecution, and that no basis has been provided in the body of the plaint regarding the figure of Rs.2,50,000/-. Also, the Ld. Advocate had submitted that the claim of Rs. 2,50,000/- made by the plaintiff is excessive as he is a person of ordinary social status and yearly income of Rs. 1,10,000/- as reflected in income-tax return, Ex. PW1/2.
43. In order to adjudicate on this issue, I find it expedient to refer to the judgment in Bala Ram v Sukh Sampat Lal and Ors, AIR 1975 Rajasthan 40. In the said case, the Hon'ble High Court of Rajasthan has held that in a suit for damages based on the tort of defamation, a Court can grant a) ordinary damages and b) special Civil Suit No.140/10 :21: damages.
44. With respect to ordinary damages, the Hon'ble Court has observed that they are not required to be proved by the plaintiff and presumed to be the natural and probable cause of the defendant's act of defamation.
45. With respect to special damages, the Hon'ble Court has quoted with approval paragraphs 222, 223 and 224 of the Halsbury's Laws of England, Vol. 24, Third Edition. The said paragraphs are reproduced below:
"222. Special damage. Apart from general damages for injury to reputation, special damages in the strict sense of the term may be awarded, if expressly claimed, in respect of any material temporal injury proved to have been suffered as the natural result of the defamatory publication complained of (i), Special damage is the loss of some material temporal advantage (k), pecuniary or capable of being estimated in money (1), which flows directly and in the ordinary course of things
(m) from the act of the defendant or an act for which he is responsible.
223. Example of what is not special damage. The following are examples of what does not amount to special damage :-
Mere injury to the feelings (p); the illness of the plaintiff, illness not being a natural result of defamatory words (q); the illness of any other Civil Suit No.140/10 :22: person (r); the death of any other person (r); the mere loss of the society of acquaintances or friends, as contrasted with the material loss of hospitality (s);
the loss of membership of some society or congregation constituted for religious purposes, the membership of which does not carry with it material temporal advantages (t); any damage not pecuniary or capable of being estimated in money (u).
224. Examples of special damage. The following are examples of what amounts to special damage (a); Loss of consortium of husband (b); loss of marriage
(c); loss of material hospitality (d); loss of employment (e); loss of dealing, even though it might have turned out unprofitably (f); loss of particular customers (g); a general falling off of profits (h); and any other material loss (f), such as has already been defined (k)."
46. Upon examining the facts and circumstance of the present case in light of the aforesaid judgment, I find that in the plaint, the plaintiff has not given any break up/basis of the amount of Rs. 2,50,000/-. Only, in paragraph 6 and 7 of the plaint, the plaintiff has made some averments regarding special damages. In paragraph 6, the plaintiff has claimed that he had to pay Rs. 21,000/- to Ms. Komal Trehan, Advocate, for defending the. complaint case no. 2053/09 in the Court of Ms. Anu Grover Baliga, Ld. Sr. Civil Judge- Rent Control Judge, Dwarka, Delhi and in paragraph 7, the plaintiff has claimed that he had suffered loss of business as he was unable to Civil Suit No.140/10 :23: make his business trips outside Delhi on account of the pendency of the complaint case no. 2053/09.
47. In respect of the special damages claimed to have been suffered on account of inability to travel for business trips outside Delhi, I find that the plaintiff has failed to prove any loss as no evidence has been led by the plaintiff regarding the date, time, purpose of the said trips and the actual pecuniary loss suffered on account of failure to make such trips. In respect of the special damages of Rs. 21,000/-, alleged to have been paid to Ms. Komal Trehan, Advocate, I find that in his cross-examination, the plaintiff has admitted that he is yet to pay the said amount to Ms. Komal Trehan, Advocate. Further, I find that no receipt/memo of fees has been tendered in evidence by the plaintiff. Thus, in my view, the said claim of the plaintiff is per se not maintainable. However, a token amount of Rs. 3300/- can be given to the plaintiff as it appears to be reasonable fees for an Advocate defending a case filed under Section 138 of the Negotiable Instruments Act, 1881 qua, a cheque of Rs. 13,200/-.
48. With respect to the claim of ordinary damages, I find that as per income tax return, Ex. PW1/2, the monthly income of the plaintiff is around Rs. 9,000/-. Further, I find that on account of the conduct of the defendants, the plaintiff has suffered for a period of four months i.e. February 2009 to May 2009. Keeping in mind these two facts, I consider it appropriate to grant to the plaintiff, ordinary damages of Rs. 36,000/-.
49. Thus, as a net result of the aforesaid discussion, I find that Civil Suit No.140/10 :24: plaintiff is entitled to Rs. 39,300/- from the defendants as damages for the tort of malicious prosecution and defamation caused by the defendants.
Issue No. 350. Neither party had argued in respect of this issue. However, upon perusing the Order dated 29.05.2009, passed by the Court Ms. Anu Grover Baliga, Ld. Sr. Civil Judge-Rent Control Judge, Dwarka, Delhi, I find that the imposition of the cost of Rs. 1000/- on the defendants cannot defeat the present suit filed by the plaintiff. Further, I find that the only effect of the Order dated 29.05.2009, is that the defendants can get remission of Rs. 1000/- in the amount of Rs. 39,300/- awarded as damages to the plaintiff, in the present suit.
4. Relief
51. In view of the findings on the aforesaid issues, the suit of the plaintiff is partly decreed. It is held that the plaintiff shall only be entitled to Rs. 38,300/- (Rupees Thirty Eight Thousand Three Hundred Only) from the defendants. Also, the plaintiff shall be entitled to proportionate costs from the defendants.
52. Before parting with this judgment, it is clarified no pendente-lite and future interest has been granted to the plaintiff as no prayer has been made for grant of interest in the prayer clause of the plaint. Also, it is clarified that the plea of the defendants that the plaintiff had indulged in contributing negligence by not replying to the statutory demand notice dated 28.11.2008, did not merit any consideration as the plaintiff had already made the payment of Rs. 13,200/- on 16.12.2008 and the Negotiable Instruments Act, 1881 does Civil Suit No.140/10 :25: not make it mandatory for an accused to reply to the statutory demand notice.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the Open Court (Jay Thareja)
On 31.03.2011 Civil Judge-I, New Delhi District
New Delhi
Civil Suit No.140/10