Bombay High Court
Bairagra Builders Private Limited And ... vs Banarasi Heritage Condominium And 4 Ors on 28 November, 2019
Author: A.K. Menon
Bench: A.K. Menon
sbw
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.1 OF 2019
IN
SUIT (L) NO.1077 OF 2019
Bairagra Builders Private Limited & Anr. .. Applicants/ Plaintiffs
Vs.
Banarasi Heritage Condominium & Ors. .. Defendants
Dr. Birendra Saraf a/w Vikhil Dhoka a/w Satchit Bhogle, Siddhant Sharma i/b.
G.M. Legal for the plaintiff.
Mr. Rohaan Cama i/b. Ms. Sapana Rachure for defendant no.1.
CORAM : A.K. MENON, J.
DATED : 28th NOVEMBER, 2019.
P.C. :
1. Called for ad-interim reliefs. At the ad-interim stage, the plaintiffs seek a temporary injunction restraining the defendants, their servants and agents from publishing, circulating, telecasting or causing to be so published any article of defamatory similar to those appearing in Exhibit BB-1 to BB-3 to the plaint or at all. Secondly, for a direction to withdraw and/or retract the statements made by the defendants in Exhibit BB-1 to BB-3 and issue an apology, corrigendum and clarification.
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2. The plaintiff no.1 is a company engaged in the construction business.
Plaintiff no.2 is a Director of plaintiff no.1. Defendant no.1 is a Condominium registered under the Maharashtra Apartment Ownership Act, 1970. Defendant nos.2, 3 and 4 are office bearers, defendant no.5 is said to be a relative of defendant no.3. The plaintiff no.1 claims to be the owners of piece and parcel of a land situate at Malad (W) upon which the suit building was constructed, apartments were sold under the provisions of the said Act along with undivided share in the common areas and facilities appurtenant to the apartments. The third parties, naturally obtained rights to occupy the flat along with undivided ownership interest proportionate to the flats in their occupation.
3. The defendant no.1 Condominium is said to have taken charge of the building in July 2014 without involving the plaintiffs' premises in the basement, apartments on the ground floor, apartment nos.101 and 102 on the 1st floor and apartment nos.502 to 504 on the 5 th floor remained unsold. The plaintiffs were inducted as members holding more than 50% shares. According to the plaintiffs they continue to be owners of the unsold premises.
4. The defendant no.3 was then believed to be carrying out certain 2/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt unauthorized additions and alterations to the approved plan without permission from the Municipal Corporation of Greater Mumbai (MCGM). In correspondence between the parties, allegations were levelled against each other. MCGM had meanwhile issued a demolition notice. As a result, defendant no.3 challenged the said notice by filing a writ petition in this Court, however, later admitted that there was unauthorized construction and applied for regularization. While that attempt at regularization continued, defendant no.1 is said to have called a Special General Body Meeting to consider the transfer of the 2nd floor apartment. Defendant no.1 contended that the property taxes are in arrears and obstructed the transaction. The plaintiff then entered into a leave and license with one Elbee Hospitality Services in relation to apartment nos.502 to 504 for operating the Lounge, Restaurant and Bar. When Elbee Hospitality Services initiated the process to procure licenses from the authorities, the defendant no.1 addressed various letters objecting to grant of license alleging that the plaintiffs were not cooperative and were always in breach of the law. It is the plaintiffs' case that the defendant no.1 persisted in thwarting the attempts of the plaintiffs to dispose / grant of leave and license in respect of the premises. Defendant no.1 is alleged to have issued a public notice dated 27 th August, 2014 accusing the plaintiffs of non-payment of the property taxes. Copy of 3/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt the public notice is annexed at Exhibit Q to the plaint.
5. The case of the plaintiffs is that the defendants constantly adopted unlawful methods and acted in a acrimonious manner thereby causing loss to the plaintiffs. Objectionable language was used including by contending that the plaintiffs' loss was a "joyous" moment for the defendants. Later in the year 2018, when the plaintiffs succeeded granting leave and license in respect of the 1 st and 5th floor apartments, defendant no.1 vide an email of 11 th July, 2018 called upon the licensee not to enter into any transaction with the plaintiffs claiming that the plaintiffs owes maintenance charges of crores of rupees apart from property taxes as a result of which water connections may be disconnected by the MCGM. By the said email, defendants allegedly recorded that the plaintiffs had attempted to let out the premises to a bar owner but the transaction was cancelled due to the intervention of MCGM, the police authorities and the excise department.
6. Dr. Saraf in support of the application submitted that recently the plaintiffs came across emails copies of which are at Exhibit BB-1 and BB-3 in which the defendants have used offensive language alleging ulterior motives to the plaintiffs describing them as "cheaters" and "fraudsters" and circulating material per se defamatory of the plaintiffs. 4/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 :::
ia-1-19(sl-1077-19)odt Dr. Saraf submits that the use of offensive language continues. He relies upon a recent e-mail of 17 th October, 2019 wherein the defendants continued their allegations against the plaintiffs. Dr. Saraf submitted that it is one thing to criticize the plaintiffs but that does not entitle the defendants to publicly label the plaintiffs as cheaters and fraudsters with the intention of causing injury to the plaintiffs which was harmful to their reputation exposing the plaintiffs to contempt and ridicule. It is submitted that the statements made in these communications were false and misleading and as a result several parties/occupants of plaintiffs properties are unwilling to continue their association with the plaintiffs and have demanded refund of their security deposits and pending payments.
7. Dr. Saraf invited my attention to Exhibit BB-1 and BB-2 in which it was pointed out that these emails were addressed to third parties who are not concerned with the property and some of them are estate agents and brokers and by publishing the offensive comments they are now seeking to interfere the plaintiffs business as well. Dr. Saraf further submitted that defendant no.1 had filed a suit in the name of "Board of Managers of the Association of Apt. Owners of Banarasi Heritage Condominium" against the plaintiffs. Having failed to secure any reliefs the defendants had commenced this campaign against the 5/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt plaintiffs with the intention of causing them harm. Dr. Saraf therefore submitted that he is entitled to ad-interim reliefs restraining the defendants from continuing to publish the defamatory material.
8. On behalf of defendant no.1, Mr. Cama sought to oppose the grant of reliefs. He submitted that the communications impugned in the suit and in the motion are not defamatory. So also the letters at Exhibit DD and EE and the letter dated 17 th October, 2019 now introduced along with an additional affidavit in support of the motion were not defamatory. He submitted that defendant nos.2 to 5 have been joined without any reason since no allegations are made against them. Defendant no.5 was not even part of the management of the Condominium. He submitted that no ad-interim reliefs are called for since the impugned e-mails related to the months July 2018 and August 2019 and the defendant should be given an opportunity to defend the motion and the suit. Mr. Cama submitted that it is not necessary to prove the allegations made in the communications and what requires to be verified later is whether the impugned statements were true. The Court ought not to grant an injunction in case the defendants had materials which justify the statements in the emails. The defendants have merely to take up the contention that evidence is available to substantiate their case and it is only at the trial that the 6/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt defendants can be called upon to prove the statements and not at an interlocutory stage. No restraint can be imposed on communications such as publication of material which are sought to be prevented in advance. He further submitted that an injunction can be granted only in case the Court concludes that there is no truth in the allegations.
9. Referring to the alleged impugned defamatory material, Mr. Cama submitted that Exhibit BB-1 was written based on actual material available with the defendant no.1. The expressions "cheat and fraud"
used by the defendant no.1 were used bonafide based on material available with the defendants. It was further contended that defendant no.1 was entitled to protect and ensure that no third party suffers at the hands of the plaintiffs and that the plaintiffs being guilty of breaches complained above ought not be permitted to take advantage of unsuspecting purchasers/licences. The fact the defendant no.1 had engaged in such communication does not make it defamatory. As far as Exhibit BB-2 was concerned, it was contended that the action in respect of the email is barred by limitation under Article 75 of the Limitation Act. There is no single allegation that the notice was defamatory. It contains statements of fact and Exhibit BB-3 only forwards a notice received from MCGM and contains no offensive material. The notice clarifies that the plaintiffs are to be treated as 7/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt defaulters. Nothing in the e-mail is defamatory. The other communications cannot be relied upon by the plaintiffs these do not find reference in the plaint. Exhibit DD and EE do not contain any false statements. If the statements are shown to be true there cannot be any defamation. As far as the letter of 17 th October, 2019 is concerned, Mr. Cama described it as a means to justify the belated attempt to apply for ad-interim reliefs. He however, submitted that without prejudice to their rights and contentions, defendant no.1 offers as an ad-interim measure to ensure that in any communications written to third parties (excluding statutory, police or other authorities) and until further orders not to use the words "cheater" or "fraud" but would only highlight the factual issues.
10. In this behalf, Mr. Cama relied upon the decisions;
1) Abdul Wahab Galadari v/s. India Express Newspapers (Bombay) Limited & Ors.1
2) Sanj Daily Lokopchar, Khamgaon & Ors. v/s. Gokulchand Govindlal Sananda2
3) Menaka & Co. & Ors. v/s. M/s. Arappor Iyakkam3 and
4) Lodha Developers Limited v/s. Krishnaraj Rao & Ors. 4
11. On merits he submitted that the defendants were entitled to justified in 1 1993 Bombay Law Reporter 48 2 2015(2) Mh. L.J. 390 3 Madras High Court- judgment dated 3rd June, 2019 4 Notice of Motion(L)no.152 of 2019 dated 26th April, 2019 (Bom.H.C.) 8/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt making the allegations of cheating against the plaintiffs that there is sufficient material on record because the plaintiffs illegally controlled the Condominium till 2014 and had not paid maintenance charges and property taxes for 13 years and the defendant no.1 was forced to maintain the building including payment of property taxes or common areas resulting in MCGM issuing the warrant of attachment in the year 2011. Several complaints were made to MCGM by the defendant no.1 yet the plaintiffs are not paid their dues resulting in MCGM disconnecting the water supply.
12. Furthermore, according to Mr. Cama the plaintiffs were causing a fire hazard by usurping the terrace. Common access to the terrace had been blocked. The basement has been illegally appropriated and it is a matter of fact that inspection carried out by the Fire Brigade has found fault with the construction. There was no open refuge area in case of emergency and the Fire Brigade's directions are yet to be complied. The plaintiffs are allegedly attempting to illegally appropriate the common terrace and sell the same as evident from an advertisement relied upon on the plaint itself and it is consequent upon the said advertisement that defendant no.1 issued the letter at Exhibit BB-1. According to Mr Cama, the defendants have made several complaints from 2014 to 2019. The plaintiff no.2 also threatened the employees 9/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt of the defendant no.1. Notices have been issued under the MRTP Act in respect of unauthorized constructions and the defendants are faced with the threat of prosecution apart from demolition on account of illegalities committed by the plaintiffs.
13. Having heard the learned counsel for the parties, I am of the view that the prima facie case for protection has been made out. Although Mr. Cama strenuously urged that it was the duty of the defendant no.1 to alert unsuspecting purchaser/prospective license of the truth, the contents of the e-mails and other communications were not defamatory because they were true, in my view, reliance placed upon the decisions in Abdul Wahab (supra) particularly the passages in paragraphs 15 and 18 to 23, paragraphs 14 to 17 in the Sanj Daily case (supra) the decision of the Madras High Court in Menaka & Co. (supra) and in particular observations in paragraph 30 as also the decision in the case of Lodha Developers (supra) are of no assistance to Mr. Cama at this stage.
14. In Abdul Wahab (supra) the issue pertained to publication of articles in a newspaper and the suit was filed against the publisher, editor, printer and author. In the case of Sanj Daily (supra) also the Court was concerned with the right of privacy, intrusion by media and the extent 10/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt to which scrutiny of public figures should be allowed. The Court had found in that case that it was required to strike a balance by segregating interests and that the right to privacy is not an absolute right, a close and microscopic examination of private life to public men is a natural consequence of holding public offices. These decisions pertain to freedom of press enshrined in Article 19(1)(a) of the Constitution of India and the Court in attempting to strike the balance by segregating such interest under Article 19(1)(a) and Article 21 regarding right of privacy could not do so at the interlocutory stage. The conclusions of the Madras High Court in Menaka & Co. (supra) was that a pre-trial injunction in the matters of defamation can be resorted only to the rarest of rare cases and only if the Court reaches a conclusion that there is no iota of truth in the allegations. The aforesaid decision would be of no assistance in the facts of the present case since the correspondence does reflect the bitter hostility between the parties and not merely factual statements pertaining to non- payment and violation of statutory provisions. The intention of causing harm to the plaintiffs business interests is evident.
15. In the case of Shree Maheshwar Hydel Power Corporation Ltd. v/s. Chitroopa Patil & Anr.5 the Court considered the fact that in England, in an action for defamation, the plaintiff would not be entitled to any 5 AIR 2004 Bom.143 11/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt interlocutory protection if the defendant raised a plea or justification at the interim stage. Whereas in India, the Courts have held that a mere plea of justification would not be enough to deny interim relief. The impugned communications in the present form certainly cannot be said to be in public interest either suffice it to say that the defendants would within their right to communicate the various issues faced, illegalities if any, in the building, the lack of compliance and the shortfalls and drawbacks. However, the communications including the one dated 17th October, 2019 addressed by defendant no.1 to Mr. Sagar Karvir in the manner framed would not be justified. The intemperate use of language in the impugned communications is clearly defamatory.
16. On behalf of the plaintiffs, it was also contended that the conduct of the defendants amounting to interference with the plaintiffs business and contractual relations with the third parties which were actionable as observed by the Division Bench in Aasia Industrial Technologies Ltd. & Ors. v/s. Ambience Space Sellers Ltd. & Ors. 6 In my view, the scope of the present suit is restricted to claiming damages on account of alleged defamation, malicious and unlawful activity, the focus being on the impugned emails which have allegedly exposed the plaintiff to ridicule and with intent to injure the plaintiffs. The plaint contains no 6 1997 The Bombay Law Reporter 614 12/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt averments to justify the submission now made across the bar, that the such conduct was intended to injure the plaintiffs business apart from the fact that such emails could affect the plaintiffs prospects of disposing/otherwise dealing with the property. The injunction sought is mainly on the basis of defamatory nature of the communications.
17. In my view, even assuming Mr. Cama is right in his contentions that defendant no.1 only seeking to portray the truth, there is no justification in the persistent use of offensive language. While Mr. Cama may be right in contending that it is not necessary for a Court to rule and hold the party to the guilty of cheating at this stage, prima facie, one has to consider whether the defendant is justified in continuing use of such language merely because there are disputes between the parties apropos misuse of the premises and non-payment of taxes. What the defendants are engaging in by the impugned communication is to effectively harm prospects of the plaintiffs disposing their premises. If the plaintiffs are guilty of non payment of taxes and have carried out other illegal alterations, it is always open for the defendant no.1 to seek and initiate appropriate action in accordance with law and I have no reason to believe that the authorities will not act upon the same. If these allegations are true, there is nothing preventing the defendant no.1 from acting within 13/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt their rights in making appropriate complaints to the authorities, but that in my view will not justify the use of language appearing in the impugned communications. As a matter of fact it is not possible nor it is desirable to prevent and restrain the defendants from addressing communications to the authorities but the impugned communications are addressed to the third party brokerage firms, real estate agents, using such language is actionable. Suffice it to say that the plaintiffs are entitled to protection against defamatory communications being published or circulated.
18. In my view, the plaintiffs have made out a prima facie case for an order restraining the defendants from publishing or circulating in any manner communications calling upon the plaintiffs cheater or fraudster or any variations thereof. Save and except for communicating defaults on the part of the plaintiffs, the defendants are liable to be restrained from using language that is from offensive language.
19. In the circumstances, I am of the view that the plaintiff is entitled to ad-interim relief in the following terms and I pass the following order;
(i) Pending the hearing and final disposal of the present Interim Application, the defendants by themselves and their servants and 14/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 ::: ia-1-19(sl-1077-19)odt agents are restrained from circulating, communicating to the public by any means, any material of defamatory nature including those similar to the communication at Exhibits BB-1 and BB-3.
(ii) It is clarified that this order shall not prevent the defendants from raising such pleas and filing such complaints which may be permissible in law in relation to the alleged irregularities committed by the plaintiffs, if any, in relation to the suit building including non- payment of statutory dues and the like. The pendency of this Suit or the Interim Application does not prevent the concerned authority from taking action in accordance with law.
(iii) List the motion as per its turn.
(iv) Rejoinder, if any, to be filed within four weeks.
(A.K.MENON, J.) wadhwa 15/15 ::: Uploaded on - 28/11/2019 ::: Downloaded on - 29/11/2019 03:52:40 :::