Bombay High Court
Lodha Developers Limited vs Krishnaraj Rao And 2 Ors And You Tube Llc ... on 4 March, 2019
Author: S.C. Gupte
Bench: S.C. Gupte
This Order is modified/corrected by Speaking to Minutes Order dated 08/03/2019
nmsl548-19.doc
sg
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.548 OF 2019
IN
SUIT (L) NO.70 OF 2019
Lodha Developers Limited ...Applicant/Plaintiff
vs
Krishnaraj Rao And 2 Ors. ...Defendants
And
YouTube LLC ...Respondent
.....
Mr. Sharan Jagtiani, a/w. Mr. Anirudh Hariani, Mr. Ameet Hariani, Mr.
Noorudin Dhilla and Mr. Zaid Wahidi, i/b. Hariani and Co,for the Applicant/
Plaintiff.
Mr. Krishnaraj Rao, for Defendant No.1 present in person.
Mr. Zal Andhyarujina, a/w. Mr. Jarin Mukesh Doshi, i/b. Malvi Ranchoddas
and Co., for Defendant Nos. 2 and 3.
Mr. Dinesh Pednekar and Mr. Changez Keswani, I/b. Economic Laws
Practice for YouTube LLC.
.....
CORAM : S.C. GUPTE, J.
DATED : 4 MARCH 2019
P.C. :
. The present suit has been filed by the Plaintiff-complainant
complaining of publication of defamatory material against the Plaintiff by
the original Defendants and seeking inter alia a perpetual injunction against
such publication. The alleged defamatory material concerns flats sold by the
Plaintiff to Defendant Nos. 2 and 3. The Defendants had inter alia claimed
in the subject publication that the Plaintiff had used defective and
impermissible building material in these flats.
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2. The Plaintiff took out a notice of motion in the suit (Notice of
Motion (L) No.152 of 2019) for preventing further publication of this
material. At the hearing of an ad-interim application in that motion, a
consent order was passed by this Court on 21 January 2019 inter alia
directing the Defendants not to upload any further videos regarding the
Plaintiff, or its group companies, or put up or write any blog on any website
or communicate the same to any newspaper or magazine.
3. It was the Plaintiff's case that after this consent order,
Defendant No.1 published and uploaded on YouTube three more videos, one
of which was in clear breach of the ad-interim order of 21 January 2019,
whilst the other two concerned Court proceedings and involved scurrilous
and offensive statements against the learned Judge, having the tendency of
lowering the majesty and dignity of the Court. A second notice of motion
was thereupon moved by the Plaintiff (Notice of Motion (L) No. 180 of
2019) seeking reliefs inter alia under Order 39 Rules 2A and 11 of the Code
of Civil Procedure against the Defendants. At the hearing of this notice of
motion, this Court, by its order dated 23 January 2019, issued a contempt
notice against Defendant No.1 returnable on 19 March 2019 and directed
YouTube to forthwith remove and take down the offending videos uploaded
on the site.
4. After this order, a third notice of motion was taken out by the
Plaintiff (Notice of Motion (L) No.243 of 2019) claiming inter alia that
contrary to the directions of the Court, Defendant No.1 had published many
more videos in breach of the injunction order passed by this Court.
Transcripts of these videos were annexed as Exhibit "C" to "J" to his affidavit
in support of the notice of motion. Certain other videos published by
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Defendant No.1 were also referred to and their transcripts were annexed as
Exhibit "K" to "Q" to the affidavits. It was submitted that these latter videos
contained the self-same scurrilous and offensive material against the learned
Judge in person and his conduct as a Judge at the hearing of the earlier
notices of motion. Further interim reliefs were sought on the basis of these
allegations.
5. At the hearing of this notice of motion, Defendant No.1, who
appeared in person, stated before the Court that his advocate's consent
recorded in the first ad-interim order passed on 21 January 2019, was not
on his instructions. He submitted that he had in fact tried to protest when
the Advocate gave consent on his behalf but that he was brushed aside.
Defendant No.1, however, stated before the Court that he would not
thenceforth, during the pendency of the original notice of motion (Notice of
Motion (L) No.152 of 2019), make any statement on his YouTube channel
either concerning the defects in the flats agreed to be sold by the Plaintiff to
Defendant No.2 or 3, or the conduct of Court proceedings so far or
hereafter. He also submitted that he would thenceforth, during the
pendency of that notice of motion, publish only orders passed by this Court
in the proceedings without offering any comment. After hearing the parties,
this Court was of the view that prima facie the material published on the
YouTube channel, and referred to in the third notice of motion, was in
breach of the original order passed by this Court on 21 January 2019, as
also the later order passed on 23 January 2019. This Court, in the premises,
directed Respondent No.4 YouTube LLC to forthwith remove and take down
the material described in Exhibits "C" to "J" and "K" to "Q" to the Plaintiff's
affidavit in support of the third notice of motion. The Court also observed
that considering the statement made by Defendant No.1, and which was
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accepted by this Court, that he would not publish any further material about
either the dispute with Lodha, or the Court proceedings conducted so far or
that would be conducted henceforth in the matter, except reporting orders
of the Court passed therein passed without offering any comment. The Court
was of the view that the hearing of the original notice of motion (Notice of
Motion (L) No.152 of 2019) should be taken up expeditiously and
Defendant No.1 should be allowed to participate in the hearing and ordered
accordingly. By a clarificatory order passed on 5 February 2019, URLs of
the videos directed to be taken off were listed out for appropriate action by
YouTube LLC.
6. In the backdrop of these facts, the present notice of motion
(fourth motion) is taken out by the Plaintiff. The notice of motion basically
claims that there have been further videos published on the net, which are
either at the instance of Defendant No.1 or in active connivance with him,
republishing or re-circulating the identified material, which was ordered to
be pulled down by this Court in its order dated 29 January 2019 and URLs
of which were specifically set out in the clarificatory order of 5 February
2019. It is also claimed that additional material has been published in
breach of the earlier orders passed by this Court, as also contrary to the
statements made by Defendant No.1, which were recorded and accepted in
the order passed on 29 January 2019.
7. Based on this material, further reliefs have been claimed against
Defendant No.1 under Order 39 Rules 2A and 11 of the Code of Civil
Procedure as also further preventive and mandatory reliefs against
Defendant No.1 as well as the Respondent - YouTube LLC inter alia
including removal and taking down of the new videos published at the URLs
mentioned in the table annexed as Exhibit "QQ" to the present notice of
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motion, being those videos, which have been republished/re-uploaded in
breach of the Court orders of 23 January 2019, 29 January 2019 and 5
February 2019, from viewership throughout the world reproduced. These
videos have been referred to in the table hereinbelow:
Sr. Video Title URL mentioned in Order URL on the URL on the Channel titled
No. dated 5 February 2019 from Channel titled "Krish the Dragon-slayer Blocked
original Channel "Krishnaraj "MirrorMirrorOnT Videos of Lodha" (now renamed
Rao" heWall "Krishnaraj Rao")
TellMeWhoAmI"
1. Aaj court mein https://youtu.be/hDgknSRkX-c - 1.https://youtu.be/vCYg4EhlK58
hamaare laude lag
gaye... And that's 2.https://youtu.be/W9LX1V115lA
why we need
audio-video
recording in courts
2. Lodha NCP: A https://youtu.be/MopLgeQIJjg - https://youtu.be/FH0wMBCi9Xo
close look at dry &
electrical, and how
they are fitted
together
3. Tomorrow, I shall https://youtu.be/kpJ01sQYgm - https://youtu.be/AlCJ7H9dOIA
go on indefinite o
fast for Audio-
Video Recording of
court proceedings
4. Day 2 of fasting https://youtu.be/vrKhKa27wK0 - https://youtu.be/Pjx8irpDZLE
homeless
5. Refuge areas of https://youtu.be/86z1ROcTM7 - https://youtu.be/9m4gkMkzp9E
Lodha NCP- No c
rescue is possible,
no safety from
smoke & fire
6. Start of Day 4: https://youtu.be/kUdmsFc50-4 - https://youtu.be/tU6rngy3zSY
Fasting Homeless
movement is
rocking �
7. Lodha apne https://youtu.be/JBcGnUeXpx4 - https://youtu.be/vSq73pvwJgU
customers ko asli
flat NAHIN dekhne
deta hai
8. Lodha NCP: Aise https://youtu.be/sav-4pYET5Y - https://youtu.be/NBAkG-W-1Bs
open spaces aapke
bhi honey chahiye
9. How Banks are https://youtu.be/2xI6Ha5-6dw https://youtu.be/rac https://youtu.be/4Xemfxf56Sg
part of Lodha scam MMBIQeGc
10. Lodha Imperia https://youtu.be/Luh3rklxT_4 - https://youtu.be/K9OSnQlPqss
Bhandup 2.5BHK
has good
architecture & build
quality
11. Litigants beware! https://youtu.be/VlIV_-0uUhs - -
WhatsApp opinions
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Sr. Video Title URL mentioned in Order URL on the URL on the Channel titled
No. dated 5 February 2019 from Channel titled "Krish the Dragon-slayer Blocked
original Channel "Krishnaraj "MirrorMirrorOnT Videos of Lodha" (now renamed
Rao" heWall "Krishnaraj Rao")
TellMeWhoAmI"
on proceedings are
a heinous crime --
Bombay HC
12. Bombay HC: https://youtu.be/BA3nPtrcqpo https://youtu.be/CG https://youtu.be/H7ah0UvHQok
Defendant has no PqfYqlX_U
right to air opinions
on Whatsapp
13. Hindi - Why I am https://youtu.be/9lJuxxVlUA4 https://youtu.be/ZL 1.https://youtu.be/vwpg5ccKnDY
doing Homeless HYOcBiwds
Fasting 2.https://youtu.be/9cbA4jznJ8Y
14. Please make https://youtu.be/DHFb8E85Zy - https://youtu.be/UcCNkXl29Ak
videos about 4
Judge's
temperamental
behaviour
15. Hindi - I would love https://youtu.be/ZAO6funVxhY https://youtu.be/4G https://youtu.be/M-1h_Z64-ys
to spend 26th Jan CF_4-IMog
in Jail. So I am
committing
contempt again
16. Hindi - 3.2K https://youtu.be/5sDSWZmPkI https://youtu.be/NJt https://youtu.be/XfUJMSYJhe8
donations ke liye M uI0dy6us
dhanyavaad
17. Focus on https://youtu.be/BqDsUCoKiLA https://youtu.be/qIh https://youtu.be/Ct9k
AUDIOVIDEO ZqQjxXxk Dga3VEw
RECORDING of
case, not Lodha
8. It is mainly submitted by learned Counsel for the Plaintiff in
support of the present ad-interim application that the offending material
referred to in the present notice of motion is of three categories. Firstly,
learned Counsel submits that the very material, which was ordered to be
pulled down has now resurfaced on other YouTube channels, one of which
belongs to Defendant No.1. Defendant No.1 has inter alia communicated to
the public in some of his own videos uploaded on the net the ways and
means of accessing this material. Learned Counsel, in this behalf, refers in
particular, to pages 237, 273, 315, 316, 319 and 329, forming part of
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Exhibit "QQ" to the affidavit in support of the notice of motion read with the
three URLs set out in prayer-clause (g). The second category of material
includes material in breach of the original ad-interim orders, including the
ad-interim order of 29 January 2019, which was passed after hearing
Defendant No.1 in person and accepting his solemn statements made before
the Court. Learned Counsel, in this behalf, refers to the videos listed in
paragraph 16 of the affidavit in support of the notice of motion He,
particularly, refers to items 9,19, 22, 24, 25, 26, 27, 28, 29 and 30, forming
part of this list with specific reference to the corresponding annexures. The
third category, according to learned Counsel, is represented by further
material, which in itself and by its very nature is scandalous and has the
tendency of lowering the majesty and dignity of this Court. Learned Counsel
in this behalf refers to Exhibit "F" (page 49 at pages 50 and 52), Exhibit "P"
(page 119) Exhibit "Z" (page 224) and Exhibit "II" (page 295 and 297) to
the affidavit in support of the notice of motion. Learned Counsel prays for
immediate pulling down of all this offending material.
9. That the identified material, which was referred to in Exhibits
"C" to "J" and "K" to "Q" of the affidavit in support of Notice of Motion (L)
No.243 of 2019 and URLs concerning which were expressly set out in the
order of 5 February 2019, cannot be republished and re-uploaded on the
net, does not admit of any doubt. There is clear reason to believe that
Defendant No.1 is either responsible for republishing or re-uploading or, at
any rate, privy to and drawing public attention to, the republished and re-
uploaded material through the three URLs set out in prayer clause (g) of this
Notice of Motion. There is no justification whatsoever for this republication.
Indeed, even Defendant No.1 does not offer any at the hearing of the Notice
of Motion. The submissions of the Defendant, made through both oral and
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written arguments, reflect on legality and propriety of ordering removal of
this material in the first place in the earlier notices of motion. That is really
a subject matter of those other notices of motion and not of the present
notice of motion. The complaint in the present notice of motion is simply on
the footing that the Court has already found this material to be prima facie
in breach of the original order passed by this Court on 21 January 2019, as
also the later order passed on 23 January 2019 and on which basis the
Court passed a detailed order on 29 January 2019 directing YouTube LLC to
forthwith remove and take down the material. The URLs concerning these
particular videos were particularized, as noted above, in the clarificatory
order of 5 February 2019. The complaint is that in spite of this order, the
material has resurfaced on other youtube channel at the instance of, or in
connivance with, Defendant No.1. That obviously cannot be permitted.
10. Coming now to the other two categories of material referred to
by learned Counsel for the Plaintiff, which is claimed to be in breach of the
orders passed by this Court on 21 January 2019 and 23 January 2019, it is
to be noted that the Court has not so far applied its mind to whether or not
the material was in fact defamatory as claimed by the Plaintiff. The order of
21 January 2019 was passed expressly on consent of parties. It was, in
other words, on a concession made inter alia by Defendant No.1 that he
would remove the material from the net. Since it is asserted by Defendant
No.1 that consent was unauthorisedly given on his behalf and as a result he
has now disengaged his Advocate and has been making submissions in
person, the matter needs to be heard on merits not just from the point of
view of assessing whether or not the material is in breach of the original
consent order of 21 January 2019 (on which the order of 23 January 2019
is based) but whether it is in fact defamatory and calls for its removal on
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that basis. As the Court indicated on the last occasion, since the main notice
of motion itself is now due to be heard shortly, the Court would not like at
this stage to go over the material to assess the prima facie merits of the
Plaintiff's case of defamation based on this material. That exercise anyway
is to be taken up shortly. The parties have either filed or are in the process
of completing filing of their detailed pleadings in this behalf, and the motion
is coming up for hearing on 20 March 2019. Defendant No.1 has raised
several issues in his submissions reflecting not only on merits of the
Plaintiff's case of defamation, but on fundamental issues of freedom of
expression and public interest. The decision on all these matters may
appropriately be deferred till that date.
11. At the same time, it needs to be asserted that no person can be
allowed to breach an order passed by the Court or an undertaking given to
the Court and at the same time pursue the matter on merits without
remedying such breach; his defence on merits is likely to be struck off and
he may not be heard. No one can be allowed to avail of due process of law
without submitting to it and honouring Court orders and undertakings given
to the Court is very much part, or rather, the essence, of submitting to such
due process.
12. In the premises, the following order is passed:-
ORDER
(i) Pending the hearing and final disposal of the Notice of Motion herein, Defendant No.1 and the Respondent YouTube LLC are directed to forthwith remove, block, take-down and/or disable links to the videos at Pg 9 of 11 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:25:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 08/03/2019 nmsl548-19.doc URLs mentioned at Exhibit 'QQ' of the affidavit dated 26 February 2019 in support of the Notice of Motion and which are for the sake of convenience set out in paragraph 7 above;
(ii) Pending the hearing and final disposal of the Notice of Motion Defendant No.1 and the Respondent YouTube LLC are directed to forthwith remove, block, take-down and/or disable links to the videos at the following URLs;
-http://www.youtube.com/channel/UCTtMsAelDWekO7XuaBKLcOQ ('MirrorMirrorOnTheWall TellmeWhoAml);
-http://www.youtube.com/channel/UCRrFMdL7BTwz505X4LJkgxg ('Just4Kicks Being Human'); and
-http://www.youtube.com/channel/UC1S51PBmAgwVtBP7vdkaHzg ('Krish the Dragon-slayer-Blocked video of Lodha' [now titled, 'Krishnaraj Rao']).
(iii) Pending the hearing and final disposal of the Notice of Motion herein, Defendant No.1 is restrained from re-publishing or re-uploading or repeating in any print or electronic media the material forming part of the videos described in Exhibit 'QQ' of the Plaintiff's affidavit dated 26 February 2019 in support of the Notice of Motion and set out in paragraph 7 above or the URLs described in clause (ii) above;
(iv) If and so long as Defendant No.1 does not take steps to comply with the present order or acts in breach thereof, he shall not be permitted to Pg 10 of 11 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:25:40 ::: This Order is modified/corrected by Speaking to Minutes Order dated 08/03/2019 nmsl548-19.doc rely on his pleadings or make any submissions in the main Notice of Motion, i.e. Notice of Motion (L) No.152 of 2019;
(v) The acts of Defendant No.1 complained of in the affidavit dated 26 February 2019 in support of the present Notice of Motion may be considered and claimed as acts of aggravated contempt for the purpose of the contempt notice issued against him 23 January 2019 and made returnable on 19 March 2019;
(vi) The present Notice of Motion shall be heard along with Notice of Motion (L) No.180 of 2019 and the contempt notice;
(vii) Notice of Motion (L) No.152 of 2019 shall be heard separately on 20 March 2019 at 03.00 p.m. ( S.C. GUPTE, J. ) Pg 11 of 11 ::: Uploaded on - 05/03/2019 ::: Downloaded on - 13/03/2019 08:25:40 :::